EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
VISUAL DATA CORPORATION, A FLORIDA CORPORATION,
MEDIA ON ▇▇▇▇▇▇.▇▇▇, INC., A DELAWARE CORPORATION
AND
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
JANUARY 25TH, 2002
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER ("Agreement"), dated as of January 25th,
2002, by and among Visual Data Corporation, a Florida corporation ("VDAT"),
Media On ▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation ("MOD") and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(the "MOD Shareholder"). The parties hereto are sometimes hereinafter referred
to collectively as the "Companies," or individually as a "Company."
WHEREAS, the respective Boards of Directors of the Companies deem it
advisable and in the best interests of their respective stockholders that MOD be
acquired by and become a wholly owned subsidiary of VDAT and, in furtherance
thereof, the Boards of Directors of the Companies have approved, as applicable,
the merger of a Florida corporation (to be formed and to be wholly owned
subsidiary of VDAT ("Acquisition Sub")) with MOD, upon the terms and subject to
the conditions set forth herein; and
WHEREAS, for federal income tax purposes, it is intended that the
merger shall qualify as a tax-free reorganization within the meaning of Section
368(a) of the Internal Revenue Code of 1986, as amended (the "Code");
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, and agreements set forth herein, the
parties hereto agree as follows:
ARTICLE I
THE MERGER
1.1 THE MERGER. Subject to the terms and conditions of this Agreement,
at the Effective Time (as defined in SECTION 1.2 hereof), MOD shall be merged
(the "Merger") with and into Acquisition Sub, with Acquisition Sub being the
surviving corporation in the Merger (the "Surviving Corporation") and the
separate existence of MOD shall thereupon cease. The Merger shall have the
effects set forth in Sections 607.1101 and 607.1103 of the Florida Business
Corporation Act (the "FBCA") and Section 252 of the Delaware General Business
Corporation Law ("DGL").
1.2 EFFECTIVE TIME OF THE MERGER. The Merger shall become effective
(the "Effective Time") upon the completion of the filing of properly executed
Articles of Merger and Certificate of Merger with the Secretary of State of the
States of Florida and Delaware, which filing shall be made on the Closing Date
after satisfaction of the conditions set forth in ARTICLE VIII.
ARTICLE II
VDAT AND THE SURVIVING CORPORATION
2.1 ARTICLES OF INCORPORATION OF THE SURVIVING CORPORATION. The
Articles of Incorporation of Acquisition Sub shall be the Articles of
Incorporation of the Surviving Corporation.
2.2 BYLAWS OF THE SURVIVING CORPORATION. The Bylaws of Acquisition Sub
as in effect at the Effective Time shall be the Bylaws of the Surviving
Corporation until thereafter amended in accordance with applicable law.
2.3 DIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION.
(a) The directors of Acquisition Sub at the Effective Time
shall be the initial directors of the Surviving Corporation of the Merger and
shall hold office from the Effective Time until their respective successors are
duly elected or appointed and qualified in the manner provided in the Articles
of Incorporation and Bylaws of the Surviving Corporation, or as otherwise
provided by law.
(b) The officers of Acquisition Sub at the Effective Time
shall be the initial officers of the Surviving Corporation of the Merger and
shall hold office from the Effective Time until removed or until their
respective successors are duly elected or appointed and qualified in the manner
provided in the Articles of Incorporation and Bylaws of the Surviving
Corporation, or as otherwise provided by law.
ARTICLE III
CONVERSION OF SHARES
3.1 EXCHANGE RATIO. At the Effective Time by virtue of the Merger and
without any action on the part of the holder thereof:
(a) Each share of common stock of MOD and each share of MOD
Preferred Stock (the MOD Common Stock and MOD Preferred Stock is referred to as
the "MOD Share(s)") issued and outstanding immediately prior to the Effective
Time (other than the Excluded Shares as defined in SECTION 3.6 below and MOD
Shares held by VDAT or any subsidiary of VDAT, if any), shall be converted at
the Effective Time into the right to receive in the aggregate 3,400,000 share(s)
of restricted common stock, par value $.0001 per share, of VDAT ("VDAT Shares")
(the "MOD Exchange Ratio").
(b) At the Effective Time, all MOD Shares (other than the
Excluded Shares) shall no longer be outstanding and shall automatically be
canceled and retired and shall cease to exist, and each certificate previously
representing any such Shares shall thereafter represent the VDAT Shares, into
which such Shares of MOD have been converted. Certificates representing Shares
of MOD shall be exchanged for certificates representing whole VDAT Shares and
the Additional Payment.
(c) If, prior to the Effective Time, VDAT should split or
combine the VDAT Shares, or pay a stock dividend or other stock distribution in,
VDAT Shares, then the MOD Exchange Ratio shall be appropriately adjusted to
reflect such split, combination, dividend, or other distribution.
(d) Each MOD Share held in treasury (or a subsidiary, as such
term is defined in Article IV hereof) and each such Share held by VDAT or any
subsidiary of VDAT immediately prior to the Effective Time shall be canceled and
retired and cease to exist, and no VDAT Shares shall be issued in exchange
therefor.
(e) Each share of common stock of Acquisition Sub issued and
outstanding immediately prior to the Effective Time shall remain outstanding.
3.2 EXCHANGE OF SHARES
(a) Prior to the Effective Time, VDAT shall select and enter
into an agreement with a bank or trust company to act as Exchange Agent
hereunder (the "Exchange Agent"). No later than the Effective Time, VDAT shall
cause the Exchange Agent, pursuant to irrevocable instructions, to make
available and deliver, and each holder of MOD Shares (other than Excluded
Shares) shall be entitled to receive, upon surrender to the Exchange Agent of
one or more certificates representing such MOD Shares for cancellation,
certificates representing the number of VDAT Shares into which such MOD Shares
are converted in the Merger. The VDAT Shares into which the MOD Shares shall be
converted in the Merger shall be deemed to have been issued at the Effective
Time.
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(b) As soon as reasonably practicable after the Effective
Time, the Exchange Agent shall mail to each holder of record of a certificate or
certificates which immediately prior to the Effective Time represented
outstanding MOD Shares (the "Certificates") whose MOD Shares were converted into
VDAT Shares pursuant to SECTION 3.1, (i) a letter of transmittal (which shall
specify that delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon delivery of the Certificates to the Exchange
Agent and shall be in such form and have such other provisions as VDAT may
reasonably specify) and (ii) instructions for use in effecting the surrender of
the Certificates in exchange for certificates representing VDAT Shares. Upon
surrender of a Certificate for cancellation to the Exchange Agent together with
such letter of transmittal, duly executed, the holder of such Certificate shall
be entitled to receive in exchange therefor a certificate representing that
number of whole VDAT Shares which such holder has the right to receive in
respect of the Certificates surrendered pursuant to the provisions of this
ARTICLE III.
(c) In the event that any stock certificate representing MOD
Shares shall have been lost, stolen, or destroyed, upon the making of an
affidavit of that fact by the person claiming such certificate to be lost,
stolen, or destroyed, VDAT shall issue or cause to be issued in exchange for
such lost, stolen, or destroyed certificate the number of VDAT Shares into which
such shares are converted in the Merger in accordance with this ARTICLE III.
When authorizing such issuance in exchange therefor, the Board of Directors of
VDAT may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen, or destroyed certificate to
give VDAT a standard form of indemnity against any claim that may be made
against VDAT with respect to the certificate alleged to have been lost, stolen,
or destroyed.
3.3 STOCK OPTIONS, WARRANTS, DEBENTURES, PREFERRED STOCK AND OTHER
AGREEMENTS. As of the Effective Time, any stock options, warrants, convertible
securities or other contractual commitments or agreements of any kind to
purchase or issue MOD Shares that are outstanding both as of the date hereof and
at the Effective Time (whether or not contingent or otherwise requiring further
shareholder approval) shall terminate as of the Effective Time, and prior to the
Effective Time, MOD shall take or cause to be taken all necessary actions to
ensure that following the Effective Time no participant in any such plan,
program or arrangement shall have any right thereunder to acquire any equity
securities of MOD or the Surviving Corporation or any subsidiary thereof. Any
outstanding shares of MOD preferred stock shall have been converted into shares
of MOD common stock prior to the Effective Time.
3.4 DIVIDENDS; TRANSFER TAXES. No dividends that are declared on VDAT
Shares shall be paid to persons entitled to receive certificates representing
VDAT Shares until such persons surrender their certificates representing MOD
Shares. Upon such surrender, there shall be paid to the person in whose name the
certificates representing such VDAT Shares shall be issued any dividends which
shall have become payable with respect to such VDAT Shares between the Effective
Time and the time of such surrender. In no event shall the person entitled to
receive such dividends be entitled to receive interest on such dividends. If any
certificates for any VDAT Shares are to be issued in a name other than that in
which the certificate representing MOD Shares surrendered in exchange therefor
is registered, it shall be a condition of such exchange that the person
requesting such exchange shall pay to the Exchange Agent any transfer or other
taxes required by reason of the issuance of certificates for such VDAT Shares in
a name other than that of the registered holder of the Certificate surrendered,
or shall establish to the satisfaction of the Exchange Agent that such tax has
been paid or is not applicable. Notwithstanding the foregoing, neither the
Exchange Agent nor any party hereto shall be liable to a holder of VDAT Shares
for any VDAT Shares or dividends thereon or, in accordance with SECTION 3.4
hereof, the cash payment for fractional interests, delivered to a public
official pursuant to applicable escheat laws.
