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EXHIBIT 2.2
REGISTRATION RIGHTS AND
RESTRICTED STOCK AGREEMENT, DATED MAY 1, 2000
THIS REGISTRATION RIGHTS AND RESTRICTED STOCK AGREEMENT (the
"Agreement"), entered into as of the 1st day of May, 2000, by and between
EASTERN LIVESTOCK CO., INC., a Kentucky corporation ("Eastern"), and EMERGE
INTERACTIVE, INC., a Delaware corporation (the "Company"), and acknowledged,
confirmed and agreed to by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual resident of the state
of Kentucky ("Employee").
W I T N E S S E T H:
WHEREAS, Employee is an employee and principal stockholder of Eastern;
WHEREAS, as part of its cattle industry operations, Eastern conducts a
business line commonly referred to as the "Rollover Business" (as defined in
that certain Agreement for the Purchase and Sale of Assets entered into by the
Company, on the one hand, and Eastern and Employee, on the other, on or about
April 20, 2000 (the "Asset Purchase Agreement"));
WHEREAS, pursuant to the Asset Purchase Agreement, among other things,
the Company will purchase, and Eastern and Employee will sell, certain of the
assets utilized in connection with the Rollover Business (collectively, the
"Asset Purchase"), the closing of which will occur simultaneous with the
execution of this Agreement;
WHEREAS, a portion of the consideration paid by the Company to effect
the Asset Purchase consists of the Sale Shares (as that term is defined in the
Asset Purchase Agreement);
WHEREAS, simultaneous with the execution and delivery of this Agreement
and the closing of the transactions contemplated under the Asset Purchase
Agreement, Employee is entering into an Employment Agreement (the "Employment
Agreement") pursuant to which Employee will be employed as a Director of the
Company's Cattle Auction Sales division;
WHEREAS, simultaneous with the execution and delivery of this Agreement
and the closing of the transactions contemplated under the Asset Purchase
Agreement, Eastern and Employee are entering into a Supply and Support Agreement
(the "Supply Agreement") pursuant to which such parties will provide certain
assistance to the Company in connection with its conduct of the Rollover
Business;
WHEREAS, Eastern's and Employee's representations and warranties set
forth in the Asset Purchase Agreement, their covenants and agreements contained
in the Supply Agreement, and Employee's agreement to establish and maintain his
employment relationship with the Company pursuant to the Employment Agreement
are substantial and material inducements to the Company to execute and deliver
the Asset Purchase Agreement and issue the Sale Shares pursuant thereto;
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WHEREAS, to provide recourse to the Company in the event of Eastern's
or Employee's breach of any material term of any of the Asset Purchase
Agreement, the Supply Agreement, or the Employment Agreement, it is necessary
and in the best interests of the Company for it to impose certain restrictions
on the transfer of the Sale Shares and to make provision for the imposition and
payment of damages and/or liquidated damages (in the form of the assignment and
transfer by Eastern to the Company of some or all of the Sale Shares) under
certain circumstances; and
WHEREAS, Eastern and Employee believe that it is reasonable and
appropriate that Eastern accept the Sale Shares as partial consideration for the
Asset Purchase subject to the transfer restrictions, damage satisfaction
provisions, and other terms and conditions contained herein.
NOW, THEREFORE, for and in consideration of the premises and of the
mutual promises and conditions herein contained, and for other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties do hereby agree as follows:
1. Issuance of Sale Shares. Pursuant to the Asset Purchase
Agreement, and conditioned upon the occurrence of the Closing (as defined
therein), the Company hereby agrees to issue to Eastern the Sale Shares as of
the date first written above (the "Issuance Date"), which date shall coincide
with the Closing Date (as defined in the Asset Purchase Agreement). All of the
Sale Shares shall be issued subject to the damage satisfaction provisions,
transfer restrictions, and other terms and conditions that are contained in this
Agreement.
2. Restrictions on Transfer.
a. Scope of Agreement. This Agreement shall apply to all
Transfers (as defined below) of the Sale Shares and to any other shares of
capital stock issued to Eastern pursuant to a stock split, stock dividend,
reorganization, or similar transaction, or otherwise with respect to the Sale
Shares (with all the Sale Shares and such other shares referred to herein as the
"Stock").
b. Restrictions on Transfer by Eastern.
