EX-4.14 WAIVER AND AMENDMENT NO. 1 TO WARRANT THIS WAIVER AND AMENDMENT NO. 1 TO WARRANT, effective as of May __, 2007 (the "AMENDMENT"), is entered into by and between Summit Global Logistics, Inc., a Delaware corporation, formerly known as Aerobic...
EX-4.14
WAIVER AND AMENDMENT NO. 1 TO WARRANT
THIS WAIVER AND AMENDMENT NO. 1 TO WARRANT, effective as of May __, 2007
(the "AMENDMENT"), is entered into by and between Summit Global Logistics, Inc.,
a Delaware corporation, formerly known as Aerobic Creations, Inc. ("COMPANY"),
and the Required Holders. Capitalized terms used but not defined herein shall
have the meanings ascribed to them in the Registration Rights Agreement (as
hereinafter defined).
WHEREAS, pursuant to a Securities Purchase Agreement (Common Stock and
Warrants), dated as of November 8, 2006 by and among Maritime Logistics US
Holdings Inc., a Delaware corporation, the Company (pursuant to that certain
Joinder Agreement dated as of the date hereof) and the Buyers, the Company sold
to each Buyer (i) Common Stock and (ii) Warrants and the Buyers entered into the
Registration Rights Agreement ("REGISTRATION RIGHTS AGREEMENT").
WHEREAS, in exchange for the waiver of certain existing events of
default and certain amendments that are beneficial to the Company, the Company
has agreed to amend the Notes and Warrants issued in connection with such Notes;
WHEREAS, in connection with such amendment to the Notes and Warrants and
the sale of the New Notes and New Warrants (as defined below), the Company
requested that the Holders amend the Warrants in certain respects as provided
herein and waive certain rights; and
WHEREAS, the signatures of the Required Holders (the Holders holding of
at least a majority Warrants) is required to effect a waiver and to amend all of
the Warrants as provided herein and whereas each of the signatories hereto,
representing at least the Required Holders, have agreed to effect this
Amendment; and
WHEREAS, the Company also wishes to raise additional capital through the
sale of additional secured convertible notes and warrants (of like tenor to the
Notes as amended and the warrants, the "New Notes" and "New Warrants,"
respectively).
NOW, THEREFORE, in consideration of the premises and the other mutual
covenants contained herein, the receipt and sufficiency are hereby acknowledged,
the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO WARRANT. The parties hereto agree as follows,
effective as of the date hereof:
(a) All references in the Warrant to Aerobic Creations, Inc. or ShellCo
are hereby replaced with a reference to Summit Global Logistics.
SECTION 2. WAIVER. Each of the Holder signatory hereto, representing the
Required Holders, hereby waive on their behalf and the behalf all of the Holders
hereby waive any adjustment to the Exercise Price and any Purchase Right
relating to (i) the amendment of the Notes and Warrants, (ii) the issuance of
the New Notes and New Warrants, and (iii) the issuance of the convertible notes
in connection with the waiver and amendments to the registration rights
agreement between the Holders and the Company and to the registration rights
agreement
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between certain holders of Notes. This waiver is and shall be effective solely
for the amendments, waivers and issuances referenced above and not to any other
amendment, waiver or issuance hereafter occurring.
SECTION 3. MISCELLANEOUS.
(a) Any transferee or assignee of the Warrants shall be subject to the
terms hereof, and as a condition to each such transfer or assignment, each
Investor agrees to require each of its transferees or assignees to agree in
writing to be subject to the Warrant, as amended by this Amendment.
(b) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, be deemed to be an amendment or
modification of, or operate as a waiver of, any provision of the Warrants or any
right, power or remedy thereunder, nor constitute a waiver of any provision of
the Warrants or any other document, instrument and/or agreement executed or
delivered in connection therewith.
(c) This Amendment may be executed in any number of counterparts
(including by facsimile), and by the different parties hereto or thereto on the
same or separate counterparts, each of which shall be deemed to be an original
instrument but all of which together shall constitute one and the same
agreement. Each party agrees that it will be bound by its own facsimile
signature and that it accepts the facsimile signature of each other party. The
descriptive headings of the various sections of this Amendment are inserted for
convenience of reference only and shall not be deemed to affect the meaning or
construction of any of the provisions hereof or thereof. Whenever the context
and construction so require, all words herein and in the Warrant in the singular
number herein shall be deemed to have been used in the plural, and vice versa,
and the masculine gender shall include the feminine and neuter and the neuter
shall include the masculine and feminine.
(d) This Amendment and the Warrant may not be changed, amended,
restated, waived, supplemented, discharged, canceled, terminated or otherwise
modified orally or by any course of dealing or in any manner other than as
provided in the Warrant. This Amendment shall be considered part of the Warrant.
(e) This Amendment and the Warrant constitute the final, entire
agreement and understanding between the parties with respect to the subject
matter hereof and thereof, may not be contradicted by evidence of prior,
contemporaneous or subsequent oral agreements between the parties, shall be
binding upon and inure to the benefit of the successors and assigns of the
parties hereto and thereto and supersede all other prior agreements and
understandings, if any, relating to the subject matter hereof. There are no
unwritten oral agreements between the parties with respect to the subject matter
hereof or thereof.
(f) The validity of this Amendment, its construction, interpretation and
enforcement, the rights of the parties hereunder, shall be determined under,
governed by, and construed in accordance with the choice of law provisions set
forth in the Warrant.
(g) The obligations of each Holder under each Warrant are several and
not joint with the obligations of any other Holder, and no Holder shall be
responsible in any way for the
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performance of the obligations of any other Holder under any Warrant. Nothing
contained herein or in any Warrant, and no action taken by any Holder pursuant
hereto or thereto, shall be deemed to constitute the Holders as a partnership,
an association, a joint venture or any other kind of entity, or create a
presumption that the Holders are in any way acting in concert or as a group in
respect of such obligations or the transactions contemplated by the Warrants and
the Company acknowledges that the Holders are not acting in concert or as a
group in respect of such obligations or the transactions contemplated by this
Amendment or the Warrants. Each Holder confirms that it has independently
participated in the negotiation of the transaction contemplated by this
Amendment and the Warrants with the advice of its own counsel and advisors, that
it has independently determined to enter into the transactions contemplated
hereby and thereby, that it is not relying on any advice from or evaluation by
any other Holder, and that it is not acting in concert with any other Holder in
making its purchase of Securities hereunder or in monitoring its investment in
the Company. The Holders and, to its knowledge, the Company agree that no action
taken by any Holder pursuant hereto or to the Warrants, shall be deemed to
constitute the Holders as a partnership, an association, a joint venture or any
other kind of entity or group, or create a presumption that the Holders are in
any way acting in concert or would deem such Holders to be members of a "group"
for purposes of Section 13(d) of the 1934 Act. The Holders each confirm that
they have not agreed to act together for the purpose of acquiring, holding,
voting or disposing of equity securities of the Company. The Company has elected
to provide all Holders with the same terms and Amendment for the convenience of
the Company and not because it was required or requested to do so by any of the
Holders. The Company acknowledges that such procedure in respect of the
Amendment in no way creates a presumption that the Holders are in any way acting
in concert or as a "group" for purposes of Section 13(d) of the 1934 Act in
respect of this Amendment or the transactions contemplated hereby. Except as
otherwise set forth herein or in the Transaction Documents (as defined in the
Securities Purchase Agreement), each Holder shall be entitled to independently
protect and enforce its rights, including, without limitation, the rights
arising out of this Amendment, or out of the Registration Rights Agreement, its
Note, and its Warrant, and it shall not be necessary for any other Holder to be
joined as an additional party in any proceeding for such purpose.
REMAINDER OF PAGE INTENTIONALLY BLANK
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SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
WARRANT
IN WITNESS WHEREOF, the parties have caused this Waiver and Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first written above.
COMPANY:
SUMMIT GLOBAL LOGISTICS, INC.
(formerly known as Aerobic Creations, Inc.)
By:_________________________________________
Name:
Title:
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SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
WARRANT
HOLDERS:
ALEXANDRA GLOBAL MASTER FUND LTD.
By:______________________________
Name:
Title:
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SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
WARRANT
HOLDERS:
AMERICAN CAPITAL EQUITY I, LLC
By: AMERICAN CAPITAL EQUITY
MANAGEMENT
Its: Manager
By:___________________________
Name:
Title:
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SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
WARRANT
HOLDERS:
AMERICAN CAPITAL STRATEGIES, LTD.
