Attached files
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EX-10.2 - Avantair, Inc | v163409_ex10-2.htm |
EX-99.1 - Avantair, Inc | v163409_ex99-1.htm |
EX-10.1 - Avantair, Inc | v163409_ex10-1.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date of
Report (Date of earliest event
reported): October 16,
2009
AVANTAIR, INC.
(Exact
name of Registrant as Specified in its Charter)
Delaware
|
000-51115
|
20-1635240
|
(State
or Other Jurisdiction
|
(Commission
|
(IRS
Employer
|
of
Incorporation)
|
File
Number)
|
Identification
No.)
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4311 General Howard Drive, Clearwater, Florida
33762
(Address
of Principal Executive Offices)
Registrant's
telephone number, including area code
(727)
539-0071
N/A
(Former
Name or Former Address, if Changed Since Last Report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
¨ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
¨ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
ITEM
1.01. Entry into a Material Definitive Agreement.
On
October 16, 2009, Avantair, Inc. (the “Company” or “Avantair”) entered into a
Securities Purchase and Exchange Agreement (the “Purchase Agreement”) with the
investors party thereto (the “Investors”) in connection with a PIPE (Private
Investment in a Public Entity) financing. Pursuant to the Purchase
Agreement, certain new investors purchased shares of common stock in a private
placement for gross proceeds of approximately $8.4 million, or $10.4 million
when combined with the proceeds of two prior placements consummated in June and
September 2009. The Company intends to use the net proceeds from this
financing transaction to retire approximately $6.0 million of debt, for working
capital and general corporate purposes.
Under the
terms of the Purchase Agreement, Avantair sold approximately 8.8 million shares
of common stock to the new investors at a price per share of
$0.95. In addition, pursuant to the Purchase Agreement, the Company
exchanged the 817,000 outstanding warrants that had been issued to existing
investors in the two prior private placements. The existing investors
received 0.63158 shares of common stock for each warrant
exchanged. The Purchase Agreement terminated the purchase agreement
and registration rights agreement entered into in connection with the June and
September 2009 private placements.
In
connection with the sale of the shares of common stock under the Purchase
Agreement, Avantair has entered into a Registration Rights Agreement with the
Investors. The Registration Rights Agreement requires the Company promptly, but
not later than 30 days after the closing, to file a registration statement
registering for resale the shares issued to the Investors and to cause the
registration statement to be declared effective on or prior to the 90th day
after the closing (or the 150th day, if the registration statement is reviewed
by the SEC). Under the terms of the Registration Rights Agreement, the
Company is obligated to maintain the effectiveness of the resale registration
statement until all securities registered thereunder are sold or otherwise can
be sold pursuant to Rule 144, without restriction. The Company is required to
pay to each investor an amount in cash each month, as partial liquidated
damages, equal to 1.5% of the aggregate purchase price paid by such Investor in
the event of failure (i) to file the registration statement or (ii) to cause the
registration statement to be declared effective, in each case by the date
described in the Registration Rights Agreement, for so long as such failure
continues.
THE
INFORMATION CONTAINED IN THIS REPORT IS NEITHER AN OFFER TO PURCHASE, NOR A
SOLICITATION OF AN OFFER TO SELL, SECURITIES. THE SECURITIES OFFERED HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”) AND MAY NOT BE OFFERED IN THE UNITED STATES ABSENT REGISTRATION OR AN
APPLICABLE EXEMPTION FROM REGISTRATION REQUIREMENTS.
The
foregoing descriptions are qualified by reference to the full text of the
Purchase Agreement and the Registration Rights Agreement, copies of which are
attached hereto as Exhibit 10.1 and 10.2, respectively, to this Current Report
on Form 8-K, and incorporated herein by reference.
On
October 20, 2009, the Company issued a press release regarding the closing of
the financing under the Purchase Agreement. A copy of the press
release is attached hereto as Exhibit 99.1. The copy of the press
release attached hereto corrects a typographical error in the original press
release regarding the exchange ratio for the existing investors’
warrants.
Item
3.02. Unregistered Sales of Equity Securities.
As noted
in Item 1.01, on October 16, 2009, the Company sold approximately 8.8 million
shares of Common Stock to new investors at a price per share of $0.95,
generating gross proceeds of approximately $8.4 million or $10.4 million when
combined with the proceeds of the two prior placements consummated in June and
September 2009. The description thereof contained in Item 1.01 is
incorporated herein by reference. The Company intends to use the
proceeds of the offering to retire approximately $6.0 million of debt, for
working capital and general corporate purposes.
The
Company is relying on an exemption from registration provided under Section 4(2)
of the Securities Act for the issuance of the shares of its Common Stock, which
exemption the Company believes is available because the securities were not
offered pursuant to a general solicitation and the status of the Investors of
the shares as “accredited investors” as defined in Regulation D under the
Securities Act.
This
report is neither an offer to purchase, nor a solicitation of an offer to sell,
securities. The securities offered have not been registered under the Securities
Act and may not be offered in the United States absent registration or an
applicable exemption from registration requirements.
ITEM
5.03. Amendments to Articles of Incorporation or Bylaws.
On
October 16, 2009, the Company’s Board of Directors amended Section 5.1 of its
Amended and Restated By-Laws to provide that the Company’s stock certificates
may be signed by the Chairman of the Board of Directors, in addition to the
Chief Executive Officer and any Vice President. The identity of the
second required signatory, the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary of the Company, was not
modified. The Company’s Board of Directors further ratified and
confirmed the issuance of any and all certificates issued prior to the effective
date of this amendment in accordance with Section 5.1, as amended.
ITEM
8.01. Other Events.
On
October 19, 2009, the Company issued to Lorne Weil (“LW”) 2,373,620 warrants,
each to purchase one share of the Company’s common stock for $1.25 per
share. The warrants expire on October 16, 2012, and any underlying
shares purchased upon exercise of each warrant may not be sold, transferred,
assigned or hypothecated, in whole or in part, at any time on or prior to
October 16, 2011, other than to an affiliate of LW. The Company may
redeem the Warrants held by LW at any time on and after October 16, 2011 at the
price of $0.01 per Warrant, provided that the volume weighted average price of
the Company’s common stock has been at least 300% of the Exercise Price of a
Warrant for any twenty (20) trading days during any consecutive thirty (30)
trading day period ending on the third trading day preceding the date of the
notice of redemption. One quarter of the warrants are not currently
exercisable, and are subject to forfeiture, in the event that certain conditions
are not satisfied prior to December 31, 2009.
On
October 19, 2009, the Company sold its rights to purchase four Piaggio Avanti II
aircraft to LW Air LLC for the $2.6 million cost of the deposits paid on the
aircraft by the Company. Simultaneous with this transaction, the
Company entered into an eight-year management agreement with LW Air, which
purchased three of the aircraft from the manufacturer pursuant to the existing
aircraft purchase agreement between the Company and Piaggio America,
Inc. Pursuant to the agreement between the parties, the Company will
manage the aircraft for a monthly fee; the agreement also allows the Company to
enter into short-term leases for the use of the aircraft at a specified dry
lease rate per flight hour. LW Air has also agreed to purchase one
additional aircraft, for a total of four, under the same terms.
Item
9.01. Financial Statements And Exhibits.
(d) EXHIBITS.
10.1. Securities
Purchase and Exchange Agreement, dated October 16, 2009, by and among Avantair,
Inc. and the investors referred therein.
10.2. Registration
Rights Agreement, dated October 16, 2009, by and among Avantair, Inc. and the
investors referred therein.
99.1 Press
Release
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned, thereunto
duly authorized.
AVANTAIR,
INC.
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Date:
October 22, 2009
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By:
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/s/
Steven Santo
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Steven
Santo
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Chief
Executive Officer
(Authorized
Officer and Principal Executive Officer)
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