Exhibit 10.32
[FORM OF]
INDEMNIFICATION AND FOUNDERS AGREEMENT
This
Indemnification and Founders Agreement, made and entered into as
of
this 8th day of November, 2006 ("Agreement"), by and between
Aerobic Creations
Inc. (to be renamed Summit Global Logistics, Inc.), a Delaware
corporation (the
"Company"), and __________________________ (the "Indemnitee").
WHEREAS, the Company is or intends to be a third party logistics
provider;
and Maritime Logistics US Holdings Inc., a Delaware company ("MLI")
is a
logistics company that the Company has acquired as of the date
hereof through
its wholly-owned acquisition subsidiary, and MLI and its founders
have raised on
behalf of the Company funds sufficient to finance the acquisition
of certain
logistics companies, and MLI intends to acquire additional
logistics companies,
if and when, such opportunities present themselves.
WHEREAS, the Indemnitee is a founder of MLI ("Founder"), and as a
condition
to the founders, including the Founder, entering into this
Agreement, the
Reorganization, Acquisitions, and Financings (each as defined in
that certain
private placement memorandum dated October 23, 2006), the Company
has agreed to
pay a premium to the founders of MLI in the event of a change in
control of the
Company prior to the fifth year anniversary of this Agreement;
WHEREAS, highly competent persons are reluctant to serve
corporations as
directors, officers or in other capacities unless they are provided
with
adequate protection through insurance or adequate indemnification
against
inordinate risks of claims and actions against them arising out of
their service
to and activities on behalf of the corporation;
WHEREAS, the current impracticability of obtaining adequate
insurance and
the uncertainties relating to indemnification have increased the
difficulty of
attracting and retaining such persons;
WHEREAS, it is reasonable, prudent and necessary for the
Company
contractually to obligate itself to indemnify such persons to the
fullest extent
permitted by applicable law so that they will serve or continue to
serve the
Company free from undue concern that they will not be so
indemnified; and
WHEREAS, Indemnitee is willing to serve, continue to serve and to
take on
additional service for or on behalf of the Company on the condition
that
Indemnitee be indemnified to the fullest extent permitted.
NOW,
THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and
agree as
follows:
ARTICLE I
DEFINITIONS
For
purposes of this Agreement the following terms shall have the
meanings
indicated:
1.01
"BOARD" shall mean the Board of Directors of the Company.
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1.02
"CORPORATE STATUS" describes the status of a person who is or was
a
director, officer, employee, agent, trustee or fiduciary of the
Company or of
any other corporation, partnership, joint venture, trust, employee
benefit plan
or other Enterprise which such person is or was serving at the
request or on
behalf of the Company.
1.03
"COURT" means the Court of Chancery of the State of Delaware,
the
court in which the Proceeding in respect of which indemnification
is sought by
the Indemnitee shall have been brought or is pending, or another
court having
subject matter jurisdiction and personal jurisdiction over the
parties.
1.04
"DISINTERESTED DIRECTOR" means a director of the Company who is
not
and was not a party to the Proceeding in respect of which
indemnification is
sought by Indemnitee.
1.05
"ENTERPRISE" shall mean the Company and any other corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise of
which Indemnitee is or was serving at the express written request
of the Company
as a director, officer, employee, agent, trustee or fiduciary.
1.06
"EXPENSES" shall include, without limitation, all reasonable
attorneys' fees, retainers, court costs, transcript costs, fees of
experts,
witness fees, travel expenses, duplicating costs, printing and
binding costs,
telephone charges, postage, delivery service fees, facsimile
transmission
charges, and all other disbursements or expenses of the types
customarily
incurred in connection with prosecuting, defending, preparing to
prosecute or
defend, investigating or being or preparing to be a witness in a
Proceeding.
1.07
"GOOD FAITH" shall mean Indemnitee having acted in good faith and
in a
manner Indemnitee reasonably believed to be in or not opposed to
the best
interests of the Company or, in the case of an Enterprise which is
an employee
benefit plan, the best interests of the participants or
beneficiaries of said
plan, as the case may be, and, with respect to any Proceeding which
is criminal
in nature, having had no reasonable cause to believe Indemnitee's
conduct was
unlawful.
