EXHIBIT 99.2
VOTING AND LOCK-UP AGREEMENT
This VOTING AND LOCK-UP AGREEMENT (this "Agreement") dated as of October 16,
2006 among PRIME BIOSOLUTIONS, LLC, a Delaware limited liability company (the
"Company"), EMERGE INTERACTIVE, INC., a Delaware corporation ("eMerge") and
SAFEGUARD SCIENTIFICS (DELAWARE), INC., as a stockholder of eMerge (the
"Stockholder").
RECITALS
The Stockholder "beneficially owns" (as such term is defined in Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended) and is
entitled to dispose of (or to direct the disposition of) and to vote (or to
direct the voting of) the number of shares of Common Stock, $0.01 par value per
share, of eMerge (the "Stock") set forth opposite the Stockholder's name on
Schedule A hereto (such shares of Stock, together with all other shares of
capital stock of the Company acquired by the Stockholder after the date hereof
and during the term of this Agreement, being collectively referred to herein as
the "Subject Shares").
Concurrently with the execution and delivery of this Agreement, eMerge Merger
Sub, LLC., a Delaware limited liability company which is wholly owned by eMerge
("Merger Sub"), eMerge, the Company and Prime Bioshield, LLC, a Nebraska limited
liability company which is the sole owner of the Company ("Shield") are entering
into an Agreement and Plan of Merger (the "Merger Agreement") providing for the
merger of the Company with and into Merger Sub, with Merger Sub surviving the
Merger (the "Merger") upon the terms and subject to the conditions set forth
therein.
As a condition to entering into the Merger Agreement, the Company and Shield
required that the Stockholder enter into this Agreement, and the Stockholder
desires to enter into this Agreement to induce the Company and Shield to enter
into the Merger Agreement.
The Board of Directors of eMerge has taken all actions so that the restrictions
contained in the Company's certificate of incorporation and the Delaware General
Corporation Law (the "DGCL") applicable to a "business combination" will not
apply to the execution, delivery or performance of this Agreement or the Merger
Agreement, or to the consummation of the Merger, this Agreement and the Merger
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER.
The Stockholder represents and warrants to the other parties hereto as follows:
(a) Authority. The Stockholder is duly organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation or
organization (as applicable). Such Stockholder has all requisite legal
power (corporate or other) and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. This
Agreement has been duly authorized, executed and delivered by such
Stockholder and constitutes a valid and binding obligation of such
Stockholder enforceable in accordance with its terms subject to (i)
bankruptcy, insolvency, moratorium and other similar laws now or hereafter
in effect relating to or affecting creditors' rights generally, and (ii)
general principles of equity (regardless of whether considered in a
proceeding at law or in equity). If such Stockholder is a trust, no consent
of any beneficiary is required for the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby.
(b) No Conflicts. (i) No filing by such Stockholder with any
governmental body or authority, and no authorization, consent or approval
of any other person is necessary for the execution of this Agreement by
such Stockholder and the consummation by such Stockholder of the
transactions contemplated hereby and (ii) none of the execution and
delivery of this Agreement by such Stockholder, the consummation by such
Stockholder of the transactions contemplated hereby or compliance by such
Stockholder with any of the provisions hereof shall (A) conflict with or
result in any breach of the organizational documents of such Stockholder,
(B) result in, or give rise to, a violation or breach of or a default under
(with or without notice or lapse of time, or both) any of the terms of any
material contract, trust agreement, loan or credit agreement, note, bond,
mortgage, indenture, lease, permit, understanding, agreement or other
instrument or obligation to which such Stockholder is a party or by which
such Stockholder or any of its Subject Shares or assets may be bound, or
(C) violate any applicable order, writ, injunction, decree, judgment,
statute, rule or regulation, except for any of the foregoing as would not
reasonably be expected to prevent such Stockholder from performing its
obligations under this Agreement.
