EXHIBIT 10.2
NEITHER THESE SECURITIES NOR THE SECURITIES FOR WHICH THESE SECURITIES ARE
EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR
THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN COMPLIANCE WITH APPLICABLE STATE
SECURITIES OR BLUE SKY LAWS. NOTWITHSTANDING THE FOREGOING, THESE SECURITIES AND
THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH
SECURITIES.
VISUAL DATA CORPORATION
ADDITIONAL INVESTMENT RIGHT
Additional Investment Right No. [ ] Dated: _____________, 200__
Visual Data Corporation, a Florida corporation (the "COMPANY"), hereby
certifies that, for value received, [Name of Holder] or its registered assigns
(the "HOLDER"), is entitled to purchase from the Company (a) up to a total of
[$_________](1) in principal amount of 8.0% convertible subordinated notes due
_______ __, 2008 of the Company in the form attached as EXHIBIT A hereto (each
such note, an "ADDITIONAL NOTE" and all such notes, the "ADDITIONAL NOTES") and
(b) only as part of and in connection with the purchase of the Additional Notes,
warrants in the form attached hereto as EXHIBIT B to acquire up to the number of
shares of Common Stock equal to 35% of the quotient obtained by dividing (i) the
aggregate principal amount of the Additional Notes issued to the Holder by (ii)
the Conversion Price on such date (the "ADDITIONAL INVESTMENT RIGHT WARRANTS"),
at any time or from time to time from and after Closing Date and through and
including the date occurring on the 12-month anniversary of the Effective Date
(the "EXPIRATION DATE"), and subject to the following terms and conditions. This
Additional Investment Right (this "ADDITIONAL INVESTMENT RIGHT") is one of a
series of similar additional investment rights issued pursuant to that certain
Securities Purchase Agreement, dated as of the date hereof, by and among the
Company and the Purchasers identified therein (the "PURCHASE AGREEMENT"). All
such additional investment rights are referred to herein, collectively, as the
"ADDITIONAL INVESTMENT RIGHTS."
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(1) Insert holder's pro rata portion of an amount equal to 50% of the aggregate
principal amount of the Initial Notes based on such holder's investment in
Initial Notes
1. DEFINITIONS. In addition to the terms defined elsewhere in this
Additional Investment Right, capitalized terms that are not otherwise defined
herein have the meanings given to such terms in the Purchase Agreement.
2. REGISTRATION OF ADDITIONAL INVESTMENT RIGHT. The Company shall
register this Additional Investment Right, upon records to be maintained by the
Company for that purpose (the "ADDITIONAL INVESTMENT RIGHT Register"), in the
name of the record Holder hereof from time to time. The Company may deem and
treat the registered Holder of this Additional Investment Right as the absolute
owner hereof for the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes, absent actual notice to the contrary.
3. REGISTRATION OF TRANSFERS. The Company shall register the assignment
and transfer of any portion of this Additional Investment Right in the
Additional Investment Right Register, upon surrender of this Additional
Investment Right, with the Form of Assignment attached hereto duly completed and
signed, to the Company at its address specified herein. Upon any such
registration or transfer, a new additional investment right to purchase
Additional Notes, in substantially the form of this Additional Investment Right
(any such new additional investment right, a "NEW ADDITIONAL INVESTMENT RIGHT"),
evidencing the portion of this Additional Investment Right so transferred shall
be issued to the transferee and a New Additional Investment Right evidencing the
remaining portion of this Additional Investment Right not so transferred, if
any, shall be issued to the transferring Holder. The acceptance of the New
Additional Investment Right by the transferee thereof shall be deemed the
acceptance by such transferee of all of the rights and obligations of a holder
of an Additional Investment Right.
4. EXERCISE AND DURATION OF ADDITIONAL INVESTMENT RIGHT.
(a) This Additional Investment Right shall be exercisable by
the registered Holder at any time or from time to time on or after the Effective
Date to and including the Expiration Date. At 5:30 P.M., New York City time on
the Expiration Date, the portion of this Additional Investment Right not
exercised prior thereto shall be void and of no further force and effect.
(b) The Holder may exercise this Additional Investment Right
by delivering to the Company (i) an exercise notice, in the form attached hereto
(the "EXERCISE NOTICE"), appropriately completed and duly signed and (ii)
payment of the principal amount of the Additional Notes as to which this
Additional Investment Right is being exercised (the "EXERCISE PRICE"). The date
such items are delivered to the Company (as determined in accordance with the
notice provisions hereof) is an "EXERCISE DATE." The Holder shall not be
required to deliver the original Additional Investment Right in order to effect
an exercise hereunder. Execution and delivery of the Exercise Notice shall have
the same effect as cancellation of the original Additional Investment Right and
issuance of a New Additional Investment Right evidencing the right to purchase
the remaining number of Additional Notes and Additional Investment Right
Warrants.