1.08
"IMPROPER PERSONAL BENEFIT" shall include, but not be limited to,
the
personal gain in fact by reason of a person's Corporate Status of a
financial
profit, monies or other advantage not also accruing to the benefit
of the
Company or to the stockholders generally and which is unrelated to
his usual
compensation including, but not limited to, (i) in exchange for the
exercise of
influence over the Company's affairs, (ii) as a result of the
diversion of
corporate opportunity, or (iii) pursuant to the use or
communication of
confidential or inside information for the purpose of generating a
profit from
trading in the Company's securities. Notwithstanding the foregoing,
"Improper
Personal Benefit" shall not include any benefit, directly or
indirectly, related
to actions taken in order to evaluate, discourage, resist, prevent
or negotiate
any transaction with or proposal from any person or entity seeking
control of,
or a controlling interest in, the Company.
1.09
"INDEPENDENT COUNSEL" means a law firm, or a member of a law
firm,
that is experienced in matters of corporation law and may include
law firms or
members thereof that are regularly retained by the Company but not
any other
party to the Proceeding giving rise to a claim for indemnification
hereunder.
Notwithstanding the foregoing, the term "Independent Counsel" shall
not include
any person who, under the standards of professional conduct then
prevailing and
applicable to such counsel, would have a conflict of interest in
representing
either the Company or Indemnitee in an action to determine
Indemnitee's rights
under this Agreement.
1.10
"OFFICER" means the president, vice presidents, treasurer,
assistant
treasurer(s), secretary, assistant secretary and such other
executive officers
as are appointed by the board of directors of the Company or
Enterprise, as the
case may be.
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1.11
"PROCEEDING" includes any action, suit, arbitration, alternate
dispute
resolution mechanism, investigation (including any internal
corporate
investigation), administrative hearing or any other actual,
threatened or
completed proceeding, whether civil, criminal, administrative or
investigative,
other than one initiated by Indemnitee. For purposes of the
foregoing sentence,
a "Proceeding" shall not be deemed to have been initiated by
Indemnitee where
Indemnitee seeks, pursuant to Article VIII of this Agreement, to
enforce
Indemnitee's rights under this Agreement.
ARTICLE II
TERM OF AGREEMENT
This
Agreement shall continue until and terminate upon the later of:
(i)
ten (10) years after the date that Indemnitee shall have ceased to
serve as a
director, officer, employee, agent, trustee or fiduciary of the
Company or of
any other Enterprise; or (ii) the final termination of all pending
Proceedings
in respect of which Indemnitee is granted rights of indemnification
or
advancement of expenses hereunder and of any proceeding commenced
by Indemnitee
pursuant to Article VIII of this Agreement relating thereto.
ARTICLE III
SERVICES BY INDEMNITEE, NOTICE OF PROCEEDINGS
3.01
SERVICES. Indemnitee agrees to serve or continue to serve as a
Director or Officer of the Company for so long as he is duly
elected or
appointed. Indemnitee may at any time and for any reason resign
from such
position (subject to any other contractual obligation or any
obligation imposed
by operation of law).
3.02
NOTICE OF PROCEEDING. Indemnitee agrees promptly to notify the
Company
in writing upon being served with any summons, citation, subpoena,
complaint,
indictment, information or other document relating to any
Proceeding or matter
which may be subject to indemnification or advancement of Expenses
covered
hereunder, but the omission so to notify the Company shall not
relieve the
Company from its obligations hereunder.
ARTICLE IV
INDEMNIFICATION
4.01
IN GENERAL. To the fullest extent permitted by applicable law,
in
connection with any Proceeding, the Company shall indemnify, and
advance
Expenses, to Indemnitee as provided in this Agreement.
4.02
PROCEEDINGS OTHER THAN PROCEEDINGS BY OR IN THE RIGHT OF THE
COMPANY.
Indemnitee shall be entitled to the rights of indemnification
provided in this
Section 4.02 if, by reason of Indemnitee's Corporate Status,
Indemnitee is, or
is threatened to be made, a party to or is otherwise involved in
any Proceeding,
other than a Proceeding by or in the right of the Company.
Indemnitee shall be
indemnified against Expenses, judgments, penalties, fines and
amounts paid in
settlement, actually and reasonably incurred by Indemnitee or on
Indemnitee's
behalf in connection with such Proceeding or any claim, issue or
matter therein,
if Indemnitee acted in Good Faith and such Indemnitee has not been
adjudged
during the course of such Proceeding to have derived an Improper
Personal
Benefit from the transaction or occurrence forming the basis of
such Proceeding.
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4.03
PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY.
(a)
Indemnitee shall be entitled to the rights of indemnification
provided
in this Section 4.03 if, by reason of Indemnitee's Corporate
Status, Indemnitee
is, or is threatened to be made, a party to or is otherwise
involved in any
Proceeding brought by or in the right of the Company to procure a
judgment in
its favor. Indemnitee shall be indemnified against Expenses,
judgments,
penalties, and amounts paid in settlement, actually and reasonably
incurred by
Indemnitee or on Indemnitee's behalf in connection with such
Proceeding if
Indemnitee acted in Good Faith and such Indemnitee has not been
adjudged during
the course of such Proceeding to have derived an Improper Personal
Benefit from
the transaction or occurrence forming the basis of such
Proceeding.
Notwithstanding the foregoing, no such indemnification shall be
made in respect
of any claim, issue or matter in such Proceeding as to which
Indemnitee shall
have been adjudged to be liable to the Company if applicable law
prohibits such
indemnification; provided, however, that, if applicable law so
permits,
indemnification shall nevertheless be made by the Company in such
event if and
only to the extent that the Court which is considering the matter
shall so
determine.
4.04
INDEMNIFICATION OF A PARTY WHO IS WHOLLY OR PARTLY SUCCESSFUL.
Notwithstanding any other provision of this Agreement, to the
extent that
Indemnitee is, by reason of Indemnitee's Corporate Status, a party
to or is
otherwise involved in and is successful, on the merits or
otherwise, in any
Proceeding, Indemnitee shall be indemnified, to the maximum extent
permitted by
law, against all Expenses, judgments, penalties, fines, and amounts
paid in
settlement, actually and reasonably incurred by Indemnitee or on
Indemnitee's
behalf in connection therewith. If Indemnitee is not wholly
successful in such
Proceeding but is successful, on the merits or otherwise, as to one
or more but
less than all claims, issues or matters in such Proceeding, the
Company shall
indemnify Indemnitee, to the maximum extent permitted by law,
against all
Expenses, judgments, penalties, fines, and amounts paid in
settlement, actually
and reasonably incurred by Indemnitee or on Indemnitee's behalf in
connection
with each successfully resolved claim, issue or matter. For
purposes of this
Section 4.04 and without limitation, the termination of any claim,
issue or
matter in such a Proceeding by dismissal, with or without
prejudice, shall be
deemed to be a successful result as to such claim, issue or
matter.
4.05
INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding any
other
provision of this Agreement, to the extent that Indemnitee is, by
reason of
Indemnitee's Corporate Status, a witness in any Proceeding,
Indemnitee shall be
indemnified against all Expenses actually and reasonably incurred
by Indemnitee
or on Indemnitee's behalf in connection therewith.
ARTICLE
V
ADVANCEMENT OF EXPENSES
Notwithstanding any provision to the contrary in Article VI and to
the
fullest extent provided by applicable law, the Company (acting
through the Chief
Executive Officer) shall advance all reasonable Expenses which, by
reason of
Indemnitee's Corporate Status, were incurred by or on behalf of
Indemnitee in
connection with any Proceeding, within thirty (30) days after the
receipt by the
Company of a statement or statements from Indemnitee requesting
such advance or
advances, whether prior to or after final disposition of such
Proceeding. Such
statement or statements shall reasonably evidence the Expenses
incurred by
Indemnitee and shall include or be preceded or accompanied by an
undertaking by
or on behalf of Indemnitee to repay any Expenses if it shall
ultimately be
determined that Indemnitee is not entitled to be indemnified
against such
Expenses. Any advance and undertakings to repay pursuant to this
Article V shall
be unsecured and interest free. Advancement of Expenses pursuant to
this Article
V shall not require approval of the Board of Directors or the
stockholders of
the Company, or of any other person or body. The Secretary of the
Company shall
promptly advise the Board in writing of the request for advancement
of Expenses,
of the amount and other details of the advance and of the
undertaking to make
repayment pursuant to this Article V.
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ARTICLE VI
PROCEDURES FOR DETERMINATION OF ENTITLEMENT
TO INDEMNIFICATION AND DEFENSE OF CLAIMS
6.01
INITIAL REQUEST. To obtain indemnification under this Agreement
(other
than advancement of Expenses pursuant to Article V), Indemnitee
shall submit to
the Company a written request, including therein or therewith such
documentation
and information as is reasonably available to Indemnitee and is
reasonable
necessary to determine whether and to what extent Indemnitee is
entitled to
indemnification. The Secretary of the Company shall promptly advise
the Board in
writing that Indemnitee has requested indemnification.
6.02
METHOD OF DETERMINATION.