AMENDMENT NO. 3 TO THE SECURITIES PURCHASE AGREEMENT
Exhibit
2.7
AMENDMENT
NO. 3
TO
THE
Amendment
No. 3 (this “Amendment
No. 3”), dated as of September 23, 2009, to the Securities Purchase
Agreement (the “Agreement”), dated as
of June 30, 2009 (and initially amended as of July 30, 2009 (“Amendment No. 1”) and
amended again as of September 10, 2009 (“Amendment No. 2”)),
by and among Avantair, Inc., a Delaware corporation (the “Company”), and the
purchasers in the initial Closing identified on the signature pages to the
Agreement. This Amendment, when executed by the Company and the
Majority Purchasers (as defined below) shall be deemed part of the
Agreement. All purchasers in subsequent Closings shall execute a
counterpart signature page to this Amendment No 3 (and a similar signature page
to Amendments No. 1 and No. 2).
WHEREAS,
prior to the date hereof, the Company and the Placement elected to extend the
Offering until September 28, 2009 (as permitted under Section 1 of Amendment No.
2);
WHEREAS,
it is desired that the term of the Offering be extended beyond September 28,
2009;
WHEREAS,
Section 5.5 of the Agreement provides that such Agreement may be amended by the
Company and the holders of at least a majority in interest of the Shares then
outstanding;
WHEREAS,
Dalewood Associates LP (“Dalewood”), BRMR, LLC (“BRMR”), Xxxxx Xxxxxxxx, Xxxxxx
Xxxxxx, A. Xxxxxxx Xxxxx and Xxxxxx X. Xxxxx (collectively, the “Majority
Purchasers”) hold more than a majority in interest of the Shares currently
outstanding; and
WHEREAS,
capitalized terms used herein and not otherwise defined herein have the meaning
specified in the Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, each of the undersigned agree as follows:
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1.
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The
August 31, 2009 date referenced in Section 2.1 of the Agreement as amended
by Amendments No. 1 and No. 2 is hereby changed to October 15,
2009.
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2.
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The
Company shall use its commercially reasonable efforts to cause an
extension of the existing Escrow Agreement with Continental Stock Transfer
& Trust Company, dated as of June 30, 2009, as amended, to effect the
intent of Section 1 hereof.
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3.
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Except
as set forth above and as necessary to effect the foregoing, the Agreement
remains unmodified and in force in all
respects.
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4.
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All
questions concerning the construction, validity, enforcement and
interpretation of this Amendment shall be governed by and construed and
enforced in accordance with the internal laws of the State of New York,
without regard to the principles of conflicts of law
thereof.
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5.
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This
Amendment may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall
together constitute one and the same instrument. In the event
that any signature is delivered by facsimile transmission or by e-mail
delivery of a “.pdf” format data file, such signature shall create a valid
and binding obligation of the party executing (or on whose behalf such
signature is executed) with the same force and effect as if such facsimile
or “.pdf” signature page were an original
thereof.
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IN WITNESS WHEREOF, the parties
hereto have caused this Amendment to be duly executed by their respective
authorized signatories as of the date first indicated above.
By: /s/ Xxxxx
Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title:
Chief Operating Officer
DALEWOOD
ASSOCIATES LP
By: /s/ Xxxxxx
Xxxxxx
Name:
Xxxxxx Xxxxxx
Title:
Managing Director
BRMR,
LLC
By: /s/ Xxxxx
Xxxxxxxxxx
Name:
Xxxxx Xxxxxxxxxx
Title:
Chief Executive Officer
/s/ Xxxxx
Xxxxxxxx
XXXXX
XXXXXXXX
/s/ Xxxxxx
Xxxxxx
XXXXXX
XXXXXX
/s/ X. Xxxxxxx
Xxxxx
X.
XXXXXXX XXXXX
/s/ Xxxxxx X.
Xxxxx
XXXXXX
X. XXXXX
[POST-INITIAL
CLOSING PURCHASER SIGNATURE PAGE]
IN
WITNESS WHEREOF, the undersigned have caused this Amendment to the Agreement to
be duly executed by their respective authorized signatories as of the date first
indicated above. This undersigned signature below also constitutes
its, his or her signature page to the Agreement.
Name of
Purchaser: ________________________________________________________
Signature of Authorized Signatory of
Purchaser: __________________________________
Name of
Authorized Signatory:
____________________________________________________
Title of
Authorized Signatory:
_____________________________________________________
Email
Address of Authorized Signatory:
______________________________________________
Facsimile
Number of Authorized Signatory:
_____________________________________________
Address
for Notice of Purchaser:
Address
for Delivery of Securities for Purchaser (if not same as address for
notice):
Subscription
Amount: $_________________
Units:
_______________________
EIN
Number: ______________________________
