As filed with the Securities and Exchange Commission on April 25, 2000
Registration No. 333-35054
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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WORLD AIRWAYS, INC.
(Exact name of registrant as specified in charter)
13873 Park Center Road, Suite 490
Herndon, Virginia 20171
Delaware (703) 834-9200 94-1358276
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State or other (Address, including zip code, (I.R.S. employer
jurisdiction of and telephone number, including identification number)
incorporation or area code, of registrant's
organization) principal executive offices)
CATHY SIGALAS Copies of communications to:
General Counsel and Secretary ROBERT E. OLSEN, ESQ.
World Airways, Inc. 1750 Tysons Blvd., Suite 1200
13873 Park Center Road, Suite 490 McLean, Virginia 22102
Herndon, Virginia 20171 Tel: (703) 749-1357
(703) 834-9200 Fax: (703) 714-8357
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(Name, address, including zip code, and
telephone number, including area code,
of agent for service)
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. ____
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box.__X__
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. ____
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. _____
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. _____
(continued on following page)
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Amount maximum maximum Amount of
Title of to be registered(1) offering price aggregate registration
securities to be registered per share offering price fee
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<S> <C> <C> <C> <C>
Common Stock, par value $0.001 per 2,201,351 shares $.75 (2) $1,651,013.25 $435.87
share
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Common Stock, par value $0.001 per 1,000,000 shares $2.50 (3) $2,500,000.00 $660.00
share
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Common Stock, par value $0.001 per 1,000,000 shares $2.50 (3) $2,500,000.00 $660.00
share
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Total: 4,201,351 shares $6,651,013.25 $1,755.87
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</TABLE>
(1) Subject to adjustment in accordance with Rule 416(a) and (b).
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c), based on the average of the high and low
prices reported for the Common Stock on the Nasdaq SmallCap Market on
April 14, 2000.
(3) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(g)(i).
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
EXPLANATORY NOTE
This Amendment No. 1 to the Registration Statement of World Airways,
Inc. on Form S-3, Commission file no. 333-35054, is being filed for the purpose
of correcting a typographical error to the signature portion of Part II. No
portion of this Amendment No. 1 relates to the prospectus. Accordingly, the
prospectus is omitted in reliance on Rule 472(b).
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses Of Issuance And Distribution.
The expenses in connection with the distribution of the securities
being registered are set forth in the following table (all amounts except the
registration fee and the listing fee are estimated):
SEC Registration Fee $ 1,756
Nasdaq SmallCap Market Listing Fee 7,500
Legal fees and expenses 40,000
Accounting fees and expenses 10,000
Transfer agent fees 7,500
Printing fees 7,500
Miscellaneous 744
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Total $75,000
Item 15. Indemnification of Officers and Directors.
The Registrant's Certificate of Incorporation and Bylaws include
provisions to (i) eliminate the personal liability of its directors for monetary
damages resulting from breaches of their fiduciary duty to the extent permitted
by Section 102(b)(7) of the Delaware General Corporation Law ("DGCL") and (ii)
require the Registrant to indemnify its directors and officers to the fullest
extent permitted by applicable law, including circumstances in which
indemnification is otherwise discretionary. Pursuant to Section 145 of the DGCL,
a corporation generally has the power to indemnify its present and former
directors, officers, employees and agents against expenses incurred by them in
connection with any suit to which they are or are threatened to be made, a party
by reason of their serving in such positions so long as they acted in good faith
and in a manner they reasonably believed to be in or not opposed to, the best
interests of the corporation and with respect to any criminal action, they had
no reasonable cause to believe their conduct was unlawful. The Registrant
believes that these provisions are necessary to attract and retain qualified
persons as directors and officers. These provisions do not eliminate the
directors' or officers' duty of care, and, in appropriate circumstances,
equitable remedies such as injunctive or other forms of non-monetary relief will
remain available under the DGCL. In addition, each director will continue to be
subject to liability pursuant to Section 174 of the DGCL, for breach of the
director's duty of loyalty to the Registrant, for acts or omissions not in good
faith or involving intentional misconduct, for knowing violations of law, for
acts or omissions that the director believes to be contrary to the best
interests of the Registrant or its stockholders, for any transaction from which
the director derived an improper personal benefit, for acts or omissions
involving a reckless disregard for the director's duty to the Registrant or its
stockholders when the director was aware or should have been aware of a risk of
serious injury to the Registrant or its stockholders, for acts or omission that
constitute an unexcused pattern of inattention that amounts to an abdication of
the director's duty to the Registrant or its stockholders, for improper
transactions between the director and the Registrant and for improper loans to
directors and officers. The provision also does not affect a director's
responsibilities under any other law, such as the federal securities law or
state or federal environmental laws.
