SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) May 20, 1998
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VISUAL DATA CORPORATION
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(Exact name of registrant as specified in its charter)
Florida 0-22849 65 - 0420146
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(State or other jurisdiction (Commission File (IRS Employer
or incorporation) Number) Identification No.)
1291 SW 29th Avenue, Pompano Beach, Florida 33069
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(Address of principal executive offices, including zip code)
Registrant's telephone number, including area code (954) 917-6655
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N/A
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(Former name or former address, if changed since last report)
Item 5. Other Events.
On May 20, 1998, Visual Data Corporation (the "Company") acquired and
closed on the acquisition of certain assets of Digital Criteria Technologies
Inc., a Florida corporation. The Company purchased the assets in exchange for
140,000 shares of restricted common stock of the Company and warrants to
purchase an additional 70,000 shares of common stock. The assets purchased were
a 30% interest in CareerSelect(TM), a database and data search program designed
to provide a membership based service that allows prospective employers to
review resumes as well as hear potential job candidates that meet the criteria
on a computer display and to compare results of certain compatibility factors
before they can arrange an interview. In addition, the Company purchased a 40%
interest in "Real Estate Select", a program designed to allow the viewer to
enter specific criteria and be provided with real estate properties that fit
such criteria.
The warrants are exercisable at a price of $3.18 per share until April 7, 2002.
The Company has granted holders of the shares of common stock and the shares of
common stock underlying the warrants with piggyback registration rights,
provided, however, the Company has agreed to file registration for such
securities no later that one year from April 1998.
The above discussion is qualified in its entirety by reference to the Asset
Purchase Agreement, a copy of which is filed herewith.
Item 7.FINANCIAL STATEMENTS, PROFORMA FINANCIAL INFORMATION AND EXHIBITS
(c) Exhibit
(1) Asset Purchase Agreement dated April 8, 1998 by and between
Visual Data Corporation and Digital Criteria Technologies, Inc.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Visual Data Corporation
(Registrant)
Date: June 3, 1998 By: /s/ Randy S. Selman
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Randy S. Selman
President, Chief Executive Officer and
Acting Chief Financial Officer
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement") is dated as of the 8th day of
April, 1998 (the "Contract Date") by and between Visual Data Corporation, a
Florida corporation (the "Buyer") and Digital Criteria Technologies, Inc., a
Florida corporation (the "Seller"). Buyer and Seller sometimes individually
referred to as "Party" and collectively as "Parties".
RECITALS
A. Seller is engaged in the business of developing software products (the
"Seller's Business").
B. Seller desires to sell and Buyer desires to purchase certain "Assets,"
as hereinafter defined, of Seller, upon the terms and conditions set forth in
this Agreement and Buyer desires to acquire such "Assets," as set forth more
fully below, upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the recitals hereinbefore stated
and the mutual representations, warranties, covenants and agreements hereinafter
set forth, the receipt and sufficiency of which are hereby acknowledged, Buyer
and Seller do hereby represent, warrant, covenant and agree as follows:
1. Recitals. The above recitals are true, complete, and incorporated
herein by reference.
2. Sale and Purchase of Assets.
a. Sale and Purchase of Assets. Subject to the terms and conditions of
this Agreement, at the closing referred to in Section 4 (the "Closing"), Seller
shall sell, assign, transfer, convey and deliver to Buyer, and Buyer shall
purchase, acquire and accept from Seller, free from all debt, mortgages,
securities interest, claims, charges, or other liens and encumbrances, other
than those set forth in Schedule 6.f., all of Seller's right, title and interest
(there being no other liabilities or payables associated with this transfer) in
and to the Assets ("Assets") described on Schedule 1.1.
b. Retained Assets and Liabilities. All other assets of Seller not
otherwise set forth herein (the "Retained Assets") and all debts, liabilities,
obligations, loans, commitments, accounts payables or undertakings (collectively
the "Liabilities") that relate to the period prior to Contract Date, shall be
retained by Seller, other than there set forth in Schedule 6.f.
