EX-4.13
WAIVER AND AMENDMENT NO. 1 TO WARRANT
THIS WAIVER AND AMENDMENT NO. 1 TO WARRANT, effective as of May 11,
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 (Notes 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) Notes 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;
WHEREAS, in connection with the amendment to the Notes and the
Registration Rights Agreement and the sale of the New Notes and New Warrants (as
defined below), the Company and the Holders have agreed to 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 shares issuable upon the exercise of the 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.
(b) Section 1(b) of the Warrant is hereby amended by replacing "$11.00"
with "$5.50."
(c) Section 1(d)(i) of the Warrant is hereby amended and restated as
follows:
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"has not become effective by the Effectiveness Deadline (as
defined in the Registration Rights Agreement by and between the
Company and the Holders dated as of November 8, 2006, as
amended)."
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 between certain holders of common stock. 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
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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 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, its Warrant and the right of set-off under the
Guaranties, 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:
SILVER OAK CAPITAL, L.L.C.
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:
BAY HARBOUR MASTER, LTD.
By:_________________________________________
Name:
Title:
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Signature Page to Waiver and Amendment No. 1 to
Warrant
HOLDERS:
BAY HARBOUR 90-1, LTD.
By:_________________________________________
Name:
Title:
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Signature Page to Waiver and Amendment No. 1 to
Warrant
HOLDERS:
BHCO MASTER, LTD.
By:_________________________________________
Name:
Title:
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Signature Page to Waiver and Amendment No. 1 to
Warrant
HOLDERS:
INSTITUTIONAL BENCHMARK
By:_________________________________________
Name:
Title:
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Signature Page to Waiver and Amendment No. 1 to
Warrant
HOLDERS:
MSS DISTRESSED & OPP. 2
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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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:
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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Signature Page to Waiver and Amendment No. 1 to
Warrant
HOLDERS:
GOTTBETTER CAPITAL MASTER, LTD.
By:_________________________________________
Name:
Title:
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Signature Page to Waiver and Amendment No. 1 to
Warrant
HOLDERS:
HARVEST CAPITAL, LP
By:_________________________________________
Name:
Title:
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Signature Page to Waiver and Amendment No. 1 to
Warrant
HOLDERS:
HARVEST OFFSHORE INVESTORS, LTD.
By:_________________________________________
Name:
Title:
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Signature Page to Waiver and Amendment No. 1 to
Warrant
HOLDERS:
TE HARVEST PORTFOLIO, LTD.
By:_________________________________________
Name:
Title:
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Signature Page to Waiver and Amendment No. 1 to
Warrant
HOLDERS:
JMG CAPITAL PARTNERS, LP
By:_________________________________________
Name:
Title:
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Signature Page to Waiver and Amendment No. 1 to
Warrant
HOLDERS:
JMG TRITON OFFSHORE FUND, LTD
By:_________________________________________
Name:
Title:
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Signature Page to Waiver and Amendment No. 1 to
Warrant
HOLDERS:
SHOSHONE PARTNERS, L.P.
By:_________________________________________
Name:
Title:
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Signature Page to Waiver and Amendment No. 1 to
Warrant
HOLDERS:
XXXXX PARTNERS, L.P.
By:_________________________________________
Name:
Title:
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Signature Page to Waiver and Amendment No. 1 to
Warrant
HOLDERS:
FINDERNE LLC
By:_________________________________________
Name:
Title:
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Signature Page to Waiver and Amendment No. 1 to
Warrant
HOLDERS:
MULSANNE PARTNERS, L.P.
By:
----------------------------------------
Name:
Title:
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Signature Page to Waiver and Amendment No. 1 to
Warrant
HOLDERS:
MATTERHORN OFFSHORE FUND LTD.
By:_________________________________________
Name:
Title:
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Signature Page to Waiver and Amendment No. 1 to
Warrant
HOLDERS:
COMMONFUND HEDGED EQUITY COMPANY
By:_________________________________________
Name:
Title:
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Signature Page to Waiver and Amendment No. 1 to
Warrant
HOLDERS:
GOOD XXXXXXX TRADING CO. S.P.C.
By:_________________________________________
Name:
Title:
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Signature Page to Waiver and Amendment No. 1 to
Warrant
HOLDERS:
RADCLIFFE SPC, LTD. FOR AND ON BEHALF OF THE
CLASS A SEGREGATED PORTFOLIO
By:_________________________________________
Name:
Title:
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Signature Page to Waiver and Amendment No. 1 to
Warrant
HOLDERS:
WOLVERINE CONVERTIBLE ARBITRAGE TRADING, LIMITED
By:_________________________________________
Name:
Title:
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