EXHIBIT 4.(a)
[Form of Underwriters' Warrant
- Subject to Additional Review]
VISUAL DATA CORPORATION
0000 XXXXX XXXXX XXXXXXX
XXXXX 0X
XXXX XXXXX, XXXXXXX 00000
UNDERWRITERS' WARRANT
WARRANT NO. CERT. NO.~
Date of Issuance: As of ______________ 1997 hase ____ Shares and _____ Warrants
FOR VALUE RECEIVED, Visual Data Corporation, a Florida corporation (the
"Company"), promises to issue in the name of, and sell and deliver to, Holder~
(the "Holder") a certificate or certificates for an aggregate of ____ shares
(the "Warrant Shares") of the Company's common stock, $.0001 par value per share
(the "Common Stock"), and ____ redeemable common stock purchase warrants (the
"Underlying Warrants"), each said Underlying Warrant entitling the Holder to
purchase one share of Common Stock ("Underlying Warrant Share") at a purchase
price of $8.64 per share, upon payment by the Holder of the exercise price of
$7.20 per share for the Warrant Shares (the "Warrant Share Exercise Price") and
$.12 per Underlying Warrant ("Underlying Warrant Exercise Price") in lawful
funds of the United States of America, with the Warrant Share Exercise Price
being subject to adjustment in the circumstances set forth hereinbelow. This
Warrant expires in its entirety at 5:00 p.m. Eastern Time on ________________,
2002 (the "Expiration Date"). This Warrant is one of a series of Underwriters'
Warrants dated ____________, 1997. The terms and conditions of the Underwriters'
Warrants shall be identical in all material respects except that the number of
Warrant Shares and Underlying Warrants to which the Holder is entitled to
purchase may differ.
SECTION 1.
CERTAIN DEFINITIONS
As used in this Warrant, the following terms have the meanings set
forth below:
"COMMON STOCK DEEMED OUTSTANDING" means, at any given time, the number
of shares of Common Stock actually outstanding at such time, plus the number of
shares of Common Stock deemed to be outstanding pursuant to Section 4 of this
Warrant.
"DATE OF ISSUANCE" is the date set forth on the front page of this
Warrant, and the terms "date hereof," "date of this Warrant," and similar
expressions shall be deemed to refer to the Date of Issuance, as specified in
Section 11 of this Warrant.
"EFFECTIVE DATE" means the date the Company's Registration Statement
(as defined below) is declared effective by the U.S. Securities and Exchange
Commission.
"EXERCISE PERIOD" means the period of time commencing at 12:01 A.M.,
Eastern Time, on the first anniversary of the Effective Date and ending at 5:00
p.m., Eastern Time, on the fifth anniversary of the Effective Date.
"MARKET PRICE" means, as to any security, the average of the closing
prices of such security's sales on the principal domestic securities exchange on
which such security may at the time be listed, or, if there have been no sales
on any such exchange on any day, the average of the highest bid and lowest asked
prices on all such exchanges at the end of such day, or, if on any day such
security is not so listed, the average of the representative bid and asked
prices listed on The Nasdaq SmallCap as of the close of trading in New York City
on such day, or, if on any day such security is not listed on The Nasdaq
SmallCap, the average of the high and low bid and asked prices on such day in
the domestic over-the-counter market as reported by the National Quotation
Bureau, Incorporated, or any similar successor organization, in each such case
averaged over a period of 20 consecutive business days consisting of the
business day immediately preceding the day as of which "Market Price" is being
determined and the 19 consecutive business days prior to such day; PROVIDED that
if such security is listed on any domestic securities exchange or listed on The
Nasdaq SmallCap, the term "business day" or "business days" as used in this
sentence means a day or days, as applicable, on which such exchange or the
Nasdaq SmallCap is open for trading or quotation, as the case may be. If at any
time such security is not listed on any domestic securities exchange or listed
on the Nasdaq SmallCap or the domestic over-the-counter market, the "Market
Price" will be the fair value thereof determined jointly by the Company and the
Holders of Warrants representing at least 50% of the Common Stock purchasable
upon the exercise of all the Warrants then outstanding; PROVIDED that if such
parties are unable to reach agreement, such fair value will be determined by an
appraiser jointly selected by the Company and the Holders of Warrants
representing at least 25% of the Common Stock purchasable upon the exercise of
all the Warrants then outstanding.
"NASDAQ SMALLCAP" means The Nasdaq SmallCap Market or such other
similar quotation system as may in the future be used generally by members of
the National Association of Securities Dealers, Inc. for transactions in
securities.
"PERSON" means an individual, a partnership, a corporation, a limited
liability company, a trust, a joint venture, an unincorporated organization, and
a government or any department or agency thereof.
"REGISTRATION STATEMENT" means the Company's Registration Statement on
Form SB-2, File No. 333-18819.
"UNDERLYING SECURITIES" means the Warrant Shares, the Underlying
Warrants, and the Underlying Warrant Shares issuable upon exercise of the
Underlying Warrants, collectively.
"WARRANTS" mean this Warrant and all other Warrants issued in exchange
or substitution for this Warrant or any such other Warrants issued pursuant to
the terms hereof or thereof, as the case may be.
