EXHIBIT 99.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
December 30, 2003, is by and between World Airways, Inc., a Delaware corporation
(the "Company") and the person signatory and listed on Annex A hereto (the
"Investor").
RECITALS
A. Simultaneously with the execution of this Agreement, the
Company will enter into registration rights agreements (the "Other Registration
Rights Agreements") identical to this Agreement with the other Investors as
signatories to such agreements (the "Other Investors" and, together with the
Investor hereunder, the "Investors").
B. The Company proposes to issue to the Investors $25,545,000
aggregate principal amount of its 8% Convertible Senior Subordinated Debentures
due 2009 (the "Initial Securities") upon the terms set forth in those certain
Purchase Agreements, each dated as of November 10, 2003, by and between the
Company and the Investors (the "Purchase Agreements"); and
C. The Initial Securities will be convertible into shares of
common stock, par value $0.001 per share, of the Company (the "Common Stock") at
the conversion price set forth in, and will be issued pursuant to, an Indenture,
dated as of December 30, 2003 (the "Indenture"), between the Company and
Wachovia Bank, National Association, as trustee (the "Trustee").
AGREEMENT
NOW, THEREFORE, in accordance with the provisions of the Purchase
Agreements, the Company agrees to provide for the benefit of (i) the Investor,
for as long as they own any Securities (as defined below) and (ii) the holders
of the Initial Securities and the Common Stock issuable upon conversion of the
Initial Securities (collectively, the "Securities") from time to time until such
time as such Securities have been sold pursuant to a Shelf Registration
Statement (as defined below) (each of the forgoing a "Holder" and collectively
the "Holders"), as follows:
1. Shelf Registration. (a) The Company shall prepare and, as
promptly as practicable after the date hereof, file with the Securities and
Exchange Commission (the "Commission") and thereafter use its best efforts to
cause to be declared effective as soon as practicable a registration statement
on Form S-3 (the "Shelf Registration Statement") relating to the offer and sale
of the Transfer Restricted Securities (as defined below) by the Holders thereof
from time to time in accordance with the methods of distribution set forth in
the Shelf Registration Statement and Rule 415 under the Securities Act of 1933,
as amended (the "Securities Act") (hereinafter, the "Shelf Registration");
provided, however, that no Holder (other than an Investor) shall be entitled to
have the Securities held by it covered by such Shelf Registration Statement
unless such Holder agrees in writing to be bound by all the provisions of this
Agreement applicable to such Holder. "Transfer Restricted Securities" means each
Security until (i) the date on which such Security has been effectively
registered under the Securities Act
and disposed of in accordance with the Shelf Registration Statement, (ii) the
date on which such Security is distributed to the public pursuant to Rule 144
under the Securities Act or (iii) such Securities shall have ceased to be
outstanding.
(b) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the prospectus
included therein (the "Prospectus") to be lawfully delivered by the Holders of
the relevant Securities, from the date of its effectiveness until the later of
(i) such time as no Holder is the "beneficial owner" within the meaning of
Section 13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), of Securities representing 10% or more of the issued and outstanding
Common Stock of the Company and (ii) such time as all of such Securities (A)
have been sold pursuant to the Shelf Registration Statement, (B) have become
eligible for resale pursuant to Rule 144(k) under the Securities Act or (C) have
ceased to be outstanding (such period being called the "Shelf Registration
Period"). The Company shall be deemed not to have used its best efforts to keep
the Shelf Registration Statement effective during the requisite period if it
voluntarily takes any action that would result in Holders of Securities covered
thereby not being able to offer and sell such Securities during that period,
unless such action is (x) required by applicable law or (y) taken by the Company
in good faith and contemplated by Section 2(b)(v) below, and the Company
thereafter complies with the requirements of Section 2(h).