(i) Except as expressly provided in this
Agreement, Eastern shall not, without the prior written consent of the Company
(which consent may be given or withheld in Company's sole discretion), sell,
exchange, deliver or assign, dispose of, gift, pledge, mortgage, or otherwise
encumber, transfer, or permit to be transferred ("Transfer"), all or any of the
Stock. Effective as of each of the following dates, and provided that such Stock
has not either become subject to a claim by the Company pursuant to the Section
3 below or been transferred and assigned to the Company pursuant to Section 3
below, the following portions of the Stock (on a cumulative basis) may be
transferred free of any restrictions on Transfer imposed hereunder:
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CUMULATIVE PERCENTAGE
TRANSFER RESTRICTIONS LAPSE DATE OF UNRESTRICTED STOCK
-------------------------------- ----------------------
6 Months from Issuance Date 33.0%
7 Months from Issuance Date 38.5%
8 Months from Issuance Date 44.0%
9 Months from Issuance Date 49.5%
10 Months from Issuance Date 55.0%
11 Months from Issuance Date 60.5%
12 Months from Issuance Date 66.0%
13 Months from Issuance Date 68.8%
14 Months from Issuance Date 71.6%
15 Months from Issuance Date 74.4%
16 Months from Issuance Date 77.2%
17 Months from Issuance Date 80.0%
18 Months from Issuance Date 82.8%
19 Months from Issuance Date 85.6%
20 Months from Issuance Date 88.4%
21 Months from Issuance Date 91.2%
22 Months from Issuance Date 94.0%
23 Months from Issuance Date 96.8%
24 Months from Issuance Date 100.0%
The twenty-four (24) month period described above shall be referred to
as the "Restrictions Period." It is understood and agreed that upon the
occurrence of an Event of Default (as defined in Section 3 below), the
Restrictions Period shall be tolled until such time as the Company's claim with
regard thereto is fully resolved, at which time, any Stock that would have
become unrestricted pursuant to the above absent the tolling shall be
unrestricted except and to the extent that such Stock is paid or payable as
damages pursuant to Section 3 below. Any shares of Stock the Transfer of which
is restricted pursuant to the terms of the preceding schedule shall be referred
to herein as "Restricted Shares" (but only for so long as such restrictions
shall apply). Any and all Restricted Shares shall, together with at least
nineteen (19) related Stock Powers executed in blank, be placed in escrow with
an escrow agent determined by the Company and reasonably acceptable to Eastern
(the "Escrow Agent") pursuant to an escrow agreement in substantially the form
attached hereto as Exhibit A (the "Escrow Agreement"). The Escrow Agreement
shall provide that the Escrow Agent shall release the Stock (and the related
Stock Powers) to Eastern in accordance with the above schedule unless and until
it receives written notice from the Company that an Event of Default has
occurred, at which time it shall cease the release of such Stock until such time
as the Company instructs the Escrow Agent otherwise.
(ii) Notwithstanding the restrictions on Transfer
contained in subsection (i) above, Eastern shall be permitted to transfer any or
all of the Stock to Employee and Employee's family members, at the request of
Eastern, provided that (A) Eastern delivers written notice to the
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Company of such intention to transfer such Stock, (B) pursuant to an opinion of
counsel acceptable to the Company, the transfer qualifies for an exemption from
registration under applicable federal and state securities laws (or the shares
of Stock to be sold have been previously registered in accordance with the
provisions of Section 5 below), and (C) any such transferee joins in this
Agreement and agrees to be subject to the restrictions on Transfer contained
herein and be bound by the provisions of this Agreement, including without
limitation, Section 3 below.
