AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
AMENDMENT dated this 15th day of October 2004, by and among Onstream
Media Corporation, a Florida corporation ("ONSTREAM"), Visual Data Corporation,
a Florida corporation ("VDAT"), and OSM Acquisition, Inc., a Delaware
corporation and wholly owned subsidiary of VDAT ("SUB").
W I T N E S S E T H:
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WHEREAS, the parties are parties to that certain Agreement and Plan of
Merger dated October 22, 2003 (the "Original Agreement"); and
WHEREAS, the parties desire to amend the Original Agreement in
accordance with the terms set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is acknowledged, the parties agree as follows:
1. The name and state of incorporation of OSM, Inc., a wholly owned
subsidiary of VDAT, is deleted and revised to read OSM Acquisition, Inc.,
a Delaware corporation.
2. Section 1.1 is deleted and revised in its entirety to read as follows:
(a) In accordance with the provisions of this Agreement, the Florida
Business Corporation Act ("FBCA") and the Delaware General
Corporation Law ("DGCL"), at the Effective Time, ONSTREAM shall be
merged (the "Merger") with and into SUB, and SUB shall be the
surviving corporation (hereinafter sometimes called the "Surviving
Corporation") and shall continue its corporate existence under the
laws of the State of Delaware. At the Effective Time, the separate
existence of ONSTREAM shall cease.
(b) The Merger shall have the effects on ONSTREAM and SUB, as
Constituent Corporations of the Merger, provided for under the FBCA
and DGCL.
3. Section 1.2 is deleted and revised in its entirety to read as follows:
Effective Time. The Merger shall become effective at the time of filing
of, or at such later time as specified in, an agreement of merger, in the
form required by and executed in accordance with the DGCL, FBCA and with
the Secretary of State of the States of Delaware and Florida in accordance
with the provisions of Section 252 of the DGCL and Sections 607.1101 and
607.1103 of the FBCA and (the "Certificates of Merger"). The date and time
when the Merger shall become effective is herein referred to as the
"Effective Time."
4. Section 10.2 is deleted and revised in its entirety to read as follows:
a. Filings at the Closing. Subject to the provisions of Articles VI,
VII, VIII and XI hereof, ONSTREAM, VDAT and SUB shall cause to be
executed and filed at the Closing the Certificate of Merger and
shall cause the Certificates of Merger to be recorded in accordance
with the applicable provisions of the FBCA and DCGL and shall take
any and all other lawful actions and do any and all other lawful
things necessary to cause the Merger to become effective.
5. Section 11.1(d) is deleted and revised in its entirety to read as follows:
(d) by either VDAT or ONSTREAM if a merger shall not have been
consummated by December 15, 2004, provided that a party in material
breach of this Agreement may not terminate this Agreement.
6. The Original Agreement, as hereby amended, shall remain in full force and
effect. This Agreement supersedes any previous amendments to the Original
Agreement.
7. This Agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original, but all
of which counterparts together shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties have executed and delivered this
instrument as of the date and year first above written.
ONSTREAM MEDIA CORPORATION
/s/ Xxxxxxxx Xxxxxxxxx
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Xxxxxxxx Xxxxxxxxx
Chief Executive Officer
VISUAL DATA CORPORATION
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
President and Chief Executive Officer
OSM ACQUISITION, INC.
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
President and Chief Executive Officer