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall use its best efforts to ensure that the Shelf
Registration Statement and the Prospectus and any amendment or supplement
thereto, as of the effective date of the Shelf Registration Statement, amendment
or supplement, (i) comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission and (ii) do not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
2. Registration Procedures. In connection with the Shelf
Registration contemplated by Section 1 hereof, the following provisions shall
apply:
(a) The Company shall (i) furnish to the Investor (and its
counsel), prior to the filing thereof with the Commission, a copy of the Shelf
Registration Statement and each amendment thereof and each supplement, if any,
to the prospectus included therein and, in the event that an Investor (with
respect to any Initial Securities purchased under the Purchase Agreements) is
participating in the Shelf Registration Statement, shall use reasonable efforts
to reflect in each such document, when so filed with the Commission, such
comments as such Investor reasonably may propose; and (ii) include the names of
the Holders who propose to sell Securities pursuant to the Shelf Registration
Statement as selling securityholders.
(b) The Company shall give written notice to the Investor and the
Holders of the Securities (which notice pursuant to clauses (ii)-(v) hereof
shall be accompanied by an instruction to suspend the use of the Prospectus
until the requisite changes have been made):
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(i) when the Shelf Registration Statement or any
amendment thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto has
become effective;
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the prospectus
included therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of
any notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the
Company to make changes in the Shelf Registration Statement or the
Prospectus in order that the Shelf Registration Statement or the
Prospectus does not contain an untrue statement of a material fact nor
omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made)
not misleading.
(c) The Company shall make every reasonable effort to obtain the
withdrawal at the earliest possible time, of any order suspending the
effectiveness of the Shelf Registration Statement.
(d) The Company shall furnish to each Holder of Securities
included within the coverage of the Shelf Registration, without charge, at least
one copy of the Shelf Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if the Holder so
requests in writing, all exhibits thereto (including those, if any, incorporated
by reference).
(e) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Securities included within the coverage of the Shelf
Registration, without charge, as many copies of the Prospectus (including each
preliminary prospectus) included in the Shelf Registration Statement and any
amendment or supplement thereto as such person may reasonably request. The
Company consents, subject to the provisions of this Agreement, to the use of the
Prospectus or any amendment or supplement thereto by each of the selling Holders
of the Securities in connection with the offering and sale of the Securities
covered by the Prospectus, or any amendment or supplement thereto, included in
the Shelf Registration Statement.
(f) Prior to any public offering of the Securities pursuant to the
Shelf Registration Statement, the Company shall use its best efforts to register
or qualify or cooperate with the Holders of the Securities included therein and
their respective counsel in connection with the registration or qualification of
the Securities for offer and sale under the securities or "blue sky" laws of
such states of the United States as any Holder of the Securities reasonably
requests in
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writing and do any and all other acts or things necessary or advisable to enable
the offer and sale in such jurisdictions of the Securities covered by such
Registration Statement; provided, however, that the Company shall not be
required to (i) qualify generally to do business in any jurisdiction where it is
not then so qualified or (ii) take any action which would subject it to general
service of process or to taxation in any jurisdiction where it is not then so
subject.
(g) The Company shall cooperate with the Holders of the Securities
to facilitate the timely preparation and delivery of certificates representing
the Securities to be sold pursuant to any registration statement free of any
restrictive legends and in such denominations and registered in such names as
the Holders may request a reasonable period of time prior to sales of the
Securities pursuant to the Shelf Registration Statement.
(h) Upon the occurrence of any event contemplated by paragraphs
(ii) through (v) of Section 2(b) above during the period for which the Company
is required to maintain an effective Shelf Registration Statement, the Company
shall promptly prepare and file a post-effective amendment to the Shelf
Registration Statement or an amendment or supplement to the Prospectus and any
other required document so that, as thereafter delivered to Holders or
purchasers of the Securities, the Prospectus will not contain an 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, in light of the
circumstances under which they were made, not misleading. If the Company
notifies the Investor and the Holders in accordance with paragraphs (ii) through
(v) of Section 2(b) above to suspend the use of the Prospectus until the
requisite changes to the Prospectus have been made, then the Investor and the
Holders shall suspend use of such Prospectus, and the period of effectiveness of
the Shelf Registration Statement provided for in Section 1(b) above shall be
extended by the number of days from and including the date of the giving of such
notice to and including the earlier of (i) the date when the Investor and the
Holders shall have received such amended or supplemented prospectus pursuant to
this Section 2(h) and (ii) the effective date of notice by the Company to the
Investor and Holders that the Shelf Registration Statement is effective and that
no supplement or amendment is required.
(i) Not later than the effective date of the Shelf Registration
Statement, the Company will provide CUSIP numbers for the Initial Securities and
the Common Stock registered under the Shelf Registration Statement, and provide
the Trustee with printed certificates for the Initial Securities, in a form
eligible for deposit with The Depository Trust Company.
(j) The Company will use its best efforts to comply with all rules
and regulations of the Commission to the extent and so long as they are
applicable to the Shelf Registration and will make generally available to its
security holders (or otherwise provide in accordance with Section 11(a) of the
Securities Act) an earnings statement covering at least twelve months satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder as
soon as reasonably practicable.
(k) The Company shall cause the Indenture to be qualified under
the Trust Indenture Act of 1939, as amended, (the "Trust Indenture Act") in a
timely manner, but in any case not later than the effective date of the Shelf
Registration Statement, and containing such changes, if any, as shall be
necessary for such qualification. In the event that such qualification would
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require the appointment of a new trustee under the Indenture, the Company shall
appoint a new trustee thereunder pursuant to the applicable provisions of the
Indenture.
(l) The Company may require each Holder of Securities to be sold
pursuant to the Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of the Securities as the
Company may from time to time reasonably require for inclusion in the Shelf
Registration Statement, and the Company may exclude from such registration the
Securities of any Holder that fails to furnish such information within a
reasonable time after receiving such request.
(m) The Company shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form) and take
all such other actions, if any, as any Holder shall reasonably request in order
to facilitate the disposition of the Securities pursuant to the Shelf
Registration.
(n) The Company shall (i) make reasonably available for inspection
by the Holders, any underwriter participating in any disposition pursuant to the
Shelf Registration Statement and any attorney, accountant or other agent
retained by the Holders or any such underwriter, all relevant financial and
other records, pertinent corporate documents and properties of the Company and
(ii) cause the Company's officers, directors, employees, accountants and
auditors to supply all relevant information reasonably requested by the Holders
or any such underwriter, attorney, accountant or agent in connection with the
Shelf Registration Statement, in each case, 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
Investor, together with the Other Investors, by one counsel designated by and on
behalf of the Investors as described in Section 3 hereof.
(o) The Company, if requested by Holders of a majority in
aggregate principal amount of Securities covered by this Agreement and the Other
Registration Rights Agreements covered by the Shelf Registration Statement
(provided that Holders of Common Stock issued upon the conversion of the Initial
Securities shall be deemed to be Holders of the aggregate principal amount of
Initial Securities from which such Common Stock was converted) or the managing
underwriter, if any, shall cause (i) its counsel to deliver an opinion and
updates thereof relating to the Securities in customary form addressed to such
Holders and the managing underwriters, if any, thereof (it being agreed that the
matters to be covered by such opinion shall include, without limitation, the due
incorporation and good standing of the Company and its subsidiaries; the
qualification of the Company and its subsidiaries to transact business as
foreign corporations; the due authorization, execution and delivery of the
relevant agreement of the type referred to in Section 2(m) hereof; the due
authorization, execution, authentication and issuance, and the validity and
enforceability, of the Securities; the absence of governmental approvals
required to be obtained in connection with the Shelf Registration Statement, the
offering and sale of the Securities, or any agreement of the type referred to in
Section 2(m) hereof; the compliance as to form of the Shelf Registration
Statement and any documents incorporated by reference therein and of the
Indenture with the requirements of the Securities Act and the Trust Indenture
Act, respectively; and, as of the date of the opinion, the absence from the
Shelf Registration Statement and the prospectus included therein, as then
amended or supplemented, and from any
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documents incorporated by reference therein of an untrue statement of a material
fact or the omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading (in the case
of any such documents, in the light of the circumstances existing at the time
that such documents were filed with the Commission under the Securities Act));
(ii) its officers to execute and deliver all customary documents and
certificates and updates thereof requested by any underwriters, if any, of the
Securities and (iii) its independent public accountants to provide to the
selling Holders of the applicable Securities and any underwriter therefor, if
any, a comfort letter in customary form and covering matters of the type
customarily covered in comfort letters in connection with primary underwritten
offerings, subject to receipt of appropriate documentation as contemplated, and
only if permitted, by Statement of Auditing Standards No. 72.
(p) The Company will use its best efforts to (a) if the Initial
Securities have been rated prior to the initial sale of such Initial Securities,
confirm such ratings will apply to the Securities covered by a Registration
Statement, or (b) if the Initial Securities were not previously rated, cause the
Securities covered by a Registration Statement to be rated with the appropriate
rating agencies, if so requested by Holders of a majority in aggregate principal
amount of Securities covered by this Agreement and the Other Registration Rights
Agreements covered by the Shelf Registration Statement (provided that Holders of
Common Stock issued upon the conversion of the Initial Securities shall be
deemed to be Holders of the aggregate principal amount of Initial Securities
from which such Common Stock was converted), or by the managing underwriters, if
any.
(q) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the distribution" (within
the meaning of the Conduct Rules (the "Rules") of the National Association of
Securities Dealers, Inc. ("NASD")) thereof, whether as a Holder of such
Securities or as an underwriter, a placement or sales agent or a broker or
dealer in respect thereof, or otherwise, the Company will assist such
broker-dealer in complying with the requirements of such Rules, including,
without limitation, by (i) if such Rules, including Rule 2720, shall so require,
engaging a "qualified independent underwriter" (as defined in Rule 2720) to
participate in the preparation of the Shelf Registration Statement relating to
such Securities, to exercise usual standards of due diligence in respect thereto
and, if any portion of the offering contemplated by such Registration Statement
is an underwritten offering or is made through a placement or sales agent, to
recommend the yield of such Securities, (ii) indemnifying any such qualified
independent underwriter to the extent of the indemnification of underwriters
provided in Section 5 hereof and (iii) providing such information to such
broker-dealer as may be required in order for such broker-dealer to comply with
the requirements of the Rules.
(r) The Company shall use its best efforts to take all other steps
necessary to effect the registration of the Securities covered by a Registration
Statement contemplated hereby.
3. Registration Expenses. (a) All expenses incident to the
Company's performance of and compliance with this Agreement will be borne by the
Company, regardless of whether a Registration Statement is ever filed or becomes
effective, including without limitation;
(i) all registration and filing fees and expenses;
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(ii) all fees and expenses of compliance with federal
securities and state "blue sky" or securities laws;
(iii) all expenses of printing (including printing
certificates for the Securities to be issued and printing of
Prospectuses), messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel for the
Company;
(v) all application and filing fees in connection with
listing the Securities on a national securities exchange or automated
quotation system pursuant to the requirements hereof; and
(vi) all fees and disbursements of independent certified
public accountants of the Company (including the expenses of any
special audit and comfort letters required by or incident to such
performance).
The Company will bear its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and expenses
of any person, including special experts, retained by the Company.
(b) In connection with the Shelf Registration Statement required
by this Agreement, the Company will reimburse the Investor and the Holders of
Securities covered by the Shelf Registration Statement, for their portion of the
reasonable fees and disbursements of not more than one counsel, designated,
collectively, by the Holders of a majority in principal amount of the Securities
covered by this Agreement and the Other Registration Rights Agreements that are
covered by the Shelf Registration Statement (provided that Holders of Common
Stock issued upon the conversion of the Initial Securities shall be deemed to be
Holders of the aggregate principal amount of Initial Securities from which such
Common Stock was converted) to act as counsel for the Holders in connection
therewith. Each Holder shall pay all fees and disbursements of its counsel other
than as set forth in the preceding sentence and all underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
such Holder's Securities pursuant to the Shelf Registration Statement.
4. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Holder and each person, if any, who controls such Holder within
the meaning of the Securities Act or the Exchange Act (each Holder, and such
controlling persons are referred to collectively as the "Indemnified Parties")
from and against any losses, claims, damages or liabilities, joint or several,
or any actions in respect thereof to which each Indemnified Party may become
subject under the Securities Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages, liabilities or actions arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Shelf Registration Statement or Prospectus including any document
incorporated by reference therein, or in any amendment or supplement thereto or
in any preliminary prospectus relating to the Shelf Registration, or arise out
of, or are based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse, as incurred, the Indemnified
Parties for any legal or other expenses reasonably incurred by them in
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connection with investigating or defending any such loss, claim, damage,
liability or action in respect thereof; provided, however, that (i) the Company
shall not be liable in any such case to the extent that such loss, claim, damage
or liability arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in the Shelf Registration
Statement or Prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to the Shelf Registration in reliance upon and
in conformity with written information pertaining to such Holder and furnished
to the Company by or on behalf of such Holder specifically for inclusion therein
and (ii) with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus relating to the Shelf
Registration Statement, the indemnity agreement contained in this subsection (a)
shall not inure to the benefit of any Holder (or a person controlling such
Holder) from whom the person asserting any such losses, claims, damages or
liabilities purchased the Securities concerned, to the extent that a prospectus
relating to such Securities was required to be delivered by such Holder under
the Securities Act in connection with such purchase and any such loss, claim,
damage or liability of such Holder results from the fact that there was not sent
or given to such person, at or prior to the written confirmation of the sale of
such Securities to such person, a copy of the final prospectus if the Company
had previously furnished copies thereof to such Holder; provided further,
however, that this indemnity agreement will be in addition to any liability
which the Company may otherwise have to such Indemnified Party. The Company
shall also indemnify underwriters, brokers or dealers participating in the
distribution of the Securities, if any, their officers and directors and each
person who controls such persons within the meaning of the Securities Act or the
Exchange Act to the same extent as provided above with respect to the
indemnification of the Holders of the Securities if requested by such Holders.
(b) Each Holder, severally and not jointly, will indemnify and
hold harmless the Company, its officers and directors and each person, if any,
who controls the Company within the meaning of the Securities Act or the
Exchange Act from and against any losses, claims, damages or liabilities or any
actions in respect thereof, to which the Company or any such person may become
subject under the Securities Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages, liabilities or actions arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Shelf Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to the Shelf Registration, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact necessary to make the statements therein not misleading, but in
each case only to the extent that the untrue statement or omission or alleged
untrue statement or omission was made in reliance upon and in conformity with
written information pertaining to such Holder and furnished to the Company by or
on behalf of such Holder specifically for inclusion therein; and, subject to the
limitation set forth immediately preceding this clause, shall reimburse, as
incurred, the Company for any legal or other expenses reasonably incurred by the
Company or any such person in connection with investigating or defending any
loss, claim, damage, liability or action in respect thereof. This indemnity
agreement will be in addition to any liability which such Holder may otherwise
have to the Company or any of such persons.
(c) Promptly after receipt by an indemnified party under this
Section 4 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 4,
notify the indemnifying party of the commencement thereof; but the
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omission so to notify the indemnifying party will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, also be counsel to
the indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party under this
Section 4 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement (i) includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action, 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.
(d) If the indemnification provided for in this Section 4 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above in such proportion as is appropriate to reflect the
relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relevant equitable considerations. The
relative fault of the parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Holder or such other indemnified
party, as the case may be, on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding any other provision of this Section 4(d), the Holders shall not
be required to contribute any amount in excess of the amount by which the net
proceeds received by such Holders from the sale of the Securities pursuant to
the Shelf Registration Statement exceeds the amount of damages which such
Holders have otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or 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. For purposes of this paragraph (d), each person,
if any, who controls such indemnified party within the meaning of the Securities
Act or the Exchange Act shall have the same rights to contribution as such
indemnified party and each person, if any, who controls the Company
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within the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as the Company.
(e) The agreements contained in this Section 4 shall survive the
sale of the Securities pursuant to the Shelf Registration Statement 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.
5. Additional Interest Under Certain Circumstances. If the Shelf
Registration Statement is not filed with the Commission within 60 days after the
date hereof, then on the 61st day after the date hereof, and on each date which
is 30 days after such date until such time as the Shelf Registration Statement
is filed with the Commission, the Company shall make a cash payment to the
Holders of the Initial Securities equal to $5 for each $1,000 principal amount
of the Initial Securities held. If the Shelf Registration Statement is not
declared effective by the Commission within 120 days after the date hereof, then
on the 121st day after the date hereof, the Company shall make a cash payment to
the Holders of the Initial Securities equal to $10 for each $1,000 principal
amount of the Initial Securities held. If the Shelf Registration Statement is
not declared effective by the Commission within 180 days after the date hereof,
then on the 181st day after the date hereof (or the 5th day after the date on
which such Shelf Registration Statement ceases to be effective or usable by the
Investor for any reason for any period other than any Permitted Blackout Period
(as defined below)) and on each date which is 90 days after any such date, the
Company shall make a cash payment to the Holders of the Initial Securities equal
to $15 for each $1,000 principal amount of the Initial Securities held, until
such time as the Shelf Registration Statement shall be declared effective by the
Commission or is otherwise available for use by the Holders to publicly resell
the Securities, at which time the Company's obligation to make such cash
payments shall cease. No additional interest shall be payable on the Initial
Securities due to any delay in having the Shelf Registration Statement declared
effective by the Commission.
"Permitted Blackout Period" means a period (not to be more than two in
any period of 365 days) of up to 30 days (whether consecutive or cumulative)
resulting from (x) the filing of a post-effective amendment to the Shelf
Registration Statement to incorporate annual audited financial information with
respect to the Company where such post-effective amendment is not yet effective
and needs to be declared effective to permit Holders to use the related
prospectus or (y) other material events, with respect to the Company that would
need to be described in such Shelf Registration Statement or the related
prospectus and, in the case of clause (y), the Company is proceeding promptly
and in good faith to amend or supplement the Shelf Registration Statement and
related prospectus to describe such events as required by paragraph 2(h) hereof.
6. Rules 144 and 144A. The Company shall use its best efforts to
file the reports required to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time the Company is not required
to file such reports, it will, upon the request of any Holder, make publicly
available other information so long as necessary to permit sales of their
securities pursuant to Rules 144 and 144A. The Company covenants that it will
take such further action as any Holder may reasonably request, all to the extent
required from time to time to enable such Holder to sell Transfer Restricted
Securities without registration under the Securities
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Act within the limitation of the exemptions provided by Rules 144 and 144A
(including the requirements of Rule 144A(d)(4)). The Company will provide a copy
of this Section 6 of this Agreement to prospective purchasers of Securities
identified to the Company by the Investor upon request. Upon the request of any
Holder, the Company shall deliver to such Holder a written statement as to
whether it has complied with such requirements. Notwithstanding the foregoing,
nothing in this Section 6 shall be deemed to require the Company to register any
of its securities pursuant to the Exchange Act.
7. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by the Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering ("Managing Underwriters") will be selected by
the Holders of a majority in aggregate principal amount of such Transfer
Restricted Securities, covered by this Agreement and the Other Registration
Rights Agreements, to be included in such offering (provided that Holders of
Common Stock issued upon the conversion of the Initial Securities shall be
deemed to be Holders of the aggregate principal amount of Initial Securities
from which such Common Stock was converted).
