Engagement Letter



 Exhibit 10.9 
  
 Engagement Letter with Roth Capital Partners 
  
 January 23, 2004 
  
 Mr. Juris Pagrabs 
 Chief Financial Officer 
 eMerge Interactive, Inc. 
 10305 102nd Terrace 
 Sebastian, FL 32958 
  

	 	Re:	Engagement Letter 

  
 Dear Juris: 
  
 Roth Capital
Partners, LLC (“we” or “RCP”) is pleased to act as nonexclusive financial advisor and placement agent for eMerge Interactive, Inc. (“you” or the “Company”) in connection with your proposed private placement.
The terms of our engagement are set forth below. We look forward to working with you. 
  
 1. The Offering. 
  
 (a) We
currently anticipate approximately $5 million through a “PIPE” transaction involving the sale of securities to institutional investors. The actual terms of the offering will depend on market conditions, and will be subject to negotiation
between the Company and RCP and prospective investors. 
  
 (b)
Although we cannot guarantee you that we will be able to raise new capital, we will conduct the offering on a best efforts basis. 
  
 2. Fees and Expenses. 
  
 (a) Concurrently with the consummation of the offering, the Company will pay us in cash a fee equal to 6% of the gross proceeds received from the sale of
securities. 
  
 (b) In addition, the Company agrees to reimburse
RCP upon request for its out-of-pocket expenses, including the fees and disbursements of RCP’s legal counsel, up to $10,000. 
  
 (c) Furthermore, upon the closing of the offering, the Company shall grant to RCP warrants for the purchase of an amount equal to 7% of the securities
issued in the offering. The Warrants will be exercisable into securities similar to those issued as part of the offering, have a strike price equal to 110% of the Company’s common stock on the closing date of the offering and have a term of
five years. 
  
 3. Term of Engagement. 
  
 (a) The term of our engagement will be three months; however, either party
may terminate our engagement at any time upon 10 day written notice to the other party. Upon termination, we will be entitled to collect all fees earned and expenses incurred through the date of termination. 
  
 (b) If the offering is not consummated during the term, for reasons other
than termination of this engagement by us, and during the twelve months following termination of this Agreement, any person which we introduced to the Company or with which we have discussions or negotiations during the term on behalf of the 

  









 
Company, purchases securities from the Company (other than through a underwritten public offering), you agree to pay us upon the closing a cash fee in the
amount that would otherwise have been payable to RCP had such transaction occurred during the term. In the case of a merger, acquisition, joint venture or other strategic transaction with such person, the cash fee will be equal to 1% of the
enterprise value of the Company. 
  
 4. Offering Memorandum,
Representations and Warranties. 
  
 (a) You hereby authorize
RCP to transmit to the prospective purchasers of the securities a private placement memorandum prepared by the Company with such exhibits and supplements as may from time to time be required or appropriate or, alternatively, copies of the
Company’s most recent filings with the Securities and Exchange Commission, together with summary materials prepared by the Company, if we deem them appropriate (as the case may be, the “Memorandum”). The Company represents and
warrants that the Memorandum (i) will be prepared by the management of the Company and reviewed and approved by its Board of Directors; and (ii) will not contain any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein or previously made, in light of the circumstances under which they were made, not misleading. The Company will advise RCP immediately of the occurrence of any event or any other change known
to the Company which results in the Memorandum containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein or previously made, in light of the
circumstances under which they were made, not misleading. 
  
 (b)
You agree that you will enter into subscription, registration rights and other customary agreements, and that your counsel will supply an opinion letter on the transaction, and comfort letter on the non-financial portions of the Memorandum and your
auditors will supply a “comfort” letter of the financial information in the Memorandum, all of which will be in form and substance reasonably acceptable to, and addressed to, us and the investors. 
  
 5. Indemnification, Contribution, and Confidentiality. The Company
agrees to indemnify RCP and its controlling persons, representatives and agents in accordance with the indemnification provisions set forth in Appendix I, and the parties agree to the confidentiality provisions of Appendix II, all of which are
incorporated herein by this reference. These provisions will apply regardless of whether the proposed offering is consummated. 
  
 6. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state of California applicable to contracts
executed and to be wholly performed therein without giving effect to its conflicts of laws principles or rules. The Company and RCP agree that any dispute concerning this Agreement this Agreement shall be resolved through binding arbitration before
the NASD pursuant to its arbitration rules. Arbitration will be venued in Los Angeles County. 
  
 7. Announcement of Offering. If the Offering is consummated, RCP may, at its expense, place an announcement in such newspapers and periodicals as RCP may desire. 
  
 8. Advice to the Board. The Company acknowledges that any advice given
by us to you is solely for benefit and use of the Board of Directors of the Company and may not be used, reproduced, disseminated, quoted or referred to, without our prior written consent. 
  
 9. Entire Agreement. This Agreement constitutes the entire Agreement
between the parties and supersedes and cancels any and all prior or contemporaneous arrangements, understandings and agreements, written or oral, between them relating to the subject matter hereof.  
  
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 We look forward to working with you toward the successful conclusion of this engagement, and developing a
long-term relationship with the Company. 
  
 Very truly yours, 
  

			
	ROTH CAPITAL PARTNERS, LLC
		
	By:	 	 
	 	 	

	 	 	 (a) Theodore D. Roth

	 	 	 Managing Director


  
 Confirmed and accepted as of

 this          day of January, 2004: 
  

			
	EMERGE INTERACTIVE, INC.
		
	By:	 	 
	 	 	

	 	 	 Juris Pagrabs

	 	 	 (b) Chief Financial Officer


  









 APPENDIX I 
  
 INDEMNIFICATION AND CONTRIBUTION 
  
 The Company agrees to indemnify and hold harmless RCP and its affiliates (as defined in Rule 405 under the Securities Act of 1933, as amended) and their
respective directors, officers, employees, agents and controlling persons (RCP and each such person being an “Indemnified Party”) from and against all losses, claims, damages and liabilities (or actions, including shareholder actions, in
respect thereof), joint or several, to which such Indemnified Party may become subject under any applicable federal or state law, or otherwise, which are related to or result from the performance by RCP of the services contemplated by or the
engagement of RCP pursuant to, this Agreement and will promptly reimburse any Indemnified Party for all reasonable expenses (including reasonable counsel fees and expenses) as they are incurred in connection with the investigation of, preparation
for or defense arising from any threatened or pending claim, whether or not such Indemnified Party is a party and whether or not such claim, action or proceeding is initiated or brought by the Company. The Company will not be liable to any
Indemnified Party under the foregoing indemnification and reimbursement provisions, (i) for any settlement by an Indemnified Party effected without its prior written consent (not to be unreasonably withheld); or (ii) to the extent that any loss,
claim, damage or liability is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted primarily from RCP’s willful misconduct or gross negligence. The Company also agrees that no Indemnified Party shall
have any liability (whether direct or indirect, in contract or tort or otherwise) to the Company or its security holders or creditors related to or arising out of the engagement of RCP pursuant to, or the performance by RCP of the services
contemplated by, this Agreement except to the extent that any loss, claim, damage or liability is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted primarily from RCP’s willful misconduct or gross
negligence. 
  
 Promptly after receipt by an Indemnified Party of
notice of any intention or threat to commence an action, suit or proceeding or notice of the commencement of any action, suit or proceeding, such Indemnified Party will, if a claim in respect thereof is to be made against the Company pursuant
hereto, promptly notify the Company in writing of the same. In case any such action is brought against any Indemnified Party and such Indemnified Party notifies the Company of the commencement thereof, the Company may elect to assume the defense
thereof, with counsel reasonably satisfactory to such Indemnified Party, and an Indemnified Party may employ counsel to participate in the defense of any such action provided, that the employment of such counsel shall be at the Indemnified
Party’s own expense, unless (i) the employment of such counsel has been authorized in writing by the Company, (ii) the Indemnified Party has reasonably concluded (based upon advice of counsel to the Indemnified Party) that there may be legal
defenses available to it or other Indemnified Parties that are different from or in addition to those available to the Company, or that a conflict or potential conflict exists (based upon advice of counsel to the Indemnified Party) between the
Indemnified Party and the Company that makes it impossible or inadvisable for counsel to the Indemnifying Party to conduct the defense of both the Company and the Indemnified Party (in which case the Company will not have the right to direct the
defense of such action on behalf of the Indemnified Party), or (iii) the Company has not in fact employed counsel reasonably satisfactory to the Indemnified Party to assume the defense of such action within a reasonable time after receiving notice
of the action, suit or proceeding, in each of which cases the reasonable fees, disbursements and other charges of such counsel will be at the expense of the Company; provided, further, that in no event shall the Company be required to pay fees and
expenses for more than one firm of attorneys representing Indemnified Parties unless the defense of one Indemnified Party is unique or separate from that of another Indemnified Party subject to the same claim or action. Any failure or delay by an
Indemnified Party to give the notice referred to in this paragraph shall not affect such Indemnified Party’s right to be indemnified hereunder, except to the extent that such failure or delay causes actual harm to the Company, or prejudices its
ability to defend such action, suit or proceeding on behalf of such Indemnified Party. 
  
 If the indemnification provided for in this Agreement is for any reason held unenforceable by an Indemnified Party, the Company agrees to contribute to the losses, claims, damages and liabilities for which such
indemnification is held unenforceable (i) in such proportion as is appropriate to reflect the relative benefits to the Company, on the one hand, and RCP on the other hand, of the Offering as contemplated whether or not the Offering is consummated
or, (ii) if (but only if) the allocation provided for in clause (i) is for any reason unenforceable, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative 

  









 
fault of the Company, on the one hand and RCP, on the other hand, as well as any other relevant equitable considerations. The Company agrees that for the
purposes of this paragraph the relative benefits to the Company and RCP of the Offering as contemplated shall be deemed to be in the same proportion that the total value received or contemplated to be received by the Company or its shareholders, as
the case may be, as a result of or in connection with the Offering bear to the fees paid or to be paid to RCP under this Agreement. Notwithstanding the foregoing, the Company expressly agrees that RCP shall not be required to contribute any amount
in excess of the amount by which fees paid RCP hereunder (excluding reimbursable expenses), exceeds the amount of any damages which RCP has otherwise been required to pay. 
  
 The Company agrees that without RCP’s prior written consent, which shall not be unreasonably withheld, it will not
settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding in respect of which indemnification could be sought under the indemnification provisions of this Agreement (in which RCP or any other
Indemnified Party is an actual or potential party to such claim, action or proceeding), unless such settlement, compromise or consent includes an unconditional release of each Indemnified Party from all liability arising out of such claim, action or
proceeding. 
  
 In the event that an Indemnified Party is
requested or required to appear as a witness in any action brought by or on behalf of or against the Company in which such Indemnified Party is not named as a defendant, the Company agrees to promptly reimburse RCP on a monthly basis for all
expenses incurred by it in connection with such Indemnified Party’s appearing and preparing to appear as such a witness, including, without limitation, the reasonable fees and disbursements of its legal counsel. 
  
 If multiple claims are brought with respect to at least one of which
indemnification is permitted under applicable law and provided for under this Agreement, The Company agrees that any judgment or arbitrate award shall be conclusively deemed to be based on claims as to which indemnification is permitted and provided
for, except to the extent the judgment or arbitrate award expressly states that it, or any portion thereof, is based solely on a claim as to which indemnification is not available. 
  









 APPENDIX II 
  
 INFORMATION TO BE SUPPLIED; CONFIDENTIALITY. 
  
 In connection with RCP’s activities on behalf of the Company, the Company will furnish RCP with all financial and other
information regarding the Company that RCP reasonably believes appropriate to its assignment (all such information so furnished by the Company, whether furnished before or after the date of this Agreement, being referred to herein as the
“Information”). The Company will provide RCP with access to the officers, directors, employees, independent accountants, legal counsel and other advisors and consultants of the Company. The Company recognizes and agrees that RCP (i) will
use and rely primarily on the Information and information available from generally recognized public sources in performing the services contemplated by this Agreement without independently verifying the Information or such other information, (ii)
does not assume responsibility for the accuracy of the Information or such other information, and (iii) will not make an appraisal of any assets or liabilities owned or controlled by the Company or its market competitors. 
  
 RCP will maintain the confidentiality of the Information and, unless and
until such information shall have been made publicly available by the Company or by others without breach of a confidentiality agreement, shall disclose the Information only as authorized by the Company or as required by law or by order of a
governmental authority or court of competent jurisdiction. In the event that RCP is legally required to make disclosure of any of the Information, RCP will give notice to the Company prior to such disclosure, to the extent that RCP can practically
do so. 
  

	The	foregoing paragraph shall not apply to information that: 

  

	 	(i)	at the time of disclosure by the Company is, or thereafter becomes, generally available to the public or within the industries in which the Company or RCP or its affiliates conduct
business, other than as a direct result of a breach by RCP of its obligations under this Agreement; 

  

	 	(ii)	prior to or at the time of disclosure by the Company, was already in the possession of, or conceived by, RCP or any of its affiliates, or could have been developed by them from
information then in their possession, by the application of other information or techniques in their possession, generally available to the public, or available to RCP or its affiliates other than from the Company; 

  

	 	(iii)	at the time of disclosure by the Company or thereafter, is obtained by RCP or any of its affiliates from a third party who RCP reasonably believes to be in possession of the
information not in violation of any contractual, legal or fiduciary obligation to the Company with respect to that information; or 

  

	 	(iv)	is independently developed by RCP or its affiliates. 

  
 Nothing in this Agreement shall be construed to limit the ability of RCP or its affiliates to pursue, investigate, analyze, invest in, or engage in
investment banking, financial advisory or any other business relationship with entities other than the Company, notwithstanding that such entities may be engaged in a business which is similar to or competitive with the business of the Company, and
notwithstanding that such entities may have actual or potential operations, products, services, plans, ideas, customers or supplies similar or identical to the Company’s, or may have been identified by the Company as potential merger or
acquisition targets or potential candidates for some other business combination, cooperation or relationship. The Company expressly acknowledges and agrees that it does not claim any proprietary interest in the identity of any other entity in its
industry or otherwise, and that the identity of any such entity is not confidential information.