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.
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. A determination (if required by applicable
law in the specific case) with respect to Indemnitee's entitlement to
indemnification shall be made (a) by the Board by a majority vote of a quorum
consisting of Disinterested Directors, or (b) in the event that a quorum of the
Board consisting of Disinterested Directors is not obtainable or, even if
obtainable, such quorum of Disinterested Directors so directs, by Independent
Counsel in a written opinion to the Board, a copy of which shall be delivered to
Indemnitee, or (c) by the holders of a majority of the votes of the outstanding
stock at the time entitled to vote on matters other than the election or removal
of directors, voting as a single class, including the stock of the Indemnitee.
6.03 SELECTION, PAYMENT, DISCHARGE, OF INDEPENDENT COUNSEL. In the event
the determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 6.02 of this Agreement, the Independent Counsel
shall be selected, paid, and discharged in the following manner:
(a) The Independent Counsel shall be selected by the Board, and
the Company shall give written notice to Indemnitee advising
Indemnitee of the identity of the Independent Counsel so selected.
(b) Following the initial selection described in clause (a) of
this Section 6.03, Indemnitee may, within seven (7) days after such
written notice of selection has been given, deliver to the Company a
written objection to such selection. Such objection may be asserted
only on the ground that the Independent Counsel so selected does not
meet the requirements of "Independent Counsel" as defined in Section
1.09 of this Agreement, and the objection shall set forth with
particularity the factual basis of such assertion. Absent a proper and
timely objection, the person so selected shall act as Independent
Counsel. If such written objection is made, the Independent Counsel so
selected may not serve as Independent Counsel unless and until a court
has determined that such objection is without merit.
(c) Either the Company or Indemnitee may petition a Court if the
parties have been unable to agree on the selection of Independent
Counsel within twenty (20) days after submission by Indemnitee of a
written request for indemnification pursuant to Section 6.01 of this
Agreement. Such petition may request a determination whether an
objection to the party's selection is without merit and/or seek the
appointment as Independent Counsel of a person selected by the Court
or by such other person as the Court shall designate. A person so
appointed shall act as Independent Counsel under Section 6.03 of this
Agreement.
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(d) The Company shall pay any and all reasonable fees of
Independent Counsel and expenses incurred by such Independent Counsel
in connection with acting pursuant to this Agreement, and the Company
shall pay all reasonable fees and expenses incident to the procedures
of this Section 6.03, regardless of the manner in which such
Independent Counsel was selected or appointed.
(e) Upon the due commencement of any judicial proceeding or
arbitration pursuant to Section 8.02 of this Agreement, Independent
Counsel shall be discharged and relieved of any further responsibility
in such capacity (subject to the applicable standards of professional
conduct then prevailing).
6.04 COOPERATION. Indemnitee shall cooperate with the person, persons or
entity making the determination with respect to Indemnitee's entitlement to
indemnification under this Agreement, including providing to such person,
persons or entity upon reasonable advance request any documentation or
information which is not privileged or otherwise protected from disclosure and
which is reasonably available to Indemnitee and reasonably necessary to such
determination. Any costs or expenses (including attorneys' fees and
disbursements) incurred by Indemnitee in so cooperating with the person, persons
or entity making such determination shall be borne by the Company (irrespective
of the determination as to Indemnitee's entitlement to indemnification) and the
Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
6.05 DEFENSE OF CLAIM. With respect to any Proceeding to which Indemnitee
shall have requested indemnification in accordance with Section 6.01:
(a) The Company will be entitled to participate in the defense at
its own expense.
(b) Except as otherwise provided below, the Company jointly with
any other indemnifying party will be entitled to assume the defense
with counsel reasonably satisfactory to Indemnitee. After notice from
the Company to the Indemnitee of its election to assume the defense of
a suit, the Company will not be liable to the Indemnitee under this
Agreement for any legal or other expenses subsequently incurred by the
Indemnitee in connection with the defense of the Proceeding other than
reasonable costs of investigation or as otherwise provided below. The
Indemnitee shall have the right to employ his own counsel in such
Proceeding but the fees and expenses of such counsel incurred after
notice from the Company of its assumption of the defense shall be at
the expense of the Indemnitee unless (i) the employment of counsel by
the Indemnitee has been authorized by the Company, (ii) the Indemnitee
shall have concluded reasonably that there may be a conflict of
interest between the Company and the Indemnitee in the conduct of the
defense of such action and such conclusion is confirmed in writing by
the Company's outside counsel regularly employed by it in connection
with corporate matters or (iii) the Company shall not in fact have
employed counsel to assume the defense of such Proceeding, in each of
which cases the fees and expenses of counsel shall be at the expense
of the Company. The Company shall not be entitled to assume the
defense of any Proceeding brought by or in the right of the Company or
as to which the Indemnitee shall have made the conclusion provided for
in (ii) above and such conclusion shall have been so confirmed by the
Company's said outside counsel.
