EXHIBIT 10.3
FINANCIAL ADVISORY AND CONSULTING AGREEMENT
WITH NATIONAL SECURITIES CORPORATION
NATIONAL SECURITIES CORPORATION
000 X. Xxxxxxxx Xxx, Xxxxx 0000
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Member Chicago Stock Exchange - Member National Association of
Securities Dealers, Inc.
FINANCIAL ADVISORY AND CONSULTING AGREEMENT
This agreement ("Agreement") is made and entered into this 18th day of
April, 2002 between Visual Data Corporation, a Florida corporation (the
"Company"), and National Securities Corporation (the "Consultant"). For good and
valuable consideration (the sufficiency and receipt of which is hereby
acknowledged) the Company and National hereto mutually agree and intend to be
legally bound for themselves and their respective heirs, legal representatives,
successors and assigns to the terms of this Agreement.
1. PURPOSE. The Company hereby retains the Consultant on a
non-exclusive basis during the term specified to render
consulting advice to the Company relating to financial and
similar matters, upon the terms and conditions as set forth
herein.
2. TERMS AND CONSIDERATION. This Agreement shall be effective for
a period of twelve months commencing on the date first written
above (the "Engagement Period"). The Company shall issue to
Consultant 100,000 shares of common stock of the Company (the
"Common Stock"). The Common Stock shall be issued as follows:
50,000 shares upon the execution of this agreement; 25,000
shares 90 days from this agreement; 12,500 shares 180 days
from this agreement, and 12,500 shares 270 days from this
agreement. The Company shall issue to Consultant 200,000
common stock purchase warrants (the "Warrants") exercisable
for a period of five (5) years exercisable at 120% of the
market price of the common stock at the execution of this
agreement. The Warrants shall be issued in four tranches of
50,000 warrants per tranch, as follows: the first tranche
shall be issued upon execution of this agreement, the second
tranche shall be issued 90 days from the execution of this
agreement, the third tranche shall be issued 180 days from the
execution of this agreement, and the final tranche shall be
issued 270 days from the execution of this agreement. The
market price will be determined by the average last five
trading days closing price prior to the execution of this
agreement. The Company has the right to terminate this
Agreement at any time. If the agreement is terminated the
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unissued Common Stock and Warrants shall not be issued to
Consultant. The Company will file a registration statement for
the Common Stock and the common stock underlying the Warrants
within 120 days from the execution of this agreement and the
Company will use its best efforts to have the registration
declared effective 180 days from the execution of this
agreement. The Warrants shall provide piggyback registration
rights.
3. DUTIES OF CONSULTANT. During the term of this Agreement, the
Consultant will provide the Company with such regular and
customary consulting advice as is reasonably requested by the
Company, provided that the Consultant shall not be required to
undertake duties not reasonably within the scope of the
consulting advisory services contemplated by this Agreement.
In performance of these duties, the Consultant shall provide
the Company with the benefits of its best judgment and
efforts. lt is understood and acknowledged by the parties that
the value of the Consultant's advice is not measurable in any
quantitative manner, and that the Consultant shall not be
obligated to spend any specific amount of time doing so. The
Consultant's duties may include, but not be limited to:
A. Providing sponsorship and exposure in connection with
the dissemination of corporate information regarding
the Company to the investment community at large.
B. Assisting in the Company's financial public
relations, including discussions between the Company
and the financial community.
C. Advice regarding the financial structure of the
Company and its divisions or subsidiaries or any
programs and projects, as such issues relate to the
public market for the Company's equity securities.
D. Rendering advice with respect to any acquisition
program of the Company, as such program relates to
the public market for the Company's equity
securities.
E. Rendering advice regarding the public market for the
Company's securities and the timing and structure of
any future public offering or private placement of
the Company's equity securities.
4. OPTIONAL SERVICES. At the request of the Company, Consultant
shall provide a Valuation Analysis of the Company for a fee of
$25,000. At the request of the Company, Consultant shall
provide an Industry White Paper for a fee of $15,000. The fee
for the Valuation Analysis or Industry White Paper is payable
in cash or at the Company's sole discretion in the Company's
common stock. The use of these services shall be subject to an
additional engagement letter to be executed by the parties
hereto at such time as is appropriate.
5. RELATIONSHIPS WITH OTHERS. The Company acknowledges that the
Consultant or its affiliates is in the business of providing
financial service and consulting advice (of all types
contemplated by this Agreement) to others. Nothing contained
herein
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shall be construed to limit or restrict the Consultant in
conducting such business with respect to others, or in
rendering such advise to others. In connection with the
rendering of services hereunder, Consultant has been or will
be furnished with confidential information concerning the
Company including, but not limited to, financial statements
and information, cost and expense data, production data, trade
secrets, marketing and customer data, and such other
information not generally obtained from public or published
information or trade sources. Such information shall he deemed
"Confidential Material" and, except as specifically provided
herein, shall not be disclosed by Consultant without prior
written consent of the Company. In the event Consultant is
required by applicable law or legal process to disclose any of
the Confidential Material, it is agreed that Consultant will
deliver to the Company prompt notice of such requirement prior
to disclosure of same to permit the Company to seek an
appropriate protective order and/or waive compliance of this
provision. If, in the absence of a protective order or receipt
of written waiver, Consultant is nonetheless, in the written
opinion of counsel, compelled to disclose any Confidential
Material, Consultant may do so without liability hereunder
provided that notice of such prospective disclosure is
delivered to the Company prior to actual disclosure. Following
the termination of this Agreement, Consultant shall deliver to
the Company all Confidential Material.
6. CONSULTANT'S LIABILITY. In the absence of gross negligence or
willful misconduct on the part of National or National's
material breach of this Agreement, National shall not be
liable to the Company or to any officer, director, employee,
agent, representative, stockholder or creditor of the Company
for any action or omission of National or any of its officers,
directors, employees, agents, representatives or stockholders
in the course of, or in connection with, rendering or
performing any services hereunder. The liability of National
pursuant to this Engagement Letter shall be limited to the
aggregate fees received by National hereunder, which shall not
include any liability for incidental, consequential or
punitive damages. The Company agrees to indemnify National in
accordance with the provisions of Annex A hereto, which is
incorporated by reference and made a part hereof.
7. TERMINATION. This Engagement Letter may be terminated at any
time during the Engagement Period by National upon five (5)
days prior written notice to the Company, in the event that
National becomes aware of (i) any change in the business or
operations of the Company which National reasonably believes
may adversely affect National's ability to render the services
contemplated hereunder, (ii) any misrepresentation by the
Company with respect to the business operations, assets,
condition (financial or otherwise), results of operations or
prospects of the Company, or (iii) any breach by the Company
of its obligations under this Engagement Letter. In the event
of termination (i) this Engagement Letter shall become void,
without liability on the part of National or its affiliates,
directors, officers or stockholders, and (ii) National shall
be entitled to retain or receive compensation for services it
has rendered, including payment for expenses it has incurred
up to the date of such termination. The Company has the right
to terminate this Agreement at any time. If the agreement is
terminated the unissued Common Stock and Warrants shall not be
issued to Consultant.
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8. EXPENSES. The Company, upon receipt of appropriate supporting
documentation, shall reimburse the Consultant for any and all
reasonable out-of- pocket expenses incurred in connection with
services provided to the Company, subject to prior approval of
the Company. All expenses must comply with the policies of the
Company.
9. SALES OR DISTRIBUTIONS OF SECURITIES. If the Consultant
assists the Company in the sale or distribution of securities,
the Consultant shall receive fees and other forms of
compensation as are customarily received by investment bankers
in similar transactions. Such public offering or private
placement, undertaken by the Consultant on behalf of the
Company, shall be subject to an additional engagement letter
to be executed by the parties hereto at such time as is
appropriate.
10. LIMITATION UPON THE USE OF ADVICE AND SERVICES.
(a) No person or entity, other than the Company or any of its
subsidiaries or directors or officers of each of the foregoing, shall be
entitled to make use of or rely upon the advice of the Consultant to be given
hereunder, and the Company shall not transmit such advice to, or encourage or
facilitate the use or reliance upon such advice by others without the prior
consent of the Consultant.
(b) The Company hereby acknowledges that the Consultant, for
services rendered under this Agreement, makes no commitment whatsoever as to
recommend or advise its clients to purchase the securities of the Company.
Research reports that may be prepared by the Consultant will, when and if
prepared, be based solely on the merits, and independent judgment of analysts of
the Consultant.
(c) The Company hereby acknowledges that the Consultant, for
services rendered under this Agreement, makes no commitment whatsoever to make a
market in any of the Company's securities, on any stock exchange or in any
electronic marketplace. Any decision by Consultant to make a market in any of
the Company's securities shall be based solely on the independent judgment of
Consultant's traders and related supervisory personnel.
(d) Use of the Consultant's name in annual reports or any
other report of the Company or releases by the Company must have the prior
approval of the Consultant unless the Company is required by law to include
Consultant's name in such annual reports, other report or release of the
Company, in which event Consultant will be furnished with copies of such annual
reports or other reports or releases using Consultant's name in advance of
publication by the Company.
11. SEVERABILITY. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is deemed unlawful or invalid for any
reason whatsoever, such unlawfulness or invalidity shall not affect the validity
of this Agreement.
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12. MISCELLANEOUS.
(a) Any notice or other communication between parties hereto
shall be sufficiently given if sent by certified or registered mail, postage
prepaid, or faxed and confirmed if to the Company, addressed to it at Visual
Data Corporation, 0000 XX 00xx Xxxxxx, Xxxxxxx Xxxxx, XX 00000, or if to the
Consultant, addressed to it at National Securities Corporation, 000 X. Xxxxxxxx
Xxx, Xxxxx 0000, Xxxxxxx, XX 00000. Such notice or other communication shall be
deemed to be given on the date of receipt.
(b) If the Consultant shall cease to do business, the
provisions hereof relating to duties of the Consultant and compensation by the
Company as it applies to the Consultant shall thereupon cease to be in effect,
except for the Company's obligation of payment for services rendered prior
thereto. This Agreement shall survive any merger of, acquisition of, or
acquisition by the Consultant and after any such merger or acquisition shall be
binding upon the Company and the corporation surviving such merger or
acquisition.
(c) This Agreement embodies the entire Agreement and
understanding between the Company and the Consultant and supersedes any and all
negotiations, prior discussions and preliminary and prior agreements and
understandings related to the central subject matter hereof.
(d) This agreement has been duly authorized, executed and
delivered by and on behalf of the Company and the Consultant.
(e) This Agreement shall be construed and interpreted in
accordance with the laws of the State of Washington, without giving effect to
conflicts of laws.
(f) There is no relationship of partnership, agency,
employment, franchise or joint venture between the parties. Neither party has
the authority to bind the other or incur any obligation on its behalf.
(g) This Agreement and the rights hereunder may not be
assigned by either party (except by operation of law) and shall be binding upon
and inure to the benefit of the parties and their respective successors, assigns
and legal representatives.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date hereof.
Visual Data Corporation
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Chairman and CEO
National Securities Corporation
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
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