SECTION 2.
EXERCISE OF WARRANT
2.1 EXERCISE PERIOD. The Holder may exercise this Warrant, in whole or
in part (but not as to a fractional share), at any time and from time to time,
during the Exercise Period.
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2.2 EXERCISE PROCEDURE.
(a) This Warrant will be deemed to have been exercised at such
time as the Company has received all of the following items (the "Exercise
Date"):
(i) a completed Exercise Agreement, in the form set
forth as Exhibit I hereto, executed by the Person exercising all or part of the
purchase rights represented by this Warrant (the "Purchaser");
(ii) this Warrant (subject to delivery by the
Company of a new Warrant with respect to any unexercised portion, as provided in
Subsection 2.2(b));
(iii) if this Warrant is not registered in the name
of the Purchaser, an Assignment or Assignments in the form set forth as Exhibit
II hereto, evidencing the assignment of this Warrant to the Person; and
(iv) a cashier's or official bank check or other
immediately available funds payable to the Company in an amount equal to the sum
of the following: (A) the product of the Warrant Share Exercise Price multiplied
by the number of Warrant Shares being purchased upon such exercise; and (B) the
product of the Underlying Warrant Exercise Price multiplied by the number of
Underlying Warrants being purchased upon such exercise.
(b) Certificates for Warrant Shares and Underlying Warrants
purchased upon exercise of this Warrant will be delivered by the Company to the
Purchaser within five calendar days after the Exercise Date. Unless this Warrant
has expired or all of the purchase rights represented hereby have been
exercised, the Company will prepare a new Warrant representing the rights
formerly represented by this Warrant that have not expired or been exercised.
The Company will, within such five-day period, deliver such new Warrant to the
Person designated for delivery in the Exercise Agreement.
(c) The Warrant Shares and Underlying Warrants issuable upon
the exercise of this Warrant will be deemed to have been transferred to the
Purchaser on the Exercise Date, and the Purchaser will be deemed for all
purposes to have become the record holder of such Common Stock on the Exercise
Date.
(d) The issuance of certificates for Warrant Shares and
Underlying Warrants upon exercise of this Warrant and the issuance of
certificates for the Underlying Warrant Shares upon exercise of the Underlying
Warrants will be made without charge to the Holder or the Purchaser for any
issuance tax in respect thereof or any other cost incurred by the Company in
connection with such exercise and the related transfer of the Underlying
Securities; provided, however, that the Company shall not be required to pay any
tax that may be payable in respect of any transfer involved in the issuance and
delivery of any certificate or instrument in a name other than that of the
Holder of this Warrant, and the Company shall not be required to issue or
deliver any such certificate or instrument unless and until the Person or
Persons requesting the issue thereof shall have paid to the Company the amount
of such tax or shall have established to the satisfaction of the Company that
such tax has been paid.
(e) The Company will not close its books for the transfer of
this Warrant or of any of the Underlying Securities in any manner that
interferes with the timely exercise of this Warrant. The Company will from time
to time take all such action as may be necessary to assure that the par value
per share of the unissued Common Stock acquirable upon exercise of this Warrant
and the Underlying
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Warrants is at all times equal to or less than the Warrant Share Exercise Price
(divided by such number of shares) then in effect.
2.3 EXERCISE AGREEMENT. The Exercise Agreement will be substantially in
the form set forth as Exhibit I hereto, except that if the Warrant Shares and
Underlying Warrants are not to be issued in the name of the Holder of this
Warrant, the Exercise Agreement will also state the name of the Person to whom
the certificates or instrument for the Warrant Shares and Underlying Warrants
are to be issued, and if the number of Warrant Shares purchasable does not
include all of such securities purchasable hereunder, it will also state the
name of the Person to whom a new Warrant for the unexercised portion of the
rights hereunder is to be delivered.
2.4 FRACTIONAL SHARES OR WARRANTS. If a fractional share of Common
Stock or fractional Underlying Warrant would, but for the provisions of
Subsection 2.1, be issuable upon exercise of the rights represented by this
Warrant, the Company will, within twenty days after the Exercise Date, deliver
to the Purchaser a check payable to the Purchaser, in lieu of such fractional
share or fractional Underlying Warrant, in an amount equal to the Market Price
of such fractional share or fractional Underlying Warrant as of the close of
business on the Exercise Date.
SECTION 3.
WARRANT SHARE EXERCISE PRICE; UNDERLYING WARRANT EXERCISE PRICE
3.1 GENERAL.
(a) The Holder of this Warrant shall be entitled to purchase
such numbers of Warrant Shares at the Warrant Share Exercise Price, and such
numbers of Underlying Warrants at the Underlying Warrant Exercise Price, as set
forth on the front page of this Warrant.