3.5 NO FRACTIONAL SECURITIES. No certificates or scrip representing
fractional VDAT Shares shall be issued upon the surrender for exchange of
certificates representing Shares pursuant to this ARTICLE III and no dividend,
stock split-up, or other change in the capital structure of VDAT shall relate to
any fractional security, and such fractional interests shall not entitle the
owner thereof to vote or to any rights of a security holder. In lieu of any such
fractional securities, each holder of Shares who would otherwise have been
entitled to a fraction of an VDAT Share upon surrender of stock certificates for
exchange pursuant to this ARTICLE III shall be paid cash upon such surrender in
an amount equal to the product of such fraction multiplied by the average
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closing price for a VDAT Share on the Nasdaq National Market, Nasdaq SmallCap
Market or principal exchange on which its common stock is listed for the five
(5) trading days immediately following the Closing Date (as defined below).
3.6 CLOSING OF TRANSFER BOOKS. At the Effective Time, the stock
transfer books of MOD shall be closed and no transfer of Shares shall thereafter
be made. If, after the Effective Time, certificates representing Shares are
presented to the Surviving Corporation, they shall be canceled and exchanged for
certificates representing VDAT Shares in accordance with the terms hereof. At
and after the Effective Time, the holders of Shares to be exchanged for VDAT
Shares pursuant to this Agreement shall cease to have any rights as shareholders
of MOD except for the right to surrender such stock certificates in exchange for
VDAT Shares as provided hereunder.
3.7 DISSENTING SHARES. If holders of MOD Shares are entitled to dissent
from the Merger and demand appraisal of any such MOD Shares in accordance with
the provisions of the DGL concerning the right of such holders to dissent from
the Merger and demand appraisal of their shares ("Dissenting Holders"), any MOD
Shares held by a Dissenting Holder as to which appraisal has been so demanded
("Excluded Shares") shall not be converted as described in SECTION 3.1, but
shall from and after the Effective Time represent only the right to receive such
consideration as may be determined to be due to such Dissenting Holder pursuant
to the DGL; PROVIDED, HOWEVER, that each MOD Share held by a Dissenting Holder
who shall, after the Effective Time, withdraw his demand for appraisal or lose
his right of appraisal with respect to such MOD Shares, in either case pursuant
to the DGL, shall not be deemed Excluded Shares but shall be deemed to be
converted, as of the Effective Time, into the right to receive VDAT Shares in
accordance with the MOD Exchange Ratio, as applicable.
3.8 CLOSING. The Closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Atlas ▇▇▇▇▇▇▇▇,
P.A., 350 East Las Olas Boulevard, Suite 1700, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
or by conference call at 11:00 a.m., local time, on February 1, 2002 (the
"Closing Date", subject to satisfaction of the conditions set forth in Article
VIII herein. Such Closing Date may be extended by mutual agreement of the
parties.
3.9 SUPPLEMENTARY ACTION. If at any time after the Effective Time, any
further assignments or assurances in law or any other things are necessary or
desirable to vest or to perfect or confirm of record in the Surviving
Corporation the title to any property or rights of either VDAT or MOD, or
otherwise to carry out the provisions of this Agreement, the officers and
directors of the Surviving Corporation are hereby authorized and empowered on
behalf of each, in the name of and on behalf of them as appropriate, to execute
and deliver any and all things necessary or proper to vest or to perfect or
confirm title to such property or rights in the Surviving Corporation, and
otherwise to carry out the purposes and provisions of this Agreement.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF MOD AND THE MOD SHAREHOLDERS
As used in this Agreement, (i) the term "Material Adverse Effect"
means, with respect to VDAT or MOD, as the case may be, a material adverse
effect on the business, assets, results of operations, or financial condition of
such party and its subsidiaries taken as a whole or in the ability of such party
to materially perform its obligations hereunder, and (ii) the word "subsidiary"
when used with respect to any party means any corporation or other organization,
whether incorporated or unincorporated, of which such party or any other
subsidiary of such party is a general partner (excluding partnerships the
general partnership interests of which held by such party or any subsidiary of
such party do not have a majority of the voting interests in such partnership)
or of which at least a majority of the securities or other interests having by
their terms ordinary voting power to elect a majority of the Board of Directors
or others performing similar functions with respect to such corporations or
other organizations is directly or indirectly owned or controlled by such party
and/or by any one or more of the subsidiaries.
MOD and the MOD Shareholder represent and warrant jointly and
severally, with respect to itself and its subsidiaries, except as disclosed to
VDAT in the MOD Schedule of Exceptions identified herein and attached hereto and
incorporated herein by this reference, as follows:
4.1 ORGANIZATION. Each of MOD and its subsidiaries is a corporation
duly organized, validly existing, and in good standing under the laws of its
jurisdiction of incorporation and has the corporate power to carry on its
business as it is now being conducted or presently proposed to be conducted.
Each of MOD and its subsidiaries is duly qualified as a foreign corporation to
do business, and is in good standing (to the extent the concept of good standing
exists), in each jurisdiction where the character of its properties owned or
held under lease or the nature of its activities makes such qualification
necessary, except where the failure to be so qualified shall not have a Material
Adverse Effect.
4.2 CAPITALIZATION. The authorized capital stock of MOD and each of its
subsidiaries is as set forth in SCHEDULE 4.2. As of the date hereof, the number
of Shares of MOD which are issued and outstanding is as set forth in SCHEDULE
4.2. Except as set forth in SCHEDULE 4.2, all of the issued and outstanding
Shares of MOD are validly issued, fully paid, and non-assessable and free of
preemptive rights or similar rights created by statute, the Articles of
Incorporation or Bylaws of MOD or any agreement by which MOD or any of its
subsidiaries or the MOD Shareholders is a party or by which it is bound. Except
(a) as set forth above or, (b) as disclosed in SCHEDULE 4.2, there are not as of
the date of this Agreement any shares of capital stock of MOD issued or
outstanding or any options, warrants, subscriptions, calls, rights, convertible
securities, or other agreements or commitments obligating MOD to issue,
transfer, or sell any shares of its capital stock.
4.3 AUTHORITY RELATIVE TO THIS AGREEMENT. MOD has the corporate power
to enter into this Agreement and to carry out its obligations hereunder. The
execution and delivery of this Agreement by MOD and the consummation by MOD of
the transactions contemplated hereby have been duly authorized by its Board of
Directors, and, except for approval by the requisite votes cast by MOD's
shareholders at the meeting provided for herein, no other corporate proceedings
on the part of MOD are necessary to approve this Agreement or the transactions
contemplated hereby.
4.4 CONSENTS AND APPROVALS; NO VIOLATIONS. Except filing and
recordation of Articles or Certificates of Merger under the FBCA and DGL, no
filing with, and no permit, authorization, consent, or approval of, any public
body or authority is necessary for the consummation by MOD of the transactions
contemplated by this Agreement. Neither the execution and delivery of this
Agreement by MOD, nor the consummation by it of the transactions contemplated
hereby, nor compliance by MOD with any of the provisions hereof, shall (a)
result in any breach of the Articles of Incorporation or Bylaws of MOD, (b)
result in a violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default (or give rise to any fight of termination,
cancellation, or acceleration) under, any of the terms, conditions, or
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provisions of any note, bond, mortgage, indenture, license, contract, agreement,
or other instrument or obligation to which MOD or any of its subsidiaries is a
party or by which any of them or any of their properties or assets may be bound
or (c) violate any order, writ, injunction, decree, statute, rule, or regulation
applicable to MOD, any of its subsidiaries or any of their properties or assets,
except in the case of clauses (b) and (c) for violations, breaches and defaults,
that would not have a material adverse effect on MOD.
4.5 FINANCIAL STATEMENTS. The unaudited balance sheets dated December
31, 2000 and 2001 fairly present in all material respects the consolidated
financial position of MOD and its subsidiaries as of the respective dates
thereof, and the other related statements included therein fairly present in all
material respects the results of operations, changes in stockholders' equity and
cash flows of MOD and its subsidiaries for the respective periods or as of the
respective dates set forth therein, all in conformity with generally accepted
accounting principles consistently applied during the periods involved, except
as otherwise noted therein. SCHEDULE 4.5 is a list of the payables of MOD and
its subsidiaries at December 31, 2001.
4.6 ABSENCE OF CERTAIN CHANGES OR EVENTS; UNDISCLOSED LIABILITIES.
(a) Since December 31, 2001, neither MOD nor any of its
subsidiaries has: (i) taken any of the actions set forth in SECTIONS 6.1 hereof;
(ii) incurred any liability material to MOD and its subsidiaries on a
consolidated basis, except in the ordinary course of its business, consistent
with past practices; (iii) suffered a change, or any event involving a
prospective change, in the business, assets, financial condition, or results of
operations of MOD or any of its subsidiaries which has had, or is reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect,
(other than as a result of changes or proposed changes in federal or state
regulations of general applicability or interpretations thereof, changes in
generally accepted accounting principles, and changes that could, under the
circumstances, reasonably have been anticipated in light of disclosures made in
writing by MOD to VDAT pursuant hereto); or (iv) subsequent to the date hereof,
except as permitted by SECTION 6.1 hereof, conducted its business and operations
other than in the ordinary course of business and consistent with past
practices.
