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Search Assumption Agreement by:
Exhibit 10.8
AEROBIC CREATIONS, INC.
JOINDER AGREEMENT
This Joinder Agreement to the Securities Purchase Agreement
(Notes
and Warrants) ("JOINDER AGREEMENT"), dated as of November 8, 2006
(as amended,
restated, supplemented and/or modified in accordance with the
provisions
thereof, the "SECURITIES PURCHASE AGREEMENT"), by and among
Maritime Logistics
US Holdings Inc. (the "COMPANY") and the investors identified on
the Schedule of
Buyers attached thereto (the "BUYERS"), is entered into as of
November 8, 2006
by Aerobic Creations, Inc. ("SHELLCO"), a Delaware corporation. It
is the
current intention of Aerobic Creations, Inc. to change its name to
Summit Global
Logistics, Inc. Capitalized terms used but not otherwise defined
herein shall
have the meanings set forth in the Securities Purchase
Agreement.
ShellCo hereby represents, warrants, and certifies to, and
agrees
with, the Buyers as follows:
1.
Each of
the representations and warranties set forth in Section 3
(other than the first sentence of Section 3(o)) of the
Securities
Purchase Agreement, mutatis mutandis, are as of the date hereof
are
true and correct as if each reference to the Company contained
in
such representations and warranties was a reference to ShellCo
(unless otherwise expressly provided herein or in the
disclosure
schedules
hereto). Attached hereto are disclosure schedules
providing the disclosures required by the Securities Purchase
Agreement in respect of ShellCo.
2.
ShellCo
hereby assumes all covenants and obligations of the Company
set forth in the Securities Purchase Agreement (including,
without
limitation, all indemnification obligations) as if each
obligation
of the Company and each reference thereto contained in the
Securities Purchase Agreement was an obligation of and a
reference
to ShellCo.
3.
In
addition, ShellCo represents and warrants to each of the Buyers
that:
A. AUTHORIZATION; ENFORCEMENT; VALIDITY.
1. ShellCo has the requisite corporate power and authority to
enter
into and perform its obligations under (i) this Joinder Agreement
and each of
the other Transaction Documents to which it is a party and (ii) the
Acquisition
Documents and to consummate the transactions contemplated herein
and therein,
including the issuance of the Securities in accordance with the
terms hereof.
The execution and delivery of the Transaction Documents and the
Acquisition
Documents (to which ShellCo is a party) by ShellCo and the
consummation by
ShellCo of the transactions contemplated hereby and thereby,
including the
issuance of $65,000,000 in principal amount of the Notes and the
related
Warrants and the reservation for issuance and the issuance of the
Conversion
Shares and Warrant Shares issuable upon conversion or exercise
thereof, have
been duly authorized by the Board of Directors of ShellCo
<PAGE>
(the "BOARD OF DIRECTORS") and other than as set forth in
subsection (2) of this
Section 3(A) or Section 3(D) hereof, no further filing, consent or
authorization
is required by ShellCo, its stockholders or the Board of Directors.
To the
extent that a Subsidiary (which for purposes of this Joinder
Agreement shall
mean all subsidiaries of ShellCo prior to giving effect to the
Merger) is a
party to or bound by a Transaction Document or an Acquisition
Document, such
Subsidiary has the requisite power and authority to enter into and
perform its
obligations under such Transaction Document or Acquisition Document
and the
execution and delivery of such Transaction Document by such
Subsidiary and the
consummation by such Subsidiary of the transactions contemplated
thereby have
been duly authorized by the Board of Directors or equivalent body
of such
Subsidiary and no further consent or authorization is required by
such
Subsidiary, its equity holders or its board of directors or
equivalent body.
This Joinder Agreement, the other Transaction Documents and the
Acquisition
Documents to which ShellCo and, if applicable, its Subsidiaries is
a party have
been duly executed and delivered by ShellCo and/or such Subsidiary,
and
constitute the legal, valid and binding obligations of such parties
enforceable
against such parties in accordance with their respective terms,
except as such
enforceability may be limited by general principles of equity or
applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer,
moratorium, liquidation or similar laws relating to, or affecting
generally, the
enforcement of applicable creditors' rights and remedies. As of the
Closing, the
Transaction Documents and Acquisition Documents dated after the
date of this
Joinder Agreement and on or prior to the date of the Closing shall
have been
duly executed and delivered by ShellCo and, if applicable, its
Subsidiaries and
shall constitute the valid and binding obligations of such parties,
enforceable
against such parties in accordance with their terms except as
enforceability may
be limited by general principles of equity or applicable
bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or
similar laws
relating to, or affecting generally, the enforcement of creditors'
rights and
remedies.
