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EXHIBIT 10.1
EXECUTION COPY
INVESTMENT AGREEMENT
This Investment Agreement (this "Agreement") is entered into effective
as of August 29, 2001, by and between eMerge Interactive, Inc., a Delaware
corporation ("eMerge"), and Allflex Holdings, Inc., a Delaware corporation
("Allflex").
RECITALS
A. eMerge desires to issue and sell to Allflex, and Allflex desires to
purchase from eMerge, certain shares of eMerge Class A common stock, par value
$0.008 per share (the "Common Stock").
B. eMerge and Allflex desire to provide for additional rights and
restrictions with respect to shares to be purchased pursuant to this Agreement,
which rights and restrictions are set forth in a Registration Rights Agreement
to be entered into by the parties to this Agreement in connection with the
consummation of the issuance and sale of the Shares (the "Registration Rights
Agreement").
NOW, THEREFORE, in consideration of the mutual promises and covenants
in this Agreement, the receipt and sufficiency of which are acknowledged, the
parties, intending to be legally bound, agree as follows:
AGREEMENT
1. Sale and Purchase of Stock.
(a) Number of Shares. Subject to the terms and conditions
of this Agreement, eMerge agrees to issue and sell to Allflex between 2,000,000
and 4,000,000 shares of Common Stock (the "Shares"), and Allflex agrees to
purchase between 2,000,000 and 4,000,000 (as Allflex determines in its sole
discretion) shares of Common Stock. Allflex will notify eMerge in writing at
least three business days prior to the Closing Date (as defined below) of the
number of Shares that it desires to purchase.
(b) Purchase Price. The purchase price for the Shares
will be $0.6923 per share, which number is derived from 80% of the average of
the high and low prices per share for shares of eMerge Interactive, Inc. Class A
Common Stock as reported in The Wall Street Journal for the 20 trading days
immediately preceding the agreement of the parties on August 23, 2001 with
respect to the transaction described in this Agreement; provided, however, that
if the Closing Date (as defined below) occurs after September 20, 2001, the
purchase price per share for the Shares will be 80% of the average of the high
and low prices per share for shares of eMerge Interactive, Inc. Class A Common
Stock as reported in The Wall Street Journal for the 20 trading days immediately
preceding the Closing Date, but in no event less than $0.6923. Notwithstanding
the foregoing, the purchase price for the Shares shall be $0.6923 if, on or
before September 20, 2001, the parties agree upon a mutually acceptable escrow
arrangement with respect to holding the purchase price for the Shares and
Allflex deposits sufficient funds in such escrow, and thereafter the Closing
occurs within a reasonable time (but in no event more than
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seven days) following the establishment and funding of such escrow. The purchase
price will be paid by Allflex in cash or other immediately available funds.
2. Closing. The closing of the purchase and sale of Common Stock
(the "Closing") will take place at 10:00 a.m. on the second business day
following the satisfaction or waiver of the closing conditions described in
Sections 6 and 7 (the "Closing Date") at the offices of Jenkens & Xxxxxxxxx, a
Professional Corporation, 0000 Xxxx Xxx., Xxxxx 0000, Xxxxxx, Xxxxx 00000, or at
such other time and place as the parties may agree. At the Closing, eMerge shall
deliver to Allflex one or more stock certificates (as requested by Allflex)
representing the Shares. When issued pursuant to the terms and conditions of
this Agreement, the Shares will be free and clear of any and all liens (other
than any restrictions imposed by applicable securities laws).
3. Legends; Stop Transfer Orders; Transfer Restrictions.
(a) Legends and Stop Transfer Orders. All certificates
representing the Shares shall bear the following legends:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). SUCH
SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
REGISTRATION OR AN EXEMPTION THEREFROM. THE ISSUER OF THESE
SHARES MAY REQUIRE AN OPINION OF COUNSEL REASONABLY
ACCEPTABLE TO IT THAT A PROPOSED TRANSFER OR SALE IS IN
COMPLIANCE WITH THE ACT."
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
RESTRICTION ON TRANSFER, AS SET FORTH IN THAT CERTAIN
INVESTMENT AGREEMENT BETWEEN EMERGE INTERACTIVE, INC. AND
ALLFLEX HOLDINGS, INC., DATED EFFECTIVE AS OF AUGUST 27,
2001, A COPY OF WHICH IS ON FILE WITH THE COMPANY."