(b) If and whenever the Company issues or sells, or in
accordance with Subsection 3.2 is deemed to have issued or sold, any shares of
its Common Stock for a consideration per share less than the Warrant Share
Exercise Price in effect immediately prior to the time of such issuance or sale
(except for the issuance or deemed issuance of securities in a transaction
described in paragraph (c) of this Subsection 3.1), then immediately upon such
issuance or sale the Warrant Share Exercise Price will be reduced to a price
determined by multiplying the Warrant Share Exercise Price in effect immediately
prior to the issuance or sale by a fraction, the numerator of which shall be the
sum of (i) the number of shares of Common Stock outstanding prior to the
issuance or sale PLUS (ii) the number of shares of Common Stock (in terms of
Warrant Shares issuable upon an exercise of this Warrant) that the maximum
aggregate amount receivable by the Company upon such issuance or sale would
purchase at the Warrant Share Exercise Price in effect immediately prior to the
issuance or sale, and the denominator of which shall be the number of shares of
Common Stock Deemed Outstanding immediately after such issuance or sale.
(c) The following securities or transactions shall be excluded
from the operation of paragraph (b) of this Subsection 3.1 and Subsection 3.2:
(i) The existence and any exercise of the Warrants;
(ii) The existence and any exercise of any option,
warrant, or other right to purchase Common Stock, that is outstanding on the
date of this Warrant; and
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(iii) Any grant or exercise of options for Common
Stock granted under the Company's stock option plans with an exercise price (as
possibly adjusted) of at least the last reported sale price on date of grant.
3.2 EFFECT ON WARRANT SHARE EXERCISE PRICE OF CERTAIN EVENTS. For
purposes of determining the adjusted Warrant Share Exercise Price under
Subsection 3.1 above, the following provisions will be applicable:
(a) If the Company in any manner grants any rights or options
to subscribe for or to purchase Common Stock or any stock or other securities
convertible into or exchangeable for Common Stock (such rights or options being
herein called "Rights" and such convertible or exchangeable stock or securities
being herein called "Convertible Securities") and the price per share for which
Common Stock is issuable upon the exercise of such Rights or upon conversion or
exchange of such Convertible Securities is less than the Warrant Share Exercise
Price in effect immediately prior to the time of the granting of such Rights,
then the total maximum number of shares of Common Stock issuable upon the
exercise of such Rights or upon conversion or exchange of the total maximum
amount of such Convertible Securities issuable upon the exercise of such Rights
will be deemed to be outstanding and to have been issued and sold by the Company
for such price per share. For purposes of this paragraph, the "price per share
for which Common Stock is issuable upon exercise of such Rights or upon
conversion or exchange of such Convertible Securities" will be determined by
dividing (i) the total amount, if any, received or receivable by the Company as
consideration for the granting of such Rights, plus the minimum aggregate amount
of additional consideration payable to the Company upon exercise of all such
Rights, plus, in the case of Rights that relate to Convertible Securities, the
minimum aggregate amount of additional consideration, if any, payable to the
Company upon the issuance or sale of such Convertible Securities and the
conversion or exchange thereof, by (ii) the total maximum number of shares of
Common Stock then issuable upon the exercise of such Rights or upon the
conversion or exchange of all Convertible Securities issuable upon the exercise
of such Rights. Except as otherwise provided in paragraphs (d) and (e) below, no
adjustment of the Warrant Share Exercise Price will be made when Convertible
Securities are actually issued upon the exercise of such Rights or when Common
Stock is actually issued upon the exercise of such Rights or the conversion or
exchange of such Convertible Securities.
(b) The following adjustments apply to the Warrant Share
Exercise Price of the Warrants with respect to the Warrant Shares and the number
of Warrant Shares purchasable upon exercise of the Warrants.
(c) If the Company in any manner issues or sells any
Convertible Securities, and the price per share for which Common Stock is
issuable upon such conversion or exchange is less than the Warrant Share
Exercise Price in effect immediately prior to the time of such issuance or sale,
then the maximum number of shares of Common Stock then issuable upon conversion
or exchange of all such Convertible Securities will be deemed to be outstanding
and to have been issued and sold by the Company for such price per share. For
purposes of this paragraph, the "price per share for which Common Stock is
issuable upon such conversion or exchange" will be determined by dividing (i)
the total amount received or receivable by the Company as consideration for the
issuance or sale of such Convertible Securities, plus the minimum aggregate
amount of additional consideration, if any, payable to the Company upon the
conversion or exchange thereof, by (ii) the total maximum number of shares of
Common Stock then issuable upon the conversion or exchange of all such
Convertible Securities. Except as otherwise provided in paragraphs (d) and (e)
below, no adjustment of the Warrant Share Exercise Price will be made when
Common Stock is actually issued upon the conversion or exchange of such
Convertible Securities, and if any such issuance or sale of such Convertible
Securities is made upon
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exercise of any options for which adjustments of the Warrant Share Exercise
Price had been or are to be made pursuant to other provisions of this Section 3,
no further adjustment of the Warrant Share Exercise Price will be made by reason
of such issuance or sale.
