AIR T INC (Form: 8-K, Received: 11/19/2021 16:37:36)

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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

______________________________________________________________________________

FORM 8-K

______________________________________________________________________________

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of report (Date of earliest event reported): November 18, 2021

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AIR T, INC.

(Exact Name of Registrant as Specified in Charter)

______________________________________________________________________________

Delaware

001-35476

52-1206400

(State or Other Jurisdiction

of Incorporation)

(Commission

File Number)

(I.R.S. Employer

Identification No.)

5930 Balsom Ridge Road

Denver, North Carolina 28037

(Address of Principal Executive Offices, and Zip Code)

________________(828) 464-8741__________________

Registrant’s Telephone Number, Including Area Code

Not applicable___

(Former Name or Former Address, if Changed Since Last Report)

Securities registered pursuant to Section 12(b) of the Act:


Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Common Stock	AIRT	NASDAQ Global Market
Alpha Income Preferred Securities (also referred to as 8% Cumulative Capital Securities) (“AIP”)	AIRTP	NASDAQ Global Market

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):


☐			Written communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425)


☐			Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)


☐			Pre-commencement communication pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))


☐			Pre-commencement communication pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
			Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
☐			Emerging growth company
☐			If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.

Item 1.01 Entry into a Material Definitive Agreement

On November 18, 2021, Air T, Inc. (the “Company”) and Air T Funding (the “Trust”) entered into a First Amendment to the At the Market Offering Agreement (the “ATM Amendment”) with Ascendiant Capital Markets, LLC (the “sales agent” or “Ascendiant”). Pursuant to the ATM Amendment, the aggregate offering amount of Alpha Income Preferred Securities (the “Capital Securities”) which the Trust may sell and issue through Ascendiant ,as the Trust’s sales agent in the ATM Offering, was increased from $8,000,000 to $12,000,000 (the “ATM Offering”). The Trust has no obligation to sell any of the Capital Securities, and may at any time suspend offers under the ATM Agreement, as amended or terminate the ATM Agreement, as amended.

Sales of the Capital Securities, if any, under the ATM Agreement, as amended may be made in transactions that are deemed to be “at-the-market” equity offerings as defined in Rule 415 under the Securities Act of 1933, as amended, including sales made by means of ordinary brokers’ transactions, including on the NASDAQ Stock Market. Subject to the terms and conditions of the ATM Agreement, as amended the sales agent will use its reasonable efforts to sell the Capital Securities from time to time based upon the Trust’s instructions (including any price, time, or size limits or other parameters or conditions the Trust may impose). The Trust or the Company will pay the sales agent a commission of up to 3.0% of the gross sales price of any Capital Securities sold under the ATM Agreement, as amended. The Trust has also provided the sales agent with customary indemnification rights.

The Capital Securities will be offered and sold pursuant to the Company’s and the Trust’s shelf registration statement on Form S-3 (File Nos. 333-254110-01 and 333-254110). On November 18, 2021, the Company and the Trust filed a prospectus supplement relating to the ATM Offering and ATM Agreement, as amended with the Securities and Exchange Commission.

Under the terms of the ATM Agreement, as amended the Trust may also sell Capital Securities to Ascendiant as principal for its own account at a price agreed upon at the time of the sale, subject to the Trust entering into a separate terms agreement with Ascendiant for any such sale.

The description of the ATM Amendment does not purport to be complete and is qualified in its entirety by reference to the First Amendment to the ATM Agreement, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K. The original ATM Agreement, was filed as Exhibit 10.1 to the Current Report on Form 8-K filed on May 14, 2021, which is incorporated by reference to this filing. The copy of the ATM Agreement, as amended, has been included to provide investors with information regarding its terms and is not intended to provide any other factual information about the Company or the Trust. The representations, warranties, and covenants contained in the ATM Agreement, as amended were made only for purposes of the ATM Agreement, as amended as of the specific dates therein, are solely for the benefit of the parties to the ATM Agreement, as amended may be subject to limitations agreed upon by the contracting parties, including, among others, being qualified by disclosures made for the purposes of allocating contractual risk between the parties instead of establishing these matters as facts, and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Investors are not third-party beneficiaries under the ATM Agreement, as amended and should not rely on the representations, warranties, and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the Company or the Trust. Moreover, information concerning the subject matter of representations and warranties may change after the date of the ATM Agreement, as amended which subsequent information may or may not be fully reflected in the Company’s or the Trust’s public disclosures. Rather, investors and the public should look to the disclosures contained in the Company’s reports under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

The legal opinion relating to the Capital Securities being offered pursuant to the ATM Agreement, as amended is filed as an exhibit to this Current Report on Form 8-K.