By:______________________________
Name:
Title:
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SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
WARRANT
HOLDERS:
CAMOFI MASTER LDC
By:___________________________
Name:
Title:
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WARRANT
HOLDERS:
CORNELL CAPITAL PARTNERS, LP
By:___________________________
Name:
Title:
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SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
WARRANT
HOLDERS:
CRANSHIRE CAPITAL, L.P.
By:___________________________
Name:
Title:
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SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
WARRANT
HOLDERS:
CREDIT SUISSE SECURITIES (USA) LLC
By:_______________________________
Name:
Title:
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SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
WARRANT
HOLDERS:
CRESCENT INTERNATIONAL LTD
By:___________________________
Name:
Title:
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HOLDERS:
DIAMOND OPPORTUNITY FUND, LLC
By:___________________________
Name:
Title:
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SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
WARRANT
HOLDERS:
EVOLUTION MASTER FUND LTD. SPC,
SEGREGATED PORTFOLIO M
By:_____________________________
Name:
Title:
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WARRANT
HOLDERS:
GOTTBETTER CAPITAL MASTER, LTD.
By:___________________________
Name:
Title:
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WARRANT
HOLDERS:
HORIZON CAPITAL FUND LP
By:___________________________
Name:
Title:
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HOLDERS:
JMG CAPITAL PARTNERS, LP
By:___________________________
Name:
Title:
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WARRANT
HOLDERS:
JMG TRITON OFFSHORE FUND LTD.
By:___________________________
Name:
Title:
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WARRANT
HOLDERS:
MULSANNE PARTNERS, L.P.
By:___________________________
Name:
Title:
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WARRANT
HOLDERS:
GOOD XXXXXXX TRADING COMPANY SPC
By:_____________________________
Name:
Title:
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WARRANT
HOLDERS:
FINDERNE, L.L.C.
By:___________________________
Name:
Title:
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HOLDERS:
XXXXX PARTNERS, L.P.
By:___________________________
Name:
Title:
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HOLDERS:
SHOSHONE PARTNERS, L.P.
By:___________________________
Name:
Title:
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HOLDERS:
COMMONFUND HEDGED EQUITY COMPANY
By:______________________________
Name:
Title:
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WARRANT
HOLDERS:
MATTERHORN OFFSHORE FUND, LTD.
By:___________________________
Name:
Title:
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WARRANT
HOLDERS:
MEADOWBROOK OPPORTUNITY FUND LLC
By:___________________________
Name:
Title:
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WARRANT
HOLDERS:
MLA CAPITAL, INC.
By:___________________________
Name:
Title:
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HOLDERS:
PARAGON CAPITAL LP
By:___________________________
Name:
Title:
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WARRANT
HOLDERS:
SIGMA CAPITAL ASSOCIATES, LLC
By:___________________________
Name:
Title:
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WARRANT
HOLDERS:
STELLAR CAPITAL FUND LLC
By:___________________________
Name:
Title:
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WARRANT
HOLDERS:
STRATFORD PARTNERS, LP
By:___________________________
Name:
Title:
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HOLDERS:
WOLVERINE CONVERTIBLE
ARBITRAGE FUND TRADING LIMITED
By:___________________________
Name:
Title:
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HOLDERS:
R&R BIOTECH PARTNERS LLC
By:___________________________
Name:
Title:
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HOLDERS:
KRG CAPITAL FUND II, L.P.
By:___________________________
Name:
Title:
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HOLDERS:
KRG CAPITAL FUND II (PA) L.P.
By:___________________________
Name:
Title:
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HOLDERS:
KRG CAPITAL FUND II (FF) L.P.
By:___________________________
Name:
Title:
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HOLDERS:
KRG CO-INVESTMENT, LLC
By:___________________________
Name:
Title:
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HOLDERS:
FMI INC.
By:___________________________
Name:
Title:
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Chao-Xxxxx Xxxxx
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Chen Bang Xxx
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Chen Xxx Xxxx
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Chen Xxx Xxxx
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Hong The Xxxxx
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J. Xxxxxxx XxxXxxxx
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Jaumey Her
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King X. Xxxxx
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Kit Xxxxx Xxxxx
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Kun-Xxx Xxxx
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Lin-Xxx Xx
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Tsung-Ning Mao
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