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,
