EX-10.1
AVANTAIR, INC.
INVESTOR RIGHTS AGREEMENT
OCTOBER 2, 2006
AVANTAIR, INC.
INVESTOR RIGHTS AGREEMENT
This Investor Rights Agreement (this "AGREEMENT") is made and entered
into as of October 2, 2006 (the "EFFECTIVE DATE") by and among Avantair, Inc., a
Nevada corporation (the "COMPANY") and the holders of Class A Common Stock (the
"SERIES A STOCK") as set forth on Exhibit A hereto (the "HOLDERS" or the
"INVESTORS").
RECITALS
A. The Company and the Investors are parties to a Series A Common
Stock Purchase Agreement of even date herewith (the "SERIES A AGREEMENT").
B. In order to induce the Investors to enter into the Series A
Agreement and invest funds in the Company pursuant thereto, the Company desires
to enter into this Agreement with the Series A Holders.
Therefore, the parties agree as follows:
1. DEFINITIONS.
1.1 "ARDENT CLOSING" means, the closing of the transactions
contemplated by the Stock Purchase Agreement by and among the stockholders of
the Company and Ardent Acquisition Corp.
1.2 "AFFILIATE" means, with respect to any specified
individual or entity, any other individual or entity who or that, directly or
indirectly, controls, is controlled by, or is under common control with such
specified individual or entity, including without limitation any partner,
officer, director, manager or employee of such entity and any venture capital
fund now or hereafter existing that is controlled by or under common control
with one or more general partners or managing members of, or shares the same
management company with, such individual or entity.
1.3 "COMMON STOCK" means the Class A Common Stock, $0.01 PAR
VALUE,of the Company.
1.4 "EQUITY SECURITIES" means (i) Common Stock, rights,
options or warrants to purchase Common Stock, (ii) any security other than
Common Stock having voting rights in the election of the Board of Directors or
(iii) any security convertible into or exchangeable for any of the foregoing.
1.5 "EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended.
1.6 "FORM S-3" means such form under the Securities Act as
is in effect on the date hereof or any successor registration form under the
Securities Act subsequently adopted by the SEC (as defined below) which permits
inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC
(as defined below).
1.7 "HOLDER" means any Investor that holds Registrable
Securities or securities convertible into Registrable Securities or any assignee
of record of such Registrable Securities to whom rights under Section 2 have
been duly assigned in accordance with Section 0 hereof.
1.8 "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by the preparation and filing of a registration statement
in compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement.
1.9 "REGISTRABLE SECURITIES" means: (a) if the Ardent
Closing does occur (i) any and all shares of common stock of Ardent Acquisition
Corp. issued to Holder in connection with the Ardent Closing and (ii) any shares
of common stock of Ardent Acquisition Corp. issued as (or issuable upon the
conversion or exercise of any warrant, right or other security which is issued
as) a dividend or other distribution with respect to, in exchange for, or in
replacement of, such shares of common stock described in clause (i) and (iii)
any warrants issued to Holders pursuant to Section 2.1(a)(ii) herein and any
shares of common stock of Ardent Acquisition Corp. issued or issuable upon the
exercise of any such warrants; PROVIDED, HOWEVER, that particular shares of any
of the foregoing shall cease to be Registrable Securities once they have been
sold to in any public offering or transferred by the Holder in a transaction in
which its rights under this Agreement are not assigned in accordance with the
provisions of this Agreement and (b) if the Ardent Closing does not occur (i)
any and all shares of Series A Stock or any common stock of the Company issued
or issuable upon conversion of the shares of Series A Stock and (ii) any shares
of common stock issued as (or issuable upon the conversion or exercise of any
warrant, right or other security which is issued as) a dividend or other
distribution with respect to, in exchange for, or in replacement of, such shares
of common stock described in clause (i); PROVIDED, HOWEVER, that particular
shares of any of the foregoing shall cease to be Registrable Securities once
they have been sold to in any public offering or transferred by the Holder in a
transaction in which its rights under this Agreement are not assigned in
accordance with the provisions of this Agreement
1.9 "REGISTRABLE SECURITIES THEN OUTSTANDING" means the
number of Registrable Securities which (i) are then issued and outstanding or
(ii) are then issuable pursuant to the exercise or conversion of options,
warrants or convertible securities.
1.10 "SEC" means the United States Securities and Exchange
Commission.
1.11 "SECURITIES ACT" means the Securities Act of 1933, as
amended.
2. REGISTRATION RIGHTS.
2.1 MANDATORY SHELF REGISTRATION.
(a) MANDATORY SHELF REGISTRATION IN EVENT OF THE
ARDENT CLOSING. (i) The Company agrees to file with the Commission as soon as
reasonably practicable, but in no event later than sixty (60) days following the
Ardent Closing, a shelf Registration Statement on
Form S-3 or such other form under the Securities Act then available to the
Company providing for the resale pursuant to Rule 415 from time to time by the
Holders of any and all Registrable Shares (including the prospectus, amendments
and supplements to such registration statement or prospectus, including pre- and
post-effective amendments, all exhibits thereto and all material incorporated by
reference or deemed to be incorporated by reference, if any, in such
registration statement, the "Mandatory Shelf Registration Statement"). The
Company shall use its commercially reasonable efforts to cause such Mandatory
Shelf Registration Statement to be declared effective by the Commission as soon
as reasonably practicable following such filing and to keep it current and
effective until no longer necessary pursuant to Section 2.9 hereof. Any
Mandatory Shelf Registration Statement shall provide for the resale from time to
time, and pursuant to any method or combination of methods legally available
(including, without limitation, a direct sale to purchasers, a sale through
brokers or agents, or a sale over the internet) by the Holders of any and all
Registrable Shares. The Company agrees to follow identical registration and
penalty procedures as set forth in this Section 2.1 with respect to any equity
securities of Ardent Acquisition Corp. issued to Holders, or their transferees,
pursuant to Sections 1.6, 1.7 and 1.8 of the Agreement referred to in Section
1.1 herein; provided, however, that the relevant 60 day period will start from
the date of issuance of any equity securities pursuant to such Sections 1.6, 1.7
and 1.8.
(ii) In the event that the Mandatory Shelf
Registration Statement is not filed with the Securities and Exchange Commission
within 60 days after the date of the Ardent Closing , the Company shall cause
Ardent Acquisition Corp. to promptly issue to each Holder warrants to purchase a
number of shares of Ardent Acquisition Corp. common stock , which warrants shall
have an exercise price of $5.00 per share and shall be identical to Ardent
Acquisition Corp.'s currently publicly traded warrants, calculated by (x)
multiplying (a) the aggregate amount invested by such Holder pursuant to the
Series A Agreement by (b) 0.02, and (y) dividing such amount by 5. Each Holder
shall be entitled to such warrants for each consecutive thirty (30) day period
for which the Mandatory Shelf Registration Statement remains not filed with the
Securities and Exchange Commission by Ardent Acquisition Corp. For example , if
a Holder invests $100,000 under the Series A Agreement, such Holder would be
entitled to receive warrants to purchase 400 shares of Ardent Acquisition Corp.
common stock at an exercise price of $5.00 per share on the 60 day anniversary
of the Ardent Closing and on each consecutive 30 day anniversary thereafter
until Ardent Acquisition Corp. files the Mandatory Shelf Registration
Statement..