In addition, the certificates will contain any legend required by the
blue sky or securities laws of any state or jurisdiction to the extent such laws
are applicable to the Shares. The parties agree that eMerge may instruct its
transfer agent to place a stop order on transfers of the Shares that are in
contravention of this Agreement. Upon request of Allflex at any time when any of
the Shares are no longer subject to the restrictions set forth in any of the
legends described in this section, eMerge will cause its transfer agent to
remove such stop order and restrictive legends from the certificates
representing such Shares.
(b) Transfer Restrictions. In addition to any restrictions
resulting from applicable securities laws, and notwithstanding any registration
of the Shares under the Act, during the first year after the Closing Date,
Allflex shall in no event sell an aggregate number of Shares in any three month
period that is more than the greater of (i) one percent of the Common Stock
outstanding as shown by the most recent report or statement published by eMerge
on or before the first sale in the immediately preceding three month period or
(ii) the average weekly reported
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volume of trading in the Common Stock on the National Market System of The
Nasdaq Stock Market during the four calendar weeks preceding the first sale in
the immediately preceding three month period. Any interpretation of the number
of Shares that may be sold pursuant to this section shall be determined in
accordance with the volume limitations for sales of restricted shares by an
affiliate, as set forth in Rule 144 under the Act, as if the Shares were
restricted securities (as such terms are defined in Rule 144 under the Act), it
being the intention of the parties to treat sales by Allflex during the
effective period of any registration of the securities as if the resale of the
Shares was the resale of restricted securities.
4. Representations and Warranties of eMerge. eMerge represents
and warrants to Allflex as follows:
(a) Organization, Standing and Power. eMerge is, and on
the Closing Date will be, a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware. eMerge has, and on the
Closing Date will have, the corporate power and authority to own its properties
and to carry on its business as now being conducted or as being conducted on the
Closing Date.
(b) Authority; Binding Nature of Agreements. eMerge has
all requisite corporate power and authority to enter into this Agreement and the
Registration Rights Agreement and, on or before the Closing Date, will have such
power and authority to consummate the transactions contemplated hereby and
thereby. This Agreement has been and, when executed and delivered the
Registration Rights Agreement will be, duly executed and delivered by eMerge and
does or will constitute the valid and binding obligations of eMerge, enforceable
against eMerge in accordance with their terms, except as limited by bankruptcy,
insolvency, or other laws of general application relating to the enforcement of
creditors' rights and general principles of equity.
(c) Non-Contravention. Neither the execution and delivery
by eMerge, nor the consummation or performance by eMerge of any of the
transactions to be consummated or performed by it under this Agreement or the
Registration Rights Agreement, will (i) violate any provision of eMerge's
Certificate of Incorporation or Bylaws, (ii) constitute or result in a breach or
default by eMerge, or give rise to a right of termination, amendment,
cancellation or acceleration on the part of any other party, or result in the
creation or imposition of any lien on eMerge's assets, under any agreement or
instrument to which eMerge is a party or by which eMerge is bound, which breach,
default, termination or lien would have, or would be reasonably expected to
have, a material adverse effect on eMerge, or (iii) constitute a violation by
eMerge of any law which would have, or be reasonably expected to have, a
material adverse effect on eMerge.
(d) Capital Structure. As of August 10, 2001, the
authorized capital stock of eMerge consisted of (i) 100,000,000 shares of common
stock, par value $0.008 per share, consisting of 92,711,110 shares of Class A
common stock (of which 35,589,357 shares were issued and outstanding on such
date) and 7,208,890 shares of Class B common stock (of which 5,694,445 were
issued and outstanding on such date), and (ii) 15,000,000 shares of Preferred
Stock, par value $0.01 per share, none of which are issued and outstanding of
such date. All
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such shares of eMerge have been duly authorized, and all such issued and
outstanding shares have been validly issued, are fully paid and nonassessable
and are free of any liens or encumbrances other than any liens or encumbrances
created by or imposed upon the holders thereof. eMerge has also reserved
4,000,000 shares of Common Stock for issuance pursuant to its employee and
director stock and option and stock purchase plans (the "Plans").
(e) Validity of Shares. The Shares to be issued pursuant
to this Agreement have been duly authorized, and when issued to Allflex in
accordance with the terms of this Agreement, will be validly issued, fully paid
and non-assessable, free of any liens except as provided in this Agreement, the
Registration Rights Agreement or federal and state securities laws. Assuming
that the representations and warranties of Allflex contained in this Agreement
are truthful and accurate, the issuance and sale of the Shares pursuant to this
Agreement will be exempt from the registration requirements of Section 5 of the
Securities Act.
(f) Litigation. Except as disclosed in the SEC Reports,
as of the date of this Agreement there are no claims, actions, suits,
proceedings or investigations pending or, to the knowledge of eMerge, threatened
against eMerge which challenges or seeks to prevent, enjoin, alter or materially
delay the transactions contemplated by this Agreement or which would have a
material adverse effect on eMerge.
(g) Brokers. eMerge has not granted or become obligated
to pay, or taken any action that likely would result in any person or entity
claiming to be entitled to receive from eMerge, any brokerage commission,
finder's fee or similar commission or fee in connection with any of the
transactions contemplated by this Agreement.
(h) SEC Filings. eMerge has filed all forms, schedules,
reports, prospectuses, proxy statements and documents required to be filed with
the Securities and Exchange Commission (the "SEC Reports"). The SEC Reports (i)
at the time they were filed (or if amended or superseded by a filing prior to
the date of this Agreement, then on the date of such filing) complied in all
material respects with the requirements of the Securities Act of 1933, as
amended (the "Securities Act"), or the Exchange Act of 1934 (the "Exchange
Act"), as the case may be, and the rules and regulations promulgated thereunder,
and (ii) did not at the time they were filed (or if amended or superseded by a
filing prior to the date of this Agreement, then on the date of such filing)
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(i) Financial Statements. Each of the consolidated
financial statements (including, in each case, any related notes thereto) (the
"Financial Statements") contained in the SEC Reports has been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis throughout the period involved (except as may be indicated in the notes
thereto) and complied in all material respects with the rules and regulations of
the Securities and Exchange Commission. The Financial Statements fairly present
in all material respects the consolidated financial position of eMerge and its
subsidiaries at the respective dates thereof and the consolidated results of its
operations and cash flows for the periods indicated, except that the unaudited
interim financial statements were or are subject to normal and recurring
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year-end adjustments that were not or are not expected to be, individually or in
the aggregate, materially adverse to eMerge.
(j) No Undisclosed Liabilities, Absence of Certain Events
and Changes. Except as otherwise disclosed in the SEC Reports, since June 30,
2001 eMerge has not incurred any material liabilities or obligations other than
those arising from operations in the ordinary course of business.
(k) Taxes. eMerge has filed all material tax returns
required to be filed (subject to allowable extensions) and has paid its
liabilities for taxes, assessments, governmental charges and other levies that
are due and payable. There are no pending or to the knowledge of eMerge
threatened investigations of eMerge by any taxing authority or of any pending
but unassessed tax liability, other than with respect to taxes in an amount that
would not have a material adverse effect on eMerge (assuming an adverse
determination).
(l) Employee Benefit Plans. Each employee benefit plan of
eMerge has been administered and maintained in compliance in all material
respects with all applicable laws, rules and regulations. No employee benefit
plan of eMerge is currently the subject of an audit, investigation, enforcement
action or other similar proceeding conducted by any state or federal agency.
eMerge has not engaged in or knowingly permitted to occur, and, to the best
knowledge of eMerge, no other party has engaged in or permitted to occur any
prohibited transactions (within the meaning of Section 4975 of the Code) with
respect to any employee benefit plan. No pending or, to the knowledge of eMerge
threatened, claims, suits or other proceedings exist with respect to any
employee benefit plan, other than normal benefit claims filed by participants or
beneficiaries. To the extent applicable, a current favorable determination
letter or ruling from the Internal Revenue Service has been issued for each
employee benefit plan intended to be qualified within the meaning of Section
401(a) of the Code and/or tax-exempt within the meaning of Section 501(a) of the
Code. No proceedings against eMerge exist or, to the knowledge of eMerge, have
been threatened that could result in the revocation of any such favorable
determination letter or ruling.
5. Representations and Warranties of Allflex. Allflex represents
and warrants to eMerge as follows:
(a) Organization, Standing and Power. Allflex is, and on
the Closing Date will be, a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware. Allflex has, and on the
Closing Date will have, the corporate power and authority to own its properties
and to carry on its business as now being conducted or as being conducted on the
Closing Date.
(b) Authority; Binding Nature of Agreements. As of the
Closing Date, Allflex will have all requisite corporate power and authority to
enter into this Agreement and the Registration Rights Agreement and has such
power and authority to consummate the transactions contemplated hereby and
thereby. This Agreement has been and, when executed and delivered the
Registration Rights Agreement will be, duly executed and delivered by Allflex
and does or will constitute the valid and binding obligations of Allflex,
enforceable against Allflex in
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accordance with their terms, except as limited by bankruptcy, insolvency, or
other laws of general application relating to the enforcement of creditors'
rights and general principles of equity.
(c) Non-Contravention. Neither the execution and delivery
by Allflex, nor the consummation or performance by Allflex of any of the
transactions to be consummated or performed by it under this Agreement or the
Registration Rights Agreement, will (i) violate any provision of Allflex's
Certificate of Incorporation or Bylaws, or (ii) constitute a violation by
Allflex of any law which would have, or be reasonably expected to have, a
material adverse effect on Allflex.
(d) Litigation. As of the date of this Agreement, there
are no claims, actions, suits, proceedings or investigations pending or, to the
knowledge of Allflex, threatened against Allflex which challenges or seeks to
prevent, enjoin, alter or materially delay the transactions contemplated by this
Agreement.
(e) Brokers. Allflex has not granted or become obligated
to pay, or taken any action that likely would result in any person or entity
claiming to be entitled to receive from Allflex, any brokerage commission,
finder's fee or similar commission or fee in connection with any of the
transactions contemplated by this Agreement.
(f) Investment Representations.
(i) Allflex understands that none of the Shares
has been registered under the Securities Act. Allflex also understands that the
Shares are being offered and sold pursuant to an exemption from registration
contained in the Securities Act based in part upon Allflex's representations
contained in this Agreement, and that eMerge is relying upon the truth and
accuracy of Allflex's representations, warranties, acknowledgements and
understandings with respect to the material facts set forth in this Agreement.
(ii) Allflex is acquiring the Shares for
Allflex's own account for investment purposes only, and not with the current
intention of making a public distribution thereof.
(iii) Allflex has substantial experience in
evaluating and investing in private placement transactions of securities so that
it is capable of evaluating the merits and risks of its investment in eMerge and
has the capacity to protect its own interests. Allflex, by reason of its
business or financial experience, has the capacity to protect its own interests
in connection with the transactions contemplated by this Agreement and has the
economic capacity to withstand a loss of its entire investment in the Shares.
Allflex is an "accredited investor" as that term is defined in Rule 501(a) of
Regulation D under the Securities Act.
(iv) Allflex acknowledges that the Shares may be
required to be held indefinitely and that Allflex must bear the economic risk of
this investment indefinitely unless the Shares are subsequently registered under
the Securities Act or an exemption from such registration is available. Allflex
understands that eMerge's obligations to register the Shares are
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set forth in the Registration Rights Agreement. Allflex also understands that
there is no assurance that any exemption from registration under the Securities
Act will be available and that, even if available, such exemption may not allow
Allflex to transfer all or any portion of the Shares under the circumstances, in
the amounts or at the times Allflex might propose.
(v) Allflex did not receive any information
regarding such purchase and sale through any general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities Act.
(vi) As of the Closing Date, Allflex has received
copies of all SEC Reports that Allflex has requested. Without limiting eMerge's
obligations with respect to any representations or warranties made by eMerge in
this Agreement, as of the Closing Date Allflex has been afforded the opportunity
to obtain any additional information deemed necessary by it to verify the
accuracy of any representations made or information conveyed to Allflex. As of
the Closing Date, Allflex confirms that all documents records and books
pertaining to its investment in the Shares and requested by it have been made
available or delivered to it. As of the Closing Date, Allflex has had an
opportunity to ask questions of and receive answers from eMerge concerning the
terms and conditions of this investment.
6. Conditions to Allflex's Obligations. Allflex's obligation to
purchase the Shares is subject to the satisfaction, at or prior to the purchase
of the Shares, of the following respective conditions (any of which may be
waived by Allflex, in whole or in part):
(a) The representations and warranties of eMerge shall be
true and correct in all material respects, in each case as of the date of this
Agreement and on the Closing Date with the same force and effect as though such
representations and warranties had been made on and as of the date of this
Agreement and the Closing Date, except for the representations and warranties
that address matters only as a particular date, which shall be true and correct
in all material respects as of such date.
(b) eMerge shall have performed and complied with all of
its covenants and agreements contained in this Agreement in all material
respects through the Closing.
(c) There shall not exist, and there shall not have been
any event, occurrence, change, development or circumstance (other than as
previously disclosed in writing by eMerge to Allflex or disclosed by eMerge
publicly in a filing with the Securities and Exchange Commission prior to the
date of this Agreement), which has had or could reasonably be expected to have,
individually or in the aggregate, a material adverse effect on eMerge.
(d) There shall be no injunction, writ, preliminary
restraining order or other order in effect of any nature issued by a court or
governmental agency of competent jurisdiction directing that the transactions
contemplated by this Agreement or the Registration Rights Agreement not be
consummated in the manner provided for in this Agreement or the Registration
Rights Agreement, nor shall there be pending any proceeding brought by a
governmental authority or agency seeking any of foregoing.
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(e) eMerge shall have duly executed and delivered to
Allflex the Registration Rights Agreement.
(f) Allflex shall have received all requisite
stockholder, lender and third party approval and authorization of this Agreement
and the transactions contemplated by this Agreement.
7. Conditions to eMerge's Obligations. eMerge's obligation to
issue and sell the Shares is subject to the satisfaction, at or prior to the
delivery of the Shares, of the following respective conditions (any of which may
be waived by eMerge, in whole or in part):
(a) The representations and warranties of Allflex shall
be true and correct in all material respects, in each case as of the date of
this Agreement and on the Closing Date with the same force and effect as though
such representations and warranties had been made on and as of the date of this
Agreement and the Closing Date, except for the representations and warranties
that address matters only as a particular date, which shall be true and correct
in all material respects as of such date.
(b) Allflex shall have performed and complied with all of
its covenants and agreements contained in this Agreement in all material
respects through the Closing.
(c) There shall be no injunction, writ, preliminary
restraining order or other order in effect of any nature issued by a court or
governmental agency of competent jurisdiction directing that the transactions
contemplated by this Agreement or the Registration Rights Agreement not be
consummated in the manner provided for in this Agreement or the Registration
Rights Agreement, nor shall there be pending any proceeding brought by a
governmental authority or agency seeking any of foregoing.
(d) Allflex shall have duly executed and delivered to
eMerge the Registration Rights Agreement.
(e) eMerge shall have received from Allflex the
appropriate purchase price for the Shares.
(f) eMerge shall have received all requisite lender and
third party approval and authorization of this Agreement and the transactions
contemplated by this Agreement.
8. Filings and Consents. Each party will cooperate with each
other with respect to obtaining, as promptly as practicable, and in any event
prior to the Closing, all necessary consents, approvals, authorizations and
agreements of, and the giving of all notices and making of all other filings
with, any third parties necessary to authorize, approve or permit the
transactions contemplated by this Agreement and the Registration Rights
Agreement.
9 Covenant to Satisfy Conditions. Subject to the terms and
conditions of this Agreement and applicable law, each party agrees to use all
commercially reasonable efforts to
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ensure that the conditions to the other party's obligations hereunder, insofar
as such matters are within the control of such party, are satisfied as promptly
as practicable.
10. Further Assurances. Each party shall execute and deliver such
additional instruments, documents or other writings as may be reasonably
requested by any other party in order to confirm and carry out and to effectuate
fully the intent and purposes of this Agreement.
11. Notification of Certain Matters. Between the date of this
Agreement and the Closing Date, each party will give prompt notice in writing to
the other party of: (a) the occurrence or non-occurrence of any event which will
result, or has a reasonable prospect of resulting, in the failure of any
condition, covenant or agreement contained in this Agreement to be complied with
or satisfied, (b) any failure of such party to comply with or satisfy any
condition, covenant or agreement to be complied with or satisfied by it
hereunder, and (c) any notice or other communication from any third party
alleging that the consent of such third party is or may be required in
connection with the transactions contemplated by this Agreement or the
Registration Rights Agreement or that such transactions otherwise may violate
the rights of or confer remedies upon such third party.
12. Public Announcements. Except to the extent otherwise required
by applicable law or any listing agreement concerning eMerge's publicly traded
securities, none of the parties will disclose, issue any press release or make
any public announcements concerning the transactions contemplated by this
Agreement or the contents of this Agreement except with the prior written
consent of the other party.