(d) If the purchase price provided for in any Rights, the
additional consideration, if any, payable upon the conversion or exchange of any
Convertible Securities, or the rate at which any Convertible Securities are
convertible into or exchangeable for Common Stock changes at any time (other
than under or by reason of provisions that are designed to protect against
dilution of the type set forth in this Section 3 and are no more favorable to
the holders of such Rights or Convertible Securities than this Section 3 would
have been if this Section 3 were included in such Rights or Convertible
Securities), then the Warrant Share Exercise Price in effect at the time of such
change will be readjusted to the Warrant Share Exercise Price that would have
been in effect at such time had such Rights or Convertible Securities still
outstanding provided for such changed purchase price, additional consideration,
or changed conversion rate, as the case may be, at the time initially granted,
issued, or sold; such adjustment of the Warrant Share Exercise Price will be
made whether the result thereof is to increase or reduce the Warrant Share
Exercise Price then in effect under this Warrant, provided that no such
adjustment shall increase the Warrant Share Exercise Price above the initial
Warrant Share Exercise Price hereof; such adjustments shall be made by the Board
of Directors of the Company, who shall promptly provide notice of the new
Warrant Share Exercise Price to each Holder.
(e) Upon the expiration of any Right, or the termination of
any right to convert or exchange any Convertible Security, without the exercise
of such Right, the Warrant Share Exercise Price then in effect hereunder will be
adjusted to the Warrant Share Exercise Price that would have been in effect at
the time of such expiration or termination had such Right or Convertible
Security never been issued, but such subsequent adjustment shall not affect the
number of shares of Common Stock issued upon any exercise of this Warrant prior
to the date such adjustment is made.
(f) If any Common Stock, Rights, or Convertible Securities are
issued or sold or are deemed to have been issued or sold for consideration that
includes cash, then the amount of cash consideration actually received by the
Company will be deemed to be the cash portion thereof. If any Common Stock,
Rights, or Convertible Securities are issued or sold or deemed to have been
issued or sold for a consideration part or all of which is other than cash, then
the amount of the consideration other than cash received by the Company will be
the fair value of such consideration as determined by the Board of Directors of
the Company, except where such consideration consists of securities, in which
case the amount of consideration received by the Company will be the Market
Price thereof as of the date of receipt. If any Common Stock, Rights, or
Convertible Securities are issued in connection with any merger or consolidation
in which the Company is the surviving corporation, then the amount of
consideration therefor will be deemed to be the fair value of such portion of
the net assets and business of the non-surviving corporation as is attributable
to such Common Stock, Rights, or Convertible Securities, as the case may be.
(g) If any Right is issued in connection with the issuance or
sale of other securities of the Company, together comprising one integrated
transaction in which no specific consideration is allocated to such Right by the
parties thereto, the Right will be deemed to have been issued without
consideration.
(h) The number of shares of Common Stock Deemed Outstanding at
any given time does not include shares owned or held by or for the account of
the Company, and the disposition of any shares so owned or held will be
considered an issuance or sale of Common Stock.
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3.3 SUBDIVISION OR COMBINATION OF COMMON STOCK AND STOCK DIVIDENDS. If
the Company shall at any time after the date hereof (a) issue any shares of
Common Stock or Convertible Securities, or any rights to purchase Common Stock
or Convertible Securities, as a dividend upon Common Stock, (b) issue any shares
of Common Stock, in subdivision of outstanding shares of Common Stock by
reclassification or otherwise, or (c) combine outstanding shares of Common
Stock, by reclassification or otherwise, then the Warrant Share Exercise Price
that would apply if purchase rights hereunder were being exercised immediately
prior to such action by the Company shall be adjusted by multiplying it by a
fraction, the numerator of which shall be the number of shares of Common Stock
Deemed Outstanding immediately prior to such dividend, subdivision, or
combination and the denominator of which shall be the number of shares of Common
Stock Deemed Outstanding immediately after such dividend, subdivision, or
combination.
3.4 CERTAIN DIVIDENDS OR DISTRIBUTIONS. If the Company shall declare a
dividend or distribution upon the Common Stock payable otherwise than out of
earnings or earned surplus AND otherwise than in Common Stock, Rights or
Convertible Securities, the Warrant Share Exercise Price that would apply if
purchase rights hereunder were being exercised immediately prior to the
declaration of such dividend or distribution shall be reduced by an amount
equal, in the case of a dividend or distribution in cash, to the amount thereof
payable per share of the Common Stock or, in the case of any other dividend or
distribution, to the fair value of such dividend or distribution per share of
the Common Stock as determined in good faith by the Board of Directors of the
Company. For purposes of the foregoing, a dividend or distribution other than in
cash shall be considered payable out of earnings or earned surplus only to the
extent that such earnings or earned surplus are charged an amount equal to the
fair value of such dividend or distribution as determined in good faith by the
Board of Directors of the Company. Such reductions shall take effect as of the
date on which a record is taken for the purpose of such dividend or distribution
or, if a record is not taken, the date as of which the holders of Common Stock
of record entitled to such dividend or distribution are to be determined.
3.5 NO DE MINIMIS ADJUSTMENTS. No adjustment of the Warrant Share
Exercise Price shall be made if the amount of such adjustment would be less than
one cent per share, but in such case any adjustment that otherwise would be
required to be made shall be carried forward and shall be made at the time and
together with the next subsequent adjustment that, together with any adjustment
or adjustments so carried forward, shall amount to not less than one cent per
share.
