Exhibit 10.12
THE SECURITIES REPRESENTED BY THIS
INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. THE
SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED
OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL, IN A
FORM REASONABLY ACCEPTABLE TO THE ISSUER OF SUCH SECURITIES
(THE “COMPANY”), THAT REGISTRATION IS NOT REQUIRED
UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS OR UNLESS SOLD
PURSUANT TO RULE 144 UNDER SAID ACT.
THE TRANSFER OF THE SECURITIES
REPRESENTED BY THIS INSTRUMENT IS SUBJECT TO THE CONDITIONS
SPECIFIED IN THE WARRANT AGREEMENT, DATED AS OF NOVEMBER 22,
2005, AMONG THE COMPANY AND THE OTHER PARTIES REFERRED TO THEREIN,
AS AMENDED AND MODIFIED FROM TIME TO TIME, AND THE COMPANY RESERVES
THE RIGHT TO REFUSE THE TRANSFER OF SUCH SECURITIES UNTIL SUCH
CONDITIONS HAVE BEEN FULFILLED WITH RESPECT TO SUCH TRANSFER.
A COPY OF SUCH CONDITIONS SHALL BE FURNISHED WITHOUT CHARGE BY THE
COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST.
NAVTECH, INC.
STOCK PURCHASE
WARRANT
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Date of Issuance: November 22,
2005
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Certificate No. W-3
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FOR VALUE RECEIVED,
Navtech, Inc., a Delaware corporation (the “
Company ”), hereby grants to ABRY MEZZANINE PARTNERS,
L.P. or its registered assigns (the “ Registered
Holder ”) the right to purchase from the Company 310,791
shares of Warrant Stock (as defined herein) at a price per share of
$0.01 (as adjusted from time to time hereunder, the “
Exercise Price ”). This Warrant is one of
several warrants (collectively, and including any warrant issued
pursuant to the terms hereof or of any other warrant, and all
warrants that may be issued, directly or indirectly, as a
replacement for any such warrant, in whole or in part, the “
Warrants ”) issued pursuant to the terms of the
Warrant Agreement, dated as of November 22, 2005 (as in effect
from time to time, the “ Purchase Agreement ”),
by and among the Company and the Purchasers. Certain
capitalized terms used herein are defined in Section 4
. The amount and
kind of securities obtainable pursuant to the
rights granted hereunder and the purchase price for such securities
are subject to adjustment pursuant to the provisions contained in
this Warrant.
This Warrant is subject to the
following provisions:
Section 1.
Exercise of
Warrant .
1A.
Exercise
Period .
The Registered Holder may exercise,
in whole or in part (but not as to a fractional share of Warrant
Stock, unless such exercise is in full), the purchase rights
represented by this Warrant at any time and from time to time after
the Date of Issuance to and including the tenth anniversary of the
Date of Issuance (the “ Exercise Period
”). The Company shall give the Registered Holder
written notice of the expiration of the Exercise Period at least 10
days but not more than 60 days prior to the end of the Exercise
Period.
1B.
Exercise
Procedure .
(i)
This Warrant
shall be deemed to have been exercised when the Company has
received all of the following items (the “ Exercise
Time ”):
(a)
a completed
Exercise Agreement, as described in Section 1C below,
executed by the Person exercising all or part of the purchase
rights represented by this Warrant (the “ Purchaser
”);
(b)
this
Warrant;
(c)
if this Warrant
is not registered in the name of the Purchaser, an Assignment or
Assignments in the form set forth in Exhibit II hereto
evidencing the assignment of this Warrant to the Purchaser, in
which case the Registered Holder shall have complied with the
provisions set forth in Section 6 hereof;
and
(d)
either (1) a
check payable to the Company in an amount equal to the product of
the Exercise Price multiplied by the number of shares of Warrant
Stock being purchased upon such exercise (the “ Aggregate
Exercise Price ”), or (2) a written notice to the
Company that the Purchaser is exercising the Warrant (or a portion
thereof) by authorizing the Company to withhold from issuance a
number of shares of Warrant Stock issuable upon such exercise of
the Warrant which, when multiplied by the Market Price of the
Warrant Stock, is equal to the Aggregate Exercise Price (and such
withheld shares shall no longer be issuable under this
Warrant).
