UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-K/A
Amendment No. 1
| x | Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 |
For the fiscal year ended: June 30, 2012
OR
| ¨ | Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 |
For the transition period from to
Commission File Number: 000-51115
Avantair, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 20-1635240 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) | |
4311 General Howard Drive Clearwater, Florida | 33762 | |
| (Address of principal executive offices) | (Zip Code) | |
(727) 539-0071
(Registrant’s telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Exchange Act:
None
Securities registered pursuant to Section 12(g) of the Exchange Act:
Units consisting of one share of Common Stock, par value $.0001 per share
Common Stock, $.0001 par value per share
Warrants to purchase shares of Common Stock
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ¨ No x
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Exchange Act. Yes ¨ No x
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No ¨
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x No ¨
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. x
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or smaller reporting company. See definition of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ¨ | Accelerated filer | ¨ | |||
| Non-accelerated filer | ¨ | Smaller reporting company | x | |||
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ¨ No x
As of the last business day of the registrant’s most recently completed second fiscal quarter, the aggregate market value of the registrant’s voting and non-voting common stock held by non-affiliates of the registrant (without determining that any person whose shares are not included in such calculation is an affiliate) computed by reference to the price at which the common stock was last sold, or the average bid and asked price of the common stock, was $17,538,599.
As of September 28, 2012 the registrant had 26,701,634 shares of Common Stock, $.0001 par value per share, outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents (or parts thereof) are incorporated by reference into the following parts of this Form 10-K: Certain information required in Part III of this Annual Report on Form 10-K is incorporated from the Registrant’s Proxy Statement for the Annual Meeting of Stockholders, to be held on November 1, 2012.
EXPLANATORY NOTE
The purpose of this Amendment No. 1 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended June 30, 2012, initially filed with the U.S. Securities and Exchange Commission on September 28, 2012, is to furnish Exhibit 101 to the Form 10-K as required by Rule 405 of Regulation S-T. Exhibit 101 to this Amendment No. 1 to the Form 10-K provides the following items from the Form 10-K formatted in eXtensible Business Reporting Language (“XBRL”): (i) Consolidated Balance Sheets as of June 30, 2012 and 2011, (ii) Consolidated Statements of Operations for the years ended June 30, 2012 and 2011, (iii) Consolidated Statements of Changes in Stockholders’ Deficit for the years ended June 30, 2012 and 2011, (iv) Consolidated Statements of Cash Flows for the years ended June 30, 2012 and 2011, and (v) Notes to Consolidated Financial Statements.
No other changes have been made to the Form 10-K. This Amendment No. 1 to the Form 10-K speaks as of the original filing date of the Form 10-K, does not reflect events that may have occurred subsequent to the original filing date of the Form 10-K, and does not modify or update in any way the disclosures included in the Form 10-K.
EXHIBIT INDEX
Exhibit | Exhibit Description | Filed | Incorporated by from Form or Schedule | Filing | SEC File/ Number | |||||
2.1 | Stock Purchase Agreement, dated as of October 2, 2006 between Ardent Acquisition Corporation and the Stockholders of Avantair, Inc. | Form 8-K (Exhibit 2.1) | 10/4/06 | 000-51115 | ||||||
2.2 | Letter Agreement, entered into as of October 2, 2006 between Avantair, Inc., certain equity investors and Ardent Acquisition Corporation. | Form 8-K (Exhibit 2.2) | 10/4/06 | 000-51115 | ||||||
2.3 | Amendment to Stock Purchase Agreement, dated as of December 15, 2006 between Ardent Acquisition Corporation and the Stockholders of Avantair, Inc. | Form 8-K (Exhibit 2.1) | 12/20/06 | 000-51115 | ||||||
