Term Note - eMerge Interactive Inc. and Charles L. Abraham
TERM NOTE
(CHARLES L. ABRAHAM)
$100,000 January 28, 2000
In consideration of the loan (hereinafter referred to as a "Loan"),
eMerge Interactive, Inc., a Delaware corporation (the "Lender"), has made to
Charles L. Abraham, (the "Borrower"), and for value received, the Borrower
hereby promises to pay to the order of the Lender, at the Lender's office
located at 10315 102nd Terrace, Sebastian, Florida 32958 or at such other place
in the continental United States as the Lender may designate in writing, in
lawful money of the United States, and in immediately available funds, the
principal sum of $100,000 together with all accrued interest thereon.
The Borrower hereby further promises to pay to the order of the Lender
interest on the outstanding principal amount from the date hereof, and to pay
interest thereon monthly in arrears on the first business day of each calendar
month at an annual rate equal to the announced prime rate of PNC Bank, N.A. (the
"Prime Rate") plus one percent (1%) (the "Loan Rate"). The Borrower shall pay on
demand interest on any overdue payment of principal and interest (to the extent
legally enforceable) at the Loan Rate plus three percent (3%).
The unpaid principal balance of the Note, together with all accrued and
unpaid interest, shall be payable in full on the earlier of the second
anniversary of the loan or the date on which Mr. Abraham's bonus for the
successful completion of the Company's initial public offering has been paid,
and shall be secured by the shares of stock acquired upon exercise of the
option.
All payments made on this Note (including, without limitation,
prepayments) shall be applied, at the option of the Lender, first to late
charges and collection costs, if any, then to accrued interest and then to
principal. Interest payable hereunder shall be calculated for actual days
elapsed on the basis of a 360-day year. All accrued and unpaid interest shall be
due and payable upon maturity of this Note. After maturity or in the event of
default, interest shall continue to accrue on the Note at the rate set forth
above and shall be payable on demand of the Lender.
The outstanding principal amount of this Note may be prepaid in whole
or in part without any prepayment penalty or premium at any time or from time to
time by Borrower upon notice to the Lender; provided, that any prepayment shall
be applied first to any interest due to the date of such prepayment on this Note
and thereafter shall be applied to the installments of principal hereunder in
the inverse order of maturity.
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Notwithstanding anything in this Note, the interest rate charged hereon
shall not exceed the maximum rate allowable by applicable law. If any stated
interest rate herein exceeds the maximum allowable rate, then the interest rate
shall be reduced to the maximum allowable rate, and any excess payment of
interest made by Borrower at any time shall be applied to the unpaid balance of
any outstanding principal of this Note.
An event of default hereunder shall consist of:
(i) a default in the payment by the Borrower to the Lender of principal
or interest under this Note as and when the same shall become due and
payable; or
(ii) an event of default under the Pledge Agreement;
(iii) institution of any proceeding by or against the Borrower under
any present or future bankruptcy or insolvency statute or similar law and,
if involuntary, if the same are not stayed or dismissed within sixty (60)
days, or the Borrower's assignment for the benefit of creditors or the
appointment of a receiver, trustee, conservator or other judicial
representative for the Borrower or the Borrower's property or the
Borrower's being adjudicated a bankrupt or insolvent; or
(iv) the expiration of the thirty (30) day period following the date
the Borrower ceases for any reason to remain in the employ of Lender.
Upon the occurrence of an event of default hereunder, this Note shall
automatically without any action or notice by Lender, be accelerated and become
immediately due and payable, and Lender shall have all of the rights and
remedies provided for herein or otherwise available at law or in equity, all of
which remedies shall be cumulative.
In the event the Borrower sells or otherwise transfers for value one or
more shares of the Lender's common stock purchased with the proceeds of this
Note, then any unpaid portion of the principal balance of this Note attributable
to the purchase price of those shares shall become immediately due and payable,
together with all accrued and unpaid interest on that principal portion.
For purposes of applying the provisions of this Note, the Borrower
shall be considered to remain in the Lender's employ for so long as the Borrower
renders services as a full-time employee of the Lender, any successor entity or
one or more of the Lender's fifty (50%) percent or more owned (directly or
indirectly) subsidiaries.
The proceeds of the loan evidenced by this Note shall be applied solely
to the payment of the option exercise price of 30,000 shares of the Lender's
common stock and to the payment of any taxes related to such exercise and
payment of this Note shall be secured by a pledge of those shares with the
Lender pursuant to the Pledge Agreement to be executed this date by the
Borrower. THE BORROWER, HOWEVER, SHALL REMAIN PERSONALLY LIABLE FOR PAYMENT OF
THIS NOTE AND ASSETS OF THE BORROWER, IN ADDITION
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TO THE COLLATERAL UNDER THE PLEDGE AGREEMENT, MAY BE APPLIED TO THE SATISFACTION
OF THE BORROWER'S OBLIGATIONS HEREUNDER.
Neither the reference to nor the provisions of any agreement or
document referred to herein shall affect or impair the absolute and
unconditional obligation of the Borrower to pay the principal of and interest on
this Note as herein provided.
Any action, suit or proceeding where the amount in controversy as to at
least one party, exclusive of interest and costs, exceeds $1,000,000 ("Summary
Proceeding"), arising out of or relating to this Agreement, or the breach,
termination or validity thereof, shall be litigated exclusively in the Superior
Court of the State of Delaware (the "Delaware Superior Court") as a summary
proceeding pursuant to Rules 124-131 of the Delaware Superior Court, or any
successor rules (the "Summary Proceeding Rules"). Each of the parties hereto
hereby irrevocably and unconditionally (i) submits to the jurisdiction of the
Delaware Superior Court for any Summary Proceeding, (ii) agrees not to commence
any Summary Proceeding except in the Delaware Superior Court, (iii) waives, and
agrees not to plead or to make, any objection to the venue of any Summary
Proceeding in the Delaware Superior Court, (iv) waives, and agrees not to plead
or to make, any claim that any Summary Proceeding brought in the Delaware
Superior Court has been brought in an improper or otherwise inconvenient forum,
(v) waives, and agrees not to plead or to make, any claim that the Delaware
Superior Court lacks personal jurisdiction over it, (vi) waives its right to
remove any Summary Proceeding to the federal courts except where such courts are
vested with sole and exclusive jurisdiction by statute and (vii) understands and
agrees that it shall not seek a jury trial or punitive damages in any Summary
Proceeding based upon or arising out of or otherwise related to this Agreement
waives any and all rights to any such jury trial or to seek punitive damages.
In the event any action, suit or proceeding where the amount in
controversy as to at least one party, exclusive of interest and costs, does not
exceed $1,000,000 (a "Proceeding"), arising out of or relating to this Agreement
or the breach, termination or validity thereof is brought, the parties to such
Proceeding agree to make application to the Delaware Superior Court to proceed
under the Summary Proceeding Rules. Until such time as such application is
rejected, such Proceeding shall be treated as a Summary Proceeding and all of
the foregoing provisions of this Section relating to Summary Proceedings shall
apply to such Proceeding.
If a Summary Proceeding is not available to resolve any dispute
hereunder, the controversy or claim shall be settled by arbitration conducted on
a confidential basis, under the U.S. Arbitration Act, if applicable, and the
then current Commercial Arbitration Rules of the American Arbitration
Association (the "Association") strictly in accordance with the terms of this
Agreement and the substantive law of the State of Delaware. The arbitration
shall be conducted at the Association's regional office located closest to the
Lender's principal place of business by a single arbitrator. Judgment upon the
arbitrator's award may be entered and enforced in any court of competent
jurisdiction. Neither party shall institute a proceeding hereunder unless at
least 60 days prior thereto such party shall have given written notice to the
other party of its intent to do so.
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Neither party shall be precluded hereby from securing equitable
remedies in courts of any jurisdiction, including, but not limited to, temporary
restraining orders and preliminary injunctions to protect its rights and
interests but shall not be sought as a means to avoid or stay arbitration or
Summary Proceedings.
Each of the parties hereto hereby irrevocably designates and appoints
Corporation Service Company (the "Service Agent") with offices on the date
hereof at 1013 Centre Road, Wilmington, Delaware 19805, as its agent to receive
service of process in any Proceeding or Summary Proceeding. Each of the parties
hereto further covenants and agrees that, so long as this Agreement or the
Pledge Agreement shall be in effect, each such party shall maintain a duly
appointed agent for the service of summonses and other legal processes in the
State of Delaware and will notify the other parties hereto of the name and
address of such agent if it is no longer the Service Agent.
The Borrower hereby waives presentment, demand, protest and notice of
dishonor and protest, and also waives all other exemptions; and agrees that
extension or extensions of the time of payment of this Note or any installment
or part thereof may be made before, at or after maturity by agreement by the
Lender. Upon default hereunder the Lender shall have the right to offset the
amount owed by the Borrower against any amounts owed by the Lender in any
capacity to the Borrower, whether or not due, and the Lender shall be deemed to
have exercised such right of offset and to have made a charge against any such
account or amounts immediately upon the occurrence of an event of default
hereunder even though such charge is made or entered on the books of the Lender
subsequent thereto. The Borrower shall pay to the Lender, upon demand, all costs
and expenses, including, without limitation, attorneys' fees and legal expenses,
that may be incurred by the Lender in connection with the enforcement of this
Note.
Notices required to be given hereunder shall be deemed validly given
(i) three business days after sent, postage prepaid, by certified mail, return
receipt requested, (ii) one business day after sent, charges paid by the sender,
by Federal Express Next Day Delivery or other guaranteed delivery service, (iii)
when sent by facsimile transmission, or (iv) when delivered by hand:
If to the Lender: eMerge Interactive, Inc.
10315 102nd Terace
Sebastian, FL 32958
Attn: Chief Financial Officer
If to the Borrower: Charles L. Abraham
275 Seacrest Drive
Melbourn Beach, FL 32951
or to such other address, or in care of such other person, as the holder or the
Borrower shall hereafter specify to the other from time to time by due notice.
Any failure by the Lender to exercise any right hereunder shall not be
construed as a waiver of the right to exercise the same or any other right at
any time. No amendment to or
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modification of this Note shall be binding upon the Lender unless in writing and
signed by it. Any provision hereof found to be illegal, invalid or unenforceable
for any reason whatsoever shall not affect the validity, legality or
enforceability of the remainder hereof. This Note shall apply to and bind the
successors of the Borrower and shall inure to the benefit of the Lender, its
successors and assigns.
This Note shall be governed by and interpreted in accordance with the
laws of the State of Delaware.
This Note has been amended and restated to accurately reflect the
agreement between the Lender and the Borrower as approved by the Board of
Directors of the Lender.
IN WITNESS WHEREOF, the Borrower has duly executed this Term Note as
of the date first written above.
/s/ Charles L. Abraham
Charles L. Abraham
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PLEDGE AGREEMENT
For good and valuable consideration and intending to be legally bound,
CHARLES L. ABRAHAM ("PLEDGOR") hereby assigns, pledges and grants to EMERGE
INTERACTIVE, INC. a Delaware corporation ("LENDER"), a security interest in the
shares of capital stock and/or other securities of Lender, now owned by or
standing in the name of Pledgor or in which Pledgor has a legal or beneficial
interest, which are described on Schedule A attached hereto and made a part
hereof (collectively, the "SECURITIES"), together with all (a) additional
property issued by Borrower from time to time acquired by Pledgor in any manner,
and the certificates or instruments representing such additional property, and
all dividends, interest, cash, instruments, and other property from time to time
received, receivable, or otherwise distributed or distributable in respect of or
in exchange for any or all of such additional property; and (b) cash and
non-cash proceeds, distributions, additions, substitutions, exchanges,
redemptions and replacements of, on or by reason of any of the foregoing
(collectively, the "COLLATERAL"), as security for the payment and performance of
all indebtedness, liabilities and obligations of Borrower (primary, secondary,
direct, contingent, related, unrelated, sole, joint or several) to Lender,
whether for principal, interest, fees, expenses or otherwise, (the
"OBLIGATIONS"), arising under that certain promissory note, dated of even date
herewith, issued by Borrower in the principal amount of $100,000 (the "NOTE"),
all on the following terms and conditions.
A. Representations and Warranties. Pledgor represents and warrants
that:
1. Pledgor has good title to the Securities free and clear of
all liens and encumbrances except the security interest created hereby.
