EX-4.20
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 (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 November 8, 2006) and the Buyers, the
Company sold
to each Buyer (i) Common Stock and (ii) Warrants and in connection
therewith the
Company and
the Buyers entered into the Registration Rights Agreement
("REGISTRATION RIGHTS AGREEMENT").
WHEREAS, the
Company requested that the Investors enter into this
Amendment to amend the
Registration Rights
Agreement in certain respects as
provided herein and 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 convertible notes (of like tenor to the
Notes, as amended, except such notes are unsecured);
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 wishes to raise additional capital through the
sale
of additional
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:
(a) All references to Aerobic Creations, Inc. or ShellCo shall
hereafter
be a reference to Summit Global Logistics, Inc.
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(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 Notes.
(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 Registration
Rights 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 of the Amendment.
(e) Section 2(d) of the Registration Rights Agreement is hereby
amended
by amending and restating the third subparagraph in its entirety as
follows and
adding the following
two paragraphs as the fourth and fifth subparagraphs
respectively:
Third, if the exclusion of the sum of (i) the number of shares
of
Common Stock held by
those holders of the
Company who held shares of
Common Stock prior to the effectiveness of the Merger, (ii) 130% of the
number of shares of Common Stock issuable upon the exercise of
warrants
issued to Rodman &
Renshaw, LLC as
placement agent in respect of the
offerings
of the Registrable
Securities and Other
Securities and (iii)
the securities
held by KRG is insufficient to meet the reduction
required by the SEC,
then 130% of the number of shares of Common Stock
issuable upon the exercise of Warrants and the Common Warrants
included
in such Registration Statement shall be reduced (such reduction
allocated pro rata
among the holders thereof) until the reduction
required by the SEC is effected.
"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
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(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
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
number of shares of common stock purchased
pursuant to the Securities Purchase Agreement (Common Stock and
Warrants) that
are held by such
Investors) convertible
notes of the Company
in an aggregate
principal amount of
$1,000,000 for no additional consideration (collectively,
the "PIPE NOTES").
SECTION 4. ADMINISTRATIVE AGENT.
(a) Each Investor hereby (x) appoints Law Debenture Trust Company
of New
York, as
the administrative agent for such Investor hereunder (the
"ADMINISTRATIVE
AGENT"), and
(y) each Investor hereby authorizes the
Administrative Agent (and its officers, directors, employees and
agents) in such
capacity to take any
and all such actions
on its behalf
with respect to all
obligations under the
PIPE Notes in accordance with the terms of this Amendment
and the PIPE Notes. The Administrative Agent shall not have, by
reason hereof or
any of the PIPE Notes,
a fiduciary
relationship
in respect of any
Investor.
Neither the Administrative Agent nor any of its officers,
directors,
employees
and agents shall have
any liability
to any Investor for any action taken or
omitted to be taken in
connection herewith or
therewith except to the extent
caused by its own gross negligence or willful misconduct, and each Investor
agrees to defend, protect, indemnify and hold harmless the
Administrative Agent
and all of its officers, directors, employees and agents
(collectively, the
"AA
INDEMNITEES") from and against any losses, damages, liabilities, obligations,
penalties, actions,
judgments,
suits, fees, costs and expenses (including,
without limitation,
reasonable attorneys' fees, costs and expenses) incurred by
such AA Indemnitee,
whether direct, indirect or consequential, arising from or
in connection
with the performance by such AA Indemnitee of the duties and
obligations of Administrative Agent pursuant hereto,
the PIPE Notes and/or
the
Intercreditor Agreement (hereinafter defined).
(b) The Administrative
Agent may resign from the performance of all its
functions and
duties hereunder at any time by giving at least
fifteen (15)
Business Days' prior
written
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notice to the Company and each holder of the PIPE Notes.
Such resignation
shall
take effect
upon the acceptance by a successor Administrative Agent of
appointment as provided below. Upon any such notice of resignation,
the holders
of a majority of the outstanding principal under the PIPE Notes
shall appoint a
successor
Administrative Agent.
Upon the acceptance of the appointment as
Administrative Agent,
such successor
Administrative Agent shall succeed to and
become vested with all the rights, powers, privileges and duties of
the retiring
Administrative Agent, and the retiring Administrative Agent shall be
discharged
from its duties and obligations under this Amendment. After any Administrative
Agent's resignation hereunder, the provisions of this Section shall
inure to its
benefit. If a
successor
Administrative Agent
shall not have been so appointed
within said fifteen (15) Business Day period, the retiring
Administrative
Agent
shall then appoint a successor Administrative Agent who shall serve until
such
time, if any, as the holders of a majority of the outstanding principal under
the PIPE Notes appoint a successor Administrative Agent as provided
above.
(c) Without limiting
the generality
of the foregoing, each Investor
hereby irrevocably
appoints and authorizes Administrative Agent to execute
and
deliver the
Intercreditor and
Subordination
Agreement dated as of even date
hereof by and between Fortress Credit Corp., in its capacity as
collateral agent
for certain
financial institutions, and the Administrative Agent, in its
capacity as
administrative agent
for the Investors, for
and on behalf of such
Investor (as amended, restated, supplemented and/or modified from
time to time,
the "INTERCREDITOR
AGREEMENT") and to perform all of the obligations and duties
of Administrative
Agent provided for therein, and each Investor shall be
bound
by the terms
of the Intercreditor Agreement, as if such Investor were an
original signatory thereto. As to (x) any matters not
expressly provided for by
this Amendment and the PIPE Notes and (y) any amendments, consents
or waivers in
connection with
the PIPE Notes or the Intercreditor Agreement, the
Administrative Agent
shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting
(and shall be
fully protected in so acting or refraining from acting) upon the
instructions of
the Required Holders,
and such instructions of the Required
Holders shall be
binding upon all Investors.
(d) The Administrative
Agent shall have no
duties or
responsibilities
except those expressly set forth in this Amendment, the Intercreditor Agreement
and the PIPE Notes. The duties of the Administrative Agent shall be mechanical
and administrative in nature. The Administrative Agent shall not have by reason
of this Amendment,
the Intercreditor Agrement or the PIPE Notes a fiduciary
relationship in
respect of any Investor. Nothing in this Amendment, the PIPE
Notes or the
Intercreditor
Agreement, express or
implied, is intended to or
shall be construed to impose upon the Administrative Agent any obligations in
respect of this Amendment, the PIPE Notes or the
Intercreditor Agreement except
as expressly set forth herein or therein.
(e) If Company or Fortress Credit Corp. (or any successor or
replacement
agent under the Senior
Loan Agreement) seeks the consent or approval of the
Required Holders to
the taking or refraining from taking any action hereunder,
Company shall send notice thereof to each Investor. Any such consents shall be
solicited and tabulated by Company, or a solicitation and/or tabulation agent
engaged by Company,
subject to the Administrative Agent's right to receive all
such consents and satisfy itself as to (x) the authenticity of such
consents (y)
receipt of such
consents from
Investors representing
a sufficient
principal
amount of PIPE Notes, and (z) any other matters that the
Administrative
Agent,
in its sole discretion
deems necessary or
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advisable. It
shall not be necessary for such Investors to approve the
particular form of any proposed amendment or waiver, but it shall
be sufficient
if the written
consents of the
Required Holders
reflect the
approval of the
substance thereof.
Company shall provide the Administrative Agent, and is
permitted hereby
to provide Fortress Credit Corp. (or any successor or
replacement agent
under the Senior
Loan Agreement), with copies of any such
written consent(s).
(f) The Administrative
Agent shall
promptly notify each Investor any
time that the Required Holders have instructed the Administrative Agent to act
or refrain from acting pursuant hereto. Company or Fortress Credit
Corp. (or any
successor or
replacement
agent under the Senior Loan Agreement) or the
Administrative Agent
may at any time request instructions from the Investors in
respect of any actions or approvals which by the terms of this
Amendment or of
the PIPE Notes
or the Intercreditor Agreement the Administrative Agent is
permitted or required to take or to grant, and if such instructions
are promptly
requested, the Administrative Agent shall be absolutely entitled to
refrain from
taking any action or to withhold any approval under this Amendment, the PIPE
Notes or the Intercreditor Agreement until it shall have received such
instructions from the
Required Holders.
Without limiting the foregoing, no
Investor shall have any right of action whatsoever against the Administrative
Agent as a result of the Administrative Agent acting or refraining from