5. DELIVERY OF ADDITIONAL NOTES AND ADDITIONAL INVESTMENT RIGHT
WARRANTS.
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(a) Upon exercise of this Additional Investment Right, the
Company shall promptly (but in no event later than three Trading Days after the
Exercise Date) issue or cause to be issued and cause to be delivered to or upon
the written order of the Holder and in such name or names as the Holder may
designate, (i) a certificate for the Additional Notes and Additional Investment
Right Warrants issuable upon such exercise, free of restrictive legends unless a
registration statement covering the resale of the Underlying Shares to be issued
thereunder, as the case may be, and naming the Holder as a selling stockholder
thereunder is not then effective and the Additional Notes or Additional
Investment Right Warrants, or the Underlying Shares associated therewith, are
not freely transferable without volume restrictions pursuant to Rule 144 under
the Securities Act, (ii) the legal opinions of Company Counsel, substantially in
the form of EXHIBIT F to the Purchase Agreement, executed by such counsel and
delivered to the Holders relating to the Additional Notes and Additional
Investment Right Warrants, and (iv) a certificate from an officer of the Company
that each of the representations and warranties of the Company set forth in
Section 3.1 of the Purchase Agreement are true and correct as of the date when
made and as of the Exercise Date as though made on and as of such date, except
for such representations and warranties that speak as of a certain date, and in
such case shall have been true and correct as of such date, and each of the
other conditions set forth in Section 5.1 of the Purchase Agreement have been
satisfied as of the Exercise Date. The Holder, or any Person so designated by
the Holder to receive Additional Notes or Additional Investment Right Warrants,
shall be deemed to have become holder of record of such Additional Notes or
Additional Investment Right Warrants as of the Exercise Date. The Company shall,
upon request of the Holder and if the Notes meet the requirements therefore, use
its best efforts to deliver Additional Notes hereunder electronically through
the Depository Trust Corporation or another established clearing corporation
performing similar functions.
(b) This Additional Investment Right is exercisable, either in
its entirety or, from time to time, for a portion of the number of Additional
Notes and Additional Investment Right Warrants. Upon surrender of this
Additional Investment Right following one or more partial exercises, the Company
shall issue or cause to be issued, at its expense, a New Additional Investment
Right evidencing the right to purchase the remaining number of Additional Notes
and Additional Investment Right Warrants.
(c) In addition to any other rights available to a Holder, if
the Company fails to deliver to the Holder a certificate representing the
Underlying Shares issuable upon conversion of the Additional Notes or the
exercise of the Additional Investment Right Warrants on the date on which
delivery of such certificate is required by this Additional Investment Right, an
Additional Note or any Additional Investment Right Warrant, and if after such
date the Holder purchases (in an open market transaction or otherwise) shares of
Common Stock to deliver in satisfaction of a sale by the Holder of the Common
Stock that the Holder anticipated receiving from the Company (a "BUY-IN"), then
the Company shall, within three Trading Days after the Holder's request and in
the Holder's discretion, either (i) pay cash to the Holder in an amount equal to
the Holder's total purchase price (including brokerage commissions, if any) for
the shares of Common Stock so purchased (the "BUY-IN PRICE"), at which point the
Company's obligation to deliver such certificate (and to issue such Common
Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the
Holder a certificate or certificates representing such Common Stock and pay cash
to the Holder in an amount equal to the excess (if any) of the Buy-In Price over
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the product of (A) such number of shares of Common Stock, times (B) the Closing
Price on the date of the event giving rise to the Company's obligation to
deliver such certificate.
(d) The Company's obligations to issue and deliver Additional
Notes and Additional Investment Right Warrants in accordance with the terms
hereof are absolute and unconditional, except in the event the Commission
determines that the exercise of this Right would violate any law, irrespective
of any action or inaction by the Holder to enforce the same, any waiver or
consent with respect to any provision hereof, the recovery of any judgment
against any Person or any action to enforce the same, or any set-off,
counterclaim, recoupment, limitation or termination, or any breach or alleged
breach by the Holder or any other Person of any obligation to the Company or any
violation or alleged violation of law by the Holder or any other Person, and
irrespective of any other circumstance which might otherwise limit such
obligation of the Company to the Holder in connection with the issuance of
Additional Notes and Additional Investment Right Warrants. Nothing herein shall
limit a Holder's right to pursue any other remedies available to it hereunder,
at law or in equity including, without limitation, a decree of specific
performance and/or injunctive relief with respect to the Company's failure to
timely deliver certificates representing Additional Notes upon exercise of the
Additional Investment Right as required pursuant to the terms hereof.
6. CHARGES, TAXES AND EXPENSES. Issuance and delivery of certificates
for Additional Notes and Additional Investment Right Warrants upon exercise of
this Additional Investment Right shall be made without charge to the Holder for
any issue or transfer tax, withholding tax, transfer agent fee or other
incidental tax or expense in respect of the issuance of such certificates, all
of which taxes and expenses shall be paid by the Company. The Holder shall be
responsible for all other tax liability that may arise as a result of holding or
transferring this Additional Investment Right or receiving Additional Notes and
Additional Investment Right Warrants upon exercise hereof.
7. REPLACEMENT OF ADDITIONAL INVESTMENT RIGHT. If this Additional
Investment Right is mutilated, lost, stolen or destroyed, the Company shall
issue or cause to be issued in exchange and substitution for and upon
cancellation hereof, or in lieu of and substitution for this Additional
Investment Right, a New Additional Investment Right, but only upon receipt of
evidence reasonably satisfactory to the Company of such loss, theft or
destruction and customary and reasonable indemnity, if requested.
8. RESERVATION OF COMMON STOCK. The Company covenants that it will at
all times reserve and keep available out of its authorized but unissued and
otherwise unreserved Common Stock, solely for the purpose of enabling it to
issue Common Stock issuable upon conversion of Additional Notes and Additional
Investment Right Warrants as therein provided. The Company covenants that all
Additional Notes and Additional Investment Right Warrants so issuable and
deliverable shall, upon issuance and the payment of the applicable Exercise
Price in accordance with the terms hereof, be duly and validly authorized,
issued and fully paid and nonassessable. The Company will take all such action
as may be necessary to assure that any shares of Common Stock issuable upon
conversion of the Additional Notes and exercise of the Additional Investment
Right Warrants may be issued as provided therein without violation of any
applicable law or regulation, or of any requirements of any securities exchange
or automated quotation system upon which the Common Stock may be listed.
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9. CERTAIN ADJUSTMENTS. The Conversion Price and other terms of the
Additional Notes issuable upon exercise of this Additional Investment Right
shall be subject to adjustment from time to time as set forth in the Initial
Notes issued by the Company on the date hereof pursuant to the Purchase
Agreement. The exercise price and other terms of the Additional Investment Right
Warrants issuable upon exercise of this Additional Investment Right shall be
subject to adjustment from time to time as set forth in the Warrants issued by
the Company on the date hereof pursuant to the Purchase Agreement. At least 30
days prior to any such event or transaction involving a Fundamental Change (as
defined in the Additional Note) or otherwise potentially giving rise to an
adjustment or modification of the terms and provisions of the Additional Note,
the Company will give the Holder notice thereof of the date of the transaction
and the effect thereof on the terms of the Additional Notes, provided, that
failure to provide such notice shall not invalidate any such corporate action.
The Company will use its reasonable best efforts to take all steps reasonably
necessary in order to insure that the Holder is given the practical opportunity
to exercise this Additional Investment Right prior to the time of such event or
transaction.
10. PAYMENT OF EXERCISE PRICE. The Holder shall pay the Exercise Price
in immediately available funds to the Company in the manner specified by the
Company in the Purchase Agreement.
11. NOTICES. Any and all notices or other communications or deliveries
hereunder (including without limitation any Exercise Notice) shall be in writing
and shall be deemed given and effective on the earliest of (i) the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile number specified in this Section prior to 5:30 p.m. (New York City
time) on a Trading Day, (ii) the next Trading Day after the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile number specified in this Section on a day that is not a Trading Day or
later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the Trading
Day following the date of deposit with a nationally recognized overnight courier
service, or (iv) upon actual receipt by the party to whom such notice is
required to be given. The address and facsimile numbers for such notices or
communications shall be as set forth in the Purchase Agreement.