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(c) Notwithstanding any provision of this Agreement to the
contrary, the Company shall not be liable to indemnify the Indemnitee
under this Article of any amounts paid in settlement of any Proceeding
or claim effected without its written consent. The Company shall not
settle any Proceeding or claim in any manner which would impose any
penalty, limitation or disqualification of the Indemnitee for any
purpose without the Indemnitee's written consent. Neither the Company
nor the Indemnitee will unreasonably withhold their consent to any
proposed settlement.
6.06 PAYMENT. If it is determined that Indemnitee is entitled to
indemnification not covered by defense of the claim afforded under Section 6.05
above, payment to Indemnitee shall be made within ten (10) days after such
determination.
ARTICLE VII
PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS
7.01 BURDEN OF PROOF. In making a determination with respect to entitlement
to indemnification hereunder, the person or persons or entity making such
determination shall presume that Indemnitee is entitled to indemnification under
this Agreement if Indemnitee has submitted a request for indemnification in
accordance with Section 6.01 of this Agreement, and the Company shall have the
burden of proof to overcome that presumption in connection with the making by
any person, persons or entity of any determination contrary to that presumption.
7.02 EFFECT OF OTHER PROCEEDINGS. The termination of any Proceeding or of
any claim, issue or matter therein, by judgment, order, settlement or
conviction, or upon a plea of guilty or of NOLO CONTENDERE or its equivalent,
shall not (except as otherwise expressly provided in this Agreement) of itself
adversely affect the right of Indemnitee to indemnification or create a
presumption that Indemnitee did not act in Good Faith.
7.03 RELIANCE AS SAFE HARBOR. For purposes of any determination of Good
Faith, Indemnitee shall be deemed to have acted in Good Faith if Indemnitee's
action is based on the records or books of account of the Enterprise, including
financial statements, or on information supplied to Indemnitee by the Officers
of the Enterprise in the course of their duties, or on the advice of legal
counsel for the Enterprise or on information or records given or reports made to
the Enterprise by an independent certified public accountant or by an appraiser
or other expert selected with reasonable care by the Enterprise. The provisions
of this Section 7.03 shall not be deemed to be exclusive or to limit in any way
the other circumstances in which the Indemnitee may be deemed to have met the
applicable standard of conduct set forth in this Agreement.
7.04 ACTIONS OF OTHERS. The knowledge and/or actions, or failure to act, of
any director, Officer, employee, agent, trustee or fiduciary of the Enterprise
shall not be imputed to Indemnitee for purposes of determining the right to
indemnification under this Agreement.
ARTICLE VIII
REMEDIES OF INDEMNITEE
8.01 APPLICATION. This Article VIII shall apply in the event of a Dispute.
For purposes of this Article, "Dispute", shall mean any of the following events:
(a) a determination is made pursuant to Article VI of this
Agreement that Indemnitee is not entitled to indemnification under
this Agreement;
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(b) advancement of Expenses is not timely made pursuant to
Article V of this Agreement;
(c) the determination of entitlement to be made pursuant to
Section 6.02 of this Agreement has not been made within sixty (60)
days after receipt by the Company of the request for indemnification;
(d) payment of indemnification is not made pursuant to Section
4.05 of this Agreement within ten (10) days after receipt by the
Company of a written request therefor; or
(e) notice of election by the Company to assume defense of a
claim as provided for in Section 6.05 or payment of indemnification,
as the case may be, is not given or made within ten (10) days after a
determination has been made that Indemnitee is entitled to
indemnification or such determination is deemed to have been made
pursuant to Article VI of this Agreement.