3.6 PROPORTIONATE ADJUSTMENT OF UNDERLYING WARRANT EXERCISE PRICE. In
the event such Warrant Share Exercise Price and number of Warrant Shares is
adjusted, then the Underlying Warrant Exercise Price and the number of
Underlying Warrant Shares purchasable upon exercise of the Underlying Warrants
shall be adjusted proportionately.
SECTION 4.
ADJUSTMENT OF NUMBER OF
SHARES ISSUABLE UPON EXERCISE
Upon each adjustment of the Warrant Share Exercise Price pursuant to
Section 3 hereof and the proportionate adjustment to the Underlying Warrant
Exercise Price pursuant to Section 3.6, the Holder of this Warrant shall
thereafter (until another such adjustment) be entitled to purchase, (i) at the
adjusted Warrant Share Exercise Price in effect on the date purchase rights for
Warrant Shares under this Warrant are exercised, the number of Warrant Shares,
calculated to the nearest whole number, determined by (a) multiplying the number
of Warrant Shares purchasable hereunder immediately prior to the adjustment of
the Warrant Share Exercise Price by the Warrant Share Exercise Price in effect
immediately prior to such
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adjustment, and (b) dividing the product so obtained by the adjusted Warrant
Share Exercise Price in effect on the date of such exercise; and (ii) at the
adjusted Underlying Warrant Exercise Price in effect on the date purchase rights
for Underlying Warrants under this Warrant are exercised, the number of
Underlying Warrants calculated to the nearest whole number, determined by (a)
multiplying the number of Underlying Warrants purchasable hereunder immediately
prior to such adjustment, and (b) dividing the product so obtained by the
adjusted Underlying Warrant Exercise Price in effect on the date of such
exercise. The provisions of Subsection 2.4 shall apply, however, so that no
fractional Warrant Share or fractional Underlying Warrant shall be issued upon
exercise of this Warrant.
SECTION 5.
EFFECT OF REORGANIZATION,
RECLASSIFICATION, CONSOLIDATION, MERGER, OR SALE
If at any time while this Warrant is outstanding there shall be any
reorganization or reclassification of the capital stock of the Company (other
than a subdivision or combination of shares provided for in Subsection 3.3
hereof), any consolidation or merger of the Company with another corporation
(other than a consolidation or merger in which the Company is the surviving
entity and which does not result in any change in the Common Stock), or any sale
or other disposition by the Company of all or substantially all of its assets to
any other corporation, then the Holder of this Warrant shall thereafter upon
exercise of this Warrant be entitled to receive the number of Warrant Shares,
Underlying Warrants or other securities or property of the Company, or of the
successor corporation resulting from such consolidation or merger, as the case
may be, to which the Holders of the Underlying Securities (and any other
securities and property) of the Company, deliverable upon the exercise of this
Warrant, would have been entitled upon such reorganization, reclassification of
capital stock, consolidation, merger, sale, or other disposition if this Warrant
had been exercised immediately prior to such reorganization, reclassification of
capital stock, consolidation, merger, sale, or other disposition. In any such
case, appropriate adjustment (as determined in good faith by the Board of
Directors of the Company) shall be made in the application of the provisions set
forth in this Warrant with respect to the rights and interests thereafter of the
Holder of this Warrant to the end that the provisions set forth in this Warrant
(including those relating to adjustments of the Warrant Share Exercise Price,
Underlying Warrant Exercise Price, and the number of Warrant Shares and
Underlying Warrants issuable upon the exercise of this Warrant) shall thereafter
be applicable, as near as reasonably may be, in relation to any shares or other
property thereafter deliverable upon the exercise hereof as if this Warrant had
been exercised immediately prior to such reorganization, reclassification of
capital stock, consolidation, merger, sale, or other disposition and the Holder
hereof had carried out the terms of the exchange as provided for by such
reorganization, reclassification of capital stock, consolidation, or merger. If
in any such reorganization, reclassification, consolidation, or merger,
additional Common Stock shall be issued in exchange, conversion, substitution,
or payment, in whole or in part, for or of a security of the Company other than
Common Stock deliverable from exercise of this Warrant, any such issue shall be
treated as an issue of Common Stock covered by the provisions of Section 3, with
the amount of the consideration received upon the issue thereof being determined
in good faith by the Board of Directors of the Company. The Company shall not
effect any such reorganization, consolidation, or merger unless, upon or prior
to the consummation thereof, the successor corporation shall assume by written
instrument the obligation to deliver to the Holder hereof such shares of stock
or other securities, cash, or property as such Holder shall be entitled to
purchase in accordance with the foregoing provisions. Notwithstanding any other
provisions of this Warrant, in the event of sale or other disposition of all or
substantially all of the assets of the Company as a part of a plan for
liquidation of the Company, all rights to exercise the Warrant shall terminate
upon the earlier of the expiration of the Exercise Period and 60 days after the
Company gives written notice to the Holder of this Warrant that such sale or
other disposition has been consummated.
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SECTION 6.
