EX-4.19
WAIVER AND AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
THIS WAIVER AND AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT,
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 Investors constituting at least 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 November 8, 2006) and the Buyers, the Company sold
to each Buyer (i) Notes and (ii) Warrants and in connection therewith the
Company 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 of the Notes and the sale of
the New Notes and New Warrants (as defined below), the Company has requested
that the Investors enter into this Amendment to amend the Registration Rights
Agreement in certain respects as provided herein, waive certain penalties
relating to an Effectiveness Failure (the Company's failure to cause the
Registration Statement to be declared effective by the SEC no later than the
Effectiveness Deadline);
WHEREAS, in exchange for this Amendment, the Company has agreed to issue
to the Investors certain additional secured convertible notes (of like tenor to
the Notes as amended);
WHEREAS, the signatures of the Required Holders (the Investors holding
of at least a majority of the Registrable Securities) are required to effect the
waiver and amend the Registration Rights Agreement as provided herein and
whereas each of the signatories hereto, representing at least the Required
Holders, have agreed to effect such waiver and amend the Registration Rights
Agreement as provided herein; 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 mutual
covenants contained herein, the receipt and sufficiency are hereby acknowledged,
the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO REGISTRATION RIGHTS AGREEMENT. The parties
hereto agree as follows, effective as of the date hereof:
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(a) All references to Aerobic Creations, Inc. or ShellCo shall hereafter
be a reference to Summit Global Logistics, Inc.
(b) That the definition of the term "Notes" for the purposes of the
Registration Rights Agreement shall mean (i) in respect of the period from
November 8, 2006 through the day immediately preceding the date hereof, the
"Notes", as defined in the Registration Rights Agreement prior to giving effect
to this Amendment and (ii) in respect of the period from and after the date
hereof, (A) the "Notes", as defined in the Registration Rights Agreement prior
to giving effect to this Amendment, as such Notes are amended and restated (B)
the New Notes, (C) the secured convertible notes issuable pursuant to Section 3
hereof and (D) the convertible notes issued in connection with the amendment to
the registration rights agreement relating to the Common Stock.
(c) That the definition of term "Warrants" for the purposes of the
Registration Rights Agreement shall mean (i) in respect of the period from
November 8, 2006 through the day immediately preceding the date hereof, the
"Warrants", as defined in the Registration Rights Agreement prior to giving
effect to this Amendment and (ii) in respect of the period from and after the
date hereof, the "Warrants", as defined in the Agreement prior to giving effect
to this Amendment plus the New Warrants.
(d) Section 1(f) of the Registration Rights Agreement is hereby amended
and restated in its entirety by deleting the first sentence therefrom in its
entirety and substituting the following sentence in lieu thereof:
"EFFECTIVENESS DEADLINE" means, after the date hereof, the date
that is (i) 90 days after the date on which the Registration
Statement or an amendment thereto is next filed with the SEC
provided that such Registration Statement or amendment is next
filed with the SEC within 30 days after the date of the Amendment
or (ii) 90 days after the date of the Amendment if the
Registration Statement or an amendment thereto is not next filed
with the SEC within 30 days after the date the Amendment.
(e) Section 2(d) of the Registration Rights Agreement is hereby amended
by adding the following two paragraphs as the fourth and fifth subparagraphs
respectively:
"Fourth, if the exclusion of 130% of the number of shares of
Common Stock issuable upon the exercise of Warrants and the Common
Warrants included in such Registration Statement is insufficient to meet
the reduction required by the SEC, then 130% of the number of shares
issuable upon conversion of the Notes shall be reduced (such reduction
allocated pro rata among the holders thereof) until the first to occur
of (i) the reduction required by the SEC is effected or (ii) the number
of shares is reduced to 100% of the shares issuable upon the conversion
of the Notes.
Fifth, if the exclusion of shares issuable upon the conversion of
the Notes pursuant to the previous paragraph is insufficient to meet the
reduction required by the SEC, then (i) the number of shares issuable
upon the conversion of the Notes and (ii) the shares of Common Stock
included in the Registrable Securities which have not otherwise been
reduced shall be reduced (such reduction allocated pro rata among the
holders of the
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Notes and such holders of Common Stock) until the reduction required by
the SEC is effected."
SECTION 2. WAIVER. Each of the Investors signatory hereto hereby waives,
on their behalf and as the Required Holders on the behalf of all Investors, any
Effectiveness Failure existing as of the date hereof and any and all penalties
or payments relating thereto. This waiver is and shall be effective solely for
the existing Effectiveness Failure and any and all penalties or payments
relating thereto and is not and shall not be applicable to any Effectiveness
Failure hereafter occurring.