8.02 ADJUDICATION. In the event of a Dispute, Indemnitee shall be entitled
to an adjudication in an appropriate Court of Indemnitee's entitlement to such
indemnification or advancement of Expenses. Alternatively, Indemnitee, at
Indemnitee's option, may seek an award in arbitration to be conducted by a
single arbitrator pursuant to the rules of the American Arbitration Association.
Indemnitee shall commence such proceeding seeking an adjudication or an award in
arbitration within one hundred eighty (180) days following the date on which
Indemnitee first has the right to commence such proceeding pursuant to this
Section 8.02. The Company shall not oppose Indemnitee's right to seek any such
adjudication or award in arbitration.
8.03 DE NOVO REVIEW. In the event that a determination shall have been made
pursuant to Article VI of this Agreement that Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced pursuant to
this Article VIII shall be conducted in all respects as a DE NOVO trial, or
arbitration, on the merits and Indemnitee shall not be prejudiced by reason of
that adverse determination. In any such proceeding or arbitration, the Company
shall have the burden of proving that Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.
8.04 COMPANY BOUND. If a determination shall have been made or deemed to
have been made pursuant to Article VI of this Agreement that Indemnitee is
entitled to indemnification, the Company shall be bound by such determination in
any judicial proceeding or arbitration absent (i) a misstatement by Indemnitee
of a material fact, or any omission of a material fact necessary to make
Indemnitee's statement not materially misleading, in connection with the request
for indemnification, or (ii) a prohibition of such indemnification under
applicable law.
8.05 PROCEDURES VALID. The Company shall be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to this Article VIII that
the procedures and presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate in any such court or before any such arbitrator
that the Company is bound by all the provisions of this Agreement.
8.06 EXPENSES OF ADJUDICATION. In the event that Indemnitee, pursuant to
this Article VIII, seeks a judicial adjudication of or an award in arbitration
to enforce Indemnitee's rights under, or to recover damages for breach of, this
Agreement, Indemnitee shall be entitled to recover from the Company, and shall
be indemnified by the Company against, any and all expenses (of the types
described in the definition of Expenses in Section 1.06 of this Agreement)
actually and reasonably incurred by Indemnitee in such adjudication or
arbitration, but only if
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Indemnitee prevails therein. If it shall be determined in such adjudication or
arbitration that Indemnitee is entitled to receive part but not all of the
indemnification or advancement of Expenses sought, the expenses incurred by
Indemnitee in connection with such adjudication or arbitration shall be
appropriately prorated.
ARTICLE IX
NON-EXCLUSIVITY, INSURANCE, SUBROGATION
9.01 NON-EXCLUSIVITY. The rights of indemnification and to receive
advancement of Expenses as provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may at any time be entitled
under applicable law, the Certificate of Incorporation, the By-Laws, any
agreement, a vote of shareholders or a resolution of directors, or otherwise. No
amendment, alteration, rescission or replacement of this Agreement or any
provision hereof shall be effective as to Indemnitee with respect to any action
taken or omitted by such Indemnitee in Indemnitee's Corporate Status prior to
such amendment, alteration, rescission or replacement.
9.02 INSURANCE. The Company may maintain an insurance policy or policies
against liability arising out of this Agreement or otherwise.
9.03 SUBROGATION. In the event of any payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who shall execute all papers required and take all
action necessary to secure such rights, including execution of such documents as
are necessary to enable the Company to bring suit to enforce such rights.
9.04 NO DUPLICATIVE PAYMENT. The Company shall not be liable under this
Agreement to make any payment of amounts otherwise indemnifiable hereunder if
and to the extent that Indemnitee has otherwise actually received such payment
under any insurance policy, contract, agreement or otherwise.
ARTICLE X
FOUNDERS AGREEMENT
10.1 FOUNDERS FUNDAMENTAL TRANSACTION PAYMENT. As a condition to the
founders entering into this Agreement, the Reorganization, Acquisitions, and
Financings (each as defined in that certain private placement memorandum dated
October 23, 2006), if a Fundamental Transaction occurs (that has not been
approved by the Board of Directors of the Company) at any time on or prior to
the end of Year 5, and, in connection therewith, the purchase price per share of
Common Stock offered to the holders of the Common Stock (the "Sale Price Per
Share") equals or exceeds Ten United States Dollars (US$10) per share (the
"Initial Share Price"), then the Company shall pay to the Founder, promptly
following the occurrence of the Fundamental Transaction, an amount in
immediately available funds equal to the product of the amount by which the Sale
Price Per Share of the Common Stock in the Fundamental Transaction exceeds the
Initial Share Price multiplied by the number of issued and outstanding shares of
Common Stock owned by the Founder, or the Founder's wholly-owned limited
liability company, that were received as merger consideration as of the date
hereof as set forth in Schedule A hereto (the "Shares"). For purposes of
calculating the Founders Fundamental Transaction Payment, the Sale Price Per
Share of the Common Stock shall be capped at Thirty United Sates Dollars
(US$30).
