EXHIBIT 10.4
BUSINESS ADVISORY AGREEMENT WITH
NEWBRIDGE SECURITIES COPRORAITON
BUSINESS ADVISORY AGREEMENT
This Agreement is made and entered into as of this 2nd day of December,
2001, between Visual Data Corporation, a Florida corporation with its principal
offices in Pompano Beach, Florida (the "Company") and Newbridge Securities
Corporation, a Virginia corporation with its principal offices in Ft.
Lauderdale, Florida (the "Advisor").
WHEREAS, the Company is seeking certain services and advice regarding
the Company's business and financing activities; and
WHEREAS, the Advisor is willing to furnish certain business and
financial related advice and services to the Company on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual terms and covenants
contained herein, and for other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties agree as follows:
1. PURPOSE. The Company hereby engages the Advisor on a non-exclusive
basis for the term specified in this agreement to render financial and
business advisory consulting advice to the Company as a financial
advisor relating to financial and similar matters upon the terms and
conditions set forth herein.
2. REPRESENTATIONS OF THE ADVISOR. The Advisor represents and warrants to
the Company that (i) it is a member in good standing of the National
Association of Securities Dealers, Inc. ("NASD") and that it is engaged
in the securities brokerage business; (ii) in addition to its
securities brokerage business, the Advisor provides consulting advisory
services; and (iii) it is free to enter into this Agreement and the
services to be provided pursuant to this Agreement are not in conflict
with any other contractual or other obligation to which the Advisor is
bound. The Company acknowledges that the Advisor is in the securities
business and may provide financial and business consulting services and
advice of the type contemplated by this Agreement to others, and that
nothing contained herein shall be construed to limit or restrict the
Advisor in providing such services or advice to others.
3. DUTIES OF THE ADVISOR. During the term of this Agreement, the Advisor
will provide the Company with consulting advice as specified below at
the request of the Company, provided that the Advisor shall not be
required to undertake duties not
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reasonably within the scope of the consulting advisory service in which
the Advisor is engaged generally. In the performance of these duties,
the Advisor shall provide the Company with the benefits of its best
judgment and efforts, and the Advisor cannot and does not guarantee or
promise that its efforts will have any impact on the business or the
Company or that any subsequent improvement will result from the efforts
of the Advisor. It is understood and acknowledged by the parties that
the value of the Advisor's advice is not measurable in any quantitative
manner, and that the amount of time spent rendering such consulting
advice shall be determined according to die Advisor's discretion. The
Advisor's duties may include, but will not necessarily be limited to,
rendering the following services to the Company:
a. Study and review the business, operations, historical
financial performance of the Company (based upon information provided to the
Advisor by management) so as to enable the Advisor to provide advice to the
Company;
b. Assist the Company in attempting to formulate the optimum
strategy to meet the Company's working capital and capital resource needs during
the term of this Agreement;
c. Assist the Company in seeking to identify and evaluate
potential merger and acquisition candidates for the Company and, in appropriate
instances, negotiate on the Company's behalf,
d. Assist in the introduction of the Company to institutional
or other capital financing sources;
e. Assist in the formulation of the terms and structure of any
reasonable proposed equity or debt financing or business transaction involving
the Company;
f. Assist in any presentation to the Board of Directors of the
Company, as requested, in connection with a proposed transaction; and
g. Advise the Company as to the expected reaction of the
financial community to any transaction and assist in determining optimum means
of communicating the pertinent aspects, such as strategic considerations,
benefits to the Company and financial impact, to the financial community.
4. TERM. Subject to the termination provisions set forth in paragraph 15
hereof, the term of this Agreement shall be for one (1) year commencing
from the date of this Agreement ("Commencement Date"); provided,
however, that this
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Agreement may be renewed or extended upon such terms and conditions as
may be mutually agreed upon by the parties hereto. This Agreement shall
terminate, however, in the event that the Advisor is no longer a member
in good standing of the NASD.