SECTION 3. NOTE ISSUANCE. In consideration for this Amendment, the
Company shall promptly issue to the Investors (pro rata among the Investors
based upon the principal amount of Notes held by such Investors) secured
convertible notes of the Company in an aggregate principal amount of $2,000,000
for no additional consideration.
SECTION 4. MISCELLANEOUS.
(a) Any transferee or assignee of Registrable Securities 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 Registration Rights Agreement, 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 Registration
Rights Agreement or any right, power or remedy thereunder, nor constitute a
waiver of any provision of the Registration Rights Agreement 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 Registration Rights
Agreement 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 Registration Rights Agreement 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 Registration Rights Agreement. This
Amendment shall be considered part of the Registration Rights Agreement.
(e) This Amendment and the Registration Rights Agreement constitute the
final, entire agreement and understanding between the parties with respect to
the subject matter hereof
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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 Registration Rights Agreement.
(g) The obligations of each Holder hereunder 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 hereunder.
Nothing contained herein, and no action taken by any Holder pursuant hereto,
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 hereby 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
Registration Rights Agreement. Each Holder confirms that it has independently
participated in the negotiation of the transaction contemplated by this
Amendment and the Registration Rights Agreement 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
Registration Rights Agreement, 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 this 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
REGISTRATION RIGHTS AGREEMENT
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
REGISTRATION RIGHTS AGREEMENT
HOLDERS:
SILVER OAK CAPITAL, L.L.C.
By:____________________________________
Name:
Title:
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SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
HOLDERS:
ALEXANDRA GLOBAL MASTER FUND LTD
By:____________________________________
Name:
Title:
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SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
HOLDERS:
BAY HARBOUR MASTER, LTD.
By:____________________________________
Name:
Title:
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SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
HOLDERS:
BAY HARBOUR 90-1, LTD.
By:____________________________________
Name:
Title:
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SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
HOLDERS:
BHCO MASTER, LTD.
By:____________________________________
Name:
Title:
10
SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
HOLDERS:
INSTITUTIONAL BENCHMARK
By:____________________________________
Name:
Title:
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SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
HOLDERS:
MSS DISTRESSED & OPP. 2
By:____________________________________
Name:
Title:
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SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
HOLDERS:
CAMOFI MASTER LDC
By:____________________________________
Name:
Title:
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SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
HOLDERS:
CREDIT SUISSE SECURITIES (USA) LLC
By:____________________________________
Name:
Title:
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SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
HOLDERS:
DIAMOND OPPORTUNITY FUND, LLC
By:____________________________________
Name:
Title:
15
SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
HOLDERS:
EVOLUTION MASTER FUND LTD SPC,
SEGREGATED PORTFOLIO M
By:____________________________________
Name:
Title:
16
SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
HOLDERS:
GOTTBETTER CAPITAL MASTER, LTD.
By:____________________________________
Name:
Title:
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SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
HOLDERS:
HARVEST CAPITAL, LP
By:____________________________________
Name:
Title:
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SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
HOLDERS:
HARVEST OFFSHORE INVESTORS, LTD.
By:____________________________________
Name:
Title:
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SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
HOLDERS:
TE HARVEST PORTFOLIO, LTD.
By:____________________________________
Name:
Title:
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SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
HOLDERS:
JMG CAPITAL PARTNERS, LP
By:____________________________________
Name:
Title:
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SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
HOLDERS:
JMG TRITON OFFSHORE FUND, LTD
By:____________________________________
Name:
Title:
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SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
HOLDERS:
SHOSHONE PARTNERS, L.P.
By:____________________________________
Name:
Title:
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SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
HOLDERS:
XXXXX PARTNERS, L.P.
By:____________________________________
Name:
Title:
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SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
HOLDERS:
FINDERNE LLC
By:____________________________________
Name:
Title:
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SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
HOLDERS:
MULSANNE PARTNERS, L.P.
By:____________________________________
Name:
Title:
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SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
HOLDERS:
MATTERHORN OFFSHORE FUND LTD.
By:____________________________________
Name:
Title:
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SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
HOLDERS:
COMMONFUND HEDGED EQUITY COMPANY
By:____________________________________
Name:
Title:
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SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
HOLDERS:
GOOD XXXXXXX TRADING CO. S.P.C.
By:____________________________________
Name:
Title:
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SIGNATURE PAGE TO WAIVER AND AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
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
REGISTRATION RIGHTS AGREEMENT
HOLDERS:
WOLVERINE CONVERTIBLE
ARBITRAGE TRADING, LIMITED
By:____________________________________
Name:
Title:
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