EX-10.51 3 dex1051.

htm EQUIPMENT LEASE AGREEMENT

Exhibit 10.51

EQUIPMENT LEASE AGREEMENT

THIS EQUIPMENT LEASE AGREEMENT (this “Agreement”) is made and entered into as of November
21, 2003 (the “Effective Date”), by and between eMerge Interactive, Inc., a Delaware corporation (the
“Manufacturer”), and Excel Corporation, a Delaware corporation ( the “Lessee”).

RECITALS
A. Previously, Manufacturer has entered into a development agreement with the Lessee, dated January 25,
2002 (the “Development Agreement”), regarding the development of its VerifEYE Carcass Inspection System,
and thereafter entered into an Equipment and Technology License Agreement, dated March 12, 2003, relating to
installing the VerifEYE Carcass Inspection System in Lessee’s Schuyler, Nebraska beef processing plant.

B. Lessee desires to have Manufacturer install the VerifEYE Carcass Inspection System in certain other of
its beef processing facilities (each plant referred to collectively as the “Facility”). In this regard, Lessee desires
to lease certain equipment and technology and other intellectual property from Manufacturer relating to the
VerifEYE Carcass Inspection System, and Manufacturer desires to lease such equipment and technology and
other intellectual property to Lessee, upon the terms and conditions contained in this Agreement.

AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and conditions herein contained, and
intending to be legally bound, the parties mutually agree as follows:

1. Lease.

(a) Grant. Manufacturer hereby to Lease to Lessee the equipment described in “Products and
Services” on Exhibit A (the “Equipment”) during the Term, along with a non-exclusive license to utilize the
Equipment and related technology under all intellectual property rights in the equipment and technology
including, but not limited to, all rights held by Manufacturer under U.S. 5,914,247, on the terms and conditions
set forth in this Agreement. Manufacturer further grants to Lessee for the Term a non-exclusive license under all
copyrights in any works of authorship provided by Lessee to Manufacturer (“Works”) to reproduce, display,
perform, or make derivative works from such Works in the context of Lessee’s use of the Equipment.

(b) Term. The term of this Agreement (the “Term”) commences on the date of this Agreement and
ends, with respect to each Facility, upon the third anniversary of the date of installation, unless earlier
terminated in accordance with the terms of this Agreement.

(c) Fees. Lease fees for the Equipment shall be payable in the amounts, at the times and in the
manners described in “Lease Price” and “Payment Schedule” on Exhibit A (the “Lease Fees”). All amounts due
under this Agreement shall be paid to Manufacturer at its address as specified in this Agreement or at such other
place as Manufacturer may designate in writing, without notice or demand, and without abatement, setoff,
counterclaim, or deduction of any amounts whatsoever, except as otherwise provided in this Agreement. All
amounts due and owing to Manufacturer under this Agreement but not paid on the due date thereof shall bear
interest at the rate of the lesser of: (i) twelve percent per annum; and (ii) the maximum lawful interest rate
permitted under applicable law. Such interest shall accrue on the balance of unpaid amounts from time to time
outstanding from the date on which portions of such amounts become due and owing until payment thereof in
full. Any service fees shall be discounted from Manufacturer’s standard rates by an amount of five percent.

3. Time of Performance. Manufacturer agrees to begin performance of its obligations upon the execution
of this Agreement promptly, and agrees that, subject to Section 14 (Risk of Loss), Section 27(e) (Force Majeure)
or the acts or omissions of Lessee, the Equipment will be delivered to Lessee at each Facility, undamaged and in
good working order, no later than as set forth under “Installation” in Exhibit A (the “Delivery Due Date”).
Manufacturer and Lessee agree to communicate and to meet in good faith during the time of performance to
discuss the status of the project and to help ensure that the Delivery Due Date is met.

4. Damages for Late Delivery. Subject to delays caused in whole or in part in connection with or through
the operation of Section 14 (Risk of Loss), Section 27(e) (Force Majeure) or the acts or omissions of Lessee,
Manufacturer agrees to pay Lessee the amount of $500.00 for each day by which the actual date of delivery of
the Equipment at any Facility exceeds that Facility’s Delivery Due Date, up to a maximum of $10,000.00. Any
such amount shall be payable exclusively through deductions from the Lease Fees.

5. Limitation of Warranties by Manufacturer.

(a) Manufacturer warrants that the Equipment shall meet the descriptions and criteria and shall be as
warranted as set forth on Exhibit A. Manufacturer further warrants that (i) all work shall be performed in a good,
workmanlike and professional manner and (ii) the Equipment shall be (x) of the highest grade and quality unless
otherwise specified and shall conform to the specifications, drawings, samples, or other description furnished by
Manufacturer or specified by Lessee, (y) fit and sufficient for the purpose disclosed by Manufacturer, and (z) of
good material and workmanship and free from defect. Manufacturer further warrants that if the Equipment is
subject to the federal “Occupational Safety and Health Act” of 1970, as amended (“OSHA”), or OSHA’s state
equivalent, or the rules and regulations thereunder that, at the time of delivery, the Equipment will, to the
reasonable knowledge

of Manufacturer, conform to all applicable standards and requirements set forth in OSHA or rules and
regulations in effect at the time of delivery. Manufacturer further warrants that it has rights to grant a sublicense
under U.S. 5,914,247 to Lessee in order to allow Lessee to use the Equipment to fullest extent allowed under
this Agreement and that Manufacturer will notify Lessee promptly in the event Manufacturer’s right to grant
such sublicense is in danger of being terminated or has been terminated. Manufacturer expressly disclaims all
other warranties.

(b) Manufacturer and Lessee specifically agree that the Equipment is provided as an addition to the
Lessee’s food safety procedures only, and not as a replacement for such procedures. The Equipment is designed
to detect varying levels of plant-based organic contamination which can potentially be transferred from the meat
animal hide and/or digestive tract onto the meat surface, and could potentially contain the bacteria commonly
found in the digestive tract or on the hide which can cause food borne illnesses. Manufacturer and Lessee
specifically acknowledge that the Equipment does not detect bacteria, viruses or parasitic organisms.
Accordingly, and in addition to the limitations set forth in the Agreement, Lessee agrees that, should
Manufacturer be sued for personal injury allegedly caused by the existence of bacteria, virus or parasitic
organisms in a product sold by Lessee, Lessee shall defend, indemnify and hold harmless Manufacturer and
Manufacturer’s Representatives as set forth in Section 12 of the Agreement.

(c) NEITHER PARTY, NOR ITS TRANSFEREES OR ASSIGNS, SHALL BE LIABLE TO THE
OTHER PARTY FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES OR FOR ANY
INTERRUPTION OF SERVICE OR LOSS OF BUSINESS. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, NO REPRESENTATION OR WARRANTY BY A PARTY AS TO THE EQUIPMENT OR
ANY OTHER MATTER BY A PARTY AS TO THE EQUIPMENT SHALL BE BINDING ON THAT
PARTY.

6. Representations.

(a) Lessee hereby represents that, with respect to this Agreement: (i) the execution, delivery and
performance thereof by Lessee have been duly authorized by all necessary corporate action; (ii) the individual
executing such document is duly authorized to do so; and (iii) such document constitutes a legal, valid and
binding obligation of Lessee, enforceable against Lessee in accordance with its terms, subject to applicable
bankruptcy law and equity.

(b) Manufacturer hereby represents that, with respect to this Agreement: (i) the execution, delivery
and performance thereof by Manufacturer have been duly authorized by all necessary corporate action; (ii) the
individual executing such document is duly authorized to do so; and (iii) such document constitutes a legal,
valid and binding obligation of Manufacturer, enforceable against Manufacturer in accordance with its terms,
subject to applicable bankruptcy law and equity.

7. Title. Manufacturer shall at all times retain title to the Equipment, and Lessee shall not represent
otherwise to any person or entity. All documents of title and evidences of delivery shall be delivered to
Manufacturer. Lessee shall not change or remove any insignia or lettering that is on the Equipment or that is
thereafter placed thereon indicating Manufacturer’s ownership thereof; and at any time during the term of this
Agreement, upon request of Manufacturer, Lessee shall affix to the Equipment, in a prominent place, labels,
plates or other markings supplied by Manufacturer stating the owner of the Equipment. Manufacturer is hereby
authorized by Lessee to file or record and refile and rerecord Uniform Commercial Code Financing Statements
setting forth Manufacturer’s interest in the Equipment. Lessee shall indemnify Manufacturer and defend
Manufacturer’s title against all persons claiming against (through actions other than actions of Manufacturer) or
through Lessee, at all times keeping the Equipment free from any legal process or encumbrance whatsoever
resulting from, by, or under any acts of Lessee including, but not limited to, liens, attachments, levies and
executions, and shall give Manufacturer immediate written notice thereof and shall indemnify Manufacturer
from any loss caused thereby. Lessee shall execute and deliver to Manufacturer, upon Manufacturer’s request,
such further instruments and assurances as Manufacturer deems reasonably necessary or reasonably advisable
for the confirmation or perfection of Manufacturer’s rights hereunder. Lessee acknowledges that this Agreement
does not confer on Lessee any rights to use Manufacturer’s graphic designs, copyrights, trademarks, trade dress,
trade secrets, know-how or any other intellectual property owned or controlled by Manufacturer that is not
expressly included in the definition of Confidential Information or “Equipment.” Such rights may only be
conferred on Lessee in a separate written license agreement executed by both parties.

8. Care and Use of Equipment. Manufacturer shall maintain and service the Equipment as described in
“Maintenance and Service” and “Improvements” on Exhibit A. In all other respects, except for damage or
repairs due to the acts or omissions of Manufacturer or its employees, agents or contractors, Lessee at its own
cost and expense shall maintain the Equipment in good operating condition, repair and appearance, and Lessee
shall protect the same from deterioration, other than normal wear and tear. Lessee shall use the Equipment in the
regular course of business only, within its normal capacity, without abuse, and in the manner contemplated by
the parties as of the date of this Agreement. Lessee shall comply with all laws, ordinances, regulations,
requirements and rules with respect to the use and operation of the Equipment, and shall not make (except in
conjunction with Manufacturer in accordance with Section 9 (Upgrades and Additions)) any modification,
alteration or addition to the Equipment. Neither Lessee nor its employees, agents or representatives shall tamper
with, disassemble, revise, engineer or otherwise examine the manual workings of the Equipment. If through the
negligence of Lessee or the breach of this Agreement by Lessee repairs are required of Manufacturer then
Lessee shall reimburse Manufacturer for all reasonable costs incurred by Manufacturer in making such repairs
or performing such maintenance, if Lessee has not made such repairs or performed such maintenance within a
reasonable time following Manufacturer’s written notice to Lessee. Manufacturer shall have the right during
normal business hours, upon reasonable prior notice to Lessee and subject to applicable laws and regulations, to
enter the Facility in

order to inspect, observe or, upon an Event of Default (as defined below), remove the Equipment, or otherwise
protect Manufacturer’s interest, and Lessee shall cooperate fully in affording Manufacturer the opportunity to do
the same. Lessee shall permit Manufacturer to review all documentary and electronic information relating to the
Equipment and the operation of it.

9. Upgrades And Additions. Additions, modifications, alterations and upgrades to the Equipment shall be
conducted only as described in “Improvements” on Exhibit A, and each shall be conducted only with the
consent of and by Manufacturer, not to be unreasonably withheld or delayed. In consideration of Lessee’s lease
of the Equipment, Manufacturer agrees to offer Lessee, at a price and upon terms to be negotiated between the
parties but at a discount from prices offered to the rest of the meat packing industry, all improvements made by
Manufacturer to substantially similar Equipment sold or licensed by Manufacturer during the term of this
Agreement. All additions, modifications, alterations and upgrades to the Equipment and to Manufacturer
Confidential Information shall be handled pursuant to Article 7 of the Development Agreement.

10. Net Fees; Taxes. The Lease Fees under this Agreement are net to the Manufacturer, and Lessee shall
pay to Manufacturer, when due, all taxes and charges (other than income taxes imposed on Manufacturer),
including all sales, use, excise, personal property, stamp, documentary and ad valorem taxes, license and
registration fees, assessments, fines, penalties, freight, transportation and similar charges imposed on the
ownership, possession, licensing, operation or use of the Equipment during the term of this Agreement. In the
event of a continuing default by Lessee, Lessee shall pay to Manufacturer all costs and expenses, storage,
caretaking and repossession expenses in connection with the enforcement of Manufacturer’s rights under this
Agreement.

11. Relationship of the Parties. Lessee shall be considered to be an independent contractor. The
relationship shall not be construed to be that of employer and employee, and shall not constitute a partnership,
joint venture or agency of any kind. Neither party shall have any right to enter into any contracts or
commitments in the name of, or on behalf of, the other, or to bind the other in any respect whatsoever. In
addition, neither party shall obligate or purport to obligate the other by issuing or making any affirmations,
representations, warranties or guaranties with respect to the Equipment to any third party.

12. Indemnification.

(a) Except to the extent caused by the negligent acts or omissions of Manufacturer or its officers,
directors, employees, agents or contractors (the “Manufacturer Representatives”) or by the breach of this
Agreement by Manufacturer, Lessee shall indemnify, protect and save Manufacturer and the Manufacturer
Representatives harmless from all claims, demands, suits or actions (including attorney fees incurred in
connection therewith) that may be asserted against Manufacturer or any Manufacturer Representative relating to
(i) Lessee’s indemnification obligations

contained in Section 5(b), (ii) acts of negligence or willful conduct by Lessee or any Lessee Representative in
connection with the Equipment, or (iii) Lessee’s breach of this Agreement. These indemnification obligations
shall continue in full force and effect notwithstanding the termination of this Agreement.

(b) Except to the extent caused by the negligent acts or omissions of Lessee or its officers, directors,
employees, agents or contractors (the “Lessee Representatives”) or by the breach of this Agreement by Lessee,
Manufacturer shall indemnify, protect and save Lessee and the Lessee Representatives harmless from all claims,
demands, suits or actions (including attorney fees incurred in connection therewith) that may be asserted against
Lessee or any Lessee Representative relating to (i) any alleged or actual, direct or contributory infringement of
patent or other intellectual property, arising from the use of the Equipment, (ii) acts of negligence or willful
conduct by Manufacturer or any Manufacturer Representative or (iii) Manufacturer’s breach of this Agreement.
These indemnification obligations shall continue in full force and effect notwithstanding the termination of this
Agreement.

(c) In the event a claim against an indemnified party arises to which the indemnity of this section is
applicable, notice shall be given promptly by the indemnified party to the indemnifying party and the
indemnifying party shall have the right to control the defense of such claim and to select lead counsel to defend
such claim, at the sole cost and expense of the indemnifying party; provided that in no event shall an
indemnifying party enter into any settlement without the consent of the indemnified party, which consent shall
not be unreasonably withheld. The indemnified party may select counsel to participate in any such defense at the
sole cost and expense of the indemnified party. In connection with any claim, the parties shall cooperate with
each other and provide each with access to relevant books and records in their possession, as well as necessary
employees or other agents.

13. Insurance.

(a) Lessee shall obtain and maintain or self insure for the Term, at its own expense, property
damage and liability insurance and insurance against loss or damage to the Equipment (including so-called
extended coverage), as a result of theft and such other risks of loss as are normally maintained on equipment of
the type leased under this Agreement by companies carrying on the business in which Lessee is engaged, in such
amounts, in such form and with such insurers as shall be reasonably satisfactory to Manufacturer. Each
insurance policy shall provide that it may not be canceled or altered without at least 30 days prior written notice
thereof being given to Manufacturer or its successor and assigns.

(b) Manufacturer agrees that during the Term it and any subcontractor it provides to perform
installation, service or maintenance at the Facility, shall maintain a policy or policies of insurance as set forth
below:

(i) worker’s compensation, employer’s liability insurance and other legally required
employer’s insurance in accordance with and meeting all requirements of applicable State and Federal law; and

(ii) general liability insurance (including contractual liability) in amounts not less than
$2,000,000 per occurrence, combined single limits.
 (c) Each party shall provide the other evidence of the above-required insurance in the form of
certificates of insurance. These certificates of insurance shall contain a provision that 30 days’ prior written
notice of cancellation will be provided to the other party.

14. Risk of Loss. Except to the extent caused by the acts or omissions of Manufacturer or any
Manufacturer Representative or arising out of a breach of this Agreement by Manufacturer, Lessee shall bear the
entire risk of the Equipment being lost, destroyed or otherwise unfit or unavailable for use from any cause
whatsoever (an “Event of Loss”) after it has been delivered by the Manufacturer to the common carrier for
shipment to Lessee. If an Event of Loss shall occur with respect to the Equipment, Lessee shall promptly notify
Manufacturer of that fact in writing. Except to the extent caused by the acts or omissions of Manufacturer or any
Manufacturer Representative or arising out of a breach of this Agreement by Manufacturer, within 30 days
Lessee shall pay to Manufacturer an amount equal to the Lease Fee payment due and payable with respect to the
Equipment on or prior to such date, plus a sum equal to the casualty value of the Equipment as of the date of
such payment (which, for purposes of this Agreement, shall be determined in good faith by Manufacturer and
Lessee in direct relation to the value of the portion of the Equipment deemed to have been lost).

15. Default. Notwithstanding anything to the contrary contained in this Agreement, if any one of the
following events (an “Event of Default”) shall occur, then to the extent permitted by applicable law, the non-
defaulting party shall have the right, but not the obligation, to exercise any one or more of the remedies set forth
in Section 16 below:

(a) Lessee fails to pay any Lessee Fee or other payment under this Agreement when due and after
receiving written notice of non-payment from Manufacturer does not make such payment within three business
days;

(b) any representation or warranty of either party made in this Agreement shall prove to have been
false or misleading in any material respect as of the date when it was made;

(c) either party breaches any covenant, warranty or agreement hereunder, and such breach continues
for 10 business days after receipt of written notice of such breach, or such additional reasonable time (not to
exceed 60 days) if such breach cannot reasonably be cured in such 10 business day period; or

(d) either party is dissolved, becomes insolvent or makes an assignment for the benefit of creditors,
a receiver, trustee, conservator or liquidator of all or a substantial part of its assets is appointed with or without
its application or consent

or a petition is filed or consented to such party under the Federal Bankruptcy Code or other law of the United
States or of any other competent jurisdiction, or under any insolvency law or laws providing for the relief of
debtors, or a petition or other proceeding is filed or commenced against such party thereunder and not dismissed
or stayed within 30 days thereafter.

16. Remedies.

(a) Upon the occurrence and during the continuance of an Event of Default by Lessee, in addition to
any rights or remedies available at law or in equity, Manufacturer may, at its option, exercise any one or more of
the following remedies:

(i) cause Lessee to (and Lessee agrees that it will), upon written demand of Manufacturer
and at Lessee’s expense, promptly return to Manufacturer at a location in the continental United States
designated by Manufacturer the Equipment in accordance with all of the terms of this Agreement, or
Manufacturer, at its option, may enter upon the premises where the Equipment is located and take immediate
possession of and remove the same, all without liability for unreasonable damage to property or otherwise and
without being guilty of trespass or conversion as to the Equipment;

(ii) sell any or all of the Equipment at public or private sale, with notice to Lessee or
advertisement, or otherwise dispose of, hold, use, operate, lease to others, or keep idle the Equipment, all as
Manufacturer in its sole discretion may determine and all free and clear of any rights of Lessee and without any
duty to account to Lessee for such action or inaction or for any proceeds with respect thereto, except as
hereinafter provided or required by applicable law (with all notices of any sale, lease or other disposition of the
Equipment being sent to Lessee at least 10 days prior to such disposition or such other action, and shall
constitute reasonable, fair notice to Lessee of any such disposition);
 (iii) enter upon the premises where the Equipment or any item thereof is located and render
the Equipment or such item inoperable but not so as to diminish its value;

(iv) exercise any other right that may be available to it under the Uniform Commercial Code
or any other applicable law or proceed by appropriate court action to enforce the terms hereof or to recover
damages for the breach hereof or to rescind this Agreement as to the Equipment; or

(v) (exclusive of any one or more of the foregoing remedies), by written notice to Lessee,
cause Lessee to (and Lessee agrees that it will) pay to Manufacturer (as liquidated damages for loss of a bargain
and not as a penalty) on the date specified in such notice an amount equal to the then present value of all unpaid
payments due under this Agreement that, absent an Event of Default, would have been payable under this
Agreement for the full Term, and in such event Lessee shall enjoy the same rights and privileges and retain the
same obligations (other than the obligation

to pay Lease Fees) for the balance of the Term and at the end of the Term as if no default had occurred and all
lease fee obligations had been prepaid in full or otherwise satisfied completely. In addition, Lessee shall
continue to be liable for all covenants and indemnities under this Agreement and for all attorney fees and other
costs and expenses incurred by Manufacturer, including, but not limited to, placing any Equipment in the
condition required by this Agreement upon redelivery.

(b) Upon the occurrence and during the continuance of an Event of Default by Manufacturer, in
addition to any rights or remedies available at law or in equity, Lessee may, at its option, terminate this
Agreement and return the Equipment without further obligation to Manufacturer.

(c) No failure on the part of either party to exercise, and no delay in exercising, any right or remedy
hereunder shall operate as a waiver thereof; and the rights or remedies provided herein or by applicable law,
including, without limitation, re-entry upon premises or repossession of the Equipment, will not be considered
an election of remedies, waiver of either party’s rights hereunder or under applicable law or termination or
surrender of this Agreement.

17. Safety. Manufacturer and its contractors performing installation, service and maintenance at the
Facility shall complete and sign Lessee’s Contractor Safety Pre-Qualification form attached as Exhibit B and
incorporated herein, and shall abide by Lessee’s safety rules, policies and procedures as outlined in Lessee’s
Safety Guidelines Handbook or as otherwise communicated by Lessee to Manufacturer or its contractors,
including, without limitation the Drug/Alcohol Testing Addendum attached as Exhibit C.

18. Compliance with Laws. Both parties warrant that their performance under this Agreement shall be
rendered in material accordance with all applicable laws, rules, regulations and ordinances.

19. Patents. Manufacturer warrants that none of the Equipment violates any patents or other intellectual
property rights of third parties. If it should be determined that any Equipment sold hereunder infringes any
existing patent or other intellectual property rights of a third party, the Manufacturer shall indemnify Lessee and
defend the action on behalf of Lessee, at Manufacturer’s expense and, at Manufacturer’s option: (i) modify, at
Manufacturer’s expense, the Equipment to make it non-infringing or to provide substantially similar benefit to
Lessee (or in such other way as is reasonably acceptable to Lessee); (ii) replace, at Manufacturer’s expense, the
infringing Equipment with non-infringing equipment or that provides substantially similar benefit to Lessee (or
in such other way as is reasonably acceptable to Lessee); or (iii) terminate this Agreement and remove the
Equipment from the Facility at Manufacturer’s expense.

20. Modification. No modification or change may be made in this Agreement except by a writing signed
by a duly authorized representative of each party.

21. Assignment. Except by Lessee to a subsidiary or commonly controlled affiliate, or except in the case
of a sale of the Facility, this Agreement and the rights and

obligations hereunder may not be assigned, delegated or transferred by the Lessee without the prior written
consent of the Manufacturer. Manufacturer may, without Lessee’s consent, assign or transfer this Agreement or
the Equipment, any fees or other sums due or to become due under this Agreement, and in such event
Manufacturer’s assignee or transferee shall have all the rights, obligations, powers, privileges and remedies of
Manufacturer under this Agreement, and Lessee’s obligations hereunder shall not be subject to any defense,
offset or counterclaim available to Lessee against Manufacturer. In any case of assignment by either party, the
assigning party shall remain liable to the other party for the rights, obligations, powers, privileges and remedies
of the other party with respect to such assignee.

22. Other Prohibitions Related to the Lease and Equipment. Without the prior written consent of
Manufacturer, such consent not to be unreasonably withheld, Lessee shall not: (a) sublease any of the
Equipment; (b) create or incur, or permit to exist, any lien or encumbrance with respect to any of the Equipment,
or any part thereof; or (c) move any of the Equipment from the location at which it is first installed.

23. Notice. Any and all notices, requests, instructions and other communications required or permitted to
be given under this Agreement after the date hereof by any party hereto to any other party may be delivered
personally or by nationally recognized overnight courier service or sent by mail or by telex or facsimile
transmission, at the respective addresses or transmission numbers set forth below and shall be effective (a) in the
use of personal delivery, telex or facsimile transmission, when received; (b) in the case of mail, upon the earlier
of actual receipt or three (3) business days after deposit in the United States Postal Service, first class certified
or registered mail, postage prepaid, return receipt requested; and (c) in the case of nationally recognized
overnight courier service, one (1) business day after delivery to such courier service together with all
appropriate fees or charges for such delivery. The parties may change their respective addresses and
transmission numbers by written notice to all other parties, sent as provided in this Section 23. All
communications must be in writing and addressed as follows:

Manufacturer: eMerge Interactive, Inc.

10315 102nd Terrace
Sebastian, FL 32958
Telecopy: (561) 589-3779
Attention: Rich Stroman
Copy To: Jenkens & Gilchrist, a Professional Corporation
1445 Ross Avenue
Suite 3200
Dallas, Texas 75202-2799
Attention: Michael J. Pendleton, Esq.
Telecopier: (214) 855-4300
Lessee: Excel Corporation
151 North Main Street

10

Wichita, KS 67202
Attention: Steve Mellinger, Vice President
Telecopier: (316) 291-2889
Copy To: Excel Corporation
151 North Main Street
Wichita, KS 67202
Attention: Legal Department
Telecopier: (316) 291-3499

24. Waiver. None of the conditions or provisions of this Agreement shall be held to have been waived by
any act or knowledge on the part of either party, except by an instrument in writing signed by a duly authorized
officer or representative of the parties. Further, the waiver by either party of any right or the failure to enforce at
any time any of the provisions of this Agreement, or any related rights, shall not be deemed to be a waiver of
any other rights or any breach or failure of performance of the other party.

25. Confidentiality. Both parties acknowledge that, in the course of performing their respective
obligations under this Agreement, they may receive from the other party certain confidential and proprietary
information, including data, specifications, processes, policies, technologies, methods, formulae, and
performance and other information of the other party (collectively, “Confidential Information”). Both parties
agree to limit disclosure and access to the Confidential Information to such of their employees as are directly
involved with work required by this Agreement and then only to the extent as is necessary and essential to
complete such work. Each party will ensure that their respective employees shall preserve the confidential
nature of the Confidential Information. Neither party shall disclose any of the Confidential Information to any
other party, in whole or in part, directly or indirectly, unless authorized in writing by the other party. The parties
shall, at all times, take proper and appropriate steps to protect the Confidential Information. Confidential
Information shall be used only in connection with performance of this Agreement. No other use of it will be
made by the receiving party or its employees, it being recognized that the disclosing party has reserved all rights
to the Confidential Information. The term Confidential information shall not include information which (i) is in
the public domain prior to disclosure to the receiving party, (ii) is lawfully in the receiving party’s possession
prior to disclosure, (ii) becomes part of the public domain by publication or otherwise through no unauthorized
act or omission on the part of the receiving party. The receiving party will not duplicate the Confidential
Information, in whole or in part, except to the extent necessary to perform its obligations under this Agreement.
The Confidential Information shall remain the property of the disclosing party and shall be returned to the
disclosing party upon termination of this Agreement. The obligations under this section shall survive
termination of this Agreement.

26. Visitation Rights. When in the company of personnel of other meat packing companies that are pre-
announced by Manufacturer to Lessee and pre-authorized each time by Lessee to Manufacturer, Lessee agrees
to allow visitation

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rights to the Equipment installation site, expressly for the purpose of viewing the Equipment in operation, on
date(s) and time(s) to be determined by Lessee in common accord with Manufacturer.

27. Miscellaneous.

(a) Severability. If any provision of this Agreement is declared invalid or unenforceable, this
Agreement shall endure except for the part declared invalid or unenforceable. The parties shall consult and use
their best efforts to agree upon a valid and enforceable provision which shall be a reasonable substitute for such
invalid or unenforceable provision in light of the intent of this Agreement.

(b) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the same instrument.

(c) Entire Agreement. This Agreement supercedes and cancels any previous agreements or
understandings, whether oral, written or implied, heretofore in effect and sets forth the entire agreement between
Manufacturer and Lessee with respect to the subject matter hereof, including the Development Agreement (other
than with respect to the confidentiality and publicity and publications provisions contained in that agreement).
In the event of a conflict between the Development Agreement and this Agreement, the terms of this Agreement
shall control.

(d) Specific Performance. In addition to such other remedies as may be available under applicable
law, the parties acknowledge that the remedies of specific performance and/or injunctive relief shall be available
and proper if either party fails or refuses to perform its duties or fulfill its covenants hereunder.

(e) Force Majeure. No party to this Agreement shall be responsible for any delays or failure to
perform any obligation under this Agreement due to acts of God, strikes or other disturbances, including without
limitation war, insurrection, embargoes, governmental restrictions, acts of governments or governmental
authorities, and any other cause beyond the control of such party. During an event of force majeure the parties’
duties to perform obligations set forth in this Agreement shall be suspended.

(f) Governing Law. This Agreement shall be construed in accordance with the laws of the state of
Delaware without giving effect to the principles of conflict of laws.

(g) Publicity. The provisions of “Article 4 - Publicity and Publications” of the Joint Development
Agreement shall continue to be in force and effect and shall apply to this Agreement, with such provisions being
incorporated into this Agreement by reference.

(h) Source Code Escrow. Subject to execution of an escrow agreement, Manufacturer (“Lessor”)
will deposit the Deposit Materials (as defined

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below) with DSI Technology Escrow, Inc. or such other escrow agent reasonably acceptable to the parties
(“Escrow Agent”). The parties will use commercially reasonable efforts to negotiate and execute a source code
escrow agreement (“Source Code Escrow Agreement”) within 30 days of the execution date hereof. Within 30
days of Lessor’s release of a material update, as long as Lessee has paid for maintenance and support services,
Lessor will deliver to the Escrow Agent a new copy of the Deposit Materials containing the source code for such
material update. Lessor shall be responsible for, and shall pay, any and all fees due to the Escrow Agent in
connection with such escrow arrangement. The Escrow Agent will make the Deposit Materials available to
Lessee only if Lessor fails to perform the maintenance and support services after its receipt of prior notice and
an opportunity to cure in accordance with this Agreement; provided, however, that if a dispute arises as to
whether or not Lessor has failed to perform (or failed to cure such non-performance of) the maintenance
and support services in accordance with this Agreement, the parties shall appoint a mutually acceptable neutral
third party arbitrator, with expertise in intellectual property law, who will, no later than fourteen (14) days after
the initial demand of Lessee, direct the Escrow Agent to hold or release the applicable portion of the Deposit
Materials according to such arbitrator’s interpretation of this Agreement and the Source Code Escrow
Agreement. In the event the Deposit Materials are rightly released to Lessee by the Escrow Agent, Lessee may
use the Deposit Materials for: (i) the sole purpose of providing maintenance and support for Lessee’s internal
business only and solely in accordance with the provisions of this Agreement; (ii) only for as long as Lessee
adheres to all of its obligations under the Agreement including, without limitation, payment obligations; (iii)
only as long as Lessee is not in breach of the Agreement; and (iv) only for the duration of the term of license
granted under this Agreement. The Deposit Materials and all improvements, derivative works and enhancements
thereto remain the exclusive intellectual property and confidential information of Lessor, and Lessee agrees that
it will promptly return the Deposit Materials together with all copies, improvements, derivative works and
enhancements thereof, and all other Confidential Information to Lessor upon the expiration or termination of
this Agreement, and certify the same in writing to Lessor. For purposes hereof, the Deposit Materials shall mean
the latest copy of the source code for DM, SM computers, the latest copy of the source code for DM controller
board, a copy of the latest user manual, and a bill of material list of all critical components and vendors or on-
going maintenance of CIS Systems.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and
year first written above.

LESSEE:
EXCEL CORPORATION

By:

Name:

Title:

MANUFACTURER:
EMERGE INTERACTIVE, INC.

By:

Name:

Title:

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