(iii) Notwithstanding the restrictions on Transfer
contained in subsection (i) above, Eastern shall be permitted to sell, on an
arm's length basis and for their then fair value, any or all of the Restricted
Shares provided that: (A) Eastern delivers written notice to the Company of such
intention to sell, (B) pursuant to an opinion of counsel acceptable to the
Company, the sale qualifies for an exemption from registration under applicable
federal and state securities laws (or the shares of Stock to be sold have been
previously registered in accordance with the provisions of Section 5 below), and
(C) all of the proceeds attributable to such sale of any Restricted Shares are
deposited with and delivered to the Escrow Agent (the "Escrowed Cash"). Any
Escrowed Cash shall be released by the Escrow Agent to Eastern at such time as
the Stock to which such Escrowed Cash was attributable would have been released
in accordance with the procedures described in subsection (i) above. At the time
of its release from escrow, such Escrowed Cash shall no longer be considered
"Escrowed Cash" for purposes of this Agreement.
c. Permitted Transfer in the Event of Involuntary
Transfer of Stock. In the event of the involuntary Transfer or the Transfer by
operation of law of all or any portion of the Stock for any reason, including,
without limitation, in connection with (i) a property division in conjunction
with a proceeding for dissolution of marriage, (ii) a sale upon execution or in
foreclosure of any pledge, encumbrance, hypothecation, lien or charge, (iii) an
acquisition of an interest therein by a trustee or receiver in Bankruptcy, or
(iv) the death of Employee (with any such involuntary Transfer or Transfer by
operation of law referred to herein as an "Involuntary Transfer" and such
transferee (including any trustee, spouse, or personal representative) referred
to herein as an "Involuntary Transferee"), all of the Stock registered on the
books of the Company in the name of Eastern may be Transferred to the
Involuntary Transferee, and the Transfer shall be registered on the books of the
Company; provided, that, as a condition precedent to the Transfer of the Stock,
the prospective Involuntary Transferee of the Stock shall provide to Company, if
requested by Company, sufficient evidence of the legal right and authority of
the prospective Involuntary Transferee to have the Stock so Transferred and
registered. In the event that any Stock is Involuntarily Transferred to any
party other than Company, the Involuntary Transferee shall take such Stock
pursuant to all provisions, conditions, and covenants of this Agreement, and, as
a further condition precedent to the Transfer of such Stock, the Involuntary
Transferee shall agree in writing, for and on behalf of himself or itself, his
or its legal representatives, and his or its transferees and assigns, to be
bound by all terms of this Agreement as a party hereto, including, without
limitation the terms of Section 4. In the event that there shall be any such
Involuntary Transfer, all references herein to Eastern shall thereafter be
deemed to include the Involuntary Transferee.
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d. Stock Transfer Record. Company shall keep a stock
transfer book in which shall be recorded the name and address of each
shareholder. No Transfer or issuance of any Stock shall be effective or valid
unless and until recorded in the stock transfer book. Company agrees not to
record, and shall not be obligated to record, any Transfer or issuance of Stock
in the stock transfer book unless the Transfer or issuance is in strict
compliance with all provisions of this Agreement. Eastern agrees that, in the
event it desires to make a Transfer within the terms of this Agreement, it shall
furnish to Company such evidence of its compliance with this Agreement as may be
reasonably required by the Board of Directors of, or counsel for, Company.
e. Endorsement on Stock Certificates. Each certificate
representing Stock now or hereafter held by Eastern shall bear any legend or
legends required by applicable securities laws and, in addition thereto, shall
bear a statement in substantially the following form:
The voluntary or involuntary encumbrance, transfer, or other
disposition (including, without limitation, any disposition
pursuant to the laws of bankruptcy, intestacy, descent and
distribution or succession) of the shares of stock evidenced
by this certificate is restricted under the terms of a
Registration Rights and Restricted Stock Agreement dated
effective as of May 1, 2000, a copy of which is on file and
available for inspection at the principal office of the
Company.