(ii)
Certificates for
shares of Warrant Stock purchased upon exercise of this Warrant
shall be delivered by the Company to the Purchaser within five
Business Days after the date of the Exercise Time. Unless
this Warrant has expired or all of the purchase rights represented
hereby have been exercised, the Company shall prepare a new
Warrant, substantially identical hereto, representing the rights
formerly represented by this Warrant which have not
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expired or been exercised and shall, within such
five-day period, deliver such new Warrant to the Person designated
for delivery in the Exercise Agreement.
(iii)
The Warrant Stock
issuable upon the exercise of this Warrant shall be deemed to have
been issued to the Purchaser at the Exercise Time, and the
Purchaser shall be deemed for all purposes to have become the
record holder of such Warrant Stock at the Exercise
Time.
(iv)
The issuance of
certificates for shares of Warrant Stock upon exercise of this
Warrant shall be made without charge to the Registered Holder or
the Purchaser for any issuance tax in respect thereof or other cost
incurred by the Company in connection with such exercise and the
related issuance of shares of Warrant Stock. Each share of
Warrant Stock issuable upon exercise of this Warrant shall, upon
payment of the Exercise Price therefor, be fully paid and
nonassessable and free from all liens, taxes and charges with
respect to the issuance thereof.
(v)
The Company shall
not close its books against the transfer of this Warrant or of any
share of Warrant Stock issued or issuable upon the exercise of this
Warrant in any manner which interferes with the timely exercise of
this Warrant. The Company shall from time to time take all
such action as may be necessary to assure that the par value per
share of the unissued Warrant Stock acquirable upon exercise of
this Warrant is at all times equal to or less than the Exercise
Price then in effect.
(vi)
The Company shall
assist and cooperate with any Registered Holder or Purchaser
required to make any governmental filings or obtain any
governmental approvals prior to or in connection with any exercise
of this Warrant (including making any filings required to be made
by the Company).
(vii)
Notwithstanding
any other provision hereof, if an exercise of this Warrant is to be
made in connection with a registered public offering, the sale of
the Company or any other transaction, such exercise may, at the
election of the holder hereof, be conditioned upon the consummation
of the public offering, the sale of the Company or other
transaction, in which case such exercise shall not be deemed to be
effective until the consummation of such transaction.
(viii)
The Company shall
at all times reserve and keep available out of its authorized but
unissued shares of Warrant Stock solely for the purpose of issuance
upon the exercise of the Warrants, such number of shares of Warrant
Stock issuable upon the exercise of all outstanding Warrants.
The Company shall take all such actions as may be necessary to
assure that all such shares of Warrant Stock may be so issued
without violation of any applicable law or governmental regulation
or any requirements of any domestic securities exchange upon which
shares of Warrant Stock may be listed (except for official notice
of issuance which shall be immediately delivered by the Company
upon each such issuance). The Company shall not take any
action which would cause the number of authorized but unissued
shares of Warrant Stock to be less than the number of such shares
required to be reserved hereunder for issuance upon exercise of the
Warrants.
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1C.
Exercise
Agreement . Upon any exercise of
this Warrant, the Exercise Agreement shall be substantially in the
form set forth in Exhibit I hereto, except that if the shares
of Warrant Stock are not to be issued in the name of the Person in
whose name this Warrant is registered, the Exercise Agreement shall
also state the name of the Person to whom the certificates for the
shares of Warrant Stock are to be issued, and if the number of
shares of Warrant Stock to be issued does not include all the
shares of Warrant Stock purchasable hereunder, it shall also state
the name of the Person to whom a new Warrant for the unexercised
portion of the rights hereunder is to be delivered. Such
Exercise Agreement shall be dated the actual date of execution
thereof.
1D.