2. Pledgor has delivered to Lender all stock certificates
representing or evidencing the Securities, accompanied by corresponding
assignment or transfer powers duly executed in blank by Pledgor, and this Pledge
Agreement and such powers have been duly and validly executed and are binding
and enforceable against Pledgor in accordance with their terms; and the pledge
of the Securities in accordance with the terms hereof creates a valid and
perfected first priority security interest in the Securities securing payment of
the Obligations.
3. No authorization, approval, consent, or other action by,
and no notice to or filing with, any governmental authority, regulatory body or
other person or entity is required either (i) for the pledge by Pledgor of the
Collateral pursuant to this Pledge Agreement or for the execution, delivery or
performance of this Pledge Agreement by Pledgor, or (ii) for the exercise by
Lender of the voting or other rights provided for in this Pledge Agreement or
the remedies in respect of the Collateral pursuant to this Pledge Agreement
(except as may be required in connection with such disposition by laws affecting
the offering and sale of securities generally).
B. Negative Pledge. Pledgor agrees not to (i) sell or otherwise dispose
of, or grant any option with respect to, any of the Collateral, or (ii) create
or permit to exist any lien, security interest or other charge or encumbrance
upon or with respect to any of the Collateral, except the security interest
under this Pledge Agreement.
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C. Additional Collateral. Prior to the full payment and performance of
the Obligations, Pledgor shall pledge hereunder, as additional Collateral, and
shall forthwith transfer and deliver to Lender immediately upon acquisition
(directly or indirectly) thereof, any and all additional shares of stock or
other securities of Borrower and any other property of any kind received,
receivable, or otherwise distributed or distributable on or by reason of the
Collateral, whether in the form of or by way of stock dividends, warrants,
partial liquidation, conversion, prepayments or redemptions (in whole or in
part), liquidation or otherwise with the sole exception of normal, regularly
declared cash dividends or cash interest payments (as the case may be) paid in
respect of the Collateral.
D. Pledgor's Rights in the Pledged Collateral Before Default. So long
as no Event of Default (as such term is defined in the Note) shall have occurred
and be continuing and Pledgor is in full compliance with the terms hereof:
1. Pledgor shall be entitled to receive and retain any normal,
regularly declared cash dividends or cash interest payments (as the case may be)
paid in respect of the Collateral, if such dividends and payments are permitted
under the Loan Documents.
2. Pledgor may exercise all voting rights, if any, pertaining
to the Collateral for any purpose not inconsistent with the terms hereof or of
the Obligations or Loan Documents. In the event any Collateral has been
transferred into the name of Lender or a nominee or nominees of Lender prior to
the occurrence of such Event of Default, Lender or its nominee shall execute and
deliver upon request of Pledgor an appropriate proxy in order to permit Pledgor
to vote, if applicable, the same.
E. Further Assurances. Pledgor shall from time to time promptly take
all actions (and execute, deliver and record all instruments and documents)
necessary or appropriate or requested by Lender, to continue the validity,
enforceability and perfected status of the pledge of the Collateral hereunder or
to enable Lender to exercise and enforce the rights and remedies hereunder with
respect to any of the Pledged Collateral.
F. Lender's Duties Toward Collateral. Lender shall be under no
obligation to take any actions and shall have no liability (except for gross
negligence or willful misconduct) with respect to the preservation or protection
of the Collateral or any underlying interests represented thereby as against any
prior or other parties. In the event Pledgor requests that Lender take or omit
to take action(s) with respect to the Collateral, Lender may refuse so to do
with impunity if Pledgor does not, upon request of Lender, post sufficient,
creditworthy indemnities with Lender which, in Lender's sole discretion, are
sufficient to hold it harmless from any possible liability of any kind in
connection therewith.
G. Waivers by Pledgor. Pledgor agrees that Lender, at any time and
without affecting its rights in the Collateral and without notice to Pledgor,
may grant any extensions, releases or other modifications of any kind respecting
the Loan Documents, the Obligations and any Collateral. Pledgor, except as
otherwise provided herein or in the Loan Documents, waives all notices of any
kind in connection with the Obligations, the Loan Documents and any changes
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therein or defaults or enforcements proceedings thereunder, whether against
Pledgor or any other party. Pledgor hereby waives any rights it has at equity or
in law to require Lender to apply any rights of marshalling or other equitable
doctrines in such circumstances.
H. Remedies Upon Default. After the occurrence of any Event of Default
(as defined in the Loan Documents) or if any representation, warranty or
agreement of Pledgor hereunder is breached or proves to be false, erroneous or
misleading in any material respect:
1. Lender may transfer or cause to be transferred any of the
Collateral into its own or a nominee's or nominees' names.
2. Lender shall be entitled to receive and apply in payment of
the Obligations any cash dividends, interest or other payment on the Collateral.
3. Lender shall be entitled to exercise in Lender's discretion
all voting rights, if any, pertaining to the Collateral, and in connection
therewith and at the written request of Lender, Pledgor shall promptly execute
any appropriate dividend, payment or brokerage orders or proxies.
4. Pledgor shall promptly take any action necessary or
required or requested by Lender, in order to allow Lender fully to enforce the
pledge of the Collateral hereunder and realize thereon to the fullest possible
extent including, but not limited to, the filing of any claims with any court,
liquidator or trustee, custodian, receiver or other like person or party.
5. Lender shall have all the rights and remedies granted or
available to it hereunder, under the Uniform Commercial Code as in effect from
time to time in Delaware, under any other statute or the common law, or under
any of the Loan Documents, including without limitation the right to sell the
Collateral or any portion thereof at one or more public or private sales upon
ten (10) days' written notice and to bid thereat or purchase any part or all
thereof in its own or a nominee's or nominees' names, free and clear of any
equity of redemption; and to apply the net proceeds of the sale, after deduction
for any expenses of sale, including without limitation the payment of all
Lender's reasonable attorneys' fees in connection with the Obligations and the
sale, to the payment of the Obligations in any manner or order which Lender in
its sole discretion may elect, without further notice to or consent of Pledgor
and without regard to any equitable principles of marshalling or other like
equitable doctrines.
6. Lender may increase, in its sole discretion, but shall not
be required to do so, the Obligations by making additional advances or incurring
expenses for the account of Pledgor deemed appropriate or desirable by Lender in
order to protect, enhance, preserve or otherwise further the sale or disposition
of the Collateral or any other property it holds as security for the
Obligations.
I. Dispositions of Collateral. Pledgor recognizes that Lender may be
unable to effect a sale to the public of all or part of the Collateral by reason
of certain prohibitions or restrictions in the federal or state securities laws
and regulations (collectively, the "SECURITIES LAWS"), or the provisions of
other federal and state laws, regulations or rulings, but may be
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compelled to resort to one or more private sales to a restricted group of
purchasers who will be required to agree to acquire the Collateral for their own
account, for investment and not with a view to the further distribution or
resale thereof without restriction. Pledgor agrees that any sales(s) so made may
be at prices and on other terms less favorable to Pledgor than if the Collateral
was sold to the public, and that Lender has no obligation to delay sale of the
Collateral for period(s) of time necessary to permit the issuer thereof to
register the Collateral for sale to the public under any of the Securities Laws.
Pledgor agrees that negotiated sales whether for cash or credit made under the
foregoing circumstances shall not be deemed for that reason not to have been
made in a commercially reasonable manner. Pledgor shall cooperate with Lender
and shall satisfy any requirements under the Securities Laws applicable to the
sale or transfer of the Collateral by Lender.
In connection with any sale or disposition of the Collateral,
Lender is authorized to comply with any limitation or restriction as it may be
advised by its counsel is necessary or desirable in order to avoid any violation
of applicable law or to obtain any required approval of the purchaser(s) by any
governmental regulatory body or officer and it is agreed that such compliance
shall not result in such sale being considered not to have been made in a
commercially reasonable manner nor shall Lender be liable or accountable by
reason of the fact that the proceeds obtained at such sale(s) are less than
might otherwise have been obtained.
Lender may elect to obtain the advice of any independent
nationally-known investment banking firm, which is a member firm of the New York
Stock Exchange, with respect to the method and manner of sale or other
disposition of any of the Collateral, the best price reasonably obtainable
therefor, the consideration of cash and/or credit terms, or any other details
concerning such sale or disposition. Lender, in its sole discretion, may elect
to sell on such credit terms which it deems reasonable.
J. Lender's Expenses. Pledgor shall pay Lender on demand all costs and
expenses incurred by Lender (including, without limitation, counsel fees and
expenses) in connection with (i) the preparation, negotiation, and closing of
this Pledge Agreement, and any modifications hereto, (ii) the custody,
preservation, sale or collection or realization of the Collateral, and (iii) the
exercise or enforcement of Lender's rights hereunder.
K. Successors and Assigns. This Pledge Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and assigns and shall be governed as to its
validity, interpretation and effect by the laws of the State of Delaware; and
any terms used herein which are defined in the Uniform Commercial Code as
enacted in Delaware shall have the meanings therein set forth.
L. Amendments and Waivers. No amendment or waiver of any provision of
this Agreement nor consent to any departure by Pledgor herefrom shall in any
event be effective unless the same shall be in writing and signed by Lender, and
then such amendment, waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. No failure or delay on
the part of Lender in the exercise of any right, power, or remedy under this
Pledge Agreement or any of the Loan Documents shall under any circumstances
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constitute or be deemed to be a waiver thereof, or prevent the exercise thereof
in that or any other instance.
M. Attorney-in-Fact. Pledgor hereby irrevocably appoints Lender as its
attorney-in-fact, in the name of Pledgor or otherwise, from time to time in
Lender's discretion and at Pledgor's expense, to take any action and to execute,
deliver and record any instruments or documents in connection with the
Collateral which Lender may deem necessary or advisable to accomplish the
purposes of this Pledge Agreement including, without limitation, to receive,
endorse, and collect all instruments made payable to Pledgor representing any
dividend, interest, or other distribution in respect of the Pledged Collateral
or any part thereof and to give full discharge for the same. Lender shall not,
in its capacity as such attorney-in-fact, be liable for any acts or omissions,
nor for any error of judgment or mistake of fact or law, but only for gross
negligence or willful misconduct.
N. Entire Agreement. This Pledge Agreement, and all agreements and
instruments to be delivered by the parties pursuant hereto or in connection
herewith, represent the entire understanding of the parties with respect to the
subject matter hereof. Except as otherwise indicated, all agreements defined
herein refer to the same as from time to time amended or supplemented or the
terms thereof waived or modified in accordance herewith and therewith. Any
provision hereof found to be illegal, invalid or unenforceable for any reason
whatsoever shall not affect the legality, validity or enforceability of the
remainder hereof.
P. Joint and Several Obligations. If more than one Pledgor signs this
Pledge Agreement, all references herein to Pledgor shall include all such
Pledgors and each shall be jointly and severally bound by the terms and
provisions hereof.
Q. Notices. All notices, demands or other communications required or
permitted hereunder shall be in writing and shall be given as provided in the
Note, using Pledgor's address as indicated below.
R. Partial Releases; Termination. Any of the Collateral may be released
from this Pledge Agreement without altering, varying, or diminishing in any way
this Pledge Agreement or the security interest granted hereby as to the
Collateral not expressly released, and this Pledge Agreement and such security
interest shall continue in full force and effect as to all of the Collateral not
expressly released. This Pledge Agreement and Lender's rights in the Collateral
shall cease, terminate and be void upon the repayment in full of the
Obligations. Upon such repayment and termination, Lender shall execute such
documents as may reasonably be required by Pledgor to release Lender's security
interest in the Collateral.
S. Amended and Restated. This Pledge Agreement has been amended and
restated to accurately reflect the agreement between the Pledgor and Lender as
approved by the Board of Directors of the Lender.
IN WITNESS WHEREOF, Pledgor has executed this Pledge Agreement as of
the 28th day of January 2000.
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WITNESS OR ATTEST: PLEDGOR:
/s/Charles L. Abraham
___________________________ ___________________________
Name: Charles L. Abraham
Address: 275 Seacrest Drive
Melbourne Beach, FL
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Schedule A
Description of Pledged Securities
<TABLE>
<CAPTION>
Issuer Class of Stock Stock Certificate No. No. of Shares
------------------------ ---------------------- ---------------------- -----------------
<S> <C> <C> <C>
eMerge Interactive, Class A Common Stock 134 30,000
Inc. 30,000
------------------------ ---------------------- ---------------------- -----------------
</TABLE>
1