5. ADVISORY FEE. As compensation for the services to be rendered by
Advisor hereunder, Company will pay to Advisor an advisory fee for as
long as the Advisory Agreement is in effect, as follows: (a) a cash fee
of $60,000, payable (i) a $5,000 non-refundable retainer due upon the
Commencement Date; and (ii) eleven consecutive monthly payments of
$5,000, the first such payment to be due no later than thirty (30) days
from the Commencement Date and thereafter, on the same date for each
month in which such a payment is due; (b) the Company will issue to the
Advisor up to 250,000 shares of the Company's common stock (the
"Shares") in four tranches, with the first tranche of 50,000 available
upon the Commencement Date, the second tranche of 100,000 shares
available upon the ninety day anniversary of the Commencement Date, the
third tranche of 50,000 shares available upon the six month anniversary
of the Commencement Date and the fourth tranche of 50,000 shares
available upon the (1) year anniversary of the Commencement Date; and
(c) the Company will issue to Advisor a warrant (the "Warrant"),
substantially in the form attached hereto as Exhibit A (the "Warrant
Agreement"), to acquire up to 500,000 shares of common stock in four
(4) tranches of 125,000 shares (the "Warrant Shares") with vesting
dates and exercise prices as follows:
First Tranche: Vested upon o 25,000 shares at $1.00
Commencement Date o 25,000 shares at $1.50
o 25,000 shares at $2.00
o 25,000 shares at $2.50
o 25,000 shares at $3.00
Second Tranche: Vested 90 days o 25,000 shares at $1.00
after Commencement Date o 25,000 shares at $1.50
o 25,000 shares at $2.00
o 25,000 shares at $2.50
o 25,000 shares at $3.00
Third Tranche: Vested 180 days o 25,000 shares at $1.00
after Commencement Date o 25,000 shares at $1.50
o 25,000 shares at $2.00
o 25,000 shares at $2.50
o 25,000 shares at $3.00
Fourth Tranche: Vested 270 days o 25,000 shares at $1.00
after Commencement Date o 25,000 shares at $1.50
o 25,000 shares at $2.00
o 25,000 shares at $2.50
o 25,000 shares at $3.00
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The Warrant will have a four (4) year term from the date of grant (i.e., the
Commencement Date). All of the common stock to be sold by the Company to
Advisor, as well as the Warrant Shares, will carry piggyback registration rights
and one-time demand registration rights, as more fully described in the
registration rights agreement (the "Registration Rights Agreement") attached to
the Warrant as Exhibit 3.
6. FINANCING FEE. In the event the Advisor effects, underwrites or
introduces a financing by offering or selling any of the securities of
the Company, in a private or public debt and/or equity transaction,
pursuant to which the Company obtains financing or other consideration,
the Advisor shall receive a Financing Fee in addition to the Advisory
Fee and any other fee to be received pursuant to this Agreement, which
shall be mutually determined between the Company and the Advisor at the
time of any such Financing.
7. TRANSACTION FINDER'S FEE. In connection with any transaction
consummated by the Company in which the Advisor introduced the other
party (except for any party identified by the Company on a schedule to
be provided contemporaneously with the execution of this Agreement) to
the Company, during a period ending six (6) months from the termination
of this agreement (in each such case, a "Transaction") the Company will
pay to the Advisor a Transaction Fee ("Transaction Fee") based on the
aggregate consideration received or to be paid by the Company in
connection with such Transaction (as further defined below), and
computed as follows: 5% of the first million dollars; 4% of the next
million dollars; 3% of the next million dollars; 2% of the next million
dollars and 1% of the balance of the value of the transaction. The
Transaction Fee will be payable in the same forms and proportions as
the aggregate consideration disbursed or received by the Company unless
otherwise mutually agreed to in writing by the parties. By way of
example, if the Company consummates a transaction in which the Company
receives aggregate consideration of $2 million, consisting of $1
million insecurities and $1 million in cash, then the Transaction Fee
will be payable by the Company one-half in securities and one-half in
cash.
a. As used herein, the term "aggregate consideration" shall be
deemed to be the total amount disbursed or received by the Company (which shall
be deemed to include amounts paid into escrow) in connection with a Transaction.
