Unassociated Document


    Exhibit
4.6

     

    FORM OF WARRANT

     

    THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY OTHER APPLICABLE
SECURITIES LAWS, AND ARE RESTRICTED SECURITIES AS THAT TERM IS DEFINED UNDER
RULE 144 PROMULGATED UNDER THE ACT.  THESE SECURITIES MAY NOT BE SOLD,
PLEDGED, HYPOTHECATED, TRANSFERRED, DISTRIBUTED OR OTHERWISE DISPOSED OF IN ANY
MANNER UNLESS THEY ARE REGISTERED UNDER THE ACT AND ANY APPLICABLE SECURITIES
LAWS, OR UNLESS THE REQUEST FOR TRANSFER IS ACCOMPANIED BY AN OPINION OF
COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY, STATING THAT SUCH DISPOSITION
IS EXEMPT FROM REGISTRATION UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES
LAWS.  THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS
SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER
LOAN SECURED BY SUCH SECURITIES.

    


    THE
REGISTERED HOLDER OF THIS WARRANT, BY ITS ACCEPTANCE HEREOF, AGREES THAT IT WILL
NOT SELL, TRANSFER OR ASSIGN THIS WARRANT EXCEPT AS HEREIN
PROVIDED.

    


    VOID
AFTER 5:00 P.M. EASTERN TIME, JUNE 30, 2012

    


    WARRANT

    


    For
the Purchase of

    


    [  
] Shares of Common Stock

    


     of

    


    AVANTAIR,
INC.

     

    1    Warrant.

     

     

    THIS
CERTIFIES THAT, for good and valuable consideration, duly paid by or on behalf
of (“Holder”), as registered owner of this Warrant, to Avantair, Inc.
(“Company”), Holder is entitled, subject to the provisions of paragraph 2
hereof, at any time or from time to time at or before 5:00 p.m., Eastern Time
June 30, 2012 (“Expiration Date”), but not thereafter, to subscribe for,
purchase and receive, in whole or in part, up to [  
] shares of the Company’s common stock, par value $0.0001 per share
(“Common Stock”).  If the Expiration Date is a day on which banking
institutions are authorized by law to close, then this Warrant may be exercised
on the next succeeding day which is not such a day in accordance with the terms
herein.  This Warrant is initially exercisable at $1.05 per share of
Common Stock purchased; provided, however, that upon the occurrence of any of
the events specified in Section 6 hereof, the rights granted by this Warrant,
including the exercise price and the number of shares of Common Stock to be
received upon such exercise, shall be adjusted as therein
specified.  The term “Exercise Price” shall mean the initial exercise
price or the adjusted exercise price, depending on the context, of a share of
Common Stock.  The term “Securities” shall mean the shares of Common
Stock issuable upon exercise of this Warrant.  This Warrant is being
issued pursuant to an amended and restated letter dated as of October [15],
2009, between the Company and the Holder in which an affiliate of the
Holder is serving as the exclusive placement agent for the Company, on a “best
efforts” basis, in connection with the offer and placement by the Company of
certain equity securities (the “Engagement Letter”).  The Warrant
Shares issuable upon exercise of this Warrant are to be registered for resale
under the Securities Act pursuant to a registration statement (“Registration
Statement”) to be filed in accordance with a registration rights agreement, of
even date herewith, by and among the Company and the investors listed in Schedule I hereto
(the “Investors”), provided that the shares issuable to the Holder shall be
subject to cutback prior to any of the Investors shares being
cutback.  The term “Warrant Shares” means the shares of Common Stock
issuable upon exercise of the Warrant.

     

    2    Exercise.

     

     

    .1   Exercise.  In
order to exercise this Warrant, the exercise form attached hereto as Exhibit “A” must be
duly executed, completed and delivered to the Company with this Warrant to its
principal office and payment of the Exercise Price for the Securities being
purchased in cash by wire transfer as indicated by the Company (unless exercised
on a “cashless basis,” as described below).  If the subscription
rights represented hereby shall not be exercised at or before 5:00 p.m., Eastern
time, on the Expiration Date, this Warrant shall become and be void without
further force or effect, and all rights represented hereby shall cease and
expire.  Upon valid exercise of this Warrant (and delivery of any
required payment in immediately available funds), the Company shall cause to be
delivered to the Holder, as soon as practicable, certificates evidencing the
shares of Common Stock issuable upon such exercise.  In the event such
exercise would result in a fractional share being delivered to the Holder, such
fractional share shall be rounded up to a whole share.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    .2   Cashless
Exercise.  This Warrant may also be exercised at such time by
means of a “cashless exercise” in which the Holder shall be entitled to receive
a certificate for the number of Warrant Shares equal to the quotient obtained by
dividing [(A-B) (X)] by [(A)], where:

     

    
      (A) = the
VWAP (as defined below) on the Trading Day immediately preceding the date of
such election;

    

    


    
      (B) = the
Exercise Price of this Warrant, as may be adjusted from time to time;
and

    

    


    
      (X) = the
number of Warrant Shares issuable upon exercise of this Warrant in accordance
with the terms of this Warrant by means of a cash exercise rather than a
cashless exercise.

    

    


    “VWAP” means, for any
date, the price determined by the first of the following clauses that applies:
(a) if the Common Stock is then listed or quoted on a Trading Market, the volume
weighted average price of the Common Stock for the 10 consecutive trading days
immediately preceding the date of the notice of redemption on the Trading Market
on which the Common Stock is then listed or quoted for trading as reported by
Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to
4:02 p.m. (New York City time)); (b)  if the OTC Bulletin Board is not a
Trading Market the volume weighted average price of the Common Stock for the 10
consecutive trading days immediately  preceding  the date of
the notice of redemption on the OTC Bulletin Board; (c) if the Common Stock is
not then listed or quoted for trading on the OTC Bulletin Board and if prices
for the Common Stock are then reported in the “Pink Sheets” published by Pink
OTC Markets, Inc. (or a similar organization or agency succeeding to its
functions of reporting prices), the most recent bid price per share of the
Common Stock so reported; or (d) in all other cases, the fair market value
of a share of Common Stock as determined by an independent appraiser selected in
good faith by the Company’s board of directors, the fees and expenses of which
shall be paid by the Company.

     

    .3   Issue
Tax.  The issuance of certificates for the shares of Common
Stock underlying this warrant upon the exercise of this Warrant shall be made
without charge to the Holder for any issue tax in respect thereof.

     

    .4   Legend.  Each
certificate for Securities purchased under this Warrant shall bear a legend as
follows, unless such Securities have been registered under the Act.

     

    “THIS
SECURITY HAS NOT BEEN  REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO
AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO
THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY
ACCEPTABLE TO THE COMPANY. THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A
BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A
FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a)
UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES.”

     

    3    Transfer.

     

    .1   General
Restrictions.  The registered Holder of this Warrant, by his
acceptance hereof, agrees that he will not sell, transfer or assign or
hypothecate this Warrant to anyone except upon compliance with, or pursuant to
exemptions from, applicable securities laws.  In order to make any
permitted assignment, the Holder must deliver to the Company the assignment form
attached hereto as Exhibit “B” duly
executed and completed, together with this Warrant and payment of all transfer
taxes, if any, payable in connection therewith.  The Company shall
immediately transfer this Warrant on the books of the Company and shall execute
and deliver a new Warrant or Warrants of like tenor to the appropriate
assignee(s) expressly evidencing the right to purchase the aggregate number of
shares of Common Stock purchasable hereunder or such portion of such number as
shall be contemplated by any such assignment.

     

    .2   Restrictions Imposed by the
Securities Act.  This Warrant and the Securities underlying
this Warrant shall not be transferred unless and until (i) the Company has
received the opinion of counsel for the Holder that such securities may be sold
pursuant to an exemption from registration under the Act and applicable state
securities laws, the availability of which is established to the reasonable
satisfaction of the Company, or (ii) a registration statement relating to such
Securities has been filed by the Company and declared effective by the
Securities and Exchange Commission.

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    4    New Warrants to be
Issued.

     

    .1   Partial Exercise or
Transfer.  Subject to the restrictions in Section 3 hereof,
this Warrant may be exercised or assigned in whole or in part.  In the
event of the exercise or assignment hereof in part only, upon surrender of this
Warrant for cancellation, together with the duly executed exercise or assignment
form and funds (or conversion equivalent) sufficient to pay any Exercise Price
and/or transfer tax, the Company shall cause to be delivered to the Holder
without charge a new Warrant of like tenor to this Warrant in the name of the
Holder evidencing the right of the Holder to purchase the aggregate number of
shares of Common Stock and Warrants purchasable hereunder as to which this
Warrant has not been exercised or assigned.