NOTICE OF ADJUSTMENT
Immediately upon any adjustment of the Warrant Share Exercise Price,
Underlying Warrant Exercise Price or increase or decrease in the number of
Warrant Shares and Underlying Warrants purchasable upon exercise of this
Warrant, the Company will send written notice thereof to all Holders, stating
the adjusted Warrant Share Exercise Price, adjusted Underlying Warrant Exercise
Price, and the increased or decreased number of Warrant Shares and Underlying
Warrants purchasable upon exercise of this Warrant and setting forth in
reasonable detail the method of calculation for such adjustment and increase or
decrease. When appropriate, such notice may be given in advance and included as
part of any notice required to be given pursuant to Section 7 below.
SECTION 7.
PRIOR NOTICE OF CERTAIN EVENTS
If at any time:
(a) the Company shall pay any dividend payable in stock upon
its Common Stock or make any distribution (other than cash dividends) to the
holders of its Common Stock;
(b) the Company shall offer for subscription PRO RATA to the
holders of its Common Stock any additional shares of stock of any class or any
other rights;
(c) there shall be any reorganization or reclassification of
the capital stock of the Company, any consolidation or merger of the Company
with another corporation, or a sale or disposition of all or substantially all
its assets; or
(d) there shall be a voluntary or involuntary dissolution,
liquidation, or winding up of the Company, then, in each such case, the Company
shall give prior written notice, by hand delivery or by certified mail, postage
prepaid, addressed to the Holder of this Warrant at the address of such holder
as shown on the books of the Company, of the date on which (i) the books of the
Company shall close or a record shall be taken for such stock dividend,
distribution, or subscription rights or (ii) such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation, or
winding up shall take place, as the case may be. A copy of each such notice
shall be sent simultaneously to each transfer agent of the Company's Common
Stock. Such notice shall also specify the date as of which the holders of Common
Stock of record shall participate in said dividend, distribution, or
subscription rights or shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation, or
winding up, as the case may be. Such written notice shall be given at least 30
days prior to the record date or the effective date, whichever is earlier, of
the subject action or other event.
If any other event (not listed above) would require adjustment to the
Warrant Share Exercise Price or the Underlying Warrant Exercise Price, then the
Company shall give prior written notice thereof (in substance as set forth
above) to the Holders, at their addresses and in the manner provided in
Subsection
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14.3. Notwithstanding the foregoing, the Company shall not be required to give
prior written notice where it is not reasonably possible.
SECTION 8.
NEW PRO RATA PURCHASE RIGHTS
If at any time the Company grants, issues, or sells any warrants,
Convertible Securities, or rights to purchase stock, warrants, securities, or
other property pro rata to the record holders of Common Stock (the "Purchase
Rights"), then the Holder of this Warrant will be entitled to acquire, upon the
terms applicable to such Purchase Rights, the aggregate Purchase Rights that
such Holder could have acquired if such Holder had held the number of Warrant
Shares acquirable upon exercise of this Warrant had this Warrant been fully
exercised immediately prior to the date on which a record was taken for the
grant, issuance, or sale of such Purchase Rights, or, if no such record was
taken, the date as of which the record holders of Common Stock were determined
for the grant, issuance, or sale of such Purchase Rights.
SECTION 9.
RESERVATION OF COMMON STOCK
The Company will at all times reserve and keep available such number of
shares of Common Stock as will be sufficient to permit the exercise in full of
all outstanding Warrants and the Underlying Warrants. Upon exercise of this
Warrant and the Underlying Warrants, the Holder will acquire fully paid and
non-assessable ownership rights of the Common Stock, free and clear of any
liens, claims or encumbrances.
SECTION 10.
NO SHAREHOLDER RIGHTS OR OBLIGATION
This Warrant will not entitle the holder hereof to any voting rights or
other rights as a shareholder of the Company. Until the shares of Common Stock
issuable upon exercise of this Warrant or the Underlying Warrants are recorded
as issued on the books and records of the Company's transfer agent, the Holder
shall not be entitled to any voting rights or other rights as a shareholder;
provided, however, the Company uses its best efforts to ensure that, upon
receipt of an Exercise Agreement, the appropriate documentation necessary to
effectuate the exercise of the Warrant and issuance of the Common Stock is
accomplished as expeditiously as possible. No provision of this Warrant, in the
absence of affirmative action by the Holder to purchase Common Stock, and no
enumeration in this Warrant of the rights or privileges of the Holder, will give
rise to any obligation of such Holder for the Warrant Share Exercise Price of
the Warrant Shares or the Underlying Warrant Exercise Price of the Underlying
Warrants acquirable by exercise hereof or as a shareholder of the Company.
-10-
SECTION 11.
EXCHANGEABLE FOR DIFFERENT DENOMINATIONS
This Warrant is exchangeable, upon the surrender hereof by the Holder
at the principal office of the Company, for new Warrants of like tenor
representing in the aggregate the purchase rights hereunder, and each of such
new Warrants, as set forth on the front page hereof, will represent such portion
of such rights as is designated by the Holder at the time of such surrender. The
date the Company initially issued this Warrant, which is set forth on the front
page hereof, will be deemed to be the "Date of Issuance" of this Warrant and any
purchase warrant exchanged or substituted herefor, regardless of the number of
times (and dates on which) new certificates representing the unexpired and
unexercised rights formerly represented by this Warrant are issued.