2.4 | Securities Purchase and Exchange Agreement, dated as of October 16, 2009 by and among Avantair, Inc. and certain investors. | Form 8-K (Exhibit 10.1) | 10/22/09 | 000-51115 | ||||||
3.1 | Amended and Restated Certificate of Incorporation. | Form 8-K (Exhibit 3.1) | 3/15/07 | 000-51115 | ||||||
3.2 | Third Amended and Restated By-laws. | Form 8-K (Exhibit 3.1) | 2/8/11 | 000-51115 | ||||||
3.3 | Certificate of Designations, filed with the Secretary of State of the State of Delaware on November 14, 2007. | Form 8-K (Exhibit 3.1) | 11/20/07 | 000-51115 | ||||||
4.1 | Specimen Unit Certificate. | Form S-1 (Exhibit 4.1) | 12/16/04 | 333-121028 | ||||||
4.2 | Specimen Common Stock Certificate. | Form S-1 (Exhibit 4.2) | 12/16/04 | 333-121028 | ||||||
4.3 | Specimen Warrant Certificate. | Form S-1 (Exhibit 4.3) | 12/16/04 | 333-121028 | ||||||
4.4 | Form of Unit Purchase Option to be granted to Representative. | Form S-1 (Exhibit 4.4) | 12/16/04 | 333-121028 | ||||||
4.5 | Form of Warrant Agreement between Continental Stock Transfer & Trust Company and the Registrant. | Form S-1 (Exhibit 4.5) | 12/16/04 | 333-121028 | ||||||
4.6 | Form of Warrant Agreement issued by the Registrant dated as of October 16, 2009. | Form S-1 (Exhibit 4.6) | 11/17/09 | 333-163152 | ||||||
10.1@ | Nonqualified Deferred Compensation Plan Adoption Agreement, dated December 18, 2008. | Form 8-K (Exhibit 99.1) | 12/22/08 | 000-51115 | ||||||
10.2@ | Avantair Leadership Deferred Compensation Plan Plan Document, dated December 18, 2008. | Form 8-K (Exhibit 99.2) | 12/22/08 | 000-51115 | ||||||
10.3 | Form of Registration Rights Agreement among the Registrant and the Initial Stockholders. | Form S-1 (Exhibit 10.13) | 12/16/04 | 333-121028 | ||||||
10.4 | Form of Warrant Purchase Agreement among EarlyBirdCapital, Inc. and each of the Initial Stockholders. | Form S-1 (Exhibit 10.14) | 12/16/04 | 333-121028 | ||||||
10.5 | Investors Rights Agreement, entered into as of October 2, 2006, between Avantair, Inc. and certain equity investors. | Form 8-K (Exhibit 10.1) | 10/4/06 | 000-51115 | ||||||
10.6 | Loan Agreement, entered into as of October 2, 2006 by and among Avantair, Inc., CNM, Inc. and Ardent Acquisition Corporation. | Form 8-K (Exhibit 10.2) | 10/4/06 | 000-51115 | ||||||
10.7 | Amended and Restated Promissory Note, dated June 1, 2007, made by Avantair, Inc. to CNM, Inc. | Amendment No. 4 (Exhibit 10.17) | 9/25/07 | 333-142312 | ||||||
Exhibit | Exhibit Description | Filed | Incorporated by Reference herein from Form or | Filing | SEC File/ Number | |||||
10.8@ | Amended and Restated 2006 Long-Term Incentive Plan, dated February 2, 2012. | Form 10-Q (Exhibit 10.2) | 2/10/12 | 000-51115 | ||||||
10.9@ | Employment Agreement dated September 24, 2009, between the Registrant and Steven F. Santo. | Form 10-K (Exhibit 10.20) | 9/28/09 | 000-51115 | ||||||
10.10@ | Employment Agreement dated July 14, 2011, between the Registrant and Stephen M. Wagman. | Form 8-K (Exhibit 10.1) | 7/19/11 | 000-51115 | ||||||
10.11 | Floor Plan Finance Agreement, dated April 2, 2009, between the Registrant and MidSouth Services, Inc. | Form 8-K (Exhibit 10.1) | 4/7/09 | 000-51115 | ||||||
10.12 | Floor Plan Finance Agreement, dated April 2, 2009, between the Registrant and MidSouth Services, Inc. | Form 8-K (Exhibit 10.2) | 4/7/09 | 000-51115 | ||||||
10.13 | Floor Plan Finance Agreement, dated March 14, 2011, between the Registrant and MidSouth Services, Inc. | Form 8-K (Exhibit 10.1) | 3/17/11 | 000-51115 | ||||||
10.14 | Registration Rights Agreement, dated as of October 16, 2009 among the Registrant and certain investors. | Form 8-K (Exhibit 10.2) | 10/22/09 | 000-51115 | ||||||
10.15* | Piaggio America, INC. P180 Avanti II Aircraft Purchase Agreement, dated November 10, 2005. | Amendment No. 3 (Exhibit 10.13) | 3/8/10 | 333-163152 | ||||||
10.16* | Piaggio America, INC. P180 Avanti II Aircraft Purchase Agreement, dated September 24, 2007. | Amendment No. 3 (Exhibit 10.14) | 3/8/10 | 333-163152 | ||||||
10.17* | Amendment to Aircraft Purchase Agreements dated November 10, 2005 and September 24, 2007 between Piaggio America, Inc. and Avantair, Inc., dated September 15, 2008. | Amendment No. 1 (Exhibit 10.15) | 1/26/10 | 333-163152 | ||||||
10.18* | Aircraft Management Agreement between LW Air I LLC and Avantair, Inc. dated October 19, 2009. | Amendment No. 1 (Exhibit 10.16) | 1/26/10 | 333-163152 | ||||||