(b) Neither MOD nor its subsidiaries has any liability (and
the Company is not aware of any basis for any present or future action, suit,
proceeding, hearing, investigation, charge, complaint, claim, or demand against
any of them giving rising to any liability which individually or is in the
aggregate are reasonably likely to have a Material Adverse Effect on MOD) except
for (i) liability set forth on the face of the December 31, 2001 balance sheet,
(ii) liabilities which have arisen after the December 31, 2001 balance sheet in
the ordinary course of business (none of which results from, arises out of,
relates to, is in the nature of, or was caused by any breach of contract, tort,
infringement, or violation of law), and (iii) items identified in SCHEDULE 4.6.
4.7 LITIGATION. As of the date of this Agreement, except as set forth
in Schedule 4.7, (i) there is no action, suit, judicial, or administrative
proceeding, arbitration or investigation pending or to MOD's knowledge
threatened against or involving MOD or any of its subsidiaries, or any of their
properties or rights, before any court, arbitrator, or administrative or
governmental body; (ii) there is no judgment, decree, injunction, rule, or order
of any court, governmental department, commission, agency, instrumentality, or
arbitrator outstanding against MOD or any of its subsidiaries; and (iii) MOD and
its subsidiaries are not in violation of any term of any judgments, decrees,
injunctions, or orders outstanding against them, except to the extent that such
events, violations or incidents set forth in (i) through (ii) above in the
aggregate would not have a Material Adverse Effect on MOD. MOD has furnished to
VDAT in writing, a description of all litigation, actions, suits, proceedings,
arbitrations, investigations known to it, judgments, decrees, injunctions or
orders pending; or to its best knowledge, threatened against or involving MOD or
any of its subsidiaries, or any of their properties or rights as of the date
hereof. All such litigation descriptions are set forth in SCHEDULE 4.7.
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4.8 CONTRACTS.
(a) Each of the material contracts, instruments, mortgages,
notes, security agreements, leases, agreements, or understandings, whether
written or oral, to which MOD or any of its subsidiaries is a party that relates
to or affects the assets or operations of MOD or any of its subsidiaries or to
which MOD or any of its subsidiaries or their respective assets or operations
may be bound or subject is a valid and binding obligation of MOD and in full
force and effect (with respect to MOD or such subsidiary), except for where the
failure to be in full force and effect would not, individually or in the
aggregate, have a Material Adverse Effect. SCHEDULE 4.8 sets forth a complete
list of all material contracts. For purposes of this Agreement a material
contract shall be any contract or agreement which involves consideration in
excess of $25,000. Except to the extent that the consummation of the
transactions contemplated by this Agreement may require the consent of third
parties, as disclosed in SCHEDULE 4.1, there are no existing defaults by MOD or
any of its subsidiaries thereunder or, to the knowledge of MOD, by any other
party thereto, which defaults, individually or in the aggregate, would have a
Material Adverse Effect except as set forth in SCHEDULE 4.8.
(b) Except for this Agreement and any agreement listed in
SCHEDULE 4.8, neither MOD nor any of its subsidiaries is a party to any oral or
written (i) consulting agreement not terminable on 30 days' or less notice
involving the payment of more than $25,000 per annum, in the case of any such
agreement with an individual; (ii) joint venture agreement; (iii) noncompetition
or similar agreements that restricts MOD or its subsidiaries from engaging in a
line of business; (iv) agreement with any executive officer or other employee of
MOD or any subsidiary the benefits of which are contingent, or the terms of
which are materially altered, upon the occurrence of a transaction involving MOD
of the nature contemplated by this Agreement and which provides for the payment
of in excess of $25,000; (v) agreement with respect to any executive officer of
MOD or any subsidiary providing any term of employment or compensation guaranty
in excess of $25,000 per annum; or (vi) agreement or plan, including any stock
option plan, stock appreciation rights plan, restricted stock plan, or stock
purchase plan, any of the benefits of which shall be increased, or the vesting
of the benefits of which shall be accelerated, by the occurrence of any of the
transactions contemplated by this Agreement or the value of any of the benefits
of which shall be calculated on the basis of any of the transactions
contemplated by this Agreement.
4.9 EMPLOYEE BENEFIT PLANS.
(a) Disclosed in SCHEDULE 4.9 is a true and complete list of
each written or formal employee benefit plan (including, without limitation, any
"employee benefit plan" as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")) policy or agreement that is
maintained (all of the foregoing, the "Benefit Plans"), or is or was contributed
to by MOD or pursuant to which MOD or any trade or business, whether or not
incorporated (an "ERISA Affiliate"), which together with MOD would be deemed a
"single employer" within the meaning of Section 4001 of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), is still potentially liable
for payments, benefits, or claims. A copy of each Benefit Plan as currently in
effect and, if applicable, the most recent Annual Report, Actuarial Report or
Valuation, Summary Plan Description, Trust Agreement, and a Determination Letter
issued by the IRS for each Benefit Plan have heretofore been delivered to VDAT.
No Benefit Plan was or is subject to Title IV of ERISA or Section 412 of the
Code (including any "multiemployer plan," as defined in Section 3(37) of ERISA).
(b) Each of the Benefit Plans that are subject to ERISA is in
compliance with ERISA; each of the Benefit Plans intended to be "qualified"
within the meaning of Section 401 (a) of the Internal Revenue Code of 1986, as
amended (the "Code") is so qualified; and no event has occurred, and to MOD's
knowledge, there exists no condition or set of circumstances, in connection with
which MOD or any ERISA Affiliate is or could be subject to liability (except
liability for benefit claims and funding obligations payable in the ordinary
course) under ERISA, the Code, or any other applicable law with respect to any
Benefit Plan.
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(c) All contributions or other amounts payable by MOD or its
subsidiaries through December 31, 2001 with respect to each Benefit Plan in
respect of current or prior plan years have been either paid or accrued on the
most recent financial statements of MOD made available to ▇▇▇▇.▇▇▇. Any
contributions or other amounts payable by MOD or its subsidiaries for periods
between December 31, 2001 and the Effective Time with respect to each Benefit
Plan in respect of current or prior plan years have been or shall be either paid
or accrued in the normal course of business on the books and records of MOD at
or prior to the Effective Time. There are no pending, or, to the knowledge of
MOD, threatened or anticipated claims (other than routine claims for benefits)
by or on behalf of or against any of the Benefit Plans or any trusts or other
funding vehicles related thereto.
(d) No Benefit Plan provides benefits, including without
limitation death or medical benefits (whether or not insured), with respect to
current or former employees for periods extending beyond their retirement or
other termination of service (other than (i) coverage mandated by Part 6 of
Subtitle B of Title I of ERISA, Section 4980B of the Code or any comparable
state law, (ii) death benefits or retirement benefits under any "employee
pension plan," as that term is defined in Section 3(2) of ERISA, (iii) deferred
compensation benefits accrued as liabilities on the books of MOD or the ERISA
Affiliates, or (iv) benefits the full cost of which is borne by the current or
former employee or his or her beneficiary).
4.10 TAXES. For the purposes of this section, the term "tax" shall
include all taxes, charges, withholdings, fees, levies, penalties, additions,
interest, or other assessments imposed by any United States federal, state, or
local authority or any other taxing authority on MOD or any of its Tax
Affiliates (as hereinafter defined) as to their respective income, profit,
franchise, gross receipts, payroll, sales, employment, worker's compensation,
use, property, withholding, excise, occupancy, environmental, and other taxes,
duties, or assessments of any nature, whatsoever. MOD has filed or caused to be
filed timely and accurately in all material respects all federal, state, local,
and foreign tax returns required to be filed or requests for extensions to file
such returns have been timely filed, by each of its and any member of its
consolidated, combined, unitary, or similar group (each such member a "Tax
Affiliate"), except to the extent that any failure to file or inaccuracies in
filed returns would not individually or in the aggregate reasonably be expected
to have a Material Adverse Effect on MOD. MOD has paid or caused to be paid or
has made adequate provision or set up an adequate accrual or reserve for the
payment of, all taxes shown to be due in respect of the periods for which
returns are due, and has established (or shall establish at least quarterly) an
adequate accrual or reserve for the payment of all taxes payable in respect of
the period subsequent to the last of said periods required to be so accrued or
reserved. Neither MOD nor any of its Tax Affiliates has any liability for taxes
in excess of the amount so paid or accruals or reserves so established. Neither
MOD nor any of its Tax Affiliates is delinquent in the payment of any tax in
excess of the amount reserved or provided therefor, and no deficiencies for any
tax, assessment, or governmental charge in excess of the amount reserved or
provided therefor have been threatened, claimed, proposed, or assessed. No
waiver or extension of time to assess any taxes has been given or requested. The
Internal Revenue Service or comparable state agencies have never audited MOD's
federal and state income tax returns.
4.11 COMPLIANCE WITH APPLICABLE LAW. MOD and each of its subsidiaries
holds all licenses, permits, and governmental authorizations necessary for the
lawful conduct of its business under and pursuant to, and the business of each
of MOD and its subsidiaries is not being conducted in violation of, any
provision of any federal, state, local, or foreign statute, law, ordinance,
rule, regulation, judgment, decree, order, concession, grant, franchise, permit
or license, or other governmental authorization or approval applicable to MOD or
any of its subsidiaries except for such licenses, permits, governmental
authorizations, the failure of which, and violations which, would not have in
the aggregate a Material Adverse Effect on MOD.
4.12 SUBSIDIARIES. SCHEDULE 4.12 lists all the subsidiaries of MOD as
of the date of this Agreement and indicates for each such corporate subsidiary
as of such date the jurisdiction of incorporation or organization. All of the
outstanding shares of capital stock or other equity interests of each of the
subsidiaries are (i) held by MOD or one of such wholly-owned subsidiaries; (ii)
8
fully paid and non-assessable; and (iii) owned by MOD or one of such wholly
owned subsidiaries free and clear of any claim, lien, or encumbrance.
4.13 LABOR AND EMPLOYMENT MATTERS. Except as set forth in SCHEDULE
4.13, (a) MOD and its subsidiaries are and have been in compliance in all
respects with all applicable laws respecting employment and employment
practices, terms, and conditions of employment and wages and hours, including,
such laws respecting employment discrimination, equal opportunity, affirmative
action, worker's compensation, occupational safety, and health requirements and
unemployment insurance and related matters, and are not engaged in and have not
engaged in any unfair labor practice; (b) no investigation or review by or
before any governmental entity concerning any violations of any such applicable
laws is pending nor, to the knowledge of MOD is any such investigation
threatened or has any such investigation occurred during the last three years,
and no governmental entity has provided any notice to MOD or any of its
subsidiaries or otherwise asserted an intention to conduct any such
investigation; (c) there is no labor strike, dispute, slowdown, or stoppage
actually pending or threatened against MOD or any of its subsidiaries; (d) no
union representation question or union organizational activity exists respecting
the employees of MOD or any of its subsidiaries; (e) no collective bargaining
agreement exists which is binding on MOD or any of its subsidiaries; (f) neither
MOD nor any of its subsidiaries has experienced any work stoppage or other labor
difficulty; and (g) in the event of termination of the employment of any of the
current officers, directors, employees, or agents of MOD or any of its
subsidiaries, neither MOD nor any of its subsidiaries shall pursuant to any
agreement or by reason of anything done prior to the Effective Time by MOD or
any of its subsidiaries be liable to any of said officers, directors, employees,
or agents for so-called "severance pay" or any other similar payments or
benefits, including, without limitation, post-employment healthcare (other than
pursuant to COBRA) or insurance benefits, except to the extent that any matter
in Items (a), (b), (f) and (g) could reasonably be expected individually or in
the aggregate to have a Material Adverse Effect on MOD.
4.14 INTELLECTUAL PROPERTY.
(a) Except to the extent that any inaccuracy of any of the
following (or the circumstances giving rise to such inaccuracy), in the
aggregate, would not reasonably be expected to have a Material Adverse Effect on
MOD:
(i) MOD and each of its subsidiaries owns, or is
licensed or otherwise has the legally
enforceable right to use (in each case,
clear of any liens or encumbrances of any
kind), all Intellectual Property (as
hereinafter defined) used in or necessary
for the conduct of its business as currently
conducted;
(ii) no claims are pending or, to the knowledge
of MOD, threatened that MOD or any of its
subsidiaries is infringing on or otherwise
violating the rights of any person with
regard to any Intellectual Property used by,
owned by, and/or licensed to MOD or any of
its subsidiaries;
(iii) as of the date of this Agreement, to the
knowledge of MOD, no person is infringing on
or otherwise violating any right of MOD or
any of its subsidiaries with respect to any
Intellectual Property owned by and/or
licensed to MOD or any of its subsidiaries;
and
(iv) as of the date of this Agreement, neither
MOD nor any of its subsidiaries have
received any notice of any claim challenging
the ownership or validity of any
Intellectual Property owned by MOD or any of
9
its subsidiaries or challenging MOD's or any
of its subsidiaries' license or legally
enforceable right to use any Intellectual
Property licensed by it.
(b) For purposes of this Agreement, "Intellectual Property"
means trademarks (registered or unregistered), service marks, brand names,
certification marks, trade dress, assumed names, trade names, and other
indications of origin, the goodwill associated with the foregoing and
registrations in any jurisdiction of, and applications in any jurisdiction to
register, the foregoing, including any extension, modification or renewal of any
such registration or application; inventions, discoveries and ideas, whether
patented, patentable, or not in any jurisdiction; trade secrets and confidential
information and rights in any jurisdiction to limit the use or disclosure
thereof by any person; writings and other works of authorship, whether
copyrighted, copyrightable, or not in any jurisdiction; registration or
applications for registration of copyrights in any jurisdiction, and any
renewals or extensions thereof; any similar intellectual property or proprietary
rights and computer programs and software (including source code, object code,
and data); licenses, immunities, covenants not to ▇▇▇, and the like relating to
the foregoing; and any claims or causes of action arising out of or related to
any infringement or misappropriation of any of the foregoing SCHEDULE 4.14(B).
(c) SCHEDULE 4.14(C) sets forth a list of all domain names
owned by MOD. MOD has full and complete ownership of all domain names.
4.15 INSURANCE. Except to the extent that the lack of an insurance
policy would not reasonably be expected to have a Material Adverse Effect on
MOD, MOD and each of its subsidiaries have insurance policies, including fire
and casualty policies, that MOD believes are necessary to conduct its business.
All policies of insurance insuring MOD or any of its subsidiaries or their
respective businesses, assets, employees, officers, and directors are in full
force and effect. As of the date hereof, there are no claims by MOD or any of
its subsidiaries under any such policy or instrument as to which any insurance
company is denying liability or defending under a reservation of rights clause.
At the Closing Date, all MOD insurance policies continue in full force and
effect. SCHEDULE 4.15 lists all of MOD and each of its subsidiaries' insurance
policies.
4.16 ACCOUNTS RECEIVABLE. Except to the extent that any inaccuracy
would not reasonably be expected to have a Material Adverse Effect on MOD, all
accounts receivable of MOD and its subsidiaries are reflected properly on their
books and records, are valid receivables subject to no setoffs or counterclaims,
are current and collectible, and will be collected in accordance with the terms
at the recorded amounts, subject only to the reserve for bad debts set forth on
the face of the December 31, 2001 balance sheet as adjusted for passage of time
with the Effective Date in accordance with past custom and practice of MOD and
its subsidiaries.
4.17 STATE ANTI-TAKEOVER STATUTES. The MOD Board of Directors has
approved this Agreement, the Voting Agreement (as defined) and the transactions
contemplated hereby and thereby such approval constitutes approval of the Merger
and other transactions contemplated hereby and thereby by the MOD Board of
Directors as required by the DGL. Except as provided in SECTION 5.12 below, to
the knowledge of MOD, no state anti-takeover statute is applicable to the
Merger.
4.18 ABSENCE OF CERTAIN BUSINESS PRODUCTS. Neither MOD nor any
director, officer, employer, or agent of the foregoing, nor any person acting on
its behalf, directly or indirectly has to MOD's knowledge given or agree to give
any gift or similar benefit to any customer, supplier, governmental employee or
other person which (i) might subject MOD to any damage or penalty in any civil,
criminal, or governmental litigation or proceeding, (ii) if not given in the
past, might have had a Material Adverse Effect on MOD, or (iii) if not continued
in the future, might have a Material Adverse Effect on MOD or which might
subject MOD to suit or penalty in any private or governmental litigation or
proceeding.
4.19 NO LIENS. All of the assets, both tangible and intangible of MOD,
except as set forth in SCHEDULE 4.19 are and will be free and clear of any
security interests, liens, claims, charges or other encumbrances of any nature.
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4.20 VDAT SHARES. The Company acknowledges that each certificate
representing a VDAT Share shall contain a restrictive legend set forth in
SCHEDULE 4.20, representing that these Shares have not been registered under the
Securities Act. The Shares may not be sold or offered for sale or otherwise
distributed without an effective registration statement for the Shares under the
Securities Act or an opinion of counsel satisfactory to VDAT that such
registration is not required as to the sale, offer or distribution thereof.
4.21 NO UNDISCLOSED INFORMATION. No provision of this Article or for
any Schedule or any document agreement furnished by MOD contains any untrue
statement of a material fact, or omits to state a material fact necessary in
order to make this statement contained herein or therein in light of the
circumstances under which such statements were made, not misleading. No
preclosing investigation of MOD, its subsidiaries, their respective assets for
their businesses shall relieve the MOD Shareholder of its indemnification and
obligation under this Agreement.
4.22 REQUIRED VOTE OF MOD SHAREHOLDERS. The affirmative vote of the
holders of a majority outstanding shares of MOD Common and Preferred Stock, with
the Series A Preferred Stock voting separately as a class, is required to
approve the Merger. No other vote of the stockholders of MOD is required by law,
the articles of incorporation or bylaws of MOD or otherwise in order for MOD to
consummate the Merger and the transactions contemplated hereby.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF VDAT
VDAT represents, warrants and agrees, with respect to itself and its
subsidiaries, except as disclosed to MOD in the VDAT Schedule of Exceptions
identified herein and attached hereto and incorporated herein by this reference,
as follows:
5.1 ORGANIZATION. Each of VDAT and its subsidiaries is a corporation
duly organized, validly existing, and in good standing under the laws of its
jurisdiction of incorporation and has the corporate power to carry on its
business as it is now being conducted or presently proposed to be conducted.
Each of VDAT and its subsidiaries is duly qualified as a foreign corporation to
do business, and is in good standing (to the extent the concept of good standing
exists), in each jurisdiction where the character of its properties owned or
held under lease or the nature of its activities makes such qualification
necessary, except where the failure to be so qualified shall not have a Material
Adverse Effect.
5.2 CAPITALIZATION. As of the date hereof, the authorized capital stock
of VDAT and each of its subsidiaries is as set forth in SCHEDULE 5.2. As of the
date hereof, the number of VDAT Shares or VDAT Preferred which are issued and
outstanding is as set forth in SCHEDULE 5.2. All of the issued and outstanding
VDAT Shares or VDAT Preferred are validly issued, fully paid, and non-assessable
and free of preemptive rights or similar rights created by statute, the Articles
of Incorporation or Bylaws of VDAT or any agreement by which VDAT or any of its
subsidiaries is a party or by which it is bound. Except (a) as set forth above
or, (b) described in VDAT SEC Report, (c) as disclosed in SCHEDULE 5.2, there
are not as of the date of this Agreement any shares of capital stock of VDAT
issued or outstanding or any options, warrants, subscriptions, calls, rights,
convertible securities, or other agreements or commitments obligating VDAT to
issue, transfer, or sell any shares of its capital stock.
5.3 AUTHORITY RELATIVE TO THIS AGREEMENT. VDAT has the corporate power
to enter into this Agreement and to carry out its obligations hereunder. The
execution and delivery of this Agreement by VDAT and the consummation by VDAT of
the transactions contemplated hereby have been duly authorized by its Board of
Directors, no other corporate proceedings on the part of VDAT are necessary to
approve this Agreement or the transactions contemplated hereby.
5.4 CONSENTS AND APPROVALS; NO VIOLATIONS. Except for applicable
requirements, the Securities Act of 1933, the Securities Exchange Act of 1934,
the Nasdaq National Market, Nasdaq SmallCap Market or principal exchange on
which its common stock is listed, state law relating to takeovers, if
applicable, state securities or blue sky laws, and, as applicable, filing and
11
recordation of Articles of Merger under the FBCA and DGL, no filing with, and no
permit, authorization, consent, or approval of, any public body or authority is
necessary for the consummation by MOD of the transactions contemplated by this
Agreement. Neither the execution and delivery of this Agreement by VDAT, nor the
consummation by it of the transactions contemplated hereby, nor compliance by
VDAT with any of the provisions hereof, shall (a) result in any breach of the
Articles of Incorporation or Bylaws of VDAT, (b) result in a violation or breach
of, or constitute (with or without due notice or lapse of time or both) a
default (or give rise to any fight of termination, cancellation, or
acceleration) under, any of the terms, conditions, or provisions of any note,
bond, mortgage, indenture, license, contract, agreement, or other instrument or
obligation to which VDAT or any of its subsidiaries is a party or by which any
of them or any of their properties or assets may be bound or (c) violate any
order, writ, injunction, decree, statute, rule, or regulation applicable to
VDAT, any of its subsidiaries or any of their properties or assets, except in
the case of clauses (b) and (c) for violations, breaches, or defaults that would
not have a Material Adverse Effect.
5.5 REPORTS AND FINANCIAL STATEMENTS. VDAT has filed all reports
required to be filed by it with the SEC pursuant to the Exchange Act since
September 30, 1997, including, without limitation, an Annual Report on Form
10-KSB for the year ended September 30, 2000 (collectively, the "VDAT SEC
Reports"), and has previously furnished or made available to MOD true and
complete copies of all such VDAT SEC Reports. None of such VDAT SEC Reports, as
of their respective dates (as amended or supplemented through the date hereof),
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading. Each
of the balance sheets (including the related notes) included in the VDAT SEC
Reports fairly presents in all material respects the consolidated financial
position of VDAT and its subsidiaries as of the respective dates thereof, and
the other related statements (including the related notes) included therein
fairly present in all material respects the results of operations and cash flows
of VDAT and its subsidiaries for the respective periods or as of the respective
dates set forth therein, all in conformity with generally accepted accounting
principles consistently applied during the periods involved, except as otherwise
noted therein and subject, in the case of the unaudited interim financial
statements, to normal year-end adjustments and any other adjustments described
therein and the absence of any notes thereto.
5.6 ABSENCE OF CERTAIN CHANGES OR EVENTS; UNDISCLOSED LIABILITIES.
(a) Since September 30, 2001, neither VDAT nor any of its
subsidiaries has except as disclosed on Schedule 5.6 or in the VDAT SEC Reports:
(i) incurred any liability material to VDAT and its subsidiaries on a
consolidated basis, except in the ordinary course of its business, consistent
with past practices; (ii) suffered a change, or any event involving a
prospective change, in the business, assets, financial condition, or results of
operations of VDAT or any of its subsidiaries which has had, or is reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect,
(other than as a result of changes or proposed changes in federal or state
regulations of general applicability or interpretations thereof, changes in
generally accepted accounting principles, and changes that could, under the
circumstances, reasonably have been anticipated in light of disclosures made in
writing by VDAT pursuant hereto); or (iii) subsequent to the date hereof,
conducted its business and operations other than in the ordinary course of
business and consistent with past practices.
(b) Neither VDAT nor its subsidiaries has any liability (and
the Company is not aware of any basis for any present or future action, suit,
proceeding, hearing, investigation, charge, complaint, claim, or demand against
any of them giving rising to any liability which in the aggregate are reasonably
likely to have a Material Adverse Effect on VDAT) except for (i) liability set
forth on the face of the September 30 balance sheet, (ii) liabilities which have
risen after the September 30 balance sheet in the ordinary course of business
(none of which results from, arises out of, relates to, is in the nature of, or
was caused by any breach of contract, torte, infringement, or violation of law),
and (iii) items identified in SCHEDULE 5.6.
5.7 TAXES. For the purposes of this section, the term "tax" shall
include all taxes, charges, withholdings, fees, levies, penalties, additions,
interest, or other assessments imposed by any United States federal, state, or
local authority or any other taxing authority on VDAT or any of its Tax
Affiliates (as hereinafter defined) as to their respective income, profit,
12
franchise, gross receipts, payroll, sales, employment, worker's compensation,
use, property, withholding, excise, occupancy, environmental, and other taxes,
duties, or assessments of any nature, whatsoever. VDAT has filed or caused to be
filed timely and accurately in all material respects all material federal,
state, local, and foreign tax returns required to be filed or requests for
extensions to file such returns have been timely filed, by each of its and any
member of its consolidated, combined, unitary, or similar group (each such
member a "Tax Affiliate"), except to the extent that any failure to file or
inaccuracies in filed returns would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect on VDAT. VDAT has paid or caused to
be paid or has made adequate provision or set up an adequate accrual or reserve
for the payment of, all taxes shown to be due in respect of the periods for
which returns are due, and has established (or shall establish at least
quarterly) an adequate accrual or reserve for the payment of all taxes payable
in respect of the period subsequent to the last of said periods required to be
so accrued or reserved. Neither VDAT nor any of its Tax Affiliates has any
liability for taxes in excess of the amount so paid or accruals or reserves so
established. Neither VDAT nor any of its Tax Affiliates is delinquent in the
payment of any tax in excess of the amount reserved or provided therefor, and no
deficiencies for any tax, assessment, or governmental charge in excess of the
amount reserved or provided therefor have been threatened, claimed, proposed, or
assessed. No waiver or extension of time to assess any taxes has been given or
requested. The Internal Revenue Service or comparable state agencies have never
audited VDAT's federal and state income tax returns.
5.8 COMPLIANCE WITH APPLICABLE LAW. VDAT and each of its subsidiaries
holds all licenses, permits, and governmental authorizations necessary for the
lawful conduct of its business under and pursuant to, and the business of each
of VDAT and its subsidiaries is not being conducted in violation of, any
provision of any federal, state, local, or foreign statute, law, ordinance,
rule, regulation, judgment, decree, order, concession, grant, franchise, permit
or license, or other governmental authorization or approval applicable to VDAT
or any of its subsidiaries except for such licenses, permits, governmental
authorizations, the failure of which, and violations which, would not reasonably
be expected to have in the aggregate a Material Adverse Effect on VDAT.
5.9 INTELLECTUAL PROPERTY.
(a) Except to the extent that any inaccuracy of any of the
following (or the circumstances giving rise to such inaccuracy), in the
aggregate, would not reasonably be expected to have a Material Adverse Effect on
VDAT:
(i) VDAT and each of its subsidiaries owns, or
is licensed or otherwise has the legally
enforceable right to use (in each case,
clear of any liens or encumbrances of any
kind), all Intellectual Property (as
hereinafter defined) used in or necessary
for the conduct of its business as currently
conducted;
(ii) no claims are pending or, to the knowledge
of VDAT, threatened that VDAT or any of its
subsidiaries is infringing on or otherwise
violating the rights of any person with
regard to any Intellectual Property used by,
owned by, and/or licensed to VDAT or any of
its subsidiaries;
(iii) as of the date of this Agreement, to the
knowledge of VDAT, no person is infringing
on or otherwise violating any right of VDAT
or any of its subsidiaries with respect to
any Intellectual Property owned by and/or
licensed to VDAT or any of its subsidiaries;
and
13
(iv) as of the date of this Agreement, neither
VDAT nor any of its subsidiaries have
received any written notice of any claim
challenging the ownership or validity of any
Intellectual Property owned by VDAT or any
of its subsidiaries or challenging VDAT's or
any of its subsidiaries' license or legally
enforceable right to use any Intellectual
Property licensed by it.
(b) For purposes of this Agreement, "Intellectual Property"
means trademarks (registered or unregistered), service marks, brand names,
certification marks, trade dress, assumed names, trade names, and other
indications of origin, the goodwill associated with the foregoing and
registrations in any jurisdiction of, and applications in any jurisdiction to
register, the foregoing, including any extension, modification or renewal of any
such registration or application; inventions, discoveries and ideas, whether
patented, patentable, or not in any jurisdiction; trade secrets and confidential
information and rights in any jurisdiction to limit the use or disclosure
thereof by any person; writings and other works of authorship, whether
copyrighted, copyrightable, or not in any jurisdiction; registration or
applications for registration of copyrights in any jurisdiction, and any
renewals or extensions thereof; any similar intellectual property or proprietary
rights and computer programs and software (including source code, object code,
and data); licenses, immunities, covenants not to ▇▇▇, and the like relating to
the foregoing; and any claims or causes of action arising out of or related to
any infringement or misappropriation of any of the foregoing SCHEDULE 5.9(B).
(c) SCHEDULE 5.9(C) sets forth a list of all domain names
owned by VDAT. VDAT has full and complete ownership of all domain names.
5.10 ABSENCE OF CERTAIN BUSINESS PRODUCTS. Neither VDAT nor any
director, officer, employer, or agent of the foregoing, nor any person acting on
its behalf, directly or indirectly has to VDAT's knowledge given or agree to
give any gift or similar benefit to any customer, supplier, governmental
employee or other person which (i) might subject VDAT to any damage or penalty
in any civil, criminal, or governmental litigation or proceeding, (ii) if not
given in the past, might have had a Material Adverse Effect on VDAT, or (iii) if
not continued in the future, might have a Material Adverse Effect on VDAT or
which might subject VDAT to suit or penalty in any private or governmental
litigation or proceeding.
5.11 LITIGATION. As of the date of this Agreement, and to VDAT's
knowledge (i) there is no action, suit, judicial, or administrative proceeding,
arbitration or investigation pending or threatened against or involving VDAT or
any of its subsidiaries, or any of their properties or rights, before any court,
arbitrator, or administrative or governmental body; (ii) there is no judgment,
decree, injunction, rule, or order of any court, governmental department,
commission, agency, instrumentality, or arbitrator outstanding against VDAT or
any of its subsidiaries; and (iii) VDAT and its subsidiaries are not in
violation of any term of any judgments, decrees, injunctions, or orders
outstanding against them, except to the extent that such events, violations or
incidents set forth in (i) through (iii) above in the aggregate would not
reasonably be expected to have a Material Adverse Effect on VDAT. VDAT has
furnished to VDAT in writing, a description of all litigation, actions, suits,
proceedings, arbitrations, investigations known to it, judgments, decrees,
injunctions or orders pending; or to its best knowledge, threatened against or
involving VDAT or any of its subsidiaries, or any of their properties or rights
as of the date hereof. All such litigation descriptions are set forth in
SCHEDULE 5.11.
5.12 STATE ANTI-TAKEOVER STATUTES. The VDAT Board of Directors has
approved this Agreement and the transactions contemplated hereby and such
approval constitutes approval of the Merger and other transactions contemplated
hereby by the VDAT Board of Directors as required by the FBCA. Except as
provided in SECTION 4.17 above, to the knowledge of VDAT, no state anti-takeover
statute is applicable to the Merger.
5.13 REQUIRED VOTE OF VDAT STOCKHOLDERS. No VDAT stockholder votes are
necessary to enter into and complete this Agreement and Merger.
14
5.14 VDAT ADVANCES TO MOD PRIOR TO EFFECTIVE TIME. VDAT hereby agrees
to loan to MOD the sum of up to $126,000 in accordance with the loan advance
schedule set for below. VDAT's total loan of up to $126,000 to MOD shall be
funded to MOD in the following advances or installments: (a) on January 23, 2002
an amount of $76,000, less any cash receipts received by MOD (excluding the
deposit under the ▇▇▇▇▇▇ contract) from January 16, 2002 through January 22,
2002; and (b) on January 30, 2002 an amount of $50,000, less any cash receipts
received by MOD (excluding the deposit under the ▇▇▇▇▇▇ contract) from January
23, 2002 through January 29, 2002. From the date this Agreement is fully
executed through February 1, 2002, MOD agrees that VDAT has the right to approve
all MOD disbursements, provided, however, that such VDAT approval is not to be
unreasonably withheld.
ARTICLE VI
CONDUCT OF BUSINESS PENDING THE MERGER
6.1 CONDUCT OF BUSINESS PENDING THE MERGER. MOD agrees on its own
behalf and on behalf of its subsidiaries that, except as may be agreed to by the
parties hereto or may be permitted by this Agreement, during the period from the
date of this Agreement and continuing until the Effective Time:
(a) the respective businesses of MOD and its subsidiaries
shall be conducted only in the ordinary and usual course of business and
consistent with past practices;
(b) MOD and its subsidiaries shall not (i) sell or pledge or
agree to sell or pledge any stock owned by it in any of its subsidiaries; (ii)
amend its Articles of Incorporation or Bylaws; or (iii) split, combine, or
reclassify any shares of its outstanding capital stock or declare, set aside, or
pay any dividend or other distribution payable in cash, stock, or property in
respect of its capital stock, or directly or indirectly redeem, purchase, or
otherwise acquire any shares of its capital stock or other securities or shares
of the capital stock or other securities of any of its subsidiaries;
(c) MOD and its subsidiaries shall not (i) authorize for
issuance, issue, sell, pledge, dispose of, encumber, deliver, or agree or commit
to issue, sell, pledge, or deliver any additional shares of, or rights of any
kind to acquire any shares of, its capital stock of any class or exchangeable
into shares of stock of any class or any Voting Debt (whether through the
issuance or granting of options, warrants, commitments, subscriptions, rights to
purchase, or otherwise), except that MOD may issue Shares required to be issued
upon exercise of existing stock options, warrants, or similar plans, or under
other contractual commitments previously made, which options, warrants, plans,
or commitments have been disclosed in writing to VDAT in the MOD Schedule; (ii)
acquire, dispose of, transfer, lease, license, mortgage, pledge, or encumber any
fixed or other substantial assets other than in the ordinary course of business
and consistent with past practices; (iii) incur, assume, or prepay any material
indebtedness, liability, or obligation or any other material liabilities or
issue any debt securities other than in the ordinary course of business and
consistent with past practices; (iv) assume, guarantee, endorse, or otherwise
become liable or responsible (whether directly, contingently, or otherwise) for
the obligations any other person (other than a subsidiary) in a material amount
other than in the ordinary course of business and consistent with past
practices; (v) make any material loans, advances, or capital contributions to,
or investments in, any other person, other than to subsidiaries, other than in
the ordinary course of business and consistent with past practices; (vi) fail to
maintain adequate insurance consistent with past practices for their businesses
and properties; or (vii) enter into any contract, agreement, commitment, or
arrangement with respect to any of the foregoing;
(d) MOD shall use its reasonable efforts, consistent with
prudent business practice, to preserve intact the business organization of MOD
and its subsidiaries, to keep available the services of its and their present
officers and key employees, and to preserve the goodwill of those having
business relationships with it and their respective subsidiaries and MOD shall
use its reasonable efforts to reduce expenses where applicable;
15
(e) MOD and its subsidiaries shall not knowingly take or allow
to be taken or fail to take any action which act or omission would jeopardize
qualification of the Merger as a "reorganization" within the meaning of Section
368(a) of the Code; and
(f) MOD and its subsidiaries shall use reasonable efforts to
prevent any representation or warranty of MOD herein from becoming untrue or
incorrect in any material respect.
6.2 COMPENSATION PLANS. During the period from the date of this
Agreement and continuing until the Effective Time, MOD agrees as to itself and
its subsidiaries that, it shall not, without the prior written consent of VDAT
(a) enter into, adopt, or amend any bonus, profit sharing, compensation, stock
option, pension, retirement, deferred compensation, employment, severance, or
other employee benefit plan, agreement, trust, plan, fund or other arrangement
between MOD and one or more of its officers, directors, or employees, in each
case so as to materially increase the benefits thereunder (collectively,
"Compensation Plans"), (b) grant or become obligated to grant any increase in
the compensation or fringe benefits of directors, officers, or employees
(including any such increase pursuant to any Compensation Plan) or any increase
in the compensation payable or to become payable to any officer, except, with
respect to employees other than officers, for increases in compensation in the
ordinary course of business consistent with past practice, or enter into any
contract, commitment, or arrangement to do any of the foregoing, except for
normal increases and non-stock benefit changes in the ordinary course of
business consistent with past practice, (c) institute any new employee benefit,
welfare program, or Compensation Plan, (d) make any change in any Compensation
Plan or other employee welfare or benefit arrangement or enter into any
employment or similar agreement or arrangement with any employee, or (e) enter
into or renew any contract, agreement, commitment, or arrangement providing for
the payment to any director, officer, or employee of MOD of compensation or
benefits contingent, or the terms of which are materially altered in favor of
such individual, upon the occurrence of any of the transactions contemplated by
this Agreement.
6.3 CURRENT INFORMATION. From the date of this Agreement to the
Effective Time, each of MOD and VDAT shall cause one or more of their designated
representatives to confer with each other on a regular and frequent basis and to
report the general status of each Company's ongoing operations and financial
condition and financing/funding activities and to deliver to each other monthly
unaudited consolidated balance sheets and related consolidated statements of
income for the period since the last such report. MOD and VDAT shall promptly
notify each other of any material change in the normal course of business or in
its or its subsidiaries' properties.
6.4 LEGAL CONDITIONS TO MERGER. Each of VDAT and MOD shall, and shall
cause their subsidiaries to, use all reasonable efforts (a) to take, or cause to
be taken, all actions necessary to comply promptly with all legal requirements
which may be imposed on such party or its subsidiaries with respect to the
Merger and to consummate the transactions contemplated by this Agreement,
subject to the appropriate vote or consent of shareholders, and (b) to obtain
(and to cooperate with the other party to obtain) any consent, authorization,
order or approval of, or any exemption by, any governmental entity and/or any
other public or private third party which is required to be obtained or made by
such party or any of its subsidiaries in connection with the Merger and the
transactions contemplated by this Agreement; PROVIDED, HOWEVER, that a party
shall not be obligated to take any action pursuant to the foregoing if the
taking of such action or such compliance or the obtaining of such consent,
authorization, order, approval, or exemption would, in such party's reasonable
opinion, (i) be materially burdensome to such party and its subsidiaries taken
as a whole or impact in such a materially adverse manner the economic or
business benefit of the transactions contemplated by this Agreement as to render
inadvisable the consummation of the Merger, or (ii) result in the imposition of
a condition or restriction on such party or on the Surviving Corporation of the
type referred to in SECTION 8.1(A). Each of VDAT and MOD shall promptly
cooperate with and furnish information to the other in connection with any such
burden suffered by, or requirement imposed upon, any of them or any of their
subsidiaries in connection with the foregoing.
6.5 ADVICE OF CHANGES; GOVERNMENT FILINGS. Each party shall confer on a
regular and frequent basis with the other, report on operational matters and
promptly advise the other orally and in writing of any change or event having,
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or which, insofar as can reasonably be foreseen, could have, a Material Adverse
Effect on such party or which would cause or constitute a material breach of any
of the representations, warranties, or covenants of such party contained herein.
ARTICLE VII
ADDITIONAL AGREEMENTS
7.1 ACCESS AND INFORMATION.
(a) MOD and VDAT shall afford to each other and their
financial advisors, legal counsel, accountants, consultants, and other
representatives access during normal business hours throughout the period from
the date hereof to thirty days subsequent to the date hereof to all of their
books, records, properties, facilities, personnel commitments, and records
(including but not limited to Tax Returns) and, during such period, each shall
furnish promptly all information concerning its business, properties, and
personnel as each party may reasonably request in order for the requesting party
to fully investigate the business and affairs of MOD or VDAT prior to the
Effective Time (the "Inspection").
(b) All information furnished by a party pursuant hereto shall
be treated as the sole property of the furnishing party until consummation of
the Merger contemplated hereby. The parties shall hold any such information that
is nonpublic in confidence to the extent required by, and in accordance with the
Mutual Confidentiality Agreement, dated as of November ___, 2001 (the
"Confidentiality Agreement"), by and between VDAT and MOD, and the
Confidentiality Agreement shall survive the termination of this Agreement.
7.2 ACQUISITION PROPOSALS. Until February 1, 2002, MOD and its
subsidiaries shall not, and shall use its best efforts to cause their respective
directors, officers, employees, financial advisors, legal counsel, accountants,
and other agents and representatives (for purposes of this SECTION 7.2 only,
being referred to as "affiliates") not to, initiate, solicit, or encourage,
directly or indirectly, or take any other action to facilitate any inquiries or
the making of any proposal with respect to, engage or participate in
negotiations concerning, provide any nonpublic information or data to, or have
any discussions with any person other than VDAT relating to, any acquisition,
tender offer (including a self-tender offer), exchange offer, merger,
consolidation, acquisition of beneficial ownership of or the right to vote
securities representing 10% or more of the total voting power of such entity or
any of its subsidiaries, dissolution, business combination, purchase of all or
any significant portion of the assets or any division of, or any equity interest
in, such entity or any subsidiary, or similar transaction other than the Merger
(such proposals, announcements, or transactions being referred to as
"Acquisition Proposals"). MOD shall promptly notify the others orally and in
writing if any such Acquisition Proposal (including the terms thereof and
identity of the persons making such proposals) is received and furnish to the
other parties hereto a copy of any written proposal.
7.3 STOCK EXCHANGE LISTING. VDAT shall take such action as may be
necessary or desirable to timely list the VDAT Shares to be issued pursuant to
the Merger on the Nasdaq National Market, Nasdaq SmallCap Market or principal
exchange on which its common stock is listed.
7.4 PUBLIC ANNOUNCEMENTS. So long as this Agreement is in effect, each
Company agrees that it shall obtain the approval of the other party prior to
issuing any press release and shall use its best efforts to consult with the
others before otherwise making any public statement or responding to any press
inquiry with respect to this Agreement or the transactions contemplated hereby,
except as may be required by law or any governmental agency if required by such
agency or the rules of the Nasdaq National Market, Nasdaq SmallCap Market or
principal exchange on which its common stock is listed.
7.5 EXPENSES. Subject to SECTION 10.1 hereof, whether or not the Merger
is consummated, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby and thereby shall be paid by
the party incurring such expenses.
7.6 ADDITIONAL AGREEMENTS.
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(a) Subject to the terms and conditions herein provided,
including without limitation those set forth in the proviso to SECTION 6.4
hereof, each of the parties hereto agrees to use all reasonable efforts to take,
or cause to be taken, all action and to do, or cause to be done, all things
necessary, proper, or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement,
including using all reasonable efforts to obtain all necessary waivers,
consents, and approvals, and to effect all necessary registrations and filings.
In case at any time after the Effective Time any further action is necessary or
desirable to carry out the purposes of this Agreement, the proper officers
and/or directors of the Companies shall take all such necessary action.
(b) Subject to the terms and conditions herein provided,
including without limitation those set forth in the proviso to SECTION 6.4
hereof, each Company shall cooperate with the others and use all reasonable
efforts to prepare all necessary documentation to effect promptly all necessary
filings and to obtain all necessary permits, consents, approvals, orders, and
authorizations of or any exemptions by, all third parties and governmental
bodies necessary to consummate the transactions contemplated by this Agreement.
7.7 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The respective
representations and warranties of MOD and VDAT contained in this Agreement shall
not survive the Closing Date, except that the representations and warranties in
Sections 4.3, 4.7, 4.10 and 4.11 by MOD and the MOD Shareholder shall survive
the Closing Date for a period of one year (the "Survival Period") only with
respect to the MOD Shareholder, at the end of which Survival Period no claim may
be made with respect to any such representation and warranty unless such claim
shall have been served in writing with the MOD Shareholder during such period.
7.8 Limited MOD Shareholder Indemnification. The MOD Shareholder hereby
agrees to indemnify and hold VDAT, the Surviving Corporation and their officers,
directors, affiliates, representatives, trustees, grantors, beneficiaries and
any successors thereto (the "VDAT Indemnities") harmless from any and all
damages, losses, costs or reasonable expenses (including without limitation,
reasonable fees and expenses of investigation and reasonable attorneys' fees and
consultant's fees and expenses in connection with any action, suit or proceeding
(collectively "Damages")) incurred or suffered as a result of or arising out of
the breach of any representation or warranty and on behalf of MOD or the MOD
Shareholder expressly as set forth in, and limited by the terms of, Section 7.7
above. In connection with any such indemnification by the MOD Shareholder
hereunder, the liability of the MOD Shareholder is expressly limited to the
actual consideration solely received by the MOD Shareholder from VDAT under this
Merger Agreement.
7.9 SHAREHOLDERS' MEETINGS. MOD shall, as soon as reasonably
practicable following the date hereof, establish a record date for, duly call,
give notice of, convene and hold (and reconvene and hold if adjourned for any
reason) a special meeting of its stockholders or acting by majority of the MOD
Shareholders for the purpose of voting or consenting to approve this Agreement
and the Merger and the other transactions contemplated hereby. MOD shall,
through its Board of Directors, recommend to its shareholders approval of such
matters.
ARTICLE VIII
CONDITIONS TO CONSUMMATION OF THE MERGER
8.1 CONDITIONS TO THE COMPANIES' OBLIGATION TO EFFECT THE MERGER. The
respective obligations of all Companies to effect the transactions contemplated
herein shall be subject to the satisfaction at or prior to the Effective Time of
the following conditions, any one of which may be waived by a writing signed by
VDAT and MOD:
(a) This Agreement and the transactions contemplated hereby
shall have been approved and adopted by the requisite vote of the shareholders
of MOD in accordance with applicable law.
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(b) No preliminary or permanent injunction or other order by
any federal, state, or foreign court of competent jurisdiction which prohibits
the consummation of any Merger shall have been issued and remain in effect. No
statute, rule, regulation, executive order, stay, decree, or judgment shall have
been enacted, entered, issued, promulgated, or enforced by any court or
governmental authority which prohibits or restricts the consummation of the
Merger.
(c) Other than the filing of Articles or Certificate of Merger
with the Department of State for the State of Florida and Delaware, all
authorizations, consents, orders or approvals of, or declarations or filings
with, and all expirations of waiting periods imposed by, any governmental entity
(all of the foregoing, "Consents") which are reasonably necessary for the
consummation of the Merger, shall have been filed, occurred, or been obtained
(all such permits, approvals, filings, and consents and the lapse of all such
waiting periods being referred to as the "Requisite Regulatory Approvals") and
all such Requisite Regulatory Approvals shall be in full force and effect.
(d) All state securities or blue sky permits and other
authorizations necessary to issue the VDAT Shares (including satisfactory
evidence of the nature of the MOD Shareholders) in exchange for the Shares of
MOD and to consummate the Merger shall have been received.
(e) There shall not be any action taken, or any statute, rule,
regulation, or order enacted, entered, enforced, or deemed applicable to any
Merger, by any federal or state governmental entity which, in connection with
the grant of a Requisite Regulatory Approval, imposes any condition or
restriction upon any Surviving Corporation or its subsidiaries (or, in the ease
of any disposition of assets required in connection with such Requisite
Regulatory Approval, upon any Company or its subsidiaries), including, without
limitation, requirements relating to the disposition of assets, which in any
such case would so materially adversely impact the economic or business benefits
of the transactions contemplated by this Agreement as to render inadvisable the
consummation of the Merger.
(f) The other Company shall have performed in all material
respects its obligations under this Agreement required to be performed by it at
or prior to the Effective Time and the representations and warranties of the
other Company contained in this Agreement shall be true and at and as of the
Effective Time as if made at and as of such time, except as contemplated by this
Agreement, and each Company shall have received a certificate of the Chairman of
the Board, the President, or an Executive Vice President of the other Company as
to the satisfaction of this condition.
8.2 CONDITIONS TO OBLIGATIONS OF VDAT. The obligations of VDAT to carry
out the transactions contemplated by this Agreement are subject, at the option
of VDAT, to the satisfaction, or waiver by VDAT, of the following conditions:
(a) No proceeding which MOD shall be a debtor, defendant, or
party seeking an order for its own relief or reorganization shall have been
brought or be pending by or against such person under any United States or state
bankruptcy or insolvency law.
(b) VDAT shall have received a draft of the audited financial
statements of MOD for the periods ended December 31, 2000 and 2001 in form and
substance reasonably satisfactory to VDAT.
(c) VDAT shall have received evidence satisfactory to it that
a sufficient number of MOD Shareholders are accredited or sophisticated
investors.
(d) Conversion of the MOD preferred stock and evidence of
cancellation of all outstanding options and warrants of MOD.
8.3 CONDITIONS TO OBLIGATIONS OF MOD. The obligations of MOD to carry
out the transactions contemplated by this Agreement are subject, at the option
of MOD, to the satisfaction, or waiver by MOD, of the following conditions: No
proceeding which VDAT shall be a debtor, defendant, or party seeking an order
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for its own relief or reorganization shall have been brought or be pending by or
against such person under any United States or state bankruptcy or insolvency
law.
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
9.1 TERMINATION. This Agreement may be terminated and the Merger
contemplated hereby abandoned at any time prior to the Effective Time, whether
before or after approval by the shareholders of MOD, as follows:
(a) By mutual written consent of all of the parties.
(b) By MOD or VDAT if the Effective Time shall not have
occurred on or before the close of business on February 4, 2002.
9.2 EFFECT OF TERMINATION. In the event of termination of this
Agreement as provided above, this Agreement shall forthwith become of no further
effect and, except for a termination resulting from a breach by a party of this
Agreement, there shall be no liability or obligation on the part of any Company
or their respective officers or directors (except as set forth in SECTIONS 7.1,
7.5, 9.2, 10.1, 10.5 and 10.9 hereof all of which shall survive the
termination). Nothing contained in this SECTION 9.2 shall relieve any party from
liability for willful breach of this Agreement that results in termination of
this Agreement. Upon request therefor, each party shall redeliver all documents,
work papers, and other material of any other party relating to the transactions
contemplated hereby, whether obtained before or after the execution hereof, to
the party furnishing same.
In the event of termination of the Agreement, all advances made by VDAT to MOD
shall be converted into a senior secured convertible debenture (the "Debenture")
bearing interest at 12% per annum amortized over twelve (12) months from the
date of termination, with no prepayment penalty. The Debenture shall be a senior
obligation of MOD, and VDAT shall have a security interest in all the assets of
MOD that are free and clear of liens and encumbrances consistent with SCHEDULE
4.19. During the term of the Debenture, VDAT shall be permitted to convert any
or all of outstanding principal amount of the Debenture into MOD Common Stock at
a purchase price of $0.30 per share of MOD Common Stock. VDAT shall receive at
least ten (10) days' prior notice before repayment of the Debenture. Also, in
the event that MOD obtains financing in excess of $500,000 in one or a series of
related financings ("MOD Financing") during the term of the Debenture, MOD
agrees to repay the Debenture upon MOD's receipt of the proceeds of any such MOD
Financing.
9.3 AMENDMENT. This Agreement may be amended by action taken at any
time before or after approval hereof by the shareholders of MOD, but, after any
such approval, no amendment shall be made which alters the Exchange Ratio or
which in any way materially adversely affects the rights of such shareholders,
without the further approval of such shareholders. This Agreement may not be
amended except by an instrument in writing signed on behalf of each of the
parties hereto.
9.4 WAIVER. At any time prior to the Effective Time, the parties hereto
may (a) extend the time for the performance of any of the obligations or other
acts of the other parties hereto, (b) waive any inaccuracies in the
representations and warranties contained herein or in any document delivered
pursuant hereto, and (c) waive compliance with any of the agreements or
conditions contained herein. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party. Such extensions or waivers shall be in
writing, executed by each of VDAT and MOD. Such waiver shall not operate as a
waiver of, or estoppel with respect to, any subsequent or other failure.
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ARTICLE X
GENERAL PROVISIONS
10.1 BROKERS. Each Company represents and warrants to the others that
no broker, finder, or financial advisor is entitled to any brokerage, finder's,
or other fee or commission in connection with the Merger or the transactions
contemplated by this Agreement based upon arrangements made by or on behalf of
any party hereto, except as reflected in SCHEDULE 10.1 hereto.
10.2 NOTICES. All notices, claims, demands and other communications
hereunder shall be in writing and shall be deemed given if delivered personally
or by telex or telecopy or mailed by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
(a) If to VDAT, to:
Visual Data Corporation
▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to:
Atlas ▇▇▇▇▇▇▇▇, P.A.
Suite 1700
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
(b) If to MOD, to:
Media On ▇▇▇▇▇▇.▇▇▇, Inc.
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
with a copy to:
Winston & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. Sama, Esq.
10.3 DESCRIPTIVE HEADINGS. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
10.4 ENTIRE AGREEMENT: ASSIGNMENT. This Agreement (including the
Exhibits, Schedules, and other documents and instruments referred to herein) and
the Confidentiality Agreement (a) constitute the entire agreement and supersede
all other prior agreements and understandings, both written and oral, among the
parties or any of them, with respect to the subject matter hereof; and (b) shall
not be assigned by operation of law or otherwise.
10.5 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida without giving effect to the
provisions thereof relating to conflicts of law.
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10.6 PARTIES IN INTEREST. Except for SECTION 7.8, hereof, nothing in
this Agreement, express or implied, is intended to or shall confer upon any
other person any rights, benefit, or remedies of any nature whatsoever or by
reason of this Agreement.
10.7 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
shall constitute one and the same agreement.
10.8 VALIDITY. The invalidity or unenforceability of any provision of
this Agreement shall not effect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect.
10.9 JURISDICTION AND VENUE. Each Party hereto hereby agrees that any
proceeding relating to this Agreement and the Merger shall be brought in a state
or federal court of Florida. Each party hereto hereby consents to personal
jurisdiction in any such action brought in any such Florida court, consents to
service of process by registered mail made upon such party and such party's
agent and waives any objection to venue in any such Florida court or to any
claim that such Florida court is an inconvenient form.
10.10 INVESTIGATION. The respective representations and warranties of
each Company contained herein or in the certificates or other documents
delivered prior to the Closing shall not be deemed waived or otherwise affected
by any investigation made by any party hereto.
10.11 CONSENTS. For purposes of any provision of this Agreement
requiring, permitting, or providing for the consent of any or Company, the
written consent of the Chief Executive Officer of a Company shall be sufficient
to constitute such consent.
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IN WITNESS WHEREOF, each Company has caused this Agreement to be
executed on its behalf by its officers thereunto duly authorized, all as of the
date first above written.
VISUAL DATA CORPORATION, MEDIA ON ▇▇▇▇▇▇.▇▇▇, INC.,
a Florida Corporation a Delaware corporation
By: By:
---------------------------------- ------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President Title: President
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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