The Company or its successor shall pay the Founder the amount herein no
later than ten (10) days after the closing of the Fundamental Transaction. For
purposes of this Section 10.1, "Fundamental Transaction" means that the Company
shall, directly or indirectly, in one or more
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related transactions effected after the Effective Date consolidate or merge with
or into (whether or not the Company is the surviving corporation) another
Person; sell, assign, transfer, convey or otherwise dispose of all or
substantially all of the properties or assets of the Company to another Person;
be the subject of a purchase, tender or exchange offer by another Person that is
accepted by the holders of more than 50% of the outstanding shares of voting
stock of the Company; consummate a stock purchase agreement or other business
combination (including, without limitation, a reorganization, recapitalization,
spin-off or scheme or arrangement) with another Person whereby such other Person
acquires more than the 50% of the outstanding shares of common stock of the
Company; or reclassify or change the outstanding shares of common stock of the
Company (other than a change in par value, or from par value to no par value, or
from no par value to par value, or as a result of a subdivision or combination).
In addition, a "Fundamental Transaction" shall occur if, after the Effective
Date, any "person" or "group" (as these terms are used for purposes of Sections
13(d) and 14(d) of the Exchange Act) shall become the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of 50% of
the aggregate ordinary voting power represented by issued and outstanding common
stock of the Company. This founder's payment is not conditioned on employment in
the Company.
ARTICLE XI
GENERAL PROVISIONS
11.01 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Company and its successors and assigns and shall inure to the benefit of
Indemnitee and Indemnitee's legal representatives, heirs, executors and
administrators.
11.02 SEVERABILITY. If any provision or provisions of this Agreement shall
be held to be invalid, illegal or unenforceable for any reason whatsoever:
(a) the validity, legality and enforceability of the remaining
provisions of this Agreement (including without limitation, each
portion of any Section of this Agreement containing any such provision
held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall not in any way be affected or
impaired thereby; and
(b) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any Section
of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
11.03 NO ADEQUATE REMEDY. The parties declare that it is impossible to
measure in money the damages which will accrue to either party by reason of a
failure to perform any of the obligations under this Agreement. Therefore, if
either party shall institute any action or proceeding to enforce the provisions
hereof, such party against whom such action or proceeding is brought hereby
waives the claim or defense that the other party has an adequate remedy at law,
and such party shall not urge in any such action or proceeding the claim or
defense that the other party has an adequate remedy at law.
11.04 HEADINGS. The headings of the paragraphs of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
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11.05 MODIFICATION AND WAIVER. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both of the
parties hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
11.06 INTEGRATION. This Agreement, unless otherwise provided herein, shall
form the entire agreement between the parties and shall supersede all prior
agreements, oral discussions, promises and representations, whether in writing
or otherwise.
11.07 NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if (i)
delivered by hand and receipted for by the party to whom said notice or other
communication shall have been directed, (ii) sent by prepaid commercial
overnight courier, or (iii) mailed by certified or registered mail with postage
prepaid, on the third business day after the date on which it is so mailed:
If to Indemnitee/Founder, to: As shown with Indemnitee's Signature below.
If to the Company, to: Summit Global Logistics, Inc.
000 Xxxxxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: President
or to such other address as may have been furnished to Indemnitee by the Company
or to the Company by Indemnitee, as the case may be.
11.08 GOVERNING LAW. The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Delaware without application of the conflict of laws principles
thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
SUMMIT GLOBAL LOGISTICS, INC.
--------------------------------
By:
-----------------------------
Name:
Title:
INDEMNITEE
--------------------------------
[Name of Indemnitee]
Address:
--------------------------------
--------------------------------
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