SECTION 12.
TRANSFERABILITY
Subject to the transfer conditions referred to in Section 2 or in the
remaining provisions or this Section 12, this Warrant and all rights hereunder
are transferable, in whole or in part, without charge to the Holder, upon
surrender of this Warrant with a properly executed Assignment (in the form of
Exhibit II hereto) at the principal office of the Company. This Warrant and the
Underlying Securities may not be offered, sold, or transferred except in
compliance with the Securities Act of 1933, as amended (the "Act"), and any
applicable state securities laws; and then only against receipt of an agreement
of the Person to whom such offer or sale is made to comply with the provisions
of this Section 12 with respect to any resale or other disposition of such
securities; provided that no such agreement shall be required from any Person
purchasing this Warrant or any Underlying Security pursuant to a registration
statement effective under the Act. The Holder of this Warrant agrees that, prior
to the disposition of any security purchased on the exercise hereof under
circumstances that might require registration of such security under the Act, or
any similar statute then in effect, the Holder shall give written notice to the
Company, expressing his intention as to such disposition. Promptly upon
receiving such notice, the Company shall present a copy thereof to its
securities counsel. If, in the opinion of such counsel, the proposed disposition
does not require registration of such security under the Act, or any similar
statute then in effect, the Company shall, as promptly as practicable, notify
the Holder of such opinion, whereupon the Holder shall be entitled to dispose of
such security in accordance with the terms of the notice delivered by the Holder
to the Company. The above agreement by the Holder of this Warrant shall not be
deemed to limit or restrict in any respect the exercise of rights set forth in
Section 13 hereof.
SECTION 13.
REGISTRATION RIGHTS
13.1 DEMAND REGISTRATION RIGHT. At any time during the Exercise Period,
the Holders of Warrants whose holdings thereof comprise a majority of the Common
Stock purchasable upon the exercise of outstanding Warrants and outstanding
Underlying Warrants (collectively, the "Warrant Securities") shall have the
right to require the Company (a) to prepare and file with the Commission up to
one new registration statement under the Act (or, in lieu of either, a
post-effective amendment or amendments to the Registration Statement, if then
permitted under the Act), covering all or any portion of the Warrant Securities
and to use its best efforts to obtain promptly and maintain the effectiveness
thereof for at least 120 days and (b) to register or qualify the subject Warrant
Securities for sale in up
-11-
to ten states identified by such holders. The Company shall bear all expenses
other than the expenses of Holders' counsel incurred in the preparation and
filing of such registration statement or post-effective amendments (and related
state registrations, to the extent permitted by applicable law) and the
furnishing of copies of the preliminary and final prospectus thereof to such
Holders of Warrant Securities.
13.2 PIGGY BACK REGISTRATION RIGHTS. In addition, if at any time during
the Exercise Period, the Company shall prepare and file one or more registration
statements under the Act, with respect to a public offering of equity or debt
securities of the Company, or of any such securities of the Company held by its
security holders, the Company will include in any such registration statement
such information as is required, and such number of shares of Common Stock held
by, or shares of Common Stock underlying outstanding Warrants held by, the
Holders thereof or their respective designees or transferees as may be requested
by them, to permit a public offering of the Shares so requested; PROVIDED,
HOWEVER, that if, in the written opinion of the Company's managing underwriter,
if any, for such offering, the inclusion of the shares requested to be
registered, when added to the securities being registered by the Company or the
selling security holder(s), would exceed the maximum amount of the Company's
securities that can be marketed without otherwise materially and adversely
affecting the entire offering, then the Company may exclude from such offering
that portion of the shares requested to be so registered, so that the total
number of securities to be registered is within the maximum number of shares
that, in the opinion of the managing underwriter, may be marketed without
otherwise materially and adversely affecting the entire offering, provided that
the Company shall be required to include in the offering and in the following
order: FIRST, the pro rata number of securities requested by the Holder of
Warrants along with all other holders of securities requesting registration
pursuant to registration rights which were granted on or prior to the date
hereof and are described in the Company's Registration Statement; and, SECOND,
the pro rata number of securities requested by all other holders of securities
requesting registration pursuant to other registration rights. In the event of
such a proposed registration, the Company shall furnish the then Holders with
not less than 30 days' written notice prior to the proposed date of filing of
such registration statement. The Company shall use its best efforts to ensure
that such registration statement is declared effective and remains effective
until such time as all of the shares have been registered or may be sold without
registration under the Act or applicable state securities laws and regulations,
and without limitation as to volume, pursuant to Rule 144 of the Act. The
Holders shall be entitled to exercise the rights provided for in this Subsection
13.2 on two separate occasions by giving written notice to the Company, within
20 days of receipt of the Company's notice of its intention to file a
registration statement. The Company shall bear all fees and expenses incurred by
it in connection with the preparation and filing of such registration statement.
SECTION 14.
MISCELLANEOUS
14.1 ORIGINAL ISSUE TAXES. The Company will pay all United States,
state and local (but not foreign) original issue taxes, if any, upon the
issuance of this Warrant and the Underlying Securities.