(c) The Subject Shares. Schedule A sets forth, opposite the
Stockholder's name, the number of Subject Shares over which such
Stockholder has record or beneficial ownership as of the date hereof. As of
the date hereof, the Stockholder is the record or beneficial owner of the
Subject Shares denoted as being owned by such Stockholder on Schedule A (or
is trustee of a trust that is the record holder of and whose beneficiaries
are the beneficial owners of such Subject Shares) and has the sole power to
vote (or cause to be voted) such Subject Shares. Except as set forth on
such Schedule A, neither such Stockholder nor any controlled affiliate of a
Stockholder owns or holds any right to acquire any additional shares of any
class of capital stock of the Company or other securities of the Company or
any interest therein or any voting rights with respect to any securities of
the Company. Such Stockholder has good and valid title to the Subject
Shares denoted as being owned by such Stockholder on Schedule A, free and
clear of any and all pledges, mortgages, liens, charges, proxies, voting
agreements, encumbrances,
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adverse claims, options, security interests and demands of any nature or
kind whatsoever, other than those created by this Agreement, as disclosed
on Schedule A, or as would not prevent such Stockholder from performing its
obligations under this Agreement.
(d) Reliance By the Company and Shield. The Stockholder understands
and acknowledges that the Company and Shield are entering into the Merger
Agreement in reliance upon such Stockholder's execution and delivery of
this Agreement.
(e) Litigation. As of the date hereof, there is no action, proceeding
or investigation pending or threatened against such Stockholder that
questions the validity of this Agreement or any action taken or to be taken
by such Stockholder in connection with this Agreement.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND SHIELD.
The Company hereby represents and warrants to the Stockholder as follows:
(a) Due Organization, etc. The Company is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization. The Company has all requisite limited liability power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid and binding
obligation of the Company, enforceable in accordance with its terms subject
to (i) bankruptcy, insolvency, moratorium and other similar laws now or
hereafter in effect relating to or affecting creditors' rights generally,
and (ii) general principles of equity (regardless of whether considered in
a proceeding at law or in equity).
(b) Conflicts. (i) No filing by the Company with any governmental body
or authority, and no authorization, consent or approval of any other person
is necessary for the execution of this Agreement by the Company, and the
consummation by the Company of the transactions contemplated hereby and
(ii) none of the execution and delivery of this Agreement by the Company,
the consummation by the Company of the transactions contemplated hereby or
compliance by the Company with any of the provisions hereof shall (A)
conflict with or result in any breach of the organizational documents of
the Company, (B) result in, or give rise to, a violation or breach of or a
default under (with or without notice or lapse of time, or both) any of the
terms of any material contract, loan or credit agreement, note, bond,
mortgage, indenture, lease, permit, understanding, agreement or other
instrument or obligation to which the Company is a party or by which the
Company or any of its assets may be bound, or (C) violate any applicable
order, writ, injunction, decree, judgment, statute, rule or regulation,
except for any of the foregoing as would not prevent the Company from
performing its obligations under this Agreement.
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3. COVENANTS OF THE STOCKHOLDER.
Until the termination of this Agreement in accordance with Section 5, the
Stockholder, in its capacity as such, agrees as follows:
(a) At any meeting of the stockholders of eMerge ("eMerger Meeting")
or at any adjournment, postponement or continuation thereof or in any other
circumstances occurring prior to the eMerge Meeting upon which a vote,
consent or other approval (including by written consent) with respect to
the Merger and the Merger Agreement is sought , the Stockholder shall vote
(or cause to be voted) the Subject Shares (and each class thereof) (i) in
favor of the approval of each matter recommended by the Board of Directors
of eMerge to be undertaken in connection with the Merger, including, if
required, the approval and adoption of the Merger Agreement and the
transactions contemplated hereby and any matter that could reasonably be
expected to facilitate the Merger; (ii) in favor of any alternative
structure as may be agreed upon by the Company, Shield, Merger Sub and
eMerge to reflect the acquisition by Shield of control of eMerge, provided
that such alternative structure is on terms in the aggregate no less
favorable to the Stockholder than the terms of the Merger Agreement; and
(iii) except with the written consent of the Company, against any Takeover
Proposal, the consummation of any Superior Proposal or any action,
proposal, or agreement or transaction (other than the Merger, the Merger
Agreement or the transaction contemplated thereby) that would result in a
breach of any covenant, representation or warranty or any other obligation
or agreement of eMerge under the Merger Agreement which could result in any
of the conditions to eMerge's obligations under the Merger Agreement not
being fulfilled or which could be inconsistent with the Merger or any other
transaction contemplated by the Merger Agreement. Any such vote shall be
cast or consent shall be given in accordance with such procedures relating
thereto so as to ensure that it is duly counted for purposes of determining
that a quorum is present and for purposes of recording the results of such
vote or consent. Such Stockholder agrees not to enter into any agreement or
commitment with any person the effect of which would be inconsistent with
or violative of the provisions and agreements contained in this Section
3(a). This Agreement is intended to bind the Stockholder as a stockholder
of eMerge only with respect to the specific matters set forth herein.
(b) Such Stockholder agrees not to, directly or indirectly, (i) sell,
transfer, tender, pledge, encumber, assign or otherwise dispose of
(collectively, a "Transfer") or enter into any agreement, option or other
arrangement with respect to, or consent to a Transfer of, or convert or
agree to convert, any or all of the Subject Shares to any person, other
than in accordance with the Merger Agreement, or (ii) grant any proxies
(other than eMerge proxy card in connection with the eMerge Meeting if and
to the extent such proxy is consistent with the Stockholder's obligations
under Section 3(a) hereof), deposit any Subject Shares into any voting
trust or enter into any voting arrangement, whether by proxy, voting
agreement or otherwise, with respect to any of the Subject Shares, other
than pursuant to this Agreement. Such Stockholder further agrees not to
commit or agree to take any of the foregoing actions or take any action
that would have the effect of preventing, impeding, interfering with or
adversely affecting its ability to perform its obligations under this
Agreement.
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(c) The Stockholder shall not, nor shall such Stockholder permit any
controlled affiliate of such Stockholder to, nor shall such Stockholder act
in concert with or permit any controlled affiliate to act in concert with
any person to make, or in any manner participate in, directly or
indirectly, a "solicitation" (as such term is used in the rules of the
Securities and Exchange Commission ("SEC")) of proxies or powers of
attorney or similar rights to vote, or seek to advise or influence any
person with respect to the voting of, any shares of Stock intended to
facilitate any Takeover Proposal or to cause stockholders of eMerge not to
vote to approve and adopt the matters recommended by the eMerge Board of
Directors in connection with the Merger. Such Stockholder shall not, and
shall direct any investment banker, attorney, agent or other adviser or
representative of such Stockholder not to, directly or indirectly, through
any officer, director, agent or otherwise, enter into, solicit, initiate,
conduct or continue any discussions or negotiations with, or knowingly
encourage or respond to any inquiries or proposals by, or provide any
information to, any person, other the Company, relating to any Takeover
Proposal. Such Stockholder hereby represents that, as of the date hereof,
it is not engaged in discussions or negotiations with any party other than
the Company with respect to any Takeover Proposal.
(d) The Stockholder agrees that any shares of Stock of eMerge that the
Stockholder purchases or with respect to which the Stockholder otherwise
acquires beneficial ownership after the date of this Agreement and prior to
the Termination Date ("New Shares"), and any and all other shares or
securities of eMerge issued, exchanged, issuable or exchangeable in respect
of New Shares shall be subject to the terms and conditions of this
Agreement to the same extent as if they constituted shares of Stock.
4. STOCKHOLDER CAPACITY.
No Person executing this Agreement who is or becomes during the term of this
Agreement a director or officer of eMerge shall be deemed to make any agreement
or understanding in this Agreement in such Person's capacity as a director or
officer. The Stockholder is entering into this Agreement solely in its capacity
as the record holder or beneficial owner of, or the trustee of a trust whose
beneficiaries are the beneficial owners of, such Stockholder's Subject Shares.
5. TERMINATION.
This Agreement shall terminate (i) upon the earlier of (A) the Effective Time of
the Merger, and (B) the termination of the Merger Agreement, or (ii) at any time
upon notice by the Company to the Stockholders, provided that in the event of a
change to the terms of the Merger Agreement that is materially adverse to the
Stockholder, the Stockholder shall have the right to terminate this Agreement
(the date of any such termination shall be referred to herein as the
"Termination Date"). No party hereto shall be relieved from any liability for
intentional breach of this Agreement by reason of any such termination.
Notwithstanding the foregoing, Sections 8 and 9 and Sections 11 through 21,
inclusive, of this Agreement shall survive the termination of this Agreement
and, if the Merger becomes effective, Section 6 shall also survive the
termination of this Agreement.
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6. APPRAISAL RIGHTS.
To the extent permitted by applicable law, the Stockholder hereby waives any
rights of appraisal or rights to dissent from the Merger that it may have under
applicable law.
7. PUBLICATION.
Such Stockholder hereby authorizes eMerge and the Company to publish and
disclose in the Proxy Statement (including any and all documents and schedules
filed with the SEC relating thereto) such Stockholder's identity and ownership
of shares of Stock of eMerge and the nature of its commitments, arrangements and
understandings pursuant to this Agreement.
8. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Delaware, without regard to any principles or rules of conflicts of
laws thereof.
9. JURISDICTION; WAIVER OF JURY TRIAL.
(a) Each of the parties hereto irrevocably and unconditionally (i)
agrees that any legal suit, action or proceeding brought by any party
hereto arising out of or based upon this Agreement or the transactions
contemplated hereby may be brought in the courts of the State of Delaware
or the United States District Court for the District of Delaware (each, a
"Delaware Court"), (ii) waives, to the fullest extent it may effectively do
so, any objection which it may now or hereafter have to the laying of venue
of any such proceeding brought in any Delaware Court, and any claim that
any such action or proceeding brought in any Delaware Court has been
brought in an inconvenient forum, and (iii) submits to the non-exclusive
jurisdiction of Delaware Courts in any suit, action or proceeding. Each of
the parties agrees that a judgment in any suit, action or proceeding
brought in a Delaware Court shall be conclusive and binding upon it and may
be enforced in any other courts to whose jurisdiction it is or may be
subject, by suit upon such judgment.
(b) Each of the parties agrees and acknowledges that any controversy
that may arise under this Agreement is likely to involve complicated and
difficult issues, and therefore each such party hereby irrevocably and
unconditionally waives any right such party may have to a trial by jury in
respect of any litigation directly or indirectly arising out of or relating
to this Agreement, or the breach, termination or validity of this
Agreement.
10. SPECIFIC PERFORMANCE.
The Stockholder acknowledges and agrees that (i) the covenants, obligations and
agreements of the Stockholder contained in this Agreement relate to special,
unique and extraordinary matters, (ii) the Company and Shield are and will be
relying on such covenants in connection with entering into the Merger Agreement
and the performance of their obligations under the Merger Agreement, and (iii) a
violation of any of the terms of such covenants, obligations or agreements will
cause the Company and Shield irreparable injury for which adequate remedies are
not
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available at law. Therefore, such Stockholder agrees that the Company and Shield
shall be entitled to seek an injunction, restraining order or such other
equitable relief (without the requirement to post bond) as a court of competent
jurisdiction may deem necessary or appropriate to restrain such Stockholder from
committing any violation of such covenants, obligations or agreements.
11. AMENDMENT, WAIVERS, ETC.
Neither this Agreement nor any term hereof may be amended or otherwise modified
other than by an instrument in writing signed by the Company and the
Stockholder. No provision of this Agreement may be waived, discharged or
terminated other than by an instrument in writing signed by the party against
whom the enforcement of such waiver, discharge or termination is sought.
12. ASSIGNMENT; NO THIRD PARTY BENEFICIARIES.
This Agreement shall not be assignable or otherwise transferable by a party
without the prior consent of the other parties, and any attempt to so assign or
otherwise transfer this Agreement without such consent shall be void and of no
effect. This Agreement shall be binding upon the respective heirs, legal
representatives and permitted transferees of the parties hereto. Nothing in this
Agreement shall be construed as giving any Person, other than the parties hereto
and their heirs, legal representatives and permitted transferees, any right,
remedy or claim under or in respect of this Agreement or any provision hereof.
No failure or delay by any party in exercising any right, power or privilege
under this Agreement shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
provided herein shall be cumulative and not exclusive of any rights or remedies
provided by law.
13. NOTICES.
All notices, consents, requests, instructions, approvals and other
communications provided for in this Agreement shall be in writing and shall be
deemed validly given upon personal delivery or one day after being sent by
overnight courier service or by telecopy (so long as for notices or other
communications sent by telecopy, the transmitting telecopy machine records
electronic confirmation of the due transmission of the notice), at the following
address or telecopy number, or at such other address or telecopy number as a
party may designate to the other parties by written notice:
If to the Stockholder, to: the address set forth under such Stockholder's
name on Schedule A hereto
If to eMerge to: Xxxxx X. Xxxxxx
eMerge Interactive, Inc.
00000 000xx Xxxxxxx
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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with a copy to: Hunton & Xxxxxxxx, LLP
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx III, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Company: Xxxxx X. Xxxxxxxx
Prime BioSolutions, LLC
00000 X Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Xxxxx Xxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
14. SEVERABILITY.
If any provision of this Agreement is held to be invalid or unenforceable for
any reason, it shall be adjusted rather than voided, if possible, in order to
achieve the intent of the parties hereto to the maximum extent possible. In any
event, the invalidity or unenforceability of any provision of this Agreement in
any jurisdiction shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of this Agreement, including that provision, in any other
jurisdiction.
15. INTEGRATION.
This Agreement (together with the Merger Agreement to the extent referenced
herein), including Schedule A hereto, constitutes the full and entire
understanding and agreement of the parties with respect to the subject matter
hereof and thereof and supersedes any and all prior understandings or agreements
relating to the subject matter hereof and thereof.
16. SECTION HEADINGS.
The section headings of this Agreement are for convenience of reference only and
are not to be considered in construing this Agreement.
17. COUNTERPARTS.
This Agreement may be executed in several counterparts (including by facsimile),
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
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18. CAPITALIZED TERMS.
For purposes of this Agreement, capitalized terms used and not defined herein
shall have the respective meanings ascribed to them in the Merger Agreement.
19. DEFINITIONS.
References in this Agreement (except as specifically otherwise defined) to
"affiliates" shall mean, as to any person, any other person which, directly or
indirectly, controls, or is controlled by, or is under common control with, such
person. As used in this definition, "control" (including, with its correlative
meanings, "controlled by" and "under common control with") shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of management or policies of a person, whether through the ownership
of securities or partnership or other ownership interests, by contract or
otherwise. References in the Agreement to "person" shall mean an individual, a
corporation, a partnership, an association, a trust or any other entity, group
(as such term is used in Section 13 of the Securities Exchange Act of 1934, as
amended) or organization, including, without limitation, a governmental body or
authority.
20. EXPENSES.
If any action at law or in equity is necessary to enforce or interpret the terms
of this Agreement, the prevailing party shall be entitled to reasonable
attorneys' fees, costs and necessary disbursements in addition to any other
relief to which such party may be entitled.
21. DISCLOSURE.
Each of the parties hereto and their affiliates are hereby authorized to publish
or disclose in any requisite report filed by any of them with the SEC,
including, without limitation, a Schedule 13D, his/her identity and the nature
of the commitments, arrangements and understandings under this Agreement.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and date first above written.
PRIME BIOSOLUTIONS, LLC
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chairman & CEO
EMERGE INTERACTIVE, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President & CEO
SAFEGUARD DELAWARE, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
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EXHIBIT A
TO VOTING AGREEMENT
STOCKHOLDER
NAME AND ADDRESS NUMBER OF SHARES
---------------- ----------------
SAFEGUARD SCIENTIFICS (DELAWARE), INC. 276,928
000 XXXXXXXX XXXXXXXX
0000 XXXXXXXXXX XXXX
XXXXXXXXXX, XX 00000
CONTACT PERSON: XXXXXXXXXXX X. XXXXX
PHONE NUMBER: (000) 000-0000
FAX NUMBER: (000) 000-0000
WITH A COPY TO:
XXXXXX X. XXXXX, ESQ.
SAFEGUARD SCIENTIFICS, INC.
000 XXXXX XXXX XXXXX, 000 XXXXXXXX
XXXXX, XX 00000
PHONE NUMBER: (000) 000-0000
FAX NUMBER: (000) 000-0000