(b) REGISTRATION RIGHTS IF ARDENT CLOSING DOES NOT OCCUR.
(i) Request by Holders. If the Company shall receive at any
time after the date hereof, a written request from the Holders of at least fifty
percent (50%) of the then outstanding Registrable Securities (the "INITIATING
HOLDERS") that the Company file a registration statement under the Securities
Act covering the registration of Registrable Securities pursuant to this Section
2.1(b) with an anticipated aggregate offering price of at least $2,500,000 (net
of underwriting discounts and commissions), then the Company shall, within
twenty (20) days after the receipt of such written request, give written notice
of such request (the "REQUEST NOTICE") to all Holders, and use all reasonable
efforts to effect, as soon as practicable, the registration under the Securities
Act of all Registrable Securities which Holders request to be registered and
included in such registration by written notice given by such Holders to the
Company within twenty (20) days after receipt of the Request Notice, subject
only to the limitations of this Section 2. The Company may, if permitted by law,
effect any registration pursuant to this Section 2.1(b) by the filing of a
registration statement on Form S-3.
(ii) Underwriting. If the Initiating Holders intend to
distribute the Registrable Securities covered by their request by means of an
underwriting, then they shall so advise the Company as a part of their request
made pursuant to this Section 2.1(b) and the Company shall include such
information in the written notice referred to in subsection Section 2.1(b). In
such event, the right of any Holder to include his, her, or its Registrable
Securities in such registration shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting shall enter into an underwriting agreement in customary form
with the managing underwriter or underwriters selected for such underwriting by
the Company. Notwithstanding any other provision of this Section 2.1(b), if the
underwriter(s) advise(s) the Company in writing that marketing factors require a
limitation of the number of securities to be underwritten then the Company shall
so advise all Holders of Registrable Securities that would otherwise be
registered and underwritten pursuant hereto, and the number of Registrable
Securities that may be included in the underwriting shall be reduced as required
by the underwriter(s) and allocated among the Holders of Registrable Securities
on a pro rata basis according to the number of Registrable Securities then
outstanding held by each Holder requesting registration (including the
Initiating Holders); provided, however, that the number of shares of Registrable
Securities to be included in such underwriting and registration shall not be
reduced unless all other securities of the Company are first entirely excluded
from the underwriting and registration. Any Registrable Securities excluded and
withdrawn from such underwriting shall be withdrawn from the registration.
(iii) Maximum Number of Demand Registrations. The Company is
obligated to effect only two such registration pursuant to Section 2.1(b)(ii).
(iv) Deferral. Notwithstanding the foregoing, if the Company
shall furnish to Holders requesting the filing of a registration statement
pursuant to this Section 2.1(b), a certificate signed by the President or Chief
Executive Officer of the Company stating that in the good faith judgment of the
Board of Directors of the Company, it would be detrimental to the Company and
its shareholders for such registration statement to be filed and it is therefore
essential to defer the filing of such registration statement, then the Company
shall have the right to defer such filing for a period of not more than ninety
(90) days after receipt of the request of the Initiating Holders; provided,
however, that the Company may not utilize this right more than once in any
twelve (12) month period.
(vi) PIGGYBACK REGISTRATIONS. The Company shall notify all
Holders of Registrable Securities in writing at least thirty (30) days prior to
filing any registration statement under the Securities Act for purposes of
effecting a public offering of securities of the Company (including, but not
limited to, registration statements relating to secondary offerings of
securities of the Company, but excluding registration statements relating to any
employee benefit plan or a corporate reorganization or other transaction covered
by Rule 145 promulgated under
the Securities Act, or a registration on any registration form which does not
permit secondary sales or does not include substantially the same information as
would be required to be included in a registration statement covering the sale
of Registrable Securities) and will afford each such Holder an opportunity to
include in such registration statement all or any part of the Registrable
Securities then held by such Holder. Each Holder desiring to include in any such
registration statement all or any part of the Registrable Securities held by
such Holder shall, within twenty (20) days after receipt of the above-described
notice from the Company, so notify the Company in writing, and in such notice
shall inform the Company of the number of Registrable Securities such Holder
wishes to include in such registration statement. If a Holder decides not to
include all of its Registrable Securities in any registration statement
thereafter filed by the Company, such Holder shall nevertheless continue to have
the right to include any Registrable Securities in any subsequent registration
statement or registration statements as may be filed by the Company with respect
to offerings of its securities, all upon the terms and conditions set forth
herein.
(vii) Underwriting. If a registration statement under which
the Company gives notice under this Section 2.1 is for an underwritten offering,
then the Company shall so advise the Holders of Registrable Securities. In such
event, the right of any such Holder's Registrable Securities to be included in a
registration pursuant to this Section 2.1 shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their Registrable Securities through such
underwriting shall enter into an underwriting agreement in customary form with
the managing underwriter or underwriter(s) selected for such underwriting.
Notwithstanding any other provision of this Agreement, if the managing
underwriter determine(s) in good faith that marketing factors require a
limitation of the number of shares to be underwritten, then the managing
underwriter(s) may exclude shares (including Registrable Securities) from the
registration and the underwriting, and the number of shares that may be included
in the registration and the underwriting shall be allocated, first, to the
Company, and second to Holders requesting inclusion of their Registrable
Securities in such registration statement on a pro rata basis based on the
number of Registrable Securities each such Holder has requested to be included
in the registration. If any Holder disapproves of the terms of any such
underwriting, such Holder may elect to withdraw therefrom by written notice to
the Company and the underwriter, delivered at least ten (10) business days prior
to the effective date of the registration statement. Any Registrable Securities
excluded or withdrawn from such underwriting shall be excluded and withdrawn
from the registration. For any Holder that is a partnership or corporation, the
partners, retired partners and shareholders of such Holder, or the estates and
family members of any such partners and retired partners and any trusts for the
benefit of any of the foregoing persons shall be deemed to be a single "Holder,"
and any pro rata reduction with respect to such "Holder" shall be based upon the
aggregate amount of shares carrying registration rights owned by all entities
and individuals included in such "Holder," as defined in this sentence.
(viii) Form S-3 Registration. In case the Company shall receive
from the Holders of at least twenty percent (20%) of the Registrable Securities
a written request or requests that the Company effect a registration on Form S-3
and any related qualification or compliance with respect to all or a part of the
Registrable Securities owned by such Holder or Holders, the Company shall:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other Holders;
and
(b) use its best efforts to effect, as soon as
practicable, such registration and all such qualifications and compliances as
may be so requested and as would permit or facilitate the sale and distribution
of all or such portion of such Holders' Registrable Securities as are specified
in such request, together with all or such portion of the Registrable Securities
of any other Holders joining in such request as are specified in a written
request given within sixty (60) days after receipt of such written notice from
the Company, provided, however, that the Company shall not be obligated to
effect any such registration, qualification or compliance, pursuant to this
Section 2.1(b)(viii):
(i) if Form S-3 is not available for such offering by the
Holders;
(ii) if the Holders, together with the holders of any other
securities of the Company entitled to inclusion in such registration, propose to
sell Registrable Securities and such other securities (if any) at an aggregate
price to the public (net of any underwriters' discounts or commissions) of less
than $2,500,000;
(iii) if the Company shall furnish to the Holders a
certificate signed by the Chief Executive Officer or Chairman of the Board of
the Company stating that in the good faith judgment of the Board of Directors of
the Company, it would be seriously detrimental to the Company and its
stockholders for such Form S-3 Registration to be effected at such time, in
which event the Company shall have the right to defer the filing of the Form S-3
registration statement for a period of not more than forty five (45) days after
receipt of the request of the Holder or Holders under this Section 2.1(b)(viii);
provided, however, that the Company shall not utilize this right more than once
in any twelve month period;
(iv) in any particular jurisdiction in which the Company
would be required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or compliance.
(c) Subject to the foregoing, the Company shall file
a registration statement covering the Registrable Securities and other
securities so requested to be registered as soon as practicable after receipt of
the request or requests of the Holders.
(ix) Expenses. All expenses incurred
in connection with a registration pursuant to this Section 2.1, including
without limitation all registration and qualification fees, printers' and
accounting fees, fees and disbursements of counsel for the Company (but
excluding underwriters' discounts and commissions) shall be borne by the
Company. Each Holder participating in a registration pursuant to this Section
2.1 shall bear such Holder's proportionate share (based on the number of shares
sold by such Holder over the total number of shares included in such
registration at the time it goes effective) of all discounts, commissions or
other amounts payable to underwriters or brokers in connection with such
offering.
2.2 OBLIGATIONS OF THE COMPANY. Whenever required under this
Section 2 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) prepare and file with the SEC such amendments
and supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement;
(b) furnish to the selling Holders such number of
copies of a prospectus, including a preliminary prospectus, in conformity with
the requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by them that are included in such registration;
(c) use its commercially reasonable efforts to
register and qualify the securities covered by such registration statement under
such other securities or blue sky laws of such states or other jurisdictions as
shall be reasonably requested by the selling Holders, PROVIDED that the Company
shall not be required in connection therewith or as a condition thereto to
qualify to do business or to file a general consent to service of process in any
such states or jurisdictions;
(d) notify each Holder of Registrable Securities
covered by such registration statement at any time when a prospectus relating
thereto is required to be delivered under the Securities Act of the happening of
any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing;
(e) use commercially reasonable efforts to cause all
such Registrable Securities registered pursuant hereunder to be listed on a
national securities exchange or trading system and ach securities exchange and
trading system (if any) on which similar securities issued by the Company are
then listed;
(f) provide a transfer agent and registrar for all
Registrable Securities registered pursuant to such registration statement and a
CUSIP number for all such Registrable Securities, in each case not later than
the effective date of such registration; and
(g) promptly make available for inspection by the
selling Holders, any attorney or accountant or other agent retained by any such
underwriter or selected by the selling Holders, all financial and other records,
pertinent corporate documents and properties of the Company and cause the
Company's officers, directors, employees and independent accountants to supply
all information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with any such registration statement.
2.3 FURNISH INFORMATION. It shall be a condition precedent
to the obligations of the Company to take any action pursuant to Section 2.1
hereof that the selling Holders shall furnish to the Company such information
regarding themselves, the Registrable Securities held
by them and the intended method of disposition of such securities as shall be
required to timely effect the registration of their Registrable Securities.
2.4 EXPENSES. All expenses (other than underwriting
discounts and commissions) incurred in connection with a registration pursuant
to Section 2, including, without limitation, registration, filing and
qualification fees, printers' and accounting fees, fees and disbursements of
counsel for the Company, fees and disbursements of one counsel acting on behalf
of the Holders, shall be borne by the Company.
2.5 DELAY OF REGISTRATION. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 2.
2.6 INDEMNIFICATION. In the event any Registrable Securities
are included in a registration statement under Section 2 hereof:
(a) BY THE COMPANY. To the extent permitted by law,
the Company shall indemnify and hold harmless each Holder, the partners,
members, officers and directors of each Holder, legal counsel and accountants
for each Holder, any underwriter (as defined in the Securities Act) for such
Holder and each person, if any, who controls such Holder or underwriter within
the meaning of the Securities Act or the Exchange Act, against any expenses,
losses, claims, damages or liabilities (joint or several) to which they may
become subject under the Securities Act, the Exchange Act or other federal or
state law, insofar as such expenses, losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any of the following
statements, omissions or violations (each a "VIOLATION"):
(i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto;
(ii) 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; or
(iii) any violation or alleged violation by
the Company of the Securities Act, the Exchange Act, any federal or state
securities law or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any federal or state securities law in connection with the
offering covered by such registration statement;
and the Company shall reimburse each such Holder, partner, officer or director,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them, as incurred, in connection with investigating or defending any
such loss, claim, damage liability or action; PROVIDED, HOWEVER, that the
indemnity agreement contained in this Section 2.6(a) shall not apply to amounts
paid in settlement of any such expense, loss, claim, damage, liability or action
if such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld), nor shall the Company be liable in any such
case for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon actions or omissions made in reliance upon and in
conformity with written information furnished by or on
behalf of any such Holder, partner, officer or director, underwriter or
controlling person expressly for use in connection with such registration by
such Holder, partner, officer, director, underwriter or controlling person.
(b) BY SELLING HOLDERS. To the extent permitted by
law, each selling Holder shall indemnify and hold harmless the Company, each of
its directors, each of its officers who have signed the registration statement,
each person, if any, who controls the Company within the meaning of the
Securities Act, legal counsel and accountants for the Company, any underwriter
and any other Holder selling securities under such registration statement or any
of such other Holder's partners, directors or officers or any person who
controls such Holder within the meaning of the Securities Act or the Exchange
Act, against any expenses, losses, claims, damages or liabilities (joint or
several) to which any of the foregoing persons may become subject under the
Securities Act, the Exchange Act or other federal or state law, insofar as such
expenses, losses, claims, damages or liabilities (or actions in respect thereto)
arise out of or are based upon any Violation, in each case to the extent (and
only to the extent) that such Violation arises out of or is based on actions or
omissions made in reliance upon and in conformity with written information
furnished by such Holder expressly for use in connection with such registration;
and each such Holder shall reimburse the Company and such other persons for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
PROVIDED, HOWEVER, that the indemnity agreement contained in this Section 2.6(b)
shall not apply to amounts paid in settlement of any such expense, loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Holder, which consent shall not be unreasonably withheld; and PROVIDED
FURTHER, that the total amounts payable in indemnity by a Holder under this
Section 2.6(b) in respect of any Violation shall not exceed the net proceeds
received by such Holder in the registered offering out of which such Violation
arises except in the case of fraud or willful misconduct by such Holder.
(c) NOTICE. Promptly after receipt by an indemnified
party under this Section 2.6 of notice of the commencement of any action
(including any governmental action) for which a party may be entitled to
indemnification hereunder, such indemnified party shall, if a claim in respect
thereof is to be made against any indemnifying party under this Section 2.6,
deliver to the indemnifying party a written notice of the commencement thereof,
and the indemnifying party shall have the right to participate in such action
and, to the extent the indemnifying party so desires, jointly with any other
indemnifying party to which notice has been given, to assume the defense thereof
with counsel mutually satisfactory to the parties; PROVIDED, HOWEVER, that an
indemnified party (together with all other indemnified parties that may be
represented without conflict by one counsel) shall have the right to retain its
own counsel, with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
2.6, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 2.6.
(d) DEFECT ELIMINATED IN FINAL PROSPECTUS. The
foregoing indemnity agreements of the Company and Holders are subject to the
condition that, insofar as they relate to any Violation made in a preliminary
prospectus but eliminated or remedied in the amended prospectus on file with the
SEC at the time the registration statement in question becomes effective or the
amended prospectus filed with the SEC pursuant to SEC Rule 424(b) (the "FINAL
PROSPECTUS"), such indemnity agreement shall not inure to the benefit of any
indemnified party if a copy of the Final Prospectus was timely furnished to that
indemnified party and was not furnished to the person asserting the expense,
loss, liability, claim or damage at or prior to the time such action is required
by the Securities Act.
(e) CONTRIBUTION. In order to provide for just and
equitable contribution to joint liability under the Securities Act in any case
in which either (i) any party otherwise entitled to indemnification hereunder
makes a claim for indemnification pursuant to this Section 2.6 but it is
judicially determined (by the entry of a final judgment or decree by a court of
competent jurisdiction and the expiration of time to appeal or the denial of the
last right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that this Section 2.6 provides for indemnification in
such case, or (ii) contribution under the Securities Act may be required on the
part of any party hereto for which indemnification is provided under this
Section 2.6; then, and in each such case, such parties will contribute to the
aggregate expenses, losses, claims, damages or liabilities to which they may be
subject (after contribution from others) in such proportion as is appropriate to
reflect the relative fault of the indemnifying party and the indemnified party
in connection with the Violation that resulted in such expense, loss, claim,
damage or liability as well as other equitable considerations. The relative
fault of such parties shall be determined by reference to, among other things,
whether the untrue or allegedly untrue statement of a material fact or the
omission or alleged omission of a material fact relates to information supplied
by the indemnifying party or indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; PROVIDED, HOWEVER, that, in any such case, (A) no such
Holder will be required to contribute any amount in excess of the net proceeds
from the sale of all such Registrable Securities offered and sold by such Holder
pursuant to such registration statement, and (B) no individual or entity guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any individual or entity
who was not guilty of such fraudulent misrepresentation; and PROVIDED FURTHER,
that in no event shall a Holder's liability pursuant to this Section 2.6(e),
when combined with the amounts paid or payable by such Holder pursuant to
Section 2.6(b), exceed the net proceeds from the offering received by such
Holder, except in the case of willful misconduct or fraud by such Holder.
(f) SURVIVAL. Unless otherwise superseded by an
underwriting agreement entered into in connection with the offering, the
obligations of the Company and Holders under this Section 2.6 shall survive the
completion of any offering of Registrable Securities in a registration under
this Section 2, and otherwise shall survive the termination of this Agreement.
2.7 RULE 144 REPORTING. With a view to making available the benefits
of certain rules and regulations of the SEC which may at any time permit the
sale of the Registrable
Securities to the public without registration, after such time as a public
market exists for the Common Stock, the Company agrees to:
(a) make and keep public information available, as
those terms are understood and defined in Rule 144 under the Securities Act, at
all times after the effective date of the first registration under the
Securities Act filed by the Company for an offering of its securities to the
general public;
(b) use its commercially reasonable efforts to file
with the SEC in a timely manner all reports and other documents required of the
Company under the Securities Act and the Exchange Act (at any time after it has
become subject to such reporting requirements); and
(c) furnish to any Holder, so long as the Holder
owns any Registrable Securities, forthwith upon request (i) a written statement
by the Company as to its compliance with the reporting requirements of said Rule
144 (at any time after ninety (90) days after the effective date of the first
registration statement filed by the Company for an offering of its securities to
the general public), and of the Securities Act and the Exchange Act (at any time
after it has become subject to the reporting requirements of the Exchange Act),
(ii) a copy of the most recent annual or quarterly report of the Company and
(iii) such other reports and documents of the Company as a Holder may reasonably
request in availing itself of any rule or regulation of the Commission allowing
a Holder to sell any such securities without registration (at any time after the
Company has become subject to the reporting requirements of the Exchange Act).
2.8 "MARKET STAND-OFF" AGREEMENT. If the Ardent Closing does
not occur, Holder hereby agrees that it will not, without the prior written
consent of the managing underwriters, during the period commencing on the
effective date of registration statement relating to any registered public
offering of the Company's Common Stock and ending on the date specified by the
Company and the managing underwriters (such period not to exceed one hundred
eighty (180) days (i) lend, offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right, or warrant to purchase, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock or (ii) enter into any swap
or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or other securities, in cash, or otherwise. The foregoing
provisions of this Section 2.8 shall not apply to the sale of any shares to an
underwriter pursuant to an underwriting agreement, and shall be applicable to
the Holders only if all officers and directors and all shareholders individually
owning more than one percent (1%) of the Company's outstanding Common Stock are
subject to the same restrictions. The underwriters in connection with the
offering are intended third-party beneficiaries of this Section 2.8 and shall
have the right, power, and authority to enforce the provisions hereof as though
they were a party hereto. Each Holder further agrees to execute such agreements
as may be reasonably requested by the managing underwriters in the offering that
are consistent with this Section 2.8 or that are necessary to give further
effect thereto. In order to enforce the foregoing covenant, the Company may
impose stop-transfer instructions with respect
to the Registrable Securities of each Holder (and the shares or securities of
every other person subject to the foregoing restriction) until the end of such
period.
2.9 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause
the Company to register Registrable Securities pursuant to this Section 2 may be
assigned to a transferee or assignee in connection with any transfer or
assignment of Registrable Securities by the Holder, PROVIDED that (i) such
transfer or assignment may otherwise be effected in accordance with applicable
securities laws, (ii) such transferee or assignee acquires at least 50% of
Registrable Securities held by the Holder, (iii) written notice is promptly
given to the Company and (iv) such transferee or assignee agrees to be bound by
the provisions of this Agreement. The foregoing 50% limitation shall not apply,
however, to transfers or assignments by a Holder to (a) a partner, member or
shareholder of a Holder that is a partnership, limited liability company or
corporation, respectively, (b) a retired partner or member of such partnership
or limited liability company who retires after the date hereof, (c) the estate
of any such partner, member or shareholder or (d) an Affiliate of any such
partnership, limited liability company or corporation, (e) any spouse, parent,
child or sibling of such partner, member or shareholder or of the Holder,
including in-laws and persons related by adoption, or (f) any domestic partner
of such partner, member or shareholder or of the Holder who is covered under an
applicable domestic relations statute, PROVIDED that all such transferees or
assignees agree in writing to appoint a single representative as their
attorney-in-fact for the purpose of exercising any rights, receiving notices, or
taking any action under this Section 2.
2.10 TERMINATION OF REGISTRATION RIGHTS. The Company's
obligations pursuant to Sections 2 Shall terminate as to any Holder, at such
time following as all Registrable Securities that such Holder holds or has the
right to acquire may immediately be sold in any three-month period without
registration pursuant to Rule 144 under the Securities Act.
3. RIGHTS TO PURCHASE ADDITIONAL STOCK.
3.1 RIGHT OF FIRST OFFER. Subject to the terms of this
Section 3 and subject to the Ardent Closing not occurring by March 31, 2007 and
applicable securities laws, if the Company proposes to offer or sell any Equity
Securities after March 31, 2007, the Company shall give each Investor the right
to purchase such Investors' pro rata share of such Equity Securities, on the
same terms as the Company is willing to sell such Equity Securities to any other
person. An Investor's pro rata share of the Equity Securities shall be equal to
that percentage of the Outstanding Common Equivalents (as defined below) held by
such Investor on the date of the company's written notice referred to in Section
3.2 below. For purposes of this Section 3, the "OUTSTANDING COMMON EQUIVALENTS"
shall mean outstanding shares of Common Stock and all shares of Common Stock
issuable, directly or indirectly, upon exercise or conversion of any outstanding
warrants or options or any other right to acquire any of the foregoing. An
Investor shall be entitled to apportion this right of first offer among itself
and its Affiliates in such proportions as it deems appropriate.
3.2 NOTICE; EXERCISE OF RIGHT. Prior to any sale or issuance
by the Company of any Equity Securities after March 31, 2007, the Company shall
give notice to each Investor of its intention to sell and issue such Equity
Securities, setting forth the terms under which it proposes to make such sale
(the "OFFER NOTICE"). Within twenty (20) days after receipt of the
Offer Notice, each Investor shall notify the Company whether such Investor
desires to purchase its pro rata share, or any part thereof, of the Equity
Securities so offered. At the expiration of such twenty (20) day period, the
Company shall promptly give notice to each Investor that elects to purchase all
the shares available to it (each, a "FULLY EXERCISING INVESTOR") of any other
Investor's failure to do likewise, specifying the number of additional shares
that are available to the Fully Exercising Investors ("ADDITIONAL SHARES").
During the ten (10) day period commencing after the Company has given such
notice, each Fully Exercising Investor may, by giving notice to the Company,
elect to purchase, in addition to the number of shares specified above, up to
that portion of the Additional Shares which is equal to the proportion that the
Common Equivalents held by such Fully Exercising Investor bears to the Common
Equivalents then held by all Fully Exercising Investors who wish to purchase
such Additional Shares. If an Investor notifies the Company of its desire to
purchase any of the Equity Securities offered by the Company, the closing of the
sale shall occur within sixty (60) days of the date that the Offer Notice is
given or, if later, the closing date for the proposed sale of such Equity
Securities to third parties.
3.3 PERMITTED SALES. With respect to any Equity Securities
that are not subscribed for by Investors after the end of the thirty (30) day
period specified in Section 3.2, the Company may, during a period of ninety (90)
days following the end of such period, offer and sell such Equity Securities to
other persons upon terms and conditions not less favorable to the Company than
those set forth in the notice to the Investors. In the event the Company has not
entered into a definitive agreement for the sale of the Equity Securities within
said 90 day period, or if such agreement is not consummated within thirty (30)
days after the consummation thereof, the Company shall not thereafter issue or
sell any Equity Securities without first offering such securities to the
Investors pursuant to this Section 3.
3.4 EXCEPTIONS. The right of first offer contained in this
Section 3 shall not apply to issuances by the Company (i) of shares of Common
Stock issued or issuable to officers, directors or employees of, or consultants
to, the Company pursuant to any stock option plan or agreement or other stock
incentive program or agreement approved by the Board of Directors, (ii) as part
of an acquisition by the Company of all or substantially all of the assets or
shares of another company or entity through a merger, exchange, reorganization
or the like that is approved by the Board of Directors including the vote of at
least one director designated by the Holders (iii) in connection with a joint
venture, strategic investment and/or acquisition of technology or intellectual
property that is approved by the Board of Directors including the vote of at
least one director designated by the Holders, (v) to landlords, equipment
lessors, lenders or other financial institutions in commercial transactions or
arrangements approved by the Board of Directors including the vote of at least
one director designated by the Holders, (vi) directly or indirectly upon
conversion or exercise of shares of convertible securities, options or warrants
that are outstanding as of the date of this Agreement or (vii) in connection
with any stock split, stock dividend, reverse stock split or similar
recapitalization event.
4. OTHER COVENANTS OF THE COMPANY AND INVESTORS.
4.1 BOARD OF DIRECTORS. In the event the Ardent Closing does
not occur by March 31, 2007, the Holders shall have a right to appoint an
individual to the Board of Directors,
whose favorable vote shall be required to approve all material transactions and
transactions with affiliated parties.
4.2 CONFIDENTIALITY. Each Investor agrees that such Investor
will keep confidential and will not disclose, divulge or use for any purpose
(other than to monitor its investment in the Company) any confidential
information obtained from the Company pursuant to the terms of this Agreement
(including notice of the Company's intention to file a registration statement)
unless such confidential information (a) is known or becomes known to the public
in general (other than as a result of a breach of this Section 4.2 by such
Investor), (b) is or has been independently developed or conceived by the
Investor without use of the Company's confidential information, or (c) is or has
been made known or disclosed to the Investor by a third party without a breach
of any obligation of confidentiality such third party may have to the Company;
PROVIDED, HOWEVER, that an Investor may disclose confidential information (i) to
its attorneys, accountants, consultants, and other professionals to the extent
necessary to obtain their services in connection with monitoring its investment
in the Company, (ii) to any prospective purchaser of any Registrable Securities
from such Investor, if such prospective purchaser agrees to be bound by the
provisions of this Section 4.2, (iii) to any Affiliate, partner, member,
stockholder, or wholly owned subsidiary of such Investor in the ordinary course
of business, provided that such Investor informs such Person that such
information is confidential and directs such Person to maintain the
confidentiality of such information, or (iv) as may otherwise be required by
law, provided that the Investor promptly notifies the Company of such disclosure
and takes reasonable steps to minimize the extent of any such required
disclosure.
4.3 CO-SALE RIGHTS.
(a) In the event that the Ardent Closing does not
occur by March 31, 2007, then if any of ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ and
▇▇▇▇▇ ▇▇▇▇▇▇▇ seek to transfer any equity securities ("Applicable Equity
Security") of the Company (each a "Transferring Holder"), such Transferring
Holder shall notify each Holder (though for such purposes of this Section 4.3
"Holder" shall not include any of Messrs. Santo, Kirby, Waters and ▇▇▇▇▇▇▇) of
the proposed transfer and the terms and conditions of such transfer (the
"Transfer Notice"). Each Holders shall then be able to exercise their right of
co-sale with respect to the proposed Transfer. Each Holder shall notify the
Transferring Holder in writing within thirty (30) days after receipt of the
Transfer Notice. Each Holder shall have the right to participate in such sale of
Applicable Equity Securities on the same terms and conditions as specified in
the Transfer Notice. Such Selling Holder's notice to the Transferring Holder
shall indicate the number of shares of Applicable Equity Securities the Selling
Holder wishes to sell under his, her or its right to participate. To the extent
one or more of the Holders exercise such right of participation in accordance
with the terms and conditions set forth below, the number of shares of
Applicable Equity Securities that the Transferring Holder may sell in the
Transfer shall be correspondingly reduced.
(b) Each Selling Holder may sell all or any part of
that number of shares of Applicable Equity Securities equal to the product
obtained by multiplying (i) the aggregate number of shares of Applicable Equity
Securities covered by the Transfer Notice by (ii) a fraction, the numerator of
which is the number of shares of Applicable Equity Securities owned by the
Selling Holder on the date of the Transfer Notice and the denominator of which
is
the total number of shares of Applicable Equity Securities owned by the
Transferring Holder and all of the Selling Holders on the date of the Transfer
Notice.
(c) Each Selling Holder shall effect its
participation in the sale by promptly delivering to the Transferring Holder for
transfer to the prospective purchaser one or more certificates, properly
endorsed for transfer, which represent the number of shares of Applicable Equity
Securities which such Selling Holder elects to sell.
(d) The stock certificate or certificates that the
Selling Holder delivers to the Transferring Holder pursuant to Section 4.4(c)
shall be transferred to the prospective purchaser in consummation of the sale of
the Applicable Equity Securities pursuant to the terms and conditions specified
in the Transfer Notice, and the Transferring Holder shall concurrently therewith
remit to such Selling Holder that portion of the sale proceeds to which such
Selling Holder is entitled by reason of its participation in such sale. To the
extent that any prospective purchaser or purchasers prohibits such assignment or
otherwise refuses to purchase shares or other securities from a Selling Holder
exercising its rights of co-sale hereunder, the Transferring Holder shall not
sell to such prospective purchaser or purchasers any Applicable Equity
Securities unless and until, simultaneously with such sale, the Transferring
Holder shall purchase such shares or other securities from such Selling Holder
for the same consideration and on the same terms and conditions as the proposed
transfer described in the Transfer Notice.
(e) No Selling Holder shall be required in
connection with any such transaction to make any representation, warranty or
covenant other than a representation as to its power and authority to effect
such transfer and as to its title to the securities to be transferred by it.
4.4 Non-Exercise of Rights. To the extent no co-sale rights
have been exercised pursuant to Section 4.4 within the applicable time periods,
the Transferring Holder shall have a period of thirty (30) days from the
expiration of such rights in which to sell such Equity Securities upon terms and
conditions (including the purchase price) no more favorable to the Transferring
Holder than those specified in the Transfer Notice to the third-party
transferee(s) identified in the Transfer Notice. In the event the Transferring
Holder does not consummate the sale or disposition of the Equity Securities
subject to the proposed Transfer within the thirty (30) day period from the
expiration of these rights, co-sale rights set forth herein shall continue to be
applicable to any subsequent disposition of the Equity Securities subject to the
proposed Transfer by the Transferring Holder until such right lapses in
accordance with the terms of this Agreement. Furthermore, the exercise or
non-exercise of the rights of the Company and the Holders under this Section 4.4
to purchase Equity Securities from the Transferring Holder or participate in
sales of Equity Securities by the Transferring Holder shall not adversely affect
their rights to make subsequent purchases from any Transferring Holder of Equity
Securities or subsequently participate in sales of Equity Securities by any
Transferring Holder.
5. MISCELLANEOUS.
5.1 NOTICES. Any notice, request or other communication
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if delivered personally, by facsimile when receipt is
electronically confirmed, one business day after delivery
to a nationally recognized courier service that promises overnight delivery, or
otherwise upon receipt, addressed (i) if to Investor, at the address set forth
below Investor's name on Exhibit A, and (ii) if to the Company, at the address
set forth below:
AVANTAIR, INC.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
FAX: (▇▇▇)▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
FAX: (▇▇▇)▇▇▇-▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Any party hereto may, by ten (10) days' prior notice so given, change
its address for future notices hereunder.
5.2 SUCCESSORS AND ASSIGNS. Each Investor agrees that it may
not assign any of its rights or obligations hereunder unless such rights and
obligations are assigned by such Investor to (i) an individual or entity to
which Registrable Securities are transferred by such Investor pursuant to
Section 0 and (ii) with respect to the right of first offer set forth in Section
3, to another Investor or an Affiliate of the Investor, and, in each case, such
assignee shall be deemed an "Investor" for purposes of this Agreement, PROVIDED
that such assignment shall be contingent upon the assignee providing a written
instrument to the Company notifying the Company of such assignment and agreeing
in writing to be bound by the terms of this Agreement. Except as otherwise
provided herein, the provisions of this Agreement shall inure to the benefit of,
and shall be binding upon, the successors and permitted assigns of the parties
hereto.
5.3 AMENDMENTS AND WAIVERS. Any provision of this Agreement
may be amended and the observance thereof may be waived, either generally or in
a particular instance and either retroactively or prospectively, only with the
written consent of the Company and the holders of a majority of the Registrable
Securities; PROVIDED, HOWEVER, that this Agreement may not be amended and the
observance of any term hereof may not be waived with respect to any Investor
without the written consent of such Investor unless such amendment or waiver
applies to all Investors in the same fashion (it being agreed that a waiver of
the provisions of Section 3 with respect to a particular transaction shall be
deemed to apply to all Investors in the same fashion if such waiver does so by
its terms, notwithstanding the fact that certain Investors may nonetheless, by
agreement with the Company, purchase securities in such transaction). The
Company shall give prompt notice of any amendment hereof or waiver hereunder to
any party hereto that did not consent in writing to such amendment or waiver.
Any amendment or waiver effected in accordance with this Section 5.3 shall be
binding upon each Investor, each permitted successor or assignee of such
Investor and the Company.
5.4 ENTIRE AGREEMENT. This Agreement, together with all the
exhibits hereto, constitutes and contains the entire agreement and understanding
of the parties with respect to the subject matter hereof and supersedes any and
all prior negotiations, correspondence, agreements, understandings, duties or
obligations between the parties with respect to the subject matter hereof.
5.5 GOVERNING LAW. This Agreement shall be governed by and
construed exclusively in accordance with the internal laws of the State of New
York as applied to agreements among New York residents entered into and to be
performed entirely within New York.
5.6 SEVERABILITY. If any provision of this Agreement is held
to be unenforceable under applicable law, then such provision shall be excluded
from this Agreement and the balance of this Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
5.7 DELAYS OR OMISSIONS. No delay or omission to exercise
any right, power or remedy accruing to any party under Agreement upon any breach
or default of any other party under this Agreement shall impair any such right,
power or remedy of the nonbreaching or nondefaulting party, nor shall it be
construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default theretofore or thereafter
occurring, nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default therefore or thereafter occurring. All
remedies, either under this Agreement or by law or otherwise afforded to any
Holder, shall be cumulative and not alternative.
5.8 CAPTIONS. The captions to sections of this Agreement
have been inserted for identification and reference purposes only and shall not
be used to construe or interpret this Agreement.
5.9 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.10 COSTS AND ATTORNEYS' FEES. In the event that any action,
suit or other proceeding is instituted concerning or arising out of this
Agreement or any transaction contemplated hereunder, the prevailing party shall
recover all of such party's costs and attorneys' fees incurred in each such
action, suit or other proceeding, including any and all appeals or petitions
therefrom.
5.11 ADJUSTMENTS FOR RECAPITALIZATION EVENTS. Wherever in
this Agreement there is a reference to a specific number of shares of Common
Stock of the Company or a specific dollar amount per share, then, upon the
occurrence of any stock split, stock dividend, reverse stock split or similar
recapitalization event affecting such shares, the specific number of shares or
dollar amount so referenced in this Agreement shall automatically be
proportionally adjusted to reflect the effect on the outstanding shares of such
class or series of stock of such recapitalization event.
5.12 AGGREGATION OF STOCK. All shares held or acquired by
Affiliates shall be aggregated together for the purpose of determining the
availability of any rights under this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
COMPANY:
AVANTAIR, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Chief Financial Officer
COUNTERPART SIGNATURE PAGE TO AVANTAIR
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
INDIVIDUAL INVESTOR: ENTITY INVESTOR:
BRMR, LLC
-------------------------------------
(Print Name of Entity)
---------------------------------
(Signature)
Name: By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------- ----------------------------------
(Signature)
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Title: Chief Executive Officer
------------------------------
EXHIBIT A
INVESTORS
No. of Shares of Series A Common
Name and Address Investor Stock Purchased
-------------------------------------- ---------------------------------------
BRMR, LLC 179,856
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
COUNTERPART SIGNATURE PAGE TO AVANTAIR
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
INDIVIDUAL INVESTOR: ENTITY INVESTOR:
▇▇▇▇▇▇ Holdings, LLC
-------------------------------------
(Print Name of Entity)
---------------------------------
(Signature)
Name: By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------- ----------------------------------
(Signature)
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Title: Member
------------------------------
EXHIBIT A
INVESTORS
No. of Shares of Series A Common
Name and Address Investor Stock Purchased
-------------------------------------- ---------------------------------------
▇▇▇▇▇▇ Holdings, LLC 110,000
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
COUNTERPART SIGNATURE PAGE TO AVANTAIR
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
INDIVIDUAL INVESTOR: ENTITY INVESTOR:
Dalewood Associates, LP
-------------------------------------
(Print Name of Entity)
---------------------------------
(Signature)
Name: By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------- ----------------------------------
(Signature)
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Title: Managing Director
------------------------------
EXHIBIT A
INVESTORS
No. of Shares of Series A Common
Name and Address Investor Stock Purchased
-------------------------------------- ---------------------------------------
Dalewood Associates, LP 321,655
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
COUNTERPART SIGNATURE PAGE TO AVANTAIR
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
INDIVIDUAL INVESTOR: ENTITY INVESTOR:
-------------------------------------
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ (Print Name of Entity)
---------------------------------
(Signature)
Name: ▇▇▇▇▇ ▇▇▇▇▇▇ By:
---------------------------- ----------------------------------
(Signature)
Name:
-------------------------------
Title:
------------------------------
EXHIBIT A
INVESTORS
No. of Shares of Series A Common
Name and Address Investor Stock Purchased
-------------------------------------- ---------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ 89,928
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
COUNTERPART SIGNATURE PAGE TO AVANTAIR
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
INDIVIDUAL INVESTOR: ENTITY INVESTOR:
▇▇▇▇▇▇ Capital, LP
-------------------------------------
(Print Name of Entity)
---------------------------------
(Signature)
Name: By:/s/ Daniel Nir
---------------------------- ----------------------------------
(Signature)
Name: Daniel Nir
-------------------------------
Title: Managing Member
------------------------------
EXHIBIT A
INVESTORS
No. of Shares of Series A Common
Name and Address Investor Stock Purchased
-------------------------------------- ---------------------------------------
▇▇▇▇▇▇ Capital LP 179,856
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
COUNTERPART SIGNATURE PAGE TO AVANTAIR
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
INDIVIDUAL INVESTOR: ENTITY INVESTOR:
Hummingbird Microcap Value Fund LP
-------------------------------------
(Print Name of Entity)
---------------------------------
(Signature)
Name: By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- ----------------------------------
(Signature)
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: Managing Member
------------------------------
EXHIBIT A
INVESTORS
No. of Shares of Series A Common
Name and Address Investor Stock Purchased
-------------------------------------- ---------------------------------------
Hummingbird Microcap Value Fund LP 179,856
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
COUNTERPART SIGNATURE PAGE TO AVANTAIR
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
INDIVIDUAL INVESTOR: ENTITY INVESTOR:
Hummingbird Value Fund LP
-------------------------------------
(Print Name of Entity)
---------------------------------
(Signature)
Name: By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- ----------------------------------
(Signature)
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: Managing Member
------------------------------
EXHIBIT A
INVESTORS
No. of Shares of Series A Common
Name and Address Investor Stock Purchased
-------------------------------------- ---------------------------------------
Hummingbird Value Fund LP 179,856
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
COUNTERPART SIGNATURE PAGE TO AVANTAIR
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
INDIVIDUAL INVESTOR: ENTITY INVESTOR:
Hummingbird Concentrated Fund, LP
-------------------------------------
(Print Name of Entity)
---------------------------------
(Signature)
Name: By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- ----------------------------------
(Signature)
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Title: Managing Member
------------------------------
EXHIBIT A
INVESTORS
No. of Shares of Series A Common
Name and Address Investor Stock Purchased
-------------------------------------- ---------------------------------------
Hummingbird Concentrated Fund, LP 359,713
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
COUNTERPART SIGNATURE PAGE TO AVANTAIR
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
INDIVIDUAL INVESTOR: ENTITY INVESTOR:
Potomac Capital Partners, LP
-------------------------------------
(Print Name of Entity)
---------------------------------
(Signature)
Name: By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------- ----------------------------------
(Signature)
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Title: Chief Financial Officer
------------------------------
EXHIBIT A
INVESTORS
No. of Shares of Series A Common
Name and Address Investor Stock Purchased
-------------------------------------- ---------------------------------------
Potomac Capital Partners LP ▇▇▇,▇▇▇
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
COUNTERPART SIGNATURE PAGE TO AVANTAIR
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
INDIVIDUAL INVESTOR: ENTITY INVESTOR:
Potomac Capital International Ltd.
-------------------------------------
(Print Name of Entity)
---------------------------------
(Signature)
Name: By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------- ----------------------------------
(Signature)
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Title: Chief Financial Officer
------------------------------
EXHIBIT A
INVESTORS
No. of Shares of Series A Common
Name and Address Investor Stock Purchased
-------------------------------------- ---------------------------------------
Potomac Capital International Ltd. ▇▇▇,▇▇▇
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
COUNTERPART SIGNATURE PAGE TO AVANTAIR
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
INDIVIDUAL INVESTOR: ENTITY INVESTOR:
Pleiades Investment Partners-R, LP
-------------------------------------
(Print Name of Entity)
---------------------------------
(Signature)
Name: By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------- ----------------------------------
(Signature)
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Title: Chief Financial Officer
------------------------------
EXHIBIT A
INVESTORS
No. of Shares of Series A Common
Name and Address Investor Stock Purchased
-------------------------------------- ---------------------------------------
Pleiades Investment Partners-R, LP ▇▇▇,▇▇▇
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
COUNTERPART SIGNATURE PAGE TO AVANTAIR
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
INDIVIDUAL INVESTOR: ENTITY INVESTOR:
-------------------------------------
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ (Print Name of Entity)
---------------------------------
(Signature)
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ By:
---------------------------- ----------------------------------
(Signature)
Name:
-------------------------------
Title:
------------------------------
EXHIBIT A
INVESTORS
No. of Shares of Series A Common
Name and Address Investor Stock Purchased
-------------------------------------- ---------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ 89,928
C/O Theory
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
COUNTERPART SIGNATURE PAGE TO AVANTAIR
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
INDIVIDUAL INVESTOR: ENTITY INVESTOR:
Seneca Capital, LP
-------------------------------------
(Print Name of Entity)
---------------------------------
(Signature)
Name: By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------- ----------------------------------
(Signature)
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Title: Chief Financial Officer
------------------------------
EXHIBIT A
INVESTORS
No. of Shares of Series A Common
Name and Address Investor Stock Purchased
-------------------------------------- ---------------------------------------
Seneca Capital, LP 179,856
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
COUNTERPART SIGNATURE PAGE TO AVANTAIR
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
INDIVIDUAL INVESTOR: ENTITY INVESTOR:
-------------------------------------
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ (Print Name of Entity)
---------------------------------
(Signature)
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ By:
---------------------------- ----------------------------------
(Signature)
Name:
-------------------------------
Title:
------------------------------
EXHIBIT A
INVESTORS
No. of Shares of Series A Common
Name and Address Investor Stock Purchased
-------------------------------------- ---------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ 178,738
C/O Avantair, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
COUNTERPART SIGNATURE PAGE TO AVANTAIR
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
INDIVIDUAL INVESTOR: ENTITY INVESTOR:
-------------------------------------
/s/ ▇▇▇▇ ▇▇▇▇▇ (Print Name of Entity)
---------------------------------
(Signature)
Name: ▇▇▇▇ ▇▇▇▇▇ By:
---------------------------- ----------------------------------
(Signature)
Name:
-------------------------------
Title:
------------------------------
EXHIBIT A
INVESTORS
No. of Shares of Series A Common
Name and Address Investor Stock Purchased
-------------------------------------- ---------------------------------------
▇▇▇▇ ▇▇▇▇▇ 178,738
C/O Avantair, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
COUNTERPART SIGNATURE PAGE TO AVANTAIR
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
INDIVIDUAL INVESTOR: ENTITY INVESTOR:
-------------------------------------
/s/ ▇▇▇▇ ▇▇▇▇▇▇ (Print Name of Entity)
---------------------------------
(Signature)
Name: ▇▇▇▇ ▇▇▇▇▇▇ By:
---------------------------- ----------------------------------
(Signature)
Name:
-------------------------------
Title:
------------------------------
EXHIBIT A
INVESTORS
No. of Shares of Series A Common
Name and Address Investor Stock Purchased
-------------------------------------- ---------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ 178,738
C/O Avantair, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
COUNTERPART SIGNATURE PAGE TO AVANTAIR
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
INDIVIDUAL INVESTOR: ENTITY INVESTOR:
-------------------------------------
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ (Print Name of Entity)
---------------------------------
(Signature)
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ By:
---------------------------- ----------------------------------
(Signature)
Name:
-------------------------------
Title:
------------------------------
EXHIBIT A
INVESTORS
No. of Shares of Series A Common
Name and Address Investor Stock Purchased
-------------------------------------- ---------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ 178,738
C/O Avantair, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