2. Other than (i) the filing of appropriate UCC financing
statements
with the appropriate states and other authorities pursuant to the
Pledge
Agreement and the Security Agreement, (ii) the Perfection
Requirements (as
defined in the Security Agreement) and (iii) the Current Report on
Form 8-K
required to be filed after Closing by ShellCo pursuant to Section
4(h) of the
Securities Purchase Agreement, (iv) the Form D filing required to
be made
following the Closing by ShellCo with the SEC, (v) the registration
statement
and related state filings required by the Registration Rights
Agreement, (vi)
filings required by applicable state securities laws; and (vii) the
Schedule 14C
relating, among other matters, to the Reverse Split, no further
filing, consent,
or authorization is required by ShellCo, its Board of Directors or
its
stockholders.
B. ISSUANCE OF SECURITIES. The issuance of the Notes and the
Warrants has been duly authorized and upon issuance such Notes
shall be (i) free
from all taxes and Liens in respect of the issue thereof other than
Permitted
Liens (as defined in the Notes) and (iii) entitled to the rights
set forth in
the Notes. Upon the effectiveness of the Reverse Split, a number of
shares of
Common Stock shall have been duly authorized and reserved for
issuance which
equals 130% of the maximum number of shares Common Stock issuable
upon
conversion of the Notes and issuable upon exercise of the Warrants.
Upon the
effectiveness of the Reverse Split and
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<PAGE>
thereafter, at least 10,754,545 shares of Common Stock (subject to
adjustment
pursuant to the Company's covenant set forth in Section 4(l) of the
Securities
Purchase Agreement) will be duly authorized and reserved for
issuance upon
conversion of the Notes and upon exercise of the Warrants. Upon
issuance or
conversion in accordance with the Notes or exercise in accordance
with the
Warrants, as the case may be, the Conversion Shares and the Warrant
Shares,
respectively, will be validly issued, fully paid and nonassessable
and free from
all preemptive or similar rights, taxes, liens and charges in
respect of the
issue thereof other than Permitted Liens, with the holders being
entitled to all
rights accorded to a holder of Common Stock. Subject to the
accuracy of the
Buyers' representations and warranties in the Securities Purchase
Agreement, the
offer and issuance by ShellCo of the Securities is exempt from
registration
under the 1933 Act.
C. NO CONFLICTS. The execution, delivery and performance of
this
Joinder Agreement and the Transaction Documents to which it is a
party by
ShellCo, and if applicable its Subsidiaries, and the consummation
by such
parties of the transactions contemplated hereby and thereby
(including, without
limitation, the issuance of the Notes and the Warrants, the
granting of a
security interest in the Collateral (as defined in the Security
Documents) and
reservation for issuance and issuance of the Conversion Shares and
the Warrant
Shares) will not (i) result in a violation of any certificate of
incorporation,
certificate of formation, any certificate of designations or other
constituent
documents of ShellCo or any of its Subsidiaries, any capital stock
of ShellCo or
any of its Subsidiaries or bylaws of ShellCo or any of its
Subsidiaries or (ii)
conflict with, or constitute a default (or an event which with
notice or lapse
of time or both would become a default) under, or give to others
any rights of
termination, amendment, acceleration or cancellation of, or other
remedy in
respect of any agreement, indenture or instrument to which ShellCo
or any of its
Subsidiaries is a party or (iii) result in a violation of any
Requirements of
Law, except in the case of clauses (ii) and (iii) of this Section
3(C) for such
conflicts, defaults, rights or violations which would not
reasonably be expected
to , individually or in the aggregate have a Material Adverse
Effect.
D. CONSENTS. ShellCo is not required to obtain any consent,
authorization or order of, or make any filing (other than (i) the
filing of
appropriate UCC financing statements with the appropriate states
and other
authorities pursuant to the Pledge Agreement and the Security
Agreement, (ii)
the other Perfection Requirements (as defined in the Security
Agreement), (iii)
the filing with the SEC of one or more Registration Statements in
accordance
with the requirements of the Registration Rights Agreement, (iv) a
Current
Report on Form 8-K and (v) a Schedule 14C) or registration with,
any court,
governmental agency or any regulatory or self-regulatory agency or
any other
Person in order for it to execute, deliver or perform any of its
obligations
under or contemplated by the Transaction Documents, in each case in
accordance
with the terms hereof or thereof. All consents, authorizations,
orders, filings
and registrations that ShellCo is required to obtain pursuant to
the preceding
sentence prior to the Closing Date have been obtained or effected
on or prior to
the Closing Date, and ShellCo and its Subsidiaries are unaware of
any facts or
circumstances which might prevent ShellCo from obtaining or
effecting any of the
registration, application or filings pursuant to the preceding
sentence.