14.2 AMENDMENT AND WAIVER. Except as otherwise provided herein, the
provisions of this Warrant may be amended, and the Company may take any action
herein prohibited or omit to perform any act herein required to be performed by
it, only if the Company has obtained the written consent of the Holders of the
Warrants and the Underlying Warrants representing at least 50% of the shares of
Common Stock obtainable upon the exercise of the Warrants and the Underlying
Warrants outstanding at the time of such consent.
-12-
14.3 NOTICES. Any notices required to be sent to a Holder of this
Warrant or of any Warrant Securities purchased upon the exercise hereof will be
delivered to the address of such Holder shown on the books of the Company. All
notices referred to herein will be delivered in person or sent by registered or
certified mail, postage prepaid, and will be deemed to have been given when so
delivered in person or on the third business day following the date so sent by
mail.
If to the Holder: Noble International Investments, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx, President
With a copy to: Broad and Xxxxxx
Miami Center
000 X. Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, P.A.
or Xxxxx X. Xxxxxxx, Esquire
If to the Company: Visual Data Corporation
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxx 0X
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, President
With a copy to: Atlas, Xxxxxxxx, Trop & Xxxxxxx, P.A.
000 Xxxx Xxx Xxxx Xxxxxxxxx
Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esquire
14.4 DESCRIPTIVE HEADINGS. The descriptive headings of the sections and
paragraphs of this Warrant are inserted for convenience only and do not
constitute a part of this Warrant.
14.5 GOVERNING LAW; ARBITRATION. This Warrant is governed by,
interpreted under and construed in all respects in accordance with the
substantive laws of the State of Florida, without regard to the conflicts of law
provisions thereof, and irrespective of the place of domicile or residence of
the party. In the event of a controversy arising out of the interpretation,
construction, performance or breach of this Warrant, the parties hereby agree
and consent to the jurisdiction and venue of the Courts of the State of Florida,
or the United States District Court for the Southern District of Florida; and
further agree and consent that personal service of process in any such action or
proceeding outside the State of Florida shall be tantamount to service in person
in Florida.
-13-
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
and attested by its duly authorized officers.
VISUAL DATA CORPORATION, a Florida corporation
By:
----------------------------------------
Xxxxx X. Xxxxxx, President
Attest:
__________________________________
-14-
EXHIBIT I
EXERCISE AGREEMENT
To: Dated:
The undersigned Record Holder, pursuant to the provisions set forth in
the within Warrant, hereby subscribes for and purchases _____ Warrant Shares and
________ Underlying Warrants covered by such Warrant and herewith makes full
cash payment of $________________ for such Warrant Shares at the Warrant Share
Exercise Price and for such Underlying Warrants at the Underlying Warrant
Exercise Price provided by such Warrant.
----------------------------------
(Signature)
----------------------------------
(Print or type name)
----------------------------------
(Address)
----------------------------------
----------------------------------
NOTICE: The signature on this Exercise Agreement must correspond with
the name as written upon the face of the within Warrant, or upon the Assignment
thereof if applicable, in every particular, without alteration, enlargement, or
any change whatsoever, and must be medallion guaranteed by a bank, other than a
saving bank, having an office or correspondent in New York, New York, or Fort
Lauderdale or Miami, Florida, or by a firm having membership on a registered
national securities exchange and an office in New York, New York, or Fort
Lauderdale or Miami, Florida.
MEDALLION SIGNATURE GUARANTEE
Authorized Signature:_________________________________________________________
Name of Bank or Firm:_________________________________________________________
Dated:________________________________________________________________________
EXHIBIT II
ASSIGNMENT
FOR VALUE RECEIVED, __________________________________________, the
undersigned Holder hereby sells, assigns, and transfers all of the rights of the
undersigned under the within Warrant with respect to the number of Warrant
Shares and Underlying Warrants (and the Underlying Warrant Shares issuable upon
exercise of the Underlying Warrants) covered thereby set forth below, unto the
Assignee identified below, and does hereby irrevocably constitute and appoint
___________________________________ to effect such transfer of rights on the
books of the Company, with full power of substitution:
NUMBER OF NUMBER OF
NAME OF ASSIGNEE ADDRESS OF ASSIGNEE WARRANT SHARES UNDERLYING WARRANTS
---------------- ------------------- -------------- -------------------
Dated:
-----------------------
----------------------------------
(Signature of Holder)
----------------------------------
(Print or type name)
NOTICE: The signature on this Assignment must correspond with the name
as written upon the face of the within Warrant, in every particular, without
alteration, enlargement, or any change whatsoever, and must be medallion
guaranteed by a bank, other than a savings bank, having an office or
correspondent in New York, New York, or Fort Lauderdale or Miami, Florida, or by
a firm having membership on a registered national securities exchange and an
office in New York, New York, or Fort Lauderdale or Miami, Florida.
MEDALLION SIGNATURE GUARANTEE
Authorized Signature:_________________________________________________________
Name of Bank or Firm:_________________________________________________________
Dated:________________________________________________________________________