3. Damages in the Event of Material Breach.
a. Event of Default. The Sale Shares have been issued to
Eastern in partial consideration for Eastern and Employee entering into the
Asset Purchase Agreement and the Supply Agreement, and Employee entering into
the Employment Agreement, in reliance upon their representations and warranties
contained therein, and in reliance upon the full and complete performances
thereunder. The occurrence of any of the following events shall be considered an
"Event of Default" (with the Events of Default described in subsections (i) and
(ii) below being referred to herein as "Purchase Agreement Events of Default"
and the Event of Default described in subsection (iii) below being referred to
herein as an "Employment Agreement Event of Default"):
(i) Either of Employee or Eastern materially
breaches any of his or its covenants or agreements as contained in the Asset
Purchase Agreement, the Employment Agreement (other than as described in
subsection (iii) below), and/or the Supply Agreement,
(ii) Any of the material representations or
warranties made by Eastern or Employee in the Asset Purchase Agreement or the
Supply Agreement are determined to be false, misleading or inaccurate, or
(iii) Either of the following occur:
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(A) The Company terminates Employee's
employment pursuant to Section 9 of the Employment Agreement (i.e., a
termination by the Company "for Cause," as such term is defined in the
Employment Agreement), or
(B) Employee's employment is terminated
pursuant to Section 12 of the Employment Agreement (i.e., a termination by
Employee "without Cause," as such term is defined in the Employment Agreement).
b. Determination and Payment of Damages.
(i) Definitions. For purposes of this Section 3,
the following definitions shall apply: the "Security" shall mean all of the
Restricted Stock and the Escrowed Cash, if any; and the "Determined Damages"
shall mean, with respect to any claim brought by the Company against Eastern,
the amount of damages as are determined by a court of competent jurisdiction (or
as may be fixed by settlement agreement, arbitration or other mutually agreed
procedure) to have resulted to the Company due to the occurrence of a Purchase
Agreement Event of Default, together with any and all attorneys' fees and costs
incurred by the Company in investigating, pursuing, enforcing and resolving such
claim.
(ii) Purchase Agreement Event of Default. In the
event a Purchase Agreement Event of Default (which would otherwise give rise to
a claim under the indemnification provisions of Article 8 of the Asset Purchase
Agreement) occurs during the Restrictions Period, all of the then Security
shall, upon the Company providing written notice to Eastern, be subject to such
claim for damages and be held by the Escrow Agent until such time as the
Company's claim for damages is resolved and the Determined Damages are fixed, at
which time the Escrow Agent shall release to the Company, as payment against
such claim, all or that portion of the Security, as appropriate, as shall equal
the amount of the Determined Damages. The value of any shares of Restricted
Stock issued by the Escrow Agent to the Company in satisfaction of any
Determined Damages shall be fixed based upon the average of the per share
closing price of the Company's publicly traded shares, as reported in the Wall
Street Journal for the five (5) business days immediately preceding the date
such shares of Restricted Stock are disbursed out of escrow. The Escrow Agent
shall further deliver that number of the Stock Powers as may be necessary in
order to effect the transfer and assignment of the Restricted Stock by Eastern
to the Company in accordance with this provision. The parties acknowledge and
agree that the Company's rights and remedies hereunder are not its exclusive
rights and remedies in the event of a Purchase Agreement Event of Default, and
that Company is entitled to any other rights or remedies available to the
Company under applicable law.
(iii) Employment Agreement Event of Default. In
the event an Employment Agreement Event of Default occurs at any time during the
Restrictions Period, Eastern and Employee shall be liable, jointly and
severally, and shall pay to the Company, upon written demand by the Company,
liquidated damages (the "Liquidated Damages") in an amount determined in
accordance with the following table (with the amount of such Liquidated Damages
to be equal to
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the amount reflected on such table based upon the date on which the Employment
Agreement Event of Default actually occurred, and not the date that such
Employment Agreement Event of Default may be agreed or otherwise determined by
the parties, by adjudication, or otherwise, as having occurred):
DATE OF OCCURRENCE OF EMPLOYMENT AMOUNT OF
AGREEMENT EVENT OF DEFAULT LIQUIDATED DAMAGES
------------------------------------------------ ------------------
During the first 6 Months from the Issuance Date $14,000,000
During the 7th Month from the Issuance Date $9,400,000
During the 8th Month from the Issuance Date $8,625,000
During the 9th Month from the Issuance Date $7,850,000
During the 10th Month from the Issuance Date $7,075,000
During the 11th Month from the Issuance Date $6,300,000
During the 12th Month from the Issuance Date $5,525,000
During the 13th Month from the Issuance Date $4,750,000
During the 14th Month from the Issuance Date $4,350,000