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<PAGE>
E. DILUTIVE EFFECT. ShellCo understands and acknowledges that
the
number of Conversion Shares issuable upon conversion of the Notes
and the
Warrant Shares issuable upon exercise of the Warrants will increase
in certain
circumstances. ShellCo further acknowledges that any obligation to
issue
Conversion Shares upon conversion of the Notes in accordance with
the Securities
Purchase Agreement and the Notes and its obligation to issue the
Warrant Shares
upon exercise of the Warrants in accordance with the Securities
Purchase
Agreement and the Warrants is, in each case, absolute and
unconditional
regardless of the dilutive effect, which may be substantial, that
such issuance
may have on the ownership interests of other stockholders of
ShellCo. Taking the
foregoing into account, the Board of Directors has determined in
its good faith
business judgment that the issuance of the Notes and the Warrants
and the
consummation of the other transactions contemplated hereby are in
the best
interests of ShellCo and its stockholders.
F. INVESTMENT COMPANY. ShellCo is not, and upon the Closing will
not
be, an "investment company," a company controlled by an "investment
company," or
an "affiliated person" of, or "promoter" or "principal underwriter"
for, an
"investment company," as such terms are defined in the Investment
Company Act of
1940, as amended.
G. APPLICATION OF TAKEOVER PROTECTIONS; RIGHTS AGREEMENT.
ShellCo
and the Board of Directors have taken all necessary action, if any,
in order to
render inapplicable any control share acquisition, business
combination, poison
pill (including any distribution under a rights agreement) or other
similar
anti-takeover provision under ShellCo's certificate of
incorporation (as amended
and restated and in effect on the date hereof, the "CERTIFICATE
OF
INCORPORATION") or the laws of the jurisdiction of its formation or
otherwise
which is or could become applicable to any Buyer as a result of the
transactions
contemplated by the Securities Purchase Agreement, including,
without
limitation, ShellCo's issuance of the Securities and any Buyer's
ownership of
the Securities. ShellCo has not adopted a stockholder rights plan
or similar
arrangement relating to accumulations of beneficial ownership of
Common Stock or
a change in control of ShellCo. Certain stockholders of ShellCo, or
persons who
upon the consummation of the transactions contemplated by the
Transaction
Agreements will become stockholders of ShellCo, representing in the
aggregate
approximately 37.3% of the common equity of ShellCo at the
consummation of
the transactions contemplated by the Transaction Documents
(approximately
14.7% on a fully-diluted basis) have agreed, among other things, to
only vote
to increase the authorized number of shares of ShellCo, or amend
the certificate
of incorporation of ShellCo or by-laws of ShellCo, if at least 75%
of such
stockholders so vote and to vote for Robert Agresti, Gregory
DeSaye, Terrance
MacAvery and Raymer McQuiston to a seven person board of
directors.
H. SEC DOCUMENTS; FINANCIAL STATEMENTS.
1. Since March 3, 2005, ShellCo has filed all reports,
schedules,
forms, statements and other documents required to be filed by it
with the SEC
pursuant to the reporting requirements of the 1934 Act (all of the
foregoing
filed prior to the date hereof and all exhibits
-4-
<PAGE>
included therein and financial statements, notes and schedules
thereto and
documents incorporated by reference therein being hereinafter
referred to as the
"SEC DOCUMENTS"). ShellCo has delivered to the Buyers or their
respective
representatives true, correct and complete copies of the SEC
Documents not
available on the EDGAR system. As of their respective dates, the
SEC Documents
complied in all material respects with the requirements of the 1934
Act and the
rules and regulations of the SEC promulgated thereunder applicable
to the SEC
Documents, and none of the SEC Documents, at the time they were
filed with the
SEC, contained any untrue statement of a material fact or omitted
to state a
material fact required to be stated therein or necessary in order
to make the
statements therein, in the light of the circumstances under which
they were
made, not misleading. As of their respective dates, the financial
statements of
ShellCo included in the SEC Documents complied as to form in all
material
respects with applicable accounting requirements and the published
rules and
regulations of the SEC with respect thereto. Such financial
statements have been
prepared in accordance with generally accepted accounting
principles ("GAAP")
consistently applied, during the periods involved (except (i) as
may be
otherwise indicated in such financial statements or the notes
thereto, or (ii)
in the case of unaudited interim statements, to the extent they may
exclude
footnotes or may be condensed or summary statements) and fairly
present in all
material respects the financial position of ShellCo as of the dates
thereof and
the results of its operations and cash flows for the periods then
ended
(subject, in the case of unaudited statements, to normal year-end
audit
adjustments that are not material, individually or in the
aggregate). All
written disclosure (other than written disclosure marked "draft",
"subject to
completion" or words of similar meaning) provided to the Buyers
regarding
ShellCo, the Company, the Targets, their respective businesses and
the
transactions contemplated by the Securities Purchase Agreement
(including the
Schedules thereto and to this Joinder, the other Transaction
Documents and that
certain private placement memorandum dated October 23, 2006),
furnished by or on
behalf of ShellCo is true and correct in all material respects and
does not
contain any untrue statement of a material fact or omit to state
any material
fact necessary in order to make the statements made therein, in the
light of the
circumstances under which they were made, not misleading.