13. Termination. Without prejudice to other remedies that may be
available to the parties by law or this Agreement, this Agreement may be
terminated and the transactions contemplated hereby may be abandoned at any time
prior to the Closing:
(a) by mutual written consent of eMerge and Allflex;
(b) in its reasonable discretion, Allflex is unable to
obtain required stockholder, lender or third party consents for authorization
and approval of this Agreement and the transactions contemplated by this
Agreement (after using commercially reasonable efforts to obtain such consents);
(c) by either eMerge or Allflex by giving written notice
to the other party if the Closing shall not have occurred prior to October 29,
2001; provided that the party seeking termination pursuant to this subsection
(c) is not in default or breach hereunder and provided, further, that the right
to terminate this Agreement under this clause (c) shall not be available (i) to
any party whose failure to fulfill any obligation under this Agreement has been
the cause of, or resulted in, the failure of the Closing to occur on or before
such date or (ii) in the event that the Closing shall not have occurred as a
result of a failure of any representation to be true and correct and the party
seeking termination knew of such breach prior to the date of this Agreement; or
(d) by either eMerge or Allflex by giving written notice
to the other party if any governmental authority shall have issued an injunction
or other ruling prohibiting the
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consummation of any of the transactions contemplated by this Agreement and such
injunction or other ruling shall not be subject to appeal or shall have become
final and unappealable.
In the event of any termination of this Agreement, all rights and obligations of
the parties shall terminate without any liability on the part of either party,
except that the termination will not relieve either party of any liability for
any breach of this Agreement.
14. Miscellaneous.
(a) Fees and Expenses. Each party is solely responsible
for the payment of the fees and expenses of its advisers, counsel, accountants
and other experts, if any, and all other expenses incurred by such party
incident to the negotiation, preparation, execution, delivery and performance of
this Agreement.
(b) Governing Law. This Agreement is to be construed in
accordance with and governed by the internal laws of the State of Delaware
without giving effect to any choice of law rule that would cause the application
of the laws of any jurisdiction other than the internal laws of the State of
Delaware to the rights and duties of the parties.
(c) No Third Party Beneficiaries. This Agreement is
intended for the benefit of the parties and their respective successors and
permitted assigns and are not for the benefit of, nor may any provision hereof
or thereof be enforced by, any other person.
(d) Entire Agreement. This Agreement and the Registration
Rights Agreement and the other documents delivered pursuant hereto and thereto,
constitute the full and entire understanding and agreement between the parties
with regard to the subject matter hereof and no party shall be liable or bound
to any other in any manner by any representations, warranties, covenants and
agreements except as specifically set forth herein and therein.
(e) Severability. The provisions of this Agreement shall
be severable, and any invalidity, unenforceability or illegality of any
provision or provisions of this Agreement shall not affect any other provision
or provisions of this Agreement, and each term and provision of this Agreement
shall be construed to be valid and enforceable to the full extent permitted by
law.
(f) Amendment and Waiver. This Agreement may be modified
only pursuant to a writing executed by authorized representatives of both
parties. No failure to exercise and no delay in exercising any right, power or
privilege granted under this Agreement shall operate as a waiver of such right,
power or privilege. No single or partial exercise of any right, power or
privilege granted under this Agreement shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies provided in this Agreement are cumulative and are not
exclusive of any rights or remedies provided by law.
(g) Assignment and Successors. Neither party may assign
its rights or obligations under this Agreement without the prior written consent
of the other party; provided, however, that each party may assign its rights and
obligations under this Agreement to an entity that, directly or indirectly
through one or more intermediaries, controls, is controlled by or is
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under common control with such party; and provided further that such assignment
shall not relieve the assigning party from any liability under this Agreement
and that the assignee executes a signature page to this Agreement. This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns.
(h) Relationship of the Parties. For all purposes of this
Agreement and the Related Agreements, each of the parties shall be deemed to be
independent entities and, anything in this Agreement to the contrary
notwithstanding, nothing herein shall be deemed to constitute the parties as
partners, joint venturers, co-owners, an association or any entity separate and
apart from each party itself, nor shall this Agreement make any party an
employee or agent, legal or otherwise, of the other parties for any purposes
whatsoever. None of the parties to this Agreement is authorized to make any
statements or representations on behalf of any other party or in any way to
obligate any other party, except as expressly authorized in writing by the other
party. Anything in this Agreement to the contrary notwithstanding, no party
shall assume nor shall be liable for any liabilities or obligations of the other
parties, whether past, present or future.
(i) Notices and Demands. Any notice or demand which is
permitted or required hereunder will be deemed to have been sufficiently
received (except as otherwise provided herein) (a) upon receipt when personally
delivered, (b) or one day after sent by overnight delivery via a nationally
recognized overnight courier or telecopy providing confirmation or receipt of
delivery, or (c) three days after being sent by certified or registered mail,
postage and charges prepaid, return receipt requested to the respective
addresses of the party shown on the signature page of this Agreement (with a
copy as shown), or at any other address designated by the parties in writing.
(j) Facsimile; Counterparts. This Agreement may be
executed by facsimile and in any number of counterparts, each of which shall be
an original, but all of which together shall constitute one instrument.
(k) Survival of Representations and Warranties. The
representations and warranties of the parties contained in this Agreement shall
survive until the date which is one year following the Closing Date; provided,
however, that the covenants contained in Section 5(f) shall survive until
Allflex no longer beneficially owns any Shares.
(l) Indemnification. eMerge agrees to indemnify, defend
and hold harmless Allflex and each director, officer, employee, agent and
affiliate of Allflex for all losses, damages, liabilities and claims, and all
fees, costs and expenses related to (including without limitation attorney
fees), arising out of, based upon or resulting from any material breach by
eMerge of any representation or warranty set forth in this Agreement or any
material failure by eMerge to carry out, perform, satisfy and discharge any
covenant, agreement, undertaking, liability or obligation to be performed or
discharged by it pursuant to the terms of this Agreement. Allflex agrees to
indemnify, defend and hold harmless eMerge and each officer, manager, employee,
agent and affiliate of eMerge for all losses, damages, liabilities and claims,
and all fees, costs and expenses related to (including without limitation
attorney fees), arising out of, based upon or resulting from any material breach
by Allflex of any representation or warranty set forth in this Agreement
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or any material failure by Allflex to carry out, perform, satisfy and discharge
any covenant, agreement, undertaking, liability or obligation to be performed or
discharged by it pursuant to the terms of this Agreement. The indemnification
provisions of this Agreement will not be deemed to preclude or otherwise limit
in any way the exercise of any other rights or pursuit of any other remedies for
the breach of this Agreement. Notwithstanding the indemnification provisions of
this section, no indemnification will be made by a party until the aggregate
indemnification claim or claims by the indemnified party exceeds $50,000, in
which event the indemnifying party shall indemnify the full amount of such claim
or claims. Neither party shall have an indemnification obligation to the other
party for an amount that exceeds the purchase price for the Shares. In the event
a claim against an indemnifying party is applicable, the indemnified party shall
give prompt notice to the indemnifying party (provided that any failure to
provide such notice shall not affect the indemnification obligations of the
parties under this Agreement except to the extent such failure materially
prejudices the potential defenses of the indemnifying party). The indemnifying
party shall have the right to defend, settle or compromise any claim, demand,
action or proceeding with counsel of its own choosing which is reasonably
acceptable to the indemnified party (unless the indemnified party agrees to
assume the cost of the defense and any settlement), at its sole cost and
expense; provided, however, that no settlement or compromise may be entered into
by the indemnifying party without the prior written consent of the indemnified
party. The indemnified party may select counsel to participate in any such
defense at its sole cost and expense. In connection with any such claim, action
or proceeding, the parties shall cooperate with each other and provide each with
access to relevant books and records in their possession.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth in the first paragraph hereof.
EMERGE INTERACTIVE, INC.
By: /s/ Xxx Xxxxxxx
-----------------------------------------
Name: Xxx Xxxxxxx
Title: Chief Executive Officer
00000 000xx Xxxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
With a copy to
Jenkens & Xxxxxxxxx, a Professional Corporation
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
ALLFLEX HOLDINGS, INC.
By: /s/ Xxxxxx xx Xxxxxx
-----------------------------------------
Name: Xxxxxx xx Xxxxxx
Title: Chief Executive Officer
X.X. Xxx 000000
X/XX Xxxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
With a copy to
Jenkens & Xxxxxxxxx, a Professional Corporation
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
[Signature page to Investment Agreement]
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