During the 15th Month from the Issuance Date $3,950,000
During the 16th Month from the Issuance Date $3,550,000
During the 17th Month from the Issuance Date $3,150,000
During the 18th Month from the Issuance Date $2,750,000
During the 19th Month from the Issuance Date $2,350,000
During the 20th Month from the Issuance Date $1,950,000
During the 21st Month from the Issuance Date $1,550,000
During the 22nd Month from the Issuance Date $1,150,000
During the 23rd Month from the Issuance Date $750,000
During the 24th Month from the Issuance Date $350,000
In such event, simultaneous with the delivery of such written demand,
the Company shall deliver written notice of the occurrence of such Employment
Agreement Event of Default to the Escrow Agent and the Escrow Agent shall
deliver all or that portion of the Security, as appropriate, as shall equal the
amount of the Liquidated Damages. The value of any shares of Restricted Stock
issued by the Escrow Agent to the Company in satisfaction of any Liquidated
Damages shall be fixed based upon the average of the per share closing price of
the Company's publicly traded shares, as reported in the Wall Street Journal for
the five (5) business days immediately preceding the date such shares of
Restricted Stock are disbursed out of escrow. The Escrow Agent shall further
deliver that number of the Stock Powers as may be necessary in order to effect
the transfer and assignment of the Restricted Stock by Eastern to the Company in
accordance with this provision. The parties acknowledge and agree that, in the
event such Security is insufficient to satisfy the amount of the Liquidated
Damages then due and payable, Eastern and Employee shall, jointly and severally,
and within ten (10) days of the release of the Security from escrow, pay and
remit the remaining balance of such Liquidated Damages to the Company.
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(iv) Adjustment to Security Release Schedule.
(A) Computation. In the event any
portion of the Security is utilized to satisfy any claim or damage (including
any Liquidated Damages), the amount of the Security subject to the lapse of
restrictions shall be modified such that (1) the amount of the Security to which
the percentage contained in the table in Section 2(b)(i) is applied will be
reduced by the amount of the Security disbursed in satisfaction of said claim or
damage, and (2) no further Security shall be released until such time as the
amount of Security actually released equals the amount of Security that should
have been released based upon the adjustment made pursuant to Section
3(b)(iv)(A)(1).
(B) Example. The following example will
be used to illustrate the application of the principles contained in Section
3(b)(iv)(A) above. Security of $100 is being released at the rate of 5% per
month, and at the conclusion of month 10 (i.e., the half-way point under this
schedule, with $50 of Security having been released), $20 of Security is
utilized to satisfy damages resulting from a claim. In this situation, following
satisfaction of the claim, the monthly rate of release would decrease from $5 to
$4 (i.e., ($100 - $20) x 5%), and the amount of Security that should have been
released through such date would equal $40 (compared to the actual amount of
$50). In order to "correct" the amount of Security that had been released (an
"excess" of $10 of Security had been released in this example), no additional
Security would be released for the next two months, in the third month, Security
of $2 would be released. Thereafter, the release schedule would again continue
at the rate of $4 per month, until released in full (or applied against
subsequent damages).
4. Liquidated Damages.
(a) Eastern and Employee acknowledge and agree that the
assignment and transfer of any or all of the Security upon the occurrence of an
Employment Agreement Event of Default:
(i) Constitute consideration for damages
resulting to the Company due to the occurrence of such Event of Default and are
not as a form of penalty or restraint on trade of either Eastern or Employee,
and that such damages result from a mutual determination by the parties based
upon relevant factors including, but not limited to, the facts that a
substantial part of the assets being purchased by the Company pursuant to the
Asset Purchase Agreement comprise the represented goodwill and going concern of
Eastern, and that Eastern's and Employee's compliance with the terms of the
Supply Agreement and the terms of the Employment Agreement are substantial and
material inducements, and primary conditions, to the Company's execution and
delivery of, and performance under, the Asset Purchase Agreement, and that the
Company would not have entered into or performed under the Asset Purchase
Agreement but for the accuracy of the representations and warranties of Eastern
and Employee under the Asset Purchase Agreement and but for the agreements by
Eastern and Employee, as appropriate, to execute and deliver the Employment
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Agreement, the Supply Agreement, and this Agreement and be bound by and perform
under the terms and conditions contained in all such Agreements; and
(ii) Are reasonable and appropriate under the
circumstances, including, without limitation, in recognition of the substantial
purchase price paid by the Company pursuant to the Asset Purchase Agreement, and
to protect and preserve the legitimate business interests of the Company.
(b) Eastern and Employee acknowledge and agree that
neither party will assert as a defense to the imposition or payment of the
Liquidated Damages described herein (i.e., the transfer and assignment to the
Company (without further consideration) of any of the Security) that the Company
has no (or insufficient) legitimate business interests to support the
application of such remedy, or that the imposition of the Liquidated Damages
provisions described in Section 3 are other than reasonable and appropriate to
protect the Company's legitimate business interests.
(c) It is understood and intended by and between the
parties hereto that the provisions of Section 3 shall be construed as an
agreement independent of any other provision of this Agreement. The existence of
any claim or cause of action that the Eastern or Employee might have against the
Company, whether predicated upon this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company of Section 3 or in any
way serve to offset the Liquidated Damages due and payable to the Company
pursuant to Section 3 hereof.
5. Piggyback Registration Rights.
(a) If, at any time, the Company shall determine to
register any of its securities either for its own account or the account of a
security holder or holders exercising their respective demand registration
rights, other than a registration relating solely to employee benefit plans, or
a registration relating solely to a Rule 145 transaction (as promulgated by the
Securities and Exchange Commission under the Securities Act of 1933) (relating
to registrations resulting from mergers, reorganizations or similar
transactions), or a registration on any registration form which does not permit
secondary sales, the Company will:
(i) Promptly give Eastern written notice thereof
(which shall include a list of the jurisdictions in which the Company intends to
attempt to qualify such securities under the applicable blue sky or other state
securities laws); and
(ii) Include in such registration (and any
related qualification under blue sky laws or other compliance), and in any
underwriting involved therein, all the Stock specified in a written request or
requests, made by Eastern within thirty (30) days after receipt of the written
notice from the Company described in clause (i) above, except as set forth in
Section 5(b) below. Such written request may specify all or a part of the Stock.
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(b) If the registration of which the Company gives
Eastern notice pursuant to Section 5(a)(i) above is for a registered public
offering involving an underwriting, the Company shall so advise Eastern as a
part of such written notice. In such event, Eastern's right to registration
pursuant to Section 5 shall be conditioned upon Eastern's participation in such
underwriting and the inclusion of Eastern's shares of Stock in the underwriting
to the extent provided herein. All holders (including Eastern) proposing to
distribute their securities through such underwriting shall (together with the
Company) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected by the Company, which underwriters shall be
reasonably acceptable to a majority in interest of the participating holders.
Notwithstanding any other provision of this Section 5, if the underwriter
advises the Company in writing that marketing factors require a limitation on
the number of shares to be underwritten, the underwriter may limit the number of
shares of the Company's capital stock to be included in the registration and
underwriting. The Company shall so advise all holders of securities requesting
registration, and the number of shares of securities that are entitled to be
included in the registration and underwriting shall be allocated on a pro rata
basis among all of such holders.
(c) The Company shall bear all Registration Expenses
incurred in connection with any registration, qualification or compliance
pursuant to this Section 5. All Selling Expenses shall be borne by the holders,
including the Company, of the securities so registered pro rata on the basis of
the number of their shares so registered. For this purpose, "Registration
Expenses" shall mean all registration and filing fees, printing expenses, fees
and disbursements of counsel for the Company; blue sky fees and expenses, and
related expenses. "Selling Expenses" shall mean all underwriting discounts and
selling commissions applicable to the sale of shares being registered and all
fees and disbursements of counsel for any holder (other than the fees and
disbursements of counsel included in Registration Expenses).