2. None of ShellCo or, to ShellCo's knowledge, any stockholder,
officer, director or of ShellCo has issued any press release or
made any other
public statement or communication on behalf of ShellCo or otherwise
relating to
ShellCo or any of its Subsidiaries that contains any untrue
statement of a
material fact or omits any statement of material fact necessary in
order to make
the statements therein, in the light of the circumstances under
which they were
made, not misleading or has provided any other information to the
Buyers,
including information referred to in Section 2(d) of the Securities
Purchase
Agreement, that contains any untrue statement of a material fact or
omits to
state any material fact necessary in order to make the statements
therein, in
the light of the circumstances under which they were made, not
misleading.
Except as set forth on SCHEDULE 3(N) of the Securities Purchase
Agreement, which
will be filed with the Form 8-K to be filed by ShellCo pursuant to
Section 4(h)
of the Securities Purchase Agreement, none of ShellCo or any of its
officers,
directors, employees or agents has provided the Buyers with any
material,
nonpublic information. Nothing has come to our attention which
would indicate
(i) that the accounting firm of Dale Matheson Carr-Hilton LaBonte,
which has
expressed its opinion in respect of the consolidated financial
statements of
ShellCo for the fiscal year ended December 31, 2005 (the "AUDIT
OPINION") is not
independent of ShellCo pursuant to the standards set forth in Rule
2-01 of
Regulation S-X promulgated by
-5-
<PAGE>
the SEC, and that such
firm was not otherwise
qualified to render the Audit
Opinion and complete
such review under
applicable law, or
(ii) since March 3,
2005, neither ShellCo nor, to the knowledge of ShellCo, any
director, officer or
employee, of ShellCo, has received or otherwise had or obtained
knowledge of any
material complaint,
allegation,
assertion or claim,
whether written or
oral,
regarding the accounting or auditing practices, procedures, methodologies or
methods of ShellCo or its internal accounting controls, including
any complaint,
allegation, assertion
or claim that ShellCo has engaged in questionable
accounting or auditing practices.
I. CONDUCT OF BUSINESS; REGULATORY PERMITS. Neither
ShellCo nor any
Subsidiary is in violation of any term of its certificate of
incorporation
(or
the organizational
charter) or bylaws or
operating agreement,
as applicable.
Neither ShellCo nor any Subsidiary is in material violation of any
term of or in
material default
under (or with the
giving of notice or
lapse of time or both
would be in violation of or default under) any material contract, agreement,
mortgage, indebtedness, indenture, instrument, judgment,
decree or order or any
statute, rule or
regulation applicable
to ShellCo or any of its Subsidiaries.
The business of ShellCo and each Subsidiary is not being
conducted,
and shall
not be conducted, in
violation in any material respect of any Requirements of
Law, except for such
violation and/or possible violations which would not,
individually or in the
aggregate,
reasonably
be expected to have a Material
Adverse Effect.
ShellCo
and each Subsidiary possess all certificates,
authorizations, licenses and permits issued by the appropriate
federal, state or
foreign regulatory
authorities necessary to conduct their respective businesses
as presently
conducted ("PERMITS") except where the failure to possess
such
Permits would not reasonably be expected to have a Material Adverse
Effect, and
none of ShellCo
or any Subsidiary has received any notice of proceedings
relating to the revocation or modification o






