SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT made as of March 31, 2000 between NAVTECH, INC., a
Delaware corporation (the "Company"), and XXXXXX X. XXXXXX (the "Subscriber").
WHEREAS, the Company desires to issue to the Subscriber, and the Subscriber
desires to acquire from the Company, units (the "Units") consisting in the
aggregate of five hundred thousand (500,000) shares of Common Stock, $.001 par
value per share (the "Common Shares"), of the Company, and warrants (the
"Warrants") to purchase one hundred and twenty five thousand (125,000) shares of
Common Stock (the "Warrant Shares") of the Company, upon the terms set forth
herein.
NOW, THEREFORE, for and in consideration of the mutual representations and
covenants hereinafter set forth, the parties hereto do hereby agree as follows:
1. Subscription for the Units; Right to Designate Nominee.
1.1 Subject to the terms and conditions hereinafter set forth, the
Subscriber hereby irrevocably subscribes for and agrees to acquire from the
Company, and the Company agrees to sell to the Subscriber, the Units at an
aggregate purchase price of five hundred thousand dollars ($500,000). The
purchase price is payable contemporaneously herewith by certified check made
payable to the order of the Company or by wire transfer to an account designated
by the Company. The certificates evidencing the Common Shares and Warrants
purchased by the Subscriber will be delivered by the Company to the Subscriber
as soon as practicable following the execution hereof.
1.2 The Subscriber will have the right to designate one nominee to the
Board of Directors of the Company, which nominee shall either be Xxxxx X.
XxXxxxx or another person reasonably acceptable to the Company. Such right shall
continue for so long as the Subscriber owns at least ten percent (10%) of the
outstanding shares of Common Stock of the Company. The nominee, if duly elected
to the Board of Directors, will be issued options under the Company's 1999 Stock
Option Plan to purchase twenty-five thousand (25,000) shares of the Common Stock
of the Company upon election to the Board.
2. Representations by Subscriber.
The Subscriber understands and agrees that the Company is relying and may
rely upon the following representations and warranties made by the Subscriber in
entering into this Agreement:
2.1 The Subscriber recognizes that the acquisition of the Common Shares and
the Warrants involves a high degree of risk and is suitable only for persons of
adequate financial means who have no need for liquidity in this investment in
that (i) he may not be able to liquidate his investment in the event of
emergency; (ii) transferability is extremely limited; and (iii) he could sustain
a complete loss of his investment.
2.2 The Subscriber represents that he (i) is competent to understand and
does understand the nature of this investment; and (ii) is able to bear the
economic risk of this investment.
2.3 The Subscriber represents that he is an "accredited investor," as such
term is defined in Rule 501 of Regulation D promulgated under the Securities Act
of 1933, as amended (the "1933 Act"), as a result of application to him of the
criteria set forth on Exhibit A attached hereto (please indicate on such Exhibit
A by a checkmark the one or more criteria which apply).
2.4 The Subscriber acknowledges that he has significant prior investment
experience, including investment in restricted securities, and that he has read
all of the documents furnished or made available by the Company to him to
evaluate the merits and risks of such an investment on his behalf.
2.5 The Subscriber hereby represents that he has been furnished by the
Company with the Company's Annual Report on Form 10-KSB for the fiscal year
ended October 31, 1999 and Quarterly Report on Form 10-QSB for the fiscal
quarter ended January 31, 2000 and all other information regarding the Company
which he had requested or desired to know; that all documents which could be
reasonably provided have been made available for his inspection and review; that
he has been afforded the opportunity to ask questions of and receive answers
from duly authorized representatives of the Company concerning the terms and
conditions of the offering, and any additional information which he had
requested; and that he has had the opportunity to consult with his own tax or
financial advisor concerning an investment in the Company.
2.6 The Subscriber hereby acknowledges that this offering of Common Shares
and Warrants has not been reviewed by the Securities and Exchange Commission
(the "SEC") because of the Company's representations that this is intended to be
a non-public offering pursuant to Section 4(2) of the 1933 Act and Rule 506 of
Regulation D promulgated thereunder. The Subscriber represents that the Common
Shares and Warrants are being acquired for his own account, for investment and
not for distribution or resale to others. The Subscriber agrees that he will not
sell, transfer or otherwise dispose of the Common Shares and/or Warrants, or any
portion thereof, unless they are registered under the 1933 Act or unless an
exemption from such registration is available.
2.7 The Subscriber consents that the Company may, if he desires, permit the
transfer of the Common Shares and/or Warrants by the Subscriber out of his name
only when his request for transfer is accompanied by an opinion of counsel
satisfactory to the Company that neither the sale nor the proposed transfer
results in a violation of the 1933 Act or any applicable state "blue sky" laws
(collectively, "Securities Laws"). The Subscriber agrees to be bound by any
requirements of such Securities Laws. The Subscriber agrees to hold the Company
and its controlling persons and their respective heirs, representatives,
successors and assigns harmless and to indemnify them against all liabilities,
costs and expenses incurred by them as a result of any sale or distribution by
the undersigned Subscriber in violation of any Securities Laws or any
misrepresentation herein.
2.8 The Subscriber acknowledges and agrees that the Company is relying on
the Subscriber's representations contained in this Agreement in determining
whether to accept this subscription.
2.9 The Subscriber consents to the placement of a legend on the
certificates evidencing the Common Shares and Warrants stating that they have
not been registered under the Act and setting forth or referring to the
restrictions on transferability and sale thereof. The Subscriber is aware that
the Company will make a notation in its appropriate records with respect to the
restrictions on the transferability of the Common Shares and Warrants.
2.10 The address set forth below is the Subscribers's true and correct
residence.
2.11 The information provided by the Subscriber herein in connection with
this investment is accurate and complete as of the date of the execution of this
Subscription Agreement.
3. Representations by the Company.
3.1 The Company represents and warrants to the Subscriber as follows:
(a) The Company is a corporation duly organized, existing and in good
standing under the laws of the State of Delaware and has the corporate
power to conduct its business.
(b) The execution, delivery and performance of this Agreement by the
Company has been duly approved by the Board of Directors of the Company.
(c) The Common Shares have been duly and validly authorized and, when
issued in accordance with the terms hereof, will be duly and validly
authorized and issued, fully paid and nonassessable.
(d) The Warrant Shares have been duly and validly authorized and, when
issued upon exercise of the Warrants in accordance with the terms thereof,
will be duly and validly authorized and issued, fully paid and
nonassessable.
4. Notices to Subscriber.
4.1 Neither the Common Shares, nor the Warrants nor the Warrants Shares
have been registered under the 1933 Act, or the securities laws of any state,
and they are being offered and sold in reliance on exemptions from the
registration requirements of the 1933 Act and such laws. Neither the Common
Shares, nor the Warrants nor the Warrants Shares have been approved or
disapproved by the SEC, any state securities commission or other regulatory
authority, nor have any of the foregoing authorities passed upon or endorsed the
merits of the offering. Any representation to the contrary is unlawful.
4.2 The Common Shares, Warrants and Warrant Shares are subject to
restrictions on transferability and resale and may not be transferred or resold
except as permitted under the 1933 Act, and applicable state securities laws,
pursuant to registration or exemption therefrom. The Subscriber should be aware
that he may be required to bear the financial risks of this investment for an
indefinite period of time.
5. Investment Restrictions.
5.1 The Subscriber acknowledges that there is limited public market for the
Common Shares. The Subscriber understands that, absent registration under the
1933 Act, the Common Shares may only generally be publicly sold pursuant to Rule
144 (the "Rule") promulgated under the 1933 Act. The Rule permits, subject to
all of its terms and conditions, the public resale (in limited amounts) of
securities acquired in non-public offerings without having to satisfy the
registration requirements of the 1933 Act. The Subscriber further understands
that the Company makes no representation or warranty regarding its fulfillment
in the future of any reporting requirements under the Securities Exchange Act of
1934, as amended, or its dissemination to the public of any current financial or
other information concerning the Company, which in most circumstances is
required by the Rule as one of the conditions of its availability; however, the
Company will use its best efforts to comply with such reporting requirements.
The Subscriber recognizes that, notwithstanding the existence of a public market
for the Common Shares, he may not be able to take advantage of the resale
provisions of the Rule and may be unable to publicly offer or sell any of the
Common Shares or Warrant Shares.
6. Miscellaneous.
6.1 Any notice or other communication given hereunder shall be deemed
sufficient if in writing and hand delivered or sent by first class mail, postage
prepaid, or overnight mail, addressed to the Company, c/o Navtech Systems
Support Inc., 000 Xxxxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx Xxxxxx N2L
5Z5, Attention: Corporate Secretary, and to the Subscriber at his address
indicated on the last page of this Agreement. Notices shall be deemed to have
been given on the date of mailing, except notices of change of address, which
shall be deemed to have been given when received.
6.2 This Agreement shall not be changed, modified or amended except by a
writing signed by the party to be charged, and this Agreement may not be
discharged except by performance in accordance with its terms or by a writing
signed by the party to be charged.
6.3 This Agreement shall be binding upon and inure to the benefit of the
parties hereto and to their respective successors and assigns. This Agreement
sets forth the entire agreement and understanding between the parties as to the
subject matter thereof and merges and supersedes all prior discussions,
agreements and understandings of any and every nature between them.
6.4 This Agreement and its validity, construction and performance shall be
governed in all respects by the laws of the State of Delaware, applicable to
agreements to be performed wholly within the State of Delaware.
6.5 This Agreement may be executed in counterparts. Upon the execution and
delivery of this Agreement by the Subscriber, this Agreement shall become a
binding obligation of the Subscriber with respect to the acquisition of the
Units as herein provided.
6.6 Only upon written approval and acceptance of this Subscription
Agreement by the Company shall the Company be obligated hereunder.
6.7 All dollar amounts in this Agreement are United States dollars.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year written below.
Name of Subscriber
Signature of Subscriber
Address of Subscriber
Social Security Number of Subscriber
Subscription Approved and Accepted:
NAVTECH, INC.
By:
Name:
Title:
EXHIBIT A
A. For an individual (i.e., a natural person):
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_____1) The undersigned had an individual income in excess of
$200,000 (or in excess of $300,000 with his or her spouse)
in each of the past two years and has a reasonable
expectation of reaching the same income level in the current
year; or
_____2) The undersigned has an individual net worth, or joint net
worth with his or her spouse, of more than $1,000,000.
Note:For the purpose of determining net worth, the Subscriber may
include, without limitation, the value of his or her spouse's
principal residence, home furnishings and automobiles.
B. For a legal entity (i.e., other than a natural person):
------------ ----
_____1) The undersigned is (a) any bank, as defined in Section
3(a)(2) of the 1933 Act, or a savings and loan association
or other institution as defined in Section 3(a)(5)(A) of the
1933 Act, whether acting in its individual or fiduciary
capacity; (b) any broker or dealer registered pursuant to
Section 23 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"); (c) any insurance company, as
defined in Section 2(13) of the 1933 Act; (d) any investment
company registered under the Investment Company Act of 1940
or a business development company as defined in Section
310(c) or (d) of the Small Business Investment Act of 1958;
(e) any plan established and maintained by a state, its
political subdivisions, or any agency or instrumentality of
a state or its political subdivisions, or any agency or
instrumentality of a state or its political subdivisions,
for the benefit of its employees if such plan has total
assets in excess of $5,000,000; or an employee benefit plan
within the meaning of the Employee Retirement Income
Security Act of 1974 ("ERISA"), if the investment decision
is made by a plan fiduciary, as defined in Section 3(21) of
ERISA, that is either a bank, savings and loan association,
insurance company or registered investment adviser, or if
the employee benefit plan has total assets in excess of
$5,000,000 or, if a self-directed plan, with investment
decisions made solely by persons that are accredited
investors; or
______ 2) The undersigned is a "private business development company"
as defined in Section 202(a)(22) of the Investment Advisers
Act of 1940; or
______ 3) The undersigned is an organization described in Section
501(c)(3) of the Internal Revenue Code, corporation,
Massachusetts or similar business trust, or partnership, not
formed for the specific purpose of making the investment,
with total assets in excess of $5,000,000; or
______ 4) The undersigned is a trust, with total assets in excess of
$5,000,000, not formed for the specific purpose of acquiring
the Units, and the purchase of the units is directed by a
sophisticated person as described in Rule 506(b)(2) (ii)
promulgated under the Exchange Act.
______ 5) The undersigned is an entity in which all of the equity
owners are accredited investors.
CAMBRIDGE INFORMATION GROUP, INC.
By:
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Authorized Signatory
Name and Title of Authorized
Signatory (Please Print)