6. Notice. Any notice under this Agreement shall be sufficient if
in writing sent by certified mail, return receipt requested to Eastern at ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, to Employee at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, in either case with a copy to Middleton & ▇▇▇▇▇▇▇▇▇▇,
2500 ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ Tower, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, and to Company at ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Chief Executive Officer, with a copy thereof to Gray,
Harris & ▇▇▇▇▇▇▇▇, P.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, or to such other address as any party shall
designate by written notice to the other. The second day following posting of
the written notice in the mails shall constitute the date of receipt.
7. Jurisdiction. This Agreement shall be subject to and governed
by the laws of the Commonwealth of Kentucky.
8. Severability and Substitution of Valid Provisions. If any
provision of this Agreement shall be held to be invalid or unenforceable by a
court of competent jurisdiction, and if such provision can be rendered
enforceable by limiting its scope, then such provision shall be deemed revised
to incorporate such limitation and shall be enforced to the full extent possible
consistent with
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such limitation. In the event that any such provision cannot be rendered
enforceable, then such invalidity shall not affect the validity or
enforceability of any other portion of this Agreement, and this Agreement shall
be construed, to the extent possible, as if such invalid provision were not
contained herein.
9. Waiver of Compliance. Any failure of either party to comply
with any obligation, covenant, agreement or condition herein may be expressly
waived in writing by the other, but such waiver or failure to insist upon strict
compliance with such obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure.
10. Attorneys' Fees. In the event any dispute, arbitration,
litigation or controversy arises out of or in connection with this Agreement
between the parties hereto, the prevailing party in such dispute, arbitration,
litigation or controversy shall be entitled to recover from the other party all
reasonable attorneys' fees, expenses and suit costs, including those associated
with any appellate or post-judgment collection proceedings.
11. Expenses. Each of the parties shall bear all expenses incurred
by it in connection with the negotiation and execution of this Agreement and in
the consummation of, and preparation for, the transactions contemplated by this
Agreement.
12. Construction. This Agreement, having been fully reviewed and
negotiated by the parties and their respective counsel, shall be construed
without regard to or aid of any rule, presumption or canon requiring or
permitting construction against the party that caused this Agreement to be
drafted. In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the parties
and no presumption or burden of proof shall arise favoring or disfavoring any
party by virtue of the authorship of any of the provisions of this Agreement.
13. Successors and Assigns. The terms and conditions of this
Agreement shall be binding upon and inure to the benefit of the parties to this
Agreement and their respective successors and permitted assigns.
14. Amendment. This Agreement may be amended or modified only by a
written instrument duly executed by each party to this Agreement.
15. No Assignment. Eastern shall not assign its rights or delegate
its obligations pursuant to this Agreement unless and until any such assignment
or delegation shall first be consented to in a written instrument executed by
the Company (with such consent to be given or withheld at the Company's sole
discretion).
16. Specific Performance. The parties declare that it is
impossible to measure in money the damages which will accrue to a party hereto
by reason of a breach of this Agreement by a party
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hereto or a failure of a party hereto to otherwise perform any of the
obligations under this Agreement. Therefore, if any party shall institute any
action or proceeding to enforce the provisions hereof, any person against whom
any such action or proceeding is brought hereby waives the claim or defense
therein that such party has or had an adequate remedy at law, and such person
shall not urge in any such action or proceeding the claim or defense that such
remedy at law exists. Further, the parties hereto expressly agree that any
non-breaching party shall have the right to injunctive relief or any other
equitable remedy necessary or appropriate to cause specific performance for any
failure to perform any obligation hereunder or for breach of any of the terms
hereof, plus damages for such failure or breach to the maximum extent permitted
by law.
17. Entire Agreement. This writing constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and may not be changed or modified except by a writing signed by the party or
parties to be charged thereby.
18. Headings. Section headings contained within are solely for the
purpose of aiding in the speedy location of subject matter and are not in any
sense to be given weight in the construction of this Agreement.
19. Counterparts and Facsimiles. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. All facsimile executions shall be treated as originals for all
purposes.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
eMERGE INTERACTIVE, INC., a Florida
corporation
By: /s/ T. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: T. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Its: CFO
-----------------------------------
EASTERN LIVESTOCK CO., INC., a
Kentucky corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Its: President
-----------------------------------
ACKNOWLEDGED, CONFIRMED AND
AGREED TO BY EMPLOYEE:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
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