     

    .2   Lost
Certificate.  Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant
and of reasonably satisfactory indemnification, the Company shall execute and
deliver a new Warrant of like tenor and date. Any such new Warrant executed and
delivered as a result of such loss, theft, mutilation or destruction shall
constitute a substitute contractual obligation on the part of the
Company.

     

    5    Redemption.

     

    .1   Redemption
Rights.  The Company may redeem the Warrants held by all
holders at any time at the price of $0.01 per Warrant, upon notice referred to
in Section 5.2, provided that (i) the resale of all of the then outstanding
Warrant Shares are registered for resale under the Securities Act pursuant to
the Registration Statement or other effective registration statement available
for use by the holders of such Warrant Shares and (ii) the VWAP has been at
least 200% of the then 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 as referred to in
Section 3.2 below.  If the VWAP cannot be determined pursuant to the
above, the VWAP shall be deemed to be such price as the board of directors of
the Company shall determine in good faith with reference to available
established market criteria.

     

    .2   Date Fixed for Redemption;
Notice of Redemption.  In the event the Company shall elect to
redeem all of the Warrants, the Company must mail a notice of redemption by
first class mail, postage prepaid, within three (3) Business Days from the date
the conditions for redemption described in Section 5.1 have been satisfied,
which notice shall provide the holder with not less than thirty (30) days’ prior
notice of the date on which such redemption shall occur.  The
foregoing notice shall be sent to each of the Holders at their last address as
they shall appear on the registration books.  Any notice mailed in the
manner herein provided shall be conclusively presumed to have been duly given
whether or not the registered Holder received such notice.

     

    .3   Exercise After Notice of
Redemption.  The Warrants may be exercised in accordance with
Section 2 of this Agreement prior to the time and date fixed for
redemption.  On and after the redemption date, the Holders of the
Warrants shall have no further rights except to receive, upon surrender of the
Warrants, the redemption price.

     

    6    Adjustments

     

    .1  
Adjustments to
Exercise Price and Number of Securities.  The Exercise Price
and the number of shares of Common Stock underlying this Warrant shall be
subject to adjustment from time to time as hereinafter set forth:

     

    .1  
Stock Dividends -
Recapitalization, Reclassification, Split-Ups.  If, after the
date hereof, and subject to the provisions of Section 6.2 below, the number of
outstanding shares of Common Stock is increased by a stock dividend on the
Common Stock payable in shares of Common Stock or by a split-up,
recapitalization or reclassification of shares of Common Stock or other similar
event, then, at the close of business on the effective date thereof, the number
of shares of Common Stock issuable on exercise of this Warrant shall be
increased in proportion to such increase in outstanding shares.

     

    .2  
Aggregation of
Shares.  If after the date hereof, and subject to the
provisions of Section 6.2, the number of outstanding shares of Common Stock is
decreased by a consolidation, combination or reclassification of shares of
Common Stock or other similar event, then, upon the effective date thereof, the
number of shares of Common Stock issuable on exercise of this Warrant shall be
decreased in proportion to such decrease in outstanding shares.

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    .3  
Adjustments in
Exercise Price.  Whenever the number of shares of Common Stock
purchasable upon the exercise of this Warrant is adjusted, as provided in this
Section 6.1, the Exercise Price shall be adjusted (to the nearest cent) by
multiplying such Exercise Price immediately prior to such adjustment by a
fraction (x) the numerator of which shall be the number of shares of Common
Stock purchasable upon the exercise of this Warrant immediately prior to such
adjustment, and (y) the denominator of which shall be the number of shares of
Common Stock so purchasable immediately thereafter.