12. MISCELLANEOUS.
(a) Subject to the restrictions on transfer set forth on the
first page hereof, this Additional Investment Right may be assigned by the
Holder. This Additional Investment Right may not be assigned by the Company
except to a successor in the event of a Fundamental Change (as defined in the
Additional Note). This Additional Investment Right shall be binding on and inure
to the benefit of the parties hereto and their respective successors and
assigns. Subject to the preceding sentence, nothing in this Additional
Investment Right shall be construed to give to any Person other than the Company
and the Holder any legal or equitable right, remedy or cause of action under
this Additional Investment Right. This Additional Investment Right may be
amended only in writing signed by the Company and the Holder, their respective
successors or permitted assigns.
(b) The Company will not, by amendment of its governing
documents or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
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avoid or seek to avoid the observance or performance of any of the terms of this
Additional Investment Right, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the Holder against
impairment.
(c) GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL. ALL QUESTIONS
CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS
ADDITIONAL INVESTMENT RIGHT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH PARTY HEREBY IRREVOCABLY
SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN
THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE
HEREUNDER OR IN CONNECTION HEREWITH OR WITH ANY TRANSACTION CONTEMPLATED HEREBY
OR DISCUSSED HEREIN (INCLUDING WITH RESPECT TO THE ENFORCEMENT OF ANY OF THE
TRANSACTION DOCUMENTS), AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT
IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT
TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS
IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND
CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY
MAILING A COPY THEREOF VIA REGISTERED OR CERTIFIED MAIL OR OVERNIGHT DELIVERY
(WITH EVIDENCE OF DELIVERY) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES
TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD
AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN
SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER
PERMITTED BY LAW. THE COMPANY HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY.
(d) The headings herein are for convenience only, do not
constitute a part of this Additional Investment Right and shall not be deemed to
limit or affect any of the provisions hereof.
(e) In case any one or more of the provisions of this
Additional Investment Right shall be invalid or unenforceable in any respect,
the validity and enforceability of the remaining terms and provisions of this
Additional Investment Right shall not in any way be affected or impaired thereby
and the parties will attempt in good faith to agree upon a valid and enforceable
provision which shall be a commercially reasonable substitute therefor, and upon
so agreeing, shall incorporate such substitute provision in this Additional
Investment Right.
[REMAINDER OF XXXX INTENTIONALLY LEFT BLANK,
SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has caused this Additional Investment
Right to be duly executed by its authorized officer as of the date first
indicated above.
VISUAL DATA CORPORATION
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
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FORM OF EXERCISE NOTICE
(To be executed by the Holder to exercise the right to purchase $______________
principal amount of Additional Notes under the foregoing Additional Investment
Right)
To: Visual Data Corporation
The undersigned is the Holder of Additional Investment Right No. _______ (the
"ADDITIONAL INVESTMENT RIGHT") issued by Visual Data Corporation, a Florida
corporation (the "COMPANY"). Capitalized terms used herein and not otherwise
defined have the respective meanings set forth in the Additional Investment
Right.
1. The Additional Investment Right is currently exercisable to purchase a
total of $______________ principal amount of Additional Notes.
2. The undersigned Holder hereby exercises its right to purchase
_________________ $______________ principal amount of Additional Notes
pursuant to the Additional Investment Right.
3. The Holder shall pay the sum of $____________ to the Company in
accordance with the terms of the Additional Investment Right.
4. Pursuant to this exercise, the Company shall deliver to the Holder
$______________ principal amount of Additional Notes and Additional
Investment Right Warrants exercisable for __________ shares of Common
Stock in accordance with the terms of the Additional Investment Right.
5. Following this exercise, the Additional Investment Right shall be
exercisable to purchase a total of $______________ principal amount of
Additional Notes and Additional Investment Right Warrants exercisable
for ____________ shares of Common Stock.
Dated: _________, _____ Name of Xxxxxx:
(Print)
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By:
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Name:
---------------------------------------
Title:
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(Signature must conform in all respects to
name of holder as specified on the face of
the Additional Investment Right)
FORM OF ASSIGNMENT
[To be completed and signed only upon transfer of Additional Investment Right]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ________________________________ the right represented by the within
Additional Investment Right to purchase $______________ principal amount of
Additional Notes and Additional Investment Right Warrants exercisable for
__________ shares of Common Stock of Visual Data Corporation to which the within
Additional Investment Right relates and appoints ________________ attorney to
transfer said right on the books of Visual Data Corporation with full power of
substitution in the premises.
Dated: _________ , ______
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(Signature must conform in all respects to
name of holder as specified on the face of
the Additional Investment Right)
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Address of Transferee
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In the presence of:
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