AMENDMENT NO. 1 TO THE WARRANT AGREEMENT
Exhibit
4.2
AMENDMENT
NO. 1 TO THE WARRANT AGREEMENT
This
Amendment, dated as of November 14, 2008 (“Amendment”), is to the Warrant
Agreement, dated as of February 24, 2005 (“Warrant Agreement”), by and between
Ardent Acquisition Corporation, a Delaware corporation (presently known as
Avantair, Inc., the “Company”), and Continental Stock Transfer & Trust
Company, a New York corporation (“Warrant Agent”).
WHEREAS,
the Company consummated its initial public offering in March 2005, pursuant
to
which the Company issued, giving effect to the exercise of the overallotment
option, 6,900,000 units, each unit consisting of one share of common stock,
par
value $.0001 per share (“Common Stock”) and two warrants, each to purchase one
share of Common Stock for an exercise price of $5.00 per share
(“Warrants”);
WHEREAS,
the terms of the Warrants are governed by the Warrant Agreement;
and
WHEREAS,
the Company seeks to institute a warrant retirement program, whereby the holders
of the Warrants will be offered the opportunity to exercise the Warrants on
amended terms, in order to raise capital through the issuance of the Company’s
common stock upon any cash exercises of the Warrants and to eliminate or reduce
the number of outstanding Warrants;
NOW,
THEREFORE, in consideration of the mutual agreements contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
agree
to amend the Warrant Agreement as set forth herein.
1.1 The
Warrant Agreement is hereby amended by adding the following after the first
sentence of Section 3.1:
“Notwithstanding
the foregoing, for the period of time during which the Company holds open a
tender offer for the Public Warrants pursuant to a Tender Offer Statement on
Schedule TO filed with the Securities and Exchange Commission on or about
November 14, 2008 (“Special Exercise Period”), each Public Warrant shall, when
countersigned by the Warrant Agent, entitle the registered holder thereof,
subject to the provisions of such Public Warrant and of this Warrant Agreement,
to purchase from the Company the number of shares of Common Stock stated
therein, at the price of $2.75 per whole share.”
1.2 The
Warrant Agreement is hereby amended by replacing Section 3.3.1 so that it reads
in full as follows:
“3.3.1 PAYMENT.
Subject to the provisions of the Warrant and this Warrant Agreement, a Warrant,
when countersigned by the Warrant Agent, may be exercised by the registered
holder thereof by:
“(i) surrendering
the Warrant, at the office of the Warrant Agent, or at the office of its
successor as Warrant Agent, in the Borough of Manhattan, City and State of
New
York, with the subscription form, as set forth in the Warrant, duly executed,
and by paying in full, in lawful money of the United States, in cash, good
certified check or good bank draft payable to the order of the Company or,
during the Special Exercise Period, to the order of the Warrant Agent (or as
otherwise agreed to by the Company), the Warrant Price, as applicable at the
time the Warrant is surrendered, for each full share of Common Stock as to
which
the Warrant is exercised and any and all applicable taxes due in connection
with
the exercise of the Warrant, the exchange of the Warrant for the Common Stock,
and the issuance of the Common Stock; or
“(ii) in
the
case of Public Warrants, surrendering the Public Warrant, at the office of
the
Warrant Agent, or at the office of its successor as Warrant Agent, in the
Borough of Manhattan, City and State of New York, with the subscription form,
as
set forth in the Warrant, duly executed, without any cash payment, for one-tenth
of one share of Common Stock; provided,
however,
that
Public Warrants may only be exercised according to this Paragraph (ii) during
the Special Exercise Period; provided further,
however,
that
the Public Warrants surrendered according to this Paragraph (ii) shall be
surrendered in lots of ten and no fractional shares of Common Stock shall be
issued, or cash paid, by the Company for any odd lot of less than ten Public
Warrants; provided further,
however,
that
the number of Public Warrants surrendered according to this Paragraph (ii)
may
be no more than the product of (a) ten, multiplied by (b) the number of Public
Warrants surrendered in accordance with Paragraph (i) of this Section 3.3.1
during the Special Exercise Period.”
2. Miscellaneous.
2.1 Governing
Law.
The
validity, interpretation, and performance of this Amendment and of the Warrants
shall be governed in all respects by the laws of the State of New York, without
giving effect to conflicts of law principles that would result in the
application of the substantive laws of another jurisdiction. The Company hereby
agrees that any action, proceeding or claim against it arising out of or
relating in any way to this Amendment shall be brought and enforced in the
courts of the State of New York or the United States District Court for the
Southern District of New York, and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. The Company hereby waives any objection
to such exclusive jurisdiction and that such courts represent an inconvenient
forum. Any such process or summons to be served upon the Company may be served
by transmitting a copy thereof by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at the address set forth in Section
9.2 of the Warrant Agreement. Such mailing shall be deemed personal service
and
shall be legal and binding upon the Company in any action, proceeding or
claim.
(b) Binding
Effect.
This
Amendment shall be binding upon and inure to the benefit of the parties hereto
and to their respective heirs, legal representatives, successors and
assigns.
(c) Entire
Agreement.
This
Amendment 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 among them.
Except as set forth in this Amendment, provisions of the Warrant Agreement
which
are not inconsistent with this Amendment shall remain in full force and effect.
This Amendment may be executed in counterparts.
(d) Severability.
This
Amendment shall be deemed severable, and the invalidity or unenforceability
of
any term or provision hereof shall not affect the validity or enforceability
of
this Amendment or of any other term or provision hereof. Furthermore, in lieu
of
any such invalid or unenforceable term or provision, the parties hereto intend
that there shall be added as part of this Amendment a provision as similar
in
terms to such invalid or unenforceable provision as may be possible and be
valid
and enforceable.
IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
date
first written above.
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By:
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/s/ Xxxxxx Xxxxx |
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Xxxxxx
Xxxxx, Chief Executive Officer
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CONTINENTAL
STOCK TRANSFER & TRUST COMPANY
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By:
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/s/ Xxxxx XxXxxxx |
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Xxxxx
XxXxxxx, Chief Financial Officer
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