     

    .4  
Replacement of
Securities upon Reorganization, etc.  In case of any
reclassification or reorganization of the outstanding shares of Common Stock
other than a change covered by Section 6.1.1 or 6.1.2 hereof or which solely
affects the par value of such shares of Common Stock, or in the case of any
merger or consolidation of the Company with or into another corporation (other
than a consolidation or merger in which the Company is the continuing
corporation and which does not result in any reclassification or reorganization
of the outstanding shares of Common Stock), or in the case of any sale or
conveyance to another corporation or entity of the property of the Company as an
entirety or substantially as an entirety in connection with which the Company is
dissolved, the Holder of this Warrant shall have the right thereafter (until the
expiration of the right of exercise of this Warrant) to receive upon the
exercise hereof, for the same aggregate Exercise Price payable hereunder
immediately prior to such event, the kind and amount of shares of stock or other
securities or property (including cash) receivable upon such reclassification,
reorganization, merger or consolidation, or upon a dissolution following any
such sale or other transfer, by a Holder of the number of shares of Common Stock
of the Company obtainable upon exercise of this Warrant immediately prior to
such event; and if any reclassification also results in a change in shares of
Common Stock covered by Sections 6.1.1 or 6.1.2, then such adjustment shall be
made pursuant to Sections 6.1.1, 6.1.2, 6.1.3 and this Section 6.1.4. The
provisions of this Section 6.1.4 shall similarly apply to successive
reclassifications, reorganizations, mergers or consolidations, sales or other
transfers.

     

    .5  
Changes in Form of
Warrant.  This form of Warrant need not be changed because of
any change pursuant to this Section, and Warrants issued after such change may
state the same Exercise Price and the same number of shares of Common Stock and
Warrants as are stated in the Warrants initially issued pursuant to this
Agreement.  The acceptance by any Holder of the issuance of new
Warrants reflecting a required or permissive change shall not be deemed to waive
any rights to a prior adjustment or the computation thereof.

     

    .2  
Elimination of
Fractional Interests.  The Company shall not be required to
issue certificates representing fractions of shares of Common Stock upon the
exercise of this Warrant, nor shall it be required to issue scrip or pay cash in
lieu of any fractional interests, it being the intent of the parties that all
fractional interests shall be eliminated by rounding any fraction up to the
nearest whole number of shares of Common Stock or other securities, properties
or rights.

     

    7  
Reservation and
Listing.  The Company shall at all times reserve and keep
available out of its authorized shares of Common Stock, solely for the purpose
of issuance upon exercise of this Warrant, such number of shares of Common Stock
or other securities, properties or rights as shall be issuable upon the exercise
thereof.  The Company covenants and agrees that, upon exercise of the
Warrants and payment of the Exercise Price therefor, all shares of Common Stock
and other securities issuable upon such exercise shall be duly and validly
issued, fully paid and non-assessable and not subject to preemptive rights of
any shareholder. As long as the Warrants shall be outstanding, the Company shall
use its best efforts to cause all shares of Common Stock issuable upon exercise
of the Warrants to be listed (subject to official notice of issuance) or quoted
on the OTC Bulletin Board or such other market on which the Common Stock is then
listed and/or quoted.

     

    8  
Certain Notice
Requirements.

     

    .1  
Holder's Right to
Receive Notice.  Nothing herein shall be construed as
conferring upon the Holders the right to vote or consent or as having any rights
whatsoever as a shareholder of the Company.

     

    .2  
Notice of Change in
Exercise Price.  The Company shall, promptly after an event
requiring a change in the Exercise Price pursuant to Section 6 hereof, send
notice to the Holder of such event and change (“Price Notice”).  The
Price Notice shall describe the event causing the change and the method of
calculating same and shall be certified as being true and accurate by the
Company's President and Chief Financial Officer.

     

    .3  
Transmittal of
Notices.  All notices, requests, consents and other
communications under this Warrant shall be in writing and shall be deemed to
have been duly made on the date of delivery if delivered personally or sent by
overnight courier, with acknowledgment of receipt by the party to which notice
is given, or on the fifth day after mailing if mailed to the party to whom
notice is to be given, postage prepaid and properly addressed as
follows:  (i) if to the registered Holder of this Warrant, to the
address of such Holder as shown on the books of the Company on the date of the
communication, or (ii) if to the Company, to its principal executive office on
the date of the communication.

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    9  
Miscellaneous.

     

    .1  
Headings.  The
headings contained herein are for the sole purpose of convenience of reference,
and shall not in any way limit or affect the meaning or interpretation of any of
the terms or provisions of this Warrant.

     

    .2  
Entire
Agreement.  This Warrant (together with the other agreements
and documents being delivered pursuant to or in connection with this Warrant)
constitutes the entire agreement of the parties hereto with respect to the
subject matter hereof, and supersedes all prior agreements and understandings of
the parties, oral and written, with respect to the subject matter
hereof.