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b. A Transaction Fee is payable in the event of and upon the
closing of a Transaction; provided, however, that if the aggregate consideration
consists of or may be increased by future payments or contingent payments
related to future earnings or operations, the Company, in its discretion, shall
have the choice to either (i) pay that portion of the Transaction Fee at closing
based on the present value of any future and/or contingent payments calculated
as at closing or (ii) pay that portion of the Transaction Fee calculated and
paid when and as such future and/or contingent payments are made to the Company;
provided further, however, that even if the Company exercises its discretion
under clause (ii) above, the entire Transaction Fee due to the Adviser will be
paid within twenty-four (24) months of the date this Agreement is terminated,
regardless of whether the Company has then received all payments that are to be
made to the Company in connection with the Transaction.
8. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to the Advisor as follows:
a. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the state of its
incorporation, with full corporate power and authority to own its properties and
conduct its business and is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which the nature of
its business or the character or location of its properties requires such
qualification, except where the failure to so qualify would not have a material
adverse effect on the business, properties or operations of the Company and its
subsidiaries as a whole.
b. The Company has full legal right, power and authority to
enter into this Agreement, and to consummate the transactions provided for
herein, and this Agreement, when executed by the Company, will constitute a
valid and binding agreement, enforceable in accordance with its terms (except as
the enforceability thereof may be limited by bankruptcy or other similar laws
affecting the rights of creditors generally or by general equitable principles
and except as the enforcement of indemnification provisions may be limited by
federal or state securities laws).
c. Except as disclosed in the Company's public filings or on
the Disclosure Schedule attached hereto as Exhibit A ("Disclosure Schedule"),
the Company is not in violation of its articles of incorporation or bylaws or in
default in the performance or observance of any material obligation, agreement,
covenant or condition contained in any material bond, debenture, note or other
evidence of indebtedness or in any material contract, indenture, mortgage, loan
agreement, lease, joint venture, partnership or other agreement or instrument to
which the Company is a party or by which it may be bound or is not in material
violation of any law, order, rule, regulation, writ, injunction or decree of any
governmental instrumentality or court,
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domestic or foreign; and the execution and delivery of this Agreement and the
consummation of the transactions contemplated therein and will not conflict
with, or result in a material breach of any of the terms, conditions or
provisions of, or constitute a material default under, or result in the
imposition of any material lien, charge or encumbrance upon any of the property
or assets of the Company pursuant to, any material bond, debenture, note or
other evidence of indebtedness or any material contract, indenture, mortgage,
loan agreement, lease, joint venture, partnership or other agreement or
instrument to which the Company is a party nor will such action result in the
material violation by the Company of any of the provisions of its articles of
incorporation or bylaws, or any law, order, rule, regulation, writ, injunction,
decree of any government, governmental instrumentality or court, domestic or
foreign, except where such violation will not have a material adverse effect on
the financial condition of the Company.
d. The authorized, issued and outstanding capital stock of the
Company is as disclosed in writing to the Advisor and all of the shares of
issued and outstanding capital stock of the Company set forth therein have been
duly authorized, validly issued and are fully paid and nonassessable; the
holders thereof do not have any rights or rescission with respect therefor and
are not subject to personal liability for any obligations of the Company by
reason of being stockholders under the laws of the State in which the Company is
incorporated; and none of such outstanding capital stock is subject to or was
issued in violation of any preemptive or similar rights of any stockholder of
the Company.
e. Except as disclosed in the Company's public filings or on
the Disclosure Schedule, the Company is not a party to or bound by any
instrument, agreement or other arrangement providing for it to issue any capital
stock, rights, warrants, options or other securities, except for this Agreement
and as disclosed in writing to the Advisor. Upon the issuance and delivery
pursuant to the terms hereof of any securities to the Advisor, the Advisor will
acquire good and marketable title to such securities free and clear of any lien,
charge, claim, encumbrance, pledge, security interest, defect or other
restriction of any kind whatsoever other than restrictions as may be imposed
under the securities laws.
f. Except as disclosed in the Company's public filings or on
the Disclosure Schedule, the Company has good and marketable title to all of its
properties and assets as owned by it, free and clear of all liens, charges,
encumbrances or restrictions, except as disclosed in writing to the Advisor or
which are not materially significant or important in relation to its business or
which have been incurred in the ordinary course of business.
g. The financial information contained in the Company's 10-K
for its fiscal year 2000, and its 10-Q's dated as of December 31, 2000, March
31, 2001 and
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June 30, 2001 fairly presents the financial position and results of operations
of the Company at the respective dates and for the respective periods to which
they apply. Said information has been prepared in accordance with generally
accepted accounting principles applied on a basis which is consistent in all
material respects during the periods involved, except in the case of unaudited
financial statements' normal recurring adjustments.
h. There has been no material adverse change or material
development involving a prospective adverse change in the condition, financial
or otherwise, or in the prospects, value, operation, properties, business or
results of operations of the Company whether or not arising in the ordinary
course of business.
i. To the knowledge of the Company, except as disclosed in the
Company's public filings or on the Disclosure Schedule, there is no pending or
threatened, action, suit or proceeding to which the Company is a party before or
by any court or governmental agency or body, which might result in any material
adverse change in the financial condition or business of the Company as a whole
or might materially and adversely affect the properties or assets of the Company
as a whole nor are there any actions, suits or proceedings against the Company
related to environmental matters or related to discrimination on the basis of
age, sex, religion or race which might be expected to materially and adversely
affect the conduct of the business, property, operations, financial condition or
earnings of the Company as a whole; and no labor disturbance by the employees of
the Company exists or is, to the knowledge of the Company, imminent which might
be expected to materially and adversely affect the conduct of the business,
property, operations, financial condition or earnings of the Company as a whole.
j. Except as disclosed in the Company's public filings or on
the Disclosure Schedule, the Company has properly prepared and filed all
necessary federal, state, local and foreign income and franchise tax returns,
has paid all taxes shown as due thereon, has established adequate reserves for
such taxes which are not yet due and payable, and does not have any tax
deficiency or claims outstanding, proposed or assessed against it.
k. The Company has sufficient licenses, permits, right to use
trade or service marks and other governmental authorizations currently required
for the conduct of its business as now being conducted and the Company is in all
material respects complying therewith. To its knowledge, none of the activities
or businesses of the Company are in material violation of, or cause the Company
to materially violate any law, rule, regulations, or order of the United States,
any state, county or locality, or of any agency or body of the United States or
of any state, county or locality.
l. The Company knows of no outstanding claims for services
either in the nature of a finder's fee, brokerage fee or otherwise with respect
to this Agreement for which the Company or the Advisor may be responsible.
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m. The Company has its property adequately insured against
loss or damage.
n. To the best of the Company's knowledge it has generally
enjoyed a satisfactory employer-employee relationship with its employees and, to
the best of its knowledge, is in substantial compliance in all material respects
with all federal, state, local, and foreign laws and regulations respecting
employment and employment practices, terms and conditions of employment and
wages and hours.
o. Except as disclosed in the Company's public filings or on
the Disclosure Schedule, no officer or director of the Company, holder of 5% or
more of securities of the Company or any affiliate of any of the foregoing
persons or entities has or has had, either directly or indirectly, (i) an
interest in any person or entity which (A) furnishes or sells services or
products which are furnished or sold or are proposed to be furnished or sold by
the Company, or (B) purchases from or sells or furnishes to the Company any
goods or services, or (ii) a beneficiary interest in any contract or agreement
to which the Company is a party or by which it may be bound or affected.
p. The minute books of the Company have been made available to
the Advisor and contain a complete summary of all meetings and actions of the
directors and stockholders of the Company, since the time of its incorporation
and reflect all transactions referred to in such minutes accurately in all
respects.
q. Except as disclosed in the Company's public filings or on
the Disclosure Schedule, no holders of any securities of the Company or of any
options, warrants or other convertible or exchangeable securities of the Company
have the right to include any securities issued by the Company in any
registration statement to be filed by the Company or to require the Company to
file a registration statement under the Act and no person or entity holds any
anti-dilution rights with respect to any securities of the Company.
9. COVENANTS OF THE COMPANY. The Company covenants and agrees with Advisor
that:
a. During the Term of this Agreement, the Company will deliver
to the Advisor:
i. as soon as they are available, copies of all
reports (financial or other) mailed to shareholders;
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ii. as soon as they are available, copies of all
reports and financial statements furnished to or filed with the Commission, the
NASD or any securities exchange;
iii. every press release and every material news item
or article of interest to the financial community in respect of the Company or
its affairs which was prepared and released by or on behalf of the Company; and
iv. any additional information of a public nature
concerning the Company (and any future subsidiaries) or its businesses which the
Advisor may reasonably request.
b. During the Term of this Agreement, the Company will provide
to a designated representative of Advisor's investment banking team, a quarterly
current client list and shareholder list, which will be treated at all times as
"Confidential Information" as defined in that certain Confidentiality Agreement
between the Company and the Advisor.
c. During the Term of this Agreement, the Company will allow
the Advisor to nominate an observer to the Board of Directors of the Company.
The choice of such person shall be subject to the approval or the Company, which
approval shall not unreasonably be withheld. All out-of-pocket expenses incurred
by that person shall be reimbursed by the Company who will receive a mutually
agreed upon compensation different from the other non-officer directors;
provided, however, that any single expense item in excess of $100 shall be
pre-approved by the Company.
10. COSTS AND EXPENSES. In addition to the fees payable hereunder, the
Company shall reimburse the Advisor, within five (5) business days of
its request, for any and all reasonable out-of-pocket expenses incurred
in connection with the services performed by the Advisor under this
Agreement; provided, however, that any single expense item in excess of
$100 or monthly expense in excess of $250 shall be pre-approved by the
Company.
11. COMPANY INFORMATION. The Company recognizes and confirms that, in
advising the Company and in fulfilling its engagement hereunder, the
Advisor will use and rely on data, material and other information
furnished to the Advisor by the Company (the "Company Information").
The Company acknowledges and agrees that in performing its services
under this engagement, the Advisor may rely upon the Company
information without independently verifying the accuracy, completeness
or veracity of same. The parties further acknowledge that the Advisor
shall have no responsibility for the accuracy of any statements to be
made by Company management contained in press releases or other
communications, including, but not limited to, filings with the SEC and
the NASD.
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In addition, in the performance of its services, the Advisor may look
to such others for factual information, economic advice and/or research
upon which to base its advice to the Company hereunder as the Advisor
shall in good xxxxx xxxx appropriate.
12. INDEMNIFICATION. In the performance of its services, the Advisor shall
be obligated to act only in good faith, and shall not be liable to the
Company for errors in Judgment that are not the result of gross
negligence or willful misconduct.
a. The Company agrees to indemnify and hold harmless the
Adviser, each person who controls the Advisor within the meaning of Section 15
of the Act or Section 20 of the Securities Exchange Act of 1934, as amended, and
the Advisor's officers, directors, employees, accountants, attorneys and agents
(the "Advisor's Indemnitees") against any and all losses, claims, expenses,
damages or liabilities, joint or several, to which they or any of them may
become subject (including the costs of any investigation and all reasonable
attorneys' fees and costs) or incurred by them, to the fullest extent lawful, in
connection with any pending or threatened litigation, legal claim or proceeding,
whether or not resulting in any liability, arising out of or in connection with
the services rendered by the Advisor or any transactions in connection with this
Agreement; provided, however, that the indemnity agreement contained in this
Section 12(a) shall not apply to any such losses, claims, related expenses,
damages or liabilities arising out of gross negligence, willful misconduct or
fraud of the Advisor, or a material breach of the Advisor's representations and
warranties hereunder.
b. The Advisor agrees to indemnify and hold harmless the
Company and its officers, directors, employees, accountants, attorneys and
agents (the "Company's Indemnitees") against any and all losses, claims,
expenses, damages or liabilities, joint or several, to which they or any of them
may become subject (including the costs of any investigation and all reasonable
attorneys' fees and costs) or incurred by them, to the fullest extent lawful, in
connection with any pending or threatened litigation, legal claim or proceeding,
whether or not resulting in any liability, arising out of gross negligence,
willful misconduct or fraud of the Advisor; provided, however, that the
indemnity agreement contained in this Section 12(b) shall not apply to any such
losses, claims, related expenses, damages or liabilities arising out of the
gross negligence, willful misconduct or fraud or the Company, or a material
breach of the Company's representations and warranties hereunder.