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the persons entitled hereunder to approve such arrangements and (ii) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
8. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any failure
by the Company to comply with its obligations under Section 1 hereof may result
in material irreparable injury to the Investor or the Holders for which there is
no adequate remedy at law, that it will not be possible to measure damages for
such injuries precisely and that, in the event of any such failure, the Investor
or any Holder may obtain such relief as may be required to specifically enforce
the Company's obligations under Sections 1 hereof. The Company further agrees to
waive the defense in any action for specific performance that a remedy at law
would be adequate.
(b) No Inconsistent Agreements. The Company will not on or after
the date of this Agreement enter into any agreement with respect to its
securities 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 securities
under any agreement in effect on the date hereof. Except as disclosed on
Schedule 8(b) hereof, no person other than the Holders is entitled to include
any securities in the Shelf Registration Statement.
(c) Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, except by the Company and the
written consent of (i) the Holders of a majority in principal amount of the
Securities covered by this Agreement and the Other
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Registration Rights Agreements, taken as a whole, affected by such amendment,
modification, supplement, waiver or consents (provided that Holders of Common
Stock issued upon the conversion of the Initial Securities shall be deemed to be
Holders of the aggregate principal amount of Initial Securities from which such
Common Stock was converted) and (ii) a minimum of two Holders covered by this
Agreement and the Other Registration Rights Agreements that are not "affiliates"
of each other within the meaning of the Securities Act; provided, further, that
any amendment, modification, supplement, waiver or consent that affects any
Holder or Holders under this Agreement or the Other Registration Rights
Agreements in a manner different than all other Holders shall require the
written consent of such affected Holder. Without the consent of the Investor
together with all Other Investors under the Purchase Agreements, then holding
Initial Securities, however, no modification may change the provisions relating
to the payment of additional interest pursuant to Section 5 hereof.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current
address given by such Holder to the Company.
(2) if to the Investor, at the address provided for the
Investor on Annex A hereto or at the most current address given by the
Investor to the Company if another address is so given;
with a copy to:
Xxxxxx & Xxxxxxx LLP
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
(3) if to the Company, at its address as follows:
World Airways, Inc.
The HLH Building
000 Xxxxx Xxxxx
Xxxxxxxxx Xxxx, Xxxxxxx 00000
Attention: General Counsel
with a copy to:
Powell, Goldstein, Xxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the
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mail, postage prepaid, if mailed; when receipt is acknowledged by recipient's
facsimile machine operator, if sent by facsimile transmission; and on the next
business day, if sent by overnight air courier guaranteeing next day delivery.
(e) Third Party Beneficiaries. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Investor, on the other hand, and shall have the right to enforce
such agreements directly to the extent they may deem such enforcement necessary
or advisable to protect their rights or the rights of Holders hereunder. Each
Holder, by its acquisition of Securities, shall be deemed to have agreed to the
provisions of Section 4(b) hereof.
(f) Successors and Assigns. This Agreement shall be binding upon
the Company and its successors and assigns.
(g) Counterparts; Facsimile. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, and
signature pages may be delivered by facsimile, 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 agreement.
(h) Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
By the execution and delivery of this Agreement, the Company submits to
the nonexclusive jurisdiction of any federal or state court in the State of New
York.
(j) Severability. If any provision of this Agreement is held by a
court of competent jurisdiction to be unenforceable under applicable law, such
provision shall be replaced with a provision that accomplishes, to the extent
possible, the original business purpose of such provision in a valid and
enforceable manner, and the balance of the Agreement shall be interpreted as if
such provision were so modified and shall be enforceable in accordance with its
terms.
(k) Securities Held by the Company. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
is required hereunder, Securities held by the Company or its affiliates (other
than subsequent Holders of Securities if such subsequent Holders are deemed to
be affiliates solely by reason of their holdings of such Securities) shall not
be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date above first written.
THE COMPANY: WORLD AIRWAYS, INC.
By: ____________________________________
Name:
Title:
[INVESTOR]
By: ____________________________________
Name:
Title:
