Exhibit 10.3
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
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:
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1.
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Representations and Warranties of the
Stockholder .
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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, 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.
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(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.
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2.
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Representations and Warranties of the Company
and Shield .
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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.
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Covenants
of the Stockholder .
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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
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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 ac