Fractional
Shares. If a fractional share of Warrant Stock would, but for
the provisions of Section 1A , be issuable upon
exercise of the rights represented by this Warrant, the Company
shall, within five Business Days after the date of the Exercise
Time, deliver to the Purchaser a check payable to the Purchaser
(or, at the Purchaser’s option, cash, by wire transfer of
immediately available funds to the account specified by the
Purchaser) in lieu of such fractional share in an amount equal to
the difference between the Market Price of such fractional share as
of the date of the Exercise Time and the Exercise Price of such
fractional share.
Section 2.
Adjustment of
Exercise Price and Number of Shares . In order to prevent
dilution of the rights granted under this Warrant, the Exercise
Price and the number of shares of Warrant Stock obtainable upon
exercise of this Warrant shall be subject to adjustment from time
to time as provided in this Section 2 .
2A.
Adjustment of
Exercise Price and Number of Shares upon Issuance of Common
Stock .
(i)
Except for
(a) any shares of Common Stock issued as a dividend or
distribution on the Common Stock to which Section 2C
applies, (b) any securities issued by the Company upon the
exercise, conversion or exchange in accordance with their
respective terms of Options or Common Stock Equivalents outstanding
on the date hereof, including, without limitation, the Cambridge
Information Group Preferred Stock (as defined in the Purchase
Agreement) issued on or before the Closing Date or (c) Common
Stock and Options to acquire Common Stock pursuant to options,
incentive or compensation plans approved by the Board of Directors
of the Company to employees, directors and independent contractors
in an aggregate amount after the date hereof that does not exceed
(i) 1,050,000 shares of Common Stock, whether issued as shares
of Common Stock or as Options to acquire Common Stock, and
(ii) 431,000 shares of Common Stock issuable upon exercise of
Options outstanding on the Closing Date (in each case, as adjusted
to reflect any stock split, reverse stock split, stock dividend or
similar event consummated after the date hereof), if and whenever
after the date of the Purchase Agreement the Company issues or
sells, or in accordance with Section 2B is deemed to
have issued or sold, any shares of its Common Stock for a
consideration per share less than the Market Price of the Common
Stock determined as of the date of such issue or sale, then
immediately upon such issue or sale the Exercise Price shall be
reduced to the Exercise Price determined by multiplying the
Exercise Price in effect immediately prior to such issue or sale by
a fraction, the numerator of which shall be the sum of (1) the
number of shares of Common Stock Deemed Outstanding immediately
prior to such issue or sale multiplied by the Market Price of
the
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Common Stock determined as of the date of such
issuance or sale, plus (2) the consideration, if any, received
by the Company upon such issue or sale, and the denominator of
which shall be the product derived by multiplying such Market Price
of the Common Stock by the number of shares of Common Stock Deemed
Outstanding immediately after such issue or sale.
(ii)
Upon each such
adjustment of the Exercise Price hereunder, the number of shares of
Warrant Stock acquirable upon exercise of this Warrant shall be
adjusted to the number of shares determined by multiplying the
Exercise Price in effect immediately prior to such adjustment by
the number of shares of Warrant Stock acquirable upon exercise of
this Warrant immediately prior to such adjustment and dividing the
product thereof by the Exercise Price resulting from such
adjustment.
2B.
Effect on
Exercise Price of Certain Events . For purposes of
determining the adjusted Exercise Price under
Section 2A , the following shall be
applicable:
(i)
Issuance of
Rights or Options . If the Company in any
manner grants or sells any Options and the price per share for
which Common Stock is issuable upon the exercise of such Options,
or upon conversion or exchange of any Common Stock Equivalents
issuable upon exercise of such Options, is less than the Market
Price of the Common Stock determined as of such time, then the
total maximum number of shares of Common Stock issuable upon the
exercise of such Options or upon conversion or exchange of the
total maximum amount of such Common Stock Equivalents issuable upon
the exercise of such Options shall be deemed to be outstanding and
to have been issued and sold by the Company at the time of the
granting or sale of such Options for such price per share.
For purposes of this paragraph, the “price per share for
which Common Stock is issuable” shall be determined by
dividing (A) the total amount, if any, received or receivable
by the Company as consideration for the granting or sale of such
Options, plus the minimum aggregate amount of additional
consideration payable to t
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