c. Each Advisor's Indemnitee or Company's Indemnitee, as the
case may be (an "Indemnified Person"), shall give prompt written notice to the
Company or the Advisor, as appropriate (the "Indemnifying Party"), after the
receipt by such Indemnified Person of any written notice of the commencement of
any action, suit or proceeding for which such Indemnified Person will claim
indemnification or contribution
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pursuant to this Agreement. The Indemnifying Party shall have the right,
exercisable by giving written notice to an Indemnified Person within twenty (20)
business days after the receipt of written notice from such Indemnified Person
of such commencement, to assume, at its expense, the defense of any such action,
suit or proceeding; provided, however, that an Indemnified Person shall have the
right to employ counsel in any such action, suit or proceeding, and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person unless: (i) the Indemnifying
Party fails to assume the defense of such action, suit or proceeding or fails to
employ separate counsel reasonably satisfactory to such Indemnified Person in
any such action, suit or proceeding; or (ii) the Indemnifying Party and such
Indemnified Person shall have been advised by counsel that there may be one or
more defenses available to such Indemnified Person which are in conflict with,
different from or additional to those available to the Indemnifying Party, or
another Indemnified Person, as the case may be (in which case, if such
Indemnified Person notifies the Indemnifying Party in writing that it elects to
employ separate counsel at the expense of the Indemnifying Party, the
Indemnifying Party shall not have the night to assume the defense of such
action, suit or proceeding on behalf of such Indemnified Person); it being
understood, however, that the Indemnifying Party shall not, in connection with
any one such action or proceeding of separate but substantially similar or
related actions or proceedings arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (together with appropriate local counsel) at any time acting
for each Indemnified Person in any one jurisdiction. The lndemnifying Party
shall not settle or compromise or consent to the entry of any judgment in or
otherwise seek to terminate any pending or threatened action, claim, suit or
proceeding in which any Indemnified Person is a party and as to which
indemnification or contribution has been sought by such Indemnified Person
hereunder, unless such Indemnified Person has given its prior written consent or
the settlement, compromise, consent or termination includes an express
unconditional release of such Indemnified Person, satisfactory in form and
substance to such Indemnified Person, from all losses, claims, damages or
liabilities arising out of such action, claim, suit or proceeding.
d. If for any reason the indemnity provided for in this
Section 12 is unavailable to an Indemnified Person or insufficient to hold an
Indemnified Person harmless, then the Indemnifying Party, to the fullest extent
permitted by law, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such claims, liabilities, losses, damages or
expenses in such proportion as its appropriate to reflect (i) the relative
benefits received by the Company on one hand and by the Advisor on the other,
from the transaction or proposed transaction under this Agreement and (ii) the
relative fault of the Company and the Advisor, as well as any relevant equitable
considerations. The relative fault of the Company on the one hand and the
Advisor on the other shall be determined by reference to, among other things,
whether any untrue or alleged untrue statement of a material fact or the
omission or
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alleged omission to state a material fact relates to information supplied by the
Company or by the Advisor. The indemnity, contribution and expense reimbursement
obligations set forth herein (i) shall be in addition to any liability an
Indemnifying Party may have to any Indemnified Person at common law of
otherwise, (ii) shall survive the termination of this Agreement, (iii) shall
apply to any modification of this Agreement and shall remain in full force and
effect following the completion or termination of the Agreement, (iv) shall
remain operative and in full force and effect regardless of any investigation
made by or on behalf of the Advisor or any other Indemnified Person, and (v)
shall be binding on any successor or assign of the Company or the Advisor and
the respective successors or assigns to all or substantially all of the
Company's or the Advisor's business and assets.