10.19* | Aircraft Lease Agreement between LW Air I LLC and Avantair, Inc. dated October 19, 2009. | Amendment No. 1 (Exhibit 10.17) | 1/26/10 | 333-163152 | ||||||
10.20* | Cross Lease Exchange Agreement, dated October 19, 2009. | Amendment No. 1 (Exhibit 10.18) | 1/26/10 | 333-163152 | ||||||
10.21@ | 2012 Annual and Long-Term Incentive Plan. | Form 10-Q (Exhibit 10.4) | 2/10/12 | 000-51115 | ||||||
10.22 | Schedule of Additional Aircraft Management Agreements and Aircraft Lease Agreements with LW Air. | Form 10-Q (Exhibit 10.1) | 2/10/12 | 000-51115 | ||||||
10.23@ | Form of Deferred Share Award Agreement. | Form 10-Q (Exhibit 10.3) | 2/10/12 | 000-51115 | ||||||
10.24@ | Avantair, Inc. Non-Employee Director Compensation Policy, dated February 2, 2012. | Form 10-Q (Exhibit 10.1) | 5/11/12 | 000-51115 | ||||||
10.25@ | Form of Non-Employee Director Restricted Stock Agreement | Form 10-Q (Exhibit 10.2) | 5/11/12 | 000-51115 | ||||||
14.1 | Code of Conduct and Professional Ethics for Directors, Officers and Employees. | Form 8-K (Exhibit 14.1) | 2/28/07 | 000-51115 | ||||||
14.2 | Code of Ethics for Senior Financial Officers and the Principal Executive Officer. | Form 8-K (Exhibit 14.2) | 2/28/07 | 000-51115 | ||||||
14.3 | Amended Avantair Code of Conduct and Professional Ethics, dated as of March 30, 2011. | Form 8-K (Exhibit 14.1) | 4/5/11 | 000-51115 | ||||||
Exhibit | Exhibit Description | Filed | Incorporated by Reference herein from Form or Schedule | Filing | SEC File/ Number | |||||
23.2 | Consent of AvData. | Amendment No. 2 (Exhibit 23.2) | 8/8/07 | 333-142312 | ||||||
31.1 | Certification of the Chief Executive Officer under Section 302 of the Sarbanes-Oxley Act of 2002. | 9/28/12 | ||||||||
31.2 | Certification of the Chief Financial Officer under Section 302 of the Sarbanes-Oxley Act of 2002. | 9/28/12 | ||||||||
32 | Certification of the Chief Executive Officer and the Chief Financial Officer under Section 906 of the Sarbanes- Oxley Act of 2002. | 9/28/12 | ||||||||
101** | The following materials from the Registrant’s Annual Report on Form 10-K for the year ended June 30, 2012, formatted in XBRL (eXtensible Business Reporting Language): (i) Consolidated Balance Sheets as of June 30, 2012 and 2011, (ii) Consolidated Statements of Operations for the years ended June 30, 2012 and 2011, (iii) Consolidated Statements of Changes in Stockholders’ Deficit for the years ended June 30, 2012 and 2011, (iv) Consolidated Statements of Cash Flows for the years ended June 30, 2012 and 2011, and (v) Notes to Consolidated Financial Statements. | X | ||||||||
| @ | Management contract or compensatory plan or arrangement. |
| * | Portions of the exhibit have been omitted pursuant to a request for confidential treatment. |
| ** | Users of the XBRL data are advised pursuant to Rule 406T of Regulation S-T that this interactive data file is deemed not filed or part of a registration statement or prospectus for purposes of sections 11 or 12 of the Securities Act of 1933, is deemed not filed for purposes of section 18 of the Securities Exchange Act of 1934, and otherwise is not subject to liability under these sections. |
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this Annual Report to be signed on its behalf by the undersigned, thereunto duly authorized.
October 17, 2012
| AVANTAIR, INC. | ||
| By: | /s/ Steven Santo | |
| Steven Santo | ||
| Chief Executive Officer | ||
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities indicated below and on the dates indicated:
Name | Title | Date | ||
/s/ Steven Santo | Chief Executive Officer and Director (Principal Executive Officer) | October 17, 2012 | ||
| Steven Santo | ||||
/s/ Carla Stucky | Chief Financial Officer (Principal Financial and Accounting Officer) | October 17, 2012 | ||
| Carla Stucky | ||||
/s/ Robert J. Lepofsky | Chairman | October 17, 2012 | ||
| Robert J. Lepofsky | ||||
/s/ A. Clinton Allen | Director | October 17, 2012 | ||
| A. Clinton Allen | ||||
/s/ Stephanie Cuskley | Director | October 17, 2012 | ||
| Stephanie Cuskley | ||||
/s/ Richard B. DeWolfe | Director | October 17, 2012 | ||
| Richard B. DeWolfe | ||||
/s/ Arthur H. Goldberg | Director | October 17, 2012 | ||
| Arthur H. Goldberg | ||||
/s/ Barry J. Gordon | Director | October 17, 2012 | ||
| Barry J. Gordon | ||||
/s/ Lorne Weil | Director | October 17, 2012 | ||
| Lorne Weil | ||||