This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy the securities discussed herein, nor shall there be any offer, solicitation, or sale of the securities in any state in which such offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of any such state.

Item 9.01 Financial Statements and Exhibits

5.1 Opinion of Winthrop & Weinstine, P.A.

10.1 First Amendment to At the Market Offering Agreement, dated November 18, 2021, by and between Air T, Inc., Air T Funding and Ascendiant Capital Markets, LLC

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Company has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Date: November 19, 2021.

AIR T, INC.

By: /s/ Brian Ochocki

Brian Ochocki, Chief Financial Officer

November 19, 2021

Air T, Inc.

Air T Funding

5930 Balsom Ridge Road

Denver, NC 28037

Dear Ladies and Gentlemen:

We have acted as counsel to Air T, Inc., a Delaware corporation (the “Company”) and Air T Funding, a Delaware trust sponsored by the Company (the “Issuer Trust”), in connection with the filing of a Registration Statement on Form S-3 (the “Registration Statement”) by the Company and the Issuer Trust with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”). The Company and the Issuer Trust have provided us with a prospectus (the “Prospectus”), which forms part of the Registration Statement. The Prospectus provides that it will be supplemented in the future by one or more prospectus supplements (each, a “Prospectus Supplement”), and the Company and the Issuer Trust have provided us a Prospectus Supplement filed November 18, 2021 with respect to the sale of up to $12,000,000 Alpha Income Trust Preferred Securities, par value $25.00 of the Issuer Trust (the “Additional Capital Securities”). Capitalized terms not otherwise defined in this opinion letter have the meanings ascribed in the Registration Statement and the Prospectus Supplement.

The Additional Capital Securities are to be issued and to be sold from time to time as set forth in the Prospectus Supplement and any amendment or supplements thereto.

We have relied upon an officer’s certificate as to corporate action heretofore taken with respect to the Additional Capital Securities and understand that the Registration Statement has been declared effective under the Act by order of the Commission.

Based on the foregoing, we are of the opinion that when the Additional Capital Securities have been issued and sold upon the terms and conditions set forth in the Registration Statement and the applicable Prospectus Supplement, then (a) any such Additional Capital Securities will be validly authorized and issued and binding obligations of the Issuer Trust, and (b) any such shares of Additional Capital Securities will be legally issued, fully paid and non-assessable.

In rendering this opinion, we are not expressing an opinion as to the laws of any jurisdiction other than the State of Delaware, and we assume no responsibility as to the applicability of the laws of any other jurisdiction to the subject matter hereof or to the effects of such laws thereon.

In addition to any other assumptions, comments, qualifications, limitations and exceptions set forth above, the opinions set forth herein are further limited by, subject to and based upon the

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following:

a.Our opinions herein reflect only the application of applicable laws of the State of Delaware that, in our experience, are normally applicable to transactions of the type contemplated by the Registration Statement. The opinions set forth herein are made as of the date hereof and are subject to, and may be limited by, future changes in the factual matters set forth herein, and we undertake no duty to advise you of the same. The opinions expressed herein are based upon the law in effect (and published or otherwise generally available) on the date hereof, which laws are subject to change with possible retroactive effect, and we assume no obligation to revise or supplement these opinions should such law be changed by legislative action, judicial decision or otherwise. In rendering our opinions, we have not considered, and hereby disclaim any opinion as to, the application or impact of any laws, cases, decisions, rules or regulations of any other jurisdiction, court or administrative agency.

b.Our opinions set forth above are subject to and may be limited by (i) applicable bankruptcy, insolvency, reorganization, receivership, moratorium, receivership, rearrangement, liquidation, conservatorship and other similar laws or equitable principles affecting or related to the rights and remedies of creditors generally, including, without limitation, laws relating to fraudulent conveyances, preferences and equitable subordination; (ii) general principles of equity (regardless of whether considered in a proceeding in equity or at law); (iii) public policy considerations which may limit the rights of parties to obtain remedies; (iv) an implied covenant of good faith and fair dealing; and (v) the availability of equitable remedies, including, without limitation, specific performance or injunctive relief.

c.Our opinions are further subject to the effect of generally applicable rules of law arising from statutes, judicial and administrative decisions, and the rules and regulations of governmental authorities that: (i) limit or affect the enforcement of provisions of a contract that purport to require waiver of the obligations of good faith, fair dealing, diligence and reasonableness; (ii) limit the availability of a remedy under certain circumstances where another remedy has been elected; (iii) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, recklessness, willful misconduct or unlawful conduct; (iv) may, where less than all of the contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange; and (v) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ fees.

d.We express no opinion as to the enforceability of any rights to indemnification or contribution provided for in any indentures or other agreements which are violative of public policy underlying any law, rule or regulation (including any federal or state

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securities law, rule or regulation) or the legality of such rights.

e.We express no opinion as to the enforceability of any provision in any indentures, guarantee agreements or other agreements purporting or attempting to (i) confer exclusive jurisdiction and/or venue upon certain courts or otherwise waive the defenses of forum non conveniens or improper venue; (ii) confer subject matter jurisdiction on a court not having independent grounds therefor; (iii) modify or waive the requirements for effective service of process for any action that may be brought; (iv) waive the right of the Company, the Trust or any other person to a trial by jury; (v) provide that decisions by a party are conclusive; or (vi) modify or waive the rights to claims, notice, legal defenses, rights granted by law, subrogation, opportunity for hearing, evidentiary requirements, statutes of limitations, other procedural rights or other benefits that cannot be waived under applicable law.

f.We express no opinion as to the enforceability of (i) consents to, or restrictions upon, judicial relief; (ii) waivers of rights or defenses with respect to stay, extension or usury laws; (iii) waivers of broadly or vaguely stated rights; (iv) provisions for exclusivity, election or cumulation of rights or remedies; (v) provisions authorizing or validating conclusive or discretionary determinations; (vi) grants of setoff rights; (vii) proxies, powers and trusts; (viii) restrictions upon non-written modifications and waivers; (ix) provisions prohibiting, restricting, or requiring consent to assignment or transfer of any right or property; or (x) provisions for liquidated damages, default interest, late charges, monetary penalties, make-whole premiums or other economic remedies to the extent such provisions are deemed to constitute a penalty.

g.In addition, we express no opinion with respect to (i) whether any acceleration of the Additional Capital Securities may affect the collectability of that portion of the stated principal amount thereof that might be determined to constitute unearned interest thereon; (ii) compliance with laws relating to permissible rates of interest; or (iii) the creation, validity, perfection or priority of any security interest or lien.

h.You have informed us that you intend to issue the Additional Capital Securities from time to time on a delayed or continuous basis, and this opinion is limited to the laws, including the rules and regulations, as in effect on the date hereof. We understand that prior to issuing any Additional Capital Securities you will afford us an opportunity to review the operative documents pursuant to which such Additional Capital Securities are to be issued (including the applicable prospectus supplement) and will file such supplement or amendment to this opinion (if any) as we may reasonably consider necessary or appropriate by reason of the terms of such Additional Capital Securities.

This opinion is rendered to you and for your benefit solely in connection with the registration of the securities. This opinion may not be relied on by you for any other purpose and may not be relied upon by, nor may copies thereof be provided to, any other person, firm, corporation or

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entity for any purposes whatsoever without our prior written consent. We hereby consent to be named in the Registration Statement and in each of the Prospectuses as attorneys who passed upon the legality of the Securities and to the filing of a copy of this opinion as an exhibit to the Registration Statement. By giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission. This opinion should not be quoted in whole or in part without the prior written consent of this firm, nor is this opinion letter to be filed with or furnished to any other governmental agency or other person, except as otherwise required by law.

Sincerely,

WINTHROP & WEINSTINE, P.A.

/s/ Winthrop & Weinstine, P.A.

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