13. USE OF ADVICE BY THE COMPANY. The Company acknowledges that all
opinions and advice (written or oral) given by the Advisor to the
Company in connection with the engagement of the Advisor are intended
solely for the benefit and use of the Company in considering the
matters, to which they relate, and the Company agrees that no person or
entity other than the Company and its Board of Directors shall be
entitled to make, use or rely upon the advice of the Advisor to be
given hereunder, and no such opinion or advice shall be used for any
other purpose, or reproduced, disseminated, quoted or referred to at
any time, in any manner or for any purpose, not may the Company make
any public references to the Advisor, or use the Advisor's name in any
reports or releases of the Company without the Advisor's prior written
consent.
The Company acknowledges that the Advisor makes no representations or
commitment whatsoever as to making a market in the Company's securities or
recommending or advising its clients, or any other persons, to purchase the
Company's securities. Research reports or corporate business reports that may be
prepared by the Advisor will, when and if prepared, be done solely on the merits
and the judgment and analysis of the Advisor or any of its senior personnel.
14. THE ADVISOR AS AN INDEPENDENT CONTRACTOR. The Advisor shall perform its
services hereunder as an independent contractor and not as an employee
of the Company or an affiliate thereof. It is expressly understood and
agreed to by the parties hereto that the Advisor shall have no
authority to act for, represent or bind the Company or any affiliate
thereof, in any manner, except as may be agreed to expressly by the
Company in writing from time to time.
15. TERMINATION. This Agreement may be terminated by either party upon
thirty (30) days written notice; provided, however, that all
compensation (including any amounts to become due on account of a
Financing Fee or Transaction Fee) due or to become due after the
effective date of such termination shall be unaffected by such
termination. In addition, termination of this Agreement shall not
affect the Advisor's rights under the Warrant Agreement.
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16. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE. The respective
indemnities, agreements, representations, warranties and other
statements of the Company and the Advisor set forth in or made pursuant
to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of the Advisor, the Company, or
any of their respective officers or directors.
17. NOTICES. All communications hereunder will be in writing and, except as
otherwise expressly provided herein, sent by overnight mail, to the
Company at: Visual Data Corporation, 0000 XX 00xx Xxxxxx, Xxxxxxx
Xxxxx, XX 00000 Attn: Xxxxx Xxxxxx, President, and to the Advisor at:
Newbridge Securities Corporation, 0000 X. Xxxxxxx Xxxxx Xxxx, Xxxxx
000, Xx. Xxxxxxxxxx, XX 00000, Attn: Xxx X. Xxxxx, President.
18. PARTIES IN INTEREST. This Agreement is made solely for the benefit of
the Advisor and the Company, and their respective controlling persons,
directors and officers, and their respective successors, assigns,
executors and administrators. No other person shall acquire or have any
right under or by virtue of this Agreement.
19. HEADINGS. The section headings in this Agreement have been inserted as
a matter of convenience of reference and are not a part of this
Agreement.
20. APPLICABLE LAW; VENUE AND JURISDICTION. This Agreement shall be
governed by and construed in accordance with the laws of the State of
Florida, without giving effect to conflict of law principles. Any
action arising out of this agreement shall be brought exclusively in a
court of competent jurisdiction located in Broward County, Florida, and
the parties hereby irrevocably submit to the personal jurisdiction of
such courts, and waive any objection they now or hereafter may have to
the laying of venue in such courts.
21. INTEGRATION. This Agreement constitutes the entire agreement and
understanding of the parties hereto and supersedes any and all previous
agreements and understandings, whether oral or written, between the
parties with respect to the matters set forth herein. No provision of
this Agreement may be amended, modified or waived, except in a writing
signed by all of the parties hereto.
22. COUNTERPARTS. This Agreement may be executed any number of
counterparts, each of which together shall constitute one and the same
instrument.
23. AUTHORITY. This Agreement has been duly authorized, executed and
delivered by and on behalf of the Company and the Advisor.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
THE COMPANY THE ADVISOR
Visual Data Corporation Newbridge Securities Corporation
By: /s/ Xxxxx Xxxxxx By: /s/ Xxx X. Xxxxx
------------------------------ ------------------------------------
Xxxxx Xxxxxx Xxx X. Xxxxx
President President
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