The Registrant has entered into indemnity agreements with each of its
directors and executive officers that require the Registrant to indemnify such
persons against expenses, judgments, fines, settlements and other amounts
incurred (including expenses of a derivative action) in connection with any
proceeding, whether actual or threatened, to which any such person may be made a
party by reason of the fact that such person is or was a director or an
executive officer of the Registrant or any of its affiliated enterprises,
provided such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the Registrant and,
with respect to any criminal proceeding, had no reasonable cause to believe his
conduct was unlawful. The indemnification agreements also set forth certain
procedures that will apply in the event of a claim for indemnification
thereunder.
At present, there is no pending litigation or proceeding involving a
director or officer of the Registrant as to which indemnification is being
sought nor is the Registrant aware of any threatened litigation that may result
in claims for indemnification by any officer or director.
The Registrant has an insurance policy covering the officers and
directors of the Registrant with respect to certain liabilities, including
liabilities arising under the Securities Act or otherwise.
Item 16. Exhibits and Exhibit Index.
Exhibit Consecutive
No. Description Page
2.1 First Amended Joint Liquidating Plan of Reorganization of *
WorldCorp, Inc. and WorldCorp Acquisition Corp., dated as
of March 14, 2000, United States Bankruptcy Court for the
District of Delaware, Case Nos. 99-298 (MFW) and 99-2582 (MFW)
2.2 Disclosure Statement with Respect to First Amended Joint Liquidating *
Plan of Reorganization of WorldCorp, Inc. and WorldCorp
Acquisition Corp., dated as of March 14, 2000, United States
Bankruptcy Court for the District of Delaware, Case Nos. 99-298
(MFW) and 99-2582 (MFW) (Exhibit A intentionally omitted)
4.1 Amended and Restated Certificate of Incorporation and Amended *
and Restated Bylaws of World Airways, Inc. (Exhibits 3.1 and
3.2 to the Registrant's Registration Statement on Form S-1,
Commission File No. 33-95488, filed August 8, 1995)
4.2 Warrant Agreement between World Airways, Inc. and *
The Boeing Company, dated March 28, 2000
4.3 Warrant Agreement between World Airways, Inc. and International *
Lease Finance Corporation, dated August 24, 1999
5.1 Opinion of Cathy Sigalas, Esq. *
10.1 [Any agreements for the purchase of the securities] *
23.1 Consent of KPMG LLP *
23.2 Consent of Cathy Sigalas, Esq. (contained in Exhibit 5.1) *
24.1 Powers of Attorney (see Signature Page) *
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* Previously filed.
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period during which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or any decrease in volume
of securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low end or high end
of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20% change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement; provided,
however, that paragraphs (1)(i) and (1)(ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for purposes of determining liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities to be offered therein, and the
offering of such securities at that time shall be deemed to be an initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which shall remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, and controlling persons of the
Registrant pursuant to provisions described in Item 15, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer, or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer, or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Herndon, Virginia, on April 25, 2000.
WORLD AIRWAYS, INC.
By: /s/ Hollis L. Harris
Hollis L. Harris
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Hollis L. Harris, Gilberto M. Duarte,
Jr., and Cathy Sigalas, or any of them, his or her true and lawful
attorneys-in-fact and agent with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this registration statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agent or their substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated, in Herndon, Virginia, on April 25, 2000.
Signature Title
/s/ Hollis L. Harris Chairman and Chief Executive
Hollis L. Harris Officer (Principal Executive
Officer)
/s/ Cathy Sigalas, attorney-in-fact Director
Daniel J. Altobello
/s/ Cathy Sigalas, attorney-in-fact Director
A. Scott Andrews
/s/ Joel H. Cowan Director
Joel H. Cowan
/s/ Cathy Sigalas, attorney-in-fact Director
Mark M. Feldman
/s/ Cathy Sigalas, attorney-in-fact Director
Ronald R. Fogleman
_____________________________ Director
Dato' Wan Malek Ibrahim
_____________________________ Director
Kheng Yew Lim
/s/ Cathy Sigalas, attorney-in-fact Director
Gordon C. McCormick
/s/ Cathy Sigalas, attorney-in-fact Director
Russell L. Ray, Jr.
/s/ Wilbur L. Ross, Jr. Director
Wilbur L. Ross, Jr.
/s/ Cathy Sigalas, attorney-in-fact Director
Peter M. Sontag
/s/ Gilberto M. Duarte, Jr. Chief Financial Officer Principal
Gilberto M. Duarte, Jr. Financial and Accounting Officer)