     

    .3  
Binding
Effect.  This Warrant shall inure solely to the benefit of and
shall be binding upon, the Holder and the Company and their respective
successors, legal representatives and assigns, and no other person shall have or
be construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Warrant or any provisions herein
contained.

     

    .4  
Governing
Law.  All questions concerning the construction, validity,
enforcement and interpretation of this Warrant shall be determined in accordance
with the provisions of the Engagement Letter.

     

    .5  
Waiver,
Etc.  The failure of the Company or the Holder to at any time
enforce any of the provisions of this Warrant shall not be deemed or construed
to be a waiver of any such provision, nor to in any way affect the validity of
this Warrant or any provision hereof or the right of the Company or any Holder
to thereafter enforce each and every provision of this Warrant. No waiver of any
breach, non-compliance or non-fulfillment of any of the provisions of this
Warrant shall be effective unless set forth in a written instrument executed by
the party or parties against whom or which enforcement of such waiver is sought;
and no waiver of any such breach, non-compliance or non-fulfillment shall be
construed or deemed to be a waiver of any other or subsequent breach,
non-compliance or non-fulfillment.

     

    IN
WITNESS WHEREOF, the Company has caused this Warrant to be signed by its duly
authorized officer as of the _16__ day of October, 2009.

     

    
      
        
          	
                  AVANTAIR
      INC.

                
	 
      
	
                  By:

                	
                  /s/
      Steven Santo

                
	
                  Name:
      Steven Santo

                
	
                  Title:
      Chief Executive Officer and
Director

                


        

      

    


    
      
         


      

      
        5

        
          

        

      

      
         


      

    


    NOTICE
OF EXERCISE

    


    TO:  
_______________________

    


    .A  
The undersigned hereby elects to purchase ________ Warrant Shares
of  the Company pursuant to the terms of the attached Warrant (only if
exercised in full), and tenders herewith payment of the exercise price in full,
together with all applicable transfer taxes, if any.

     

    .B  
Payment shall take the form of (check applicable box):

     

    [  ]
in lawful money of the United States; or

     

    [ ] [if
permitted] the cancellation of such number of Warrant Shares as is necessary, in
accordance with the formula set forth in subsection 2.2, to exercise this
Warrant with respect to the maximum number of Warrant Shares purchasable
pursuant to the cashless exercise procedure set forth in subsection
2.2.

     

    .C  
Please issue a certificate or certificates representing said Warrant Shares in
the name of the undersigned or in such other name as is specified
below:

     

    _______________________________


    


    The
Warrant Shares shall be delivered to the following DWAC Account Number or by
physical delivery of a certificate to:

    


    _______________________________

    


    _______________________________

    


    _______________________________

    


    .D  
Accredited
Investor.  The undersigned is an “accredited investor” as
defined in Regulation D promulgated under the Securities Act of 1933, as
amended.

    


    [SIGNATURE
OF HOLDER]

     

    
      
        
          
            
              	
                      Name of Investing Entity:

                    	  


            

          

        

      

      
        
          
            	
                    Signature of Authorized Signatory of Investing Entity:

                  	  


          

        

      

      
        
          
            	
                    Name of Authorized Signatory:

                  	  


          

        

      

      
        
          
            	
                    Title of Authorized Signatory:

                  	  


          

        

      

      
        
          
            	
                    Date:

                  	  


          

        

      

    

     

    
      
         


      

      
        6

        
          

        

      

      
         


      

    


    ASSIGNMENT
FORM

    


    (To
assign the foregoing Warrant, execute

    this form
and supply required information.

    Do not
use this form to exercise the warrant.)


    


    FOR VALUE
RECEIVED, [____] all of or [_______] shares of the foregoing Warrant and all
rights evidenced thereby are hereby assigned to                                          whose
address is                                                  .

    


    Dated:  ______________,
_______

    


    


    Holder’s
Signature: _____________________________

    


    Holder’s
Address:  _____________________________

    


    _____________________________

    


    Signature
Guaranteed:  ___________________________________________

    


    NOTE:  The
signature to this Assignment Form must correspond with the name as it appears on
the face of the Warrant, without alteration or enlargement or any change
whatsoever, and must be guaranteed by a bank or trust
company.  Officers of corporations and those acting in a fiduciary or
other representative capacity should file proper evidence of authority to assign
the foregoing Warrant.


    
      
         


      

      
        7