3. Purchase Price.
a. Payment of Purchase Price. Buyer shall pay to Seller at Closing
the Purchase Price as follows:
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(1) At the Closing, One Hundred Forty Thousand (140,000) shares
of Common Stock of Visual Data Corporation ("Common Stock"); and
(2) At the Closing, warrants ("Warrants") to purchase Seventy
Thousand (70,000) shares of common stock at the fair market price
as of the Closing Date and exercisable for a period commencing on
the Closing Date and continuing for a period of four (4) years
thereafter.
b. Restrictions of the Sale of the Securities.
(1) The Buyer hereby represents and warrants to the Seller that
the Common Stock, the Warrants and the shares of common stock
underlying the Warrants (collectively the "Securities") are being
issued pursuant to an exemption from the registration provisions of the
Securities Act of 1933, as amended (the "Act") and as such will not be
registered under the Act, and may not be resold unless the Securities
are registered under the Act or an exemption from such registration is
available. The Seller, or its assigns, shall represent and warrant that
each is acquiring the Securities for that holder's own account, for
investment, and not with a view to the sale or distribution of the
Securities. Each certificate representing the Securities will have a
legend thereon incorporating language as follows:
"The Securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"). The Securities have been acquired for investment and
may not be sold or transferred (i) except pursuant to an
effective Registration Statement for the Securities under the
Act; or (ii) upon the delivery by the holder to Visual Data
Corporation of an opinion of counsel, satisfactory to counsel
of Visual Data Corporation, stating that registration is not
required under the Act."
(2) The rights to sell the Securities may be permitted if, in the
opinion of counsel satisfactory to Buyer, Seller meets and the holder
complies with the provisions of Rule 144 of the Act, if applicable,
provided that the Securities may be subject to a lock-up period not to
exceed 12 months in the sole discretion of Buyer's underwriter.
(3) The Buyer hereby grants the Seller piggyback registration
rights for the Common Stock and the shares of common stock underlying
the Warrants (the "Registerable Securities"), with such registration
rights to be available when Buyer files a registration statement under
the Securities Act of 1933, as amended ("33 Act"), with respect to an
offering for its own account of any class of security on Forms S-1,
SB-2, and S-3 provided, however, Buyer agrees to file a registration
statement for the Registerable Securities no later than one (1) year
from the date hereof.
c. Allocation of Purchase Price. The Purchase Price shall be
allocated as mutually agreed upon by the Parties. Each Party warrants and
covenants to the other that it shall report the
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Purchase Price Allocation ("Purchase Price Allocation") on all state and/or
federal tax returns and filings and not take any position with any governmental
authority at variance or inconsistent of such position and shall indemnify and
hold each other harmless for any damage the other may sustain by reason of not
reporting the above allocation on any state or federal return or filing. The
above indemnity and hold harmless provision includes the indemnifying Party
compensating the non-indemnifying Party for all of its expenses in connection
with an audit resulting from a failure to report the Purchase Price Allocation,
including but not limited to attorney fees, certified public accountant fees and
costs. Further, each Party hereby agrees to provide the other written notice of
any notification or correspondence from any state or federal taxing authority
that concerns the purchase price allocation or the reporting thereof. Each Party
shall have the right to participate in the defense of any audit or claim by a
state or federal taxing authority. This covenant shall survive closing for a
period of five (5) years.
4. Closing.
a. Date of Closing. The Closing shall take place at the offices of
Atlas, Pearlman, Trop & Borkson, P. A. located at 200 East Las Olas Boulevard,
Fort Lauderdale, Florida 33301 (or at such other place as the Parties may agree
in writing) on or before April 30, 1998, or such other date mutually agreed upon
by Seller and Buyer. The date on which the Closing is held is referred to in
this Agreement as the "Closing Date." At the Closing, the Parties shall execute
and deliver the documents referred to in Section 10 of this Agreement.
5. Termination.
a. This Agreement may be terminated as follows:
(1) by mutual written agreement executed by Seller and Buyer at
any time prior to the Closing;
(2) by Buyer at any time prior to the Closing, if any of the
conditions specified in Section 9a shall not have been satisfied or
waived in writing by Buyer on or before Closing; or
(3) by Seller at any time prior to the Closing, if any of the
conditions specified in Section 9b shall not have been satisfied or
waived in writing by Seller on or before Closing;
(4) This Agreement may, in any event, be terminated by Seller or
Buyer if the Closing shall not have occurred by April 30, 1998.
(5) Upon such termination neither of the Parties shall have any
liability or further obligation arising out of this Agreement.
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6. Representations and Warranties of Seller. Seller represents and
warrants to Buyer that:
a. Organization, Standing and Authority of Seller. Seller is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Florida and has full corporate power and authority to enter into
and perform this Agreement. Seller is qualified to do business and is in good
standing in each jurisdiction in which the nature of its business or the
properties owned or leased by it requires qualification, except where the
failure to be so qualified or in good standing would not have a material adverse
effect upon the Assets ("Material Adverse Effect").
b. Authorization of Agreement. The execution, delivery and performance
of this Agreement by Seller has been duly authorized by all necessary corporate
actions of Seller and this Agreement constitutes the valid and binding
obligation of Seller enforceable against it in accordance with its terms, except
to the extent enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights in general and subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
c. Consents of Third Parties. Subject to receipt of the consents and
approvals referred to in this Agreement, the execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated hereby
by Seller will not (i) violate or conflict with the articles of incorporation or
by-laws of Seller, (ii) except as disclosed in Schedule 6.f., conflict with, or
result in the breach of, or termination of, or constitute a default under
(whether with notice or lapse of time or both), or accelerate or permit the
acceleration of the performance required by, any indenture, mortgage, lien,
lease, agreement, commitment or other instrument, or any order, judgment or
decree, to which Seller is a Party or by which Seller or any of its properties
is bound, (iii) constitute a violation of any law, regulation, order, writ,
judgment, injunction or decree applicable to Seller, or (iv) result in the
creation of any lien, charge or encumbrance upon the capital stock, properties
or assets of Seller, other than violations, conflicts, breaches, terminations,
accelerations and defaults specified in the foregoing clauses (ii) through (iv)
which could not reasonably be expected to have a material adverse effect on
Seller's ability to perform its obligations under this Agreement.
d. Absence of Certain Liabilities and Changes. There are no liabilities
or obligations material to the Assets that would normally be shown on a balance
sheet prepared in accordance with generally accepted accounting principles
except (i) liabilities and obligations not required to be so disclosed because
of their failure to meet the materiality thresholds set forth therein, and (ii)
liabilities and obligations which are being retained by Seller or allocated to
Buyer under the terms of this Agreement. There has not been:
(1) any material transaction made by Seller relating to the
Assets, other than the prior purchase thereof;
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(2) any lien, security or other encumbrance ("Lien") created or
assumed by Seller on any of the Assets other than a Permitted Lien (as
such term is defined in Section 6f);
(3) any entering into, amendment or termination of any material
contract, agreement, lease, franchise, security, instrument, permit or
license between Seller and any party that has had or could reasonably
be expected to have an adverse effect on the Assets; or
(4) any existing agreement or arrangement made by Seller to take
any action that would cause any representations or warranty in this
Section 6 to be untrue or incorrect.
e. Litigation; Compliance with Laws. There are no judicial or
administrative actions, proceedings or investigations pending or, to the best of
Seller's knowledge, threatened, that question the validity of this Agreement or
any action taken or to be taken by Seller in connection with this Agreement.
There is no litigation, proceeding or governmental investigation pending or, to
the best of Seller's knowledge, threatened, or any order, injunction or decree
outstanding, against Seller.
f. Ownership of Assets. Seller has good title to all of the Assets,
free and clear of all Liens, (i) except under or in relation to those agreements
disclosed on Schedule 6.f., and (ii) taxes and general and special assessments
not in default and payable without penalty or interest (liens of the type
referred to in clauses (i) through (ii) above being hereinafter referred to as
"Permitted Liens").
g. Taxes. Seller has prepared and filed all appropriate federal, state
and local tax returns of every kind and category (including without limitation,
income taxes, estimated taxes, excise taxes, payroll taxes, sales taxes,
inventory taxes, use taxes, gross receipt taxes, franchise taxes and property
taxes) for all periods prior to and through the date hereof for which any such
returns have been required to be filed by it and has paid all taxes shown to be
due by said returns or on any assessments received by it or has made adequate
provisions for the payment thereof.
h. Conduct of Business. Between the date hereof and the Closing Date,
except as otherwise approved by Buyer, Seller shall conduct its business in such
a manner that the representations and warranties contained this Section 6 shall
be true and correct at and as of the Closing Date (except for changes
contemplated, permitted or required by this Agreement) and so that the
conditions to be satisfied by Seller at Closing shall have been satisfied.
i. Unusual Events. Until the Closing Date, Seller shall supplement or
amend all relevant Exhibits hereto with respect to any matter hereafter arising
or discovered which, if existing or known at the Closing Date, would have been
set forth or described in such Exhibits; provided, however, that for the purpose
of the rights and obligations of the Parties hereunder, any such material
supplemental disclosure shall not be deemed to have been disclosed to Buyer
until the date Seller delivers same to Buyer unless Buyer agrees to in writing
by Buyer.
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j. No Adverse Effect. There is known to Seller no event or condition of
any kind or character pertaining to the business or the Assets that may
adversely and materially affect the Assets, except under or pursuant to those
agreements disclosed in Schedule 6.f.
k. Representations and Warrants on Closing Date. The representations
and warranties contained in this Section 6 shall be true and complete on the
Closing Date with the same force and effect as though such representations and
warranties had been made on and as of the Contract Date.
7. Representations and Warranties of Buyer. Buyer represents and warrants to
Seller as follows:
a. Buyer's Organization. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of Florida and has the full
corporate power and authority to enter into and to perform this Agreement.
b. Authorization of Agreement. The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated hereby
by Buyer have been duly authorized by all necessary corporate actions of Buyer
and this Agreement constitutes the valid and binding obligation of Buyer
enforceable against it in accordance with its terms, except to the extent
enforceability may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights in general and subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
c. Consents of Third Parties. The execution, delivery and performance
of this Agreement by Buyer will not (i) violate or conflict with the
constitutional documents of Buyer; (ii) conflict with, or result in the breach
or termination of, or constitute a default under (whether with notice or lapse
of time or both), or accelerate or permit the acceleration of the performance
required by, any indenture, mortgage, lien, lease, agreement, commitment or
other instrument or any order, judgment or decree, to which Buyer is a party or
by which it or its properties are bound, except as provided in this Agreement;
or (iii) constitute a violation of any law, regulation, order, writ, judgment,
injunction or decree applicable to Buyer, other than violations, conflicts,
breaches, terminations, accelerations and defaults specified in the foregoing
clauses (ii) and (iii) which could not reasonably be expected to have a material
adverse effect on Buyer's ability to perform its obligations under this
Agreement. No consent, approval or authorization of any governmental authority
is required on the part of Buyer in connection with the execution, delivery and
performance of this Agreement.
8. Further Agreements of the Parties.
a. Access to Information. Prior to the Closing Date, Buyer may make
such investigation of the business and properties of Seller as Buyer may desire,
and upon reasonable notice, Seller shall give to Buyer and its counsel,
accountants and other representatives reasonable access, during normal business
hours throughout the period prior to the Closing, to the property, books,
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commitments, agreements, records, files and personnel of Seller, and Seller
shall furnish to Buyer during that period all copies of documents and
information concerning the Assets as Buyer may reasonably request subject to
applicable law; provided that such investigation and related documents and
personnel described herein shall relate solely to the Assets. Buyer shall hold,
and shall cause its counsel, accountants and other agents and representatives to
hold, all such information and documents in accordance with, and subject to the
terms of, the confidentiality agreement previously executed by Buyer with
respect to this transaction.
b. Confidential Information. During the period of ten (10) years from
the date of this Agreement, each Party and each of their respective officers,
directors, employees and agents, agree to hold all of a Party's "Confidential
Information" (as defined below) in trust and in confidence and not use the a
Party's Confidential Information other than for the benefit of a Party in
connection with this transaction. Each Party agrees not to disclose during such
period the other Party's Confidential Information, by publication or otherwise,
to any other person, other than those persons who are representatives,
attorneys, accountants or officers of a Party. For purposes of this Agreement, a
Party's "Confidential Information" shall mean that information which has been
disclosed to or obtained by a Party in connection with, and during the
negotiations of, this Agreement, and which relates to past, present and future
business activities of a Party, including customer lists, processes, technical,
vendor lists, price lists, personnel and any and all such information obtained
by a Party pursuant to this Agreement.
Excluded from the Confidential Information, and therefore not
subject to the provisions of this Agreement, shall be any information which (1)
at the time of disclosure, is in the public domain as evidenced by printed
publications; (2) After the disclosure, enters the public domain by way of
printed publication through no fault of a Party; (3) a Party can show by written
documentation that the Confidential Information was in a Party's possession at
the time of disclosure and which was not acquired directly or indirectly from
the other Party; (4) a Party can show by written documentation was acquired,
after disclosure, from a third party who did not receive it from the other
Party, and who had the right to disclose the information without any obligation
to hold such information confidential; or (5) is required by law to be
disclosed, but only such portion of information required to be disclosed on a
non-confidential basis. The foregoing exceptions shall apply only from and after
the date that the information becomes generally available to the public or is
disclosed to a Party by a third party, respectively. Specific information shall
not be deemed to be within the foregoing exceptions merely because it is
embraced by more general information in the public domain. Additionally, any
combination of features shall not be deemed to be within the foregoing
exceptions merely because individual features are in the public domain. If the a
Party intends to avail itself of any of the foregoing exceptions, a Party shall
notify the other Party in writing of its intention to do so and the basis for
claiming the exception.
c. Other Action. Each of the Parties shall use its best efforts to
cause the fulfillment at the earliest practicable date but, in any event, prior
to the Closing Date, of all of the conditions to their respective obligations to
consummate the transactions under this Agreement.
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d. Notices. Each Party shall promptly notify the other Party in writing
of, and furnish to such party any information that such party may reasonably
request with respect to, the occurrence of any event or the existence of any
state of facts that would (a) result in the party's representations and
warranties not being true if they were made at any time prior to or as of the
Closing Date, or (b) impair the Party's ability to perform its obligations under
this Agreement.
e. Governmental Filings. As promptly as practicable after the execution
of this Agreement, each Party shall, in cooperation with the other, but at its
own expense, file any reports or notifications and pay any fees that may be
required to be paid by it under applicable law, and shall furnish to the other
all such information in its possession as may be necessary for the completion of
the reports or notifications to be filed by the other.
f. Expenses. Except as otherwise specifically provided in this
Agreement, Buyer and Seller shall bear their own respective expenses incurred in
connection with this Agreement and in connection with all obligations required
to be performed by each of them under this Agreement. Buyer shall pay any taxes
relating to the transfer of the Assets contemplated herein and Seller shall
cooperate in minimizing such taxes, if applicable.
g. Publicity. Buyer and Seller shall consult with each other before
issuing any press release concerning the transactions contemplated by this
Agreement and, except as may be required by applicable law or any listing
agreement with or regulation or rule of any stock exchange on which the
securities of the Seller or Buyer are listed or traded, will not issue a press
release prior to such consultation. If Buyer or Seller is so required to issue a
press release it shall use its best efforts to inform the other Party hereto and
obtain such Party's approval prior to issuing it.
h. Right of First Refusal. If Seller shall receive or negotiate a "Bona
Fide Offer" (as hereinafter defined) to purchase any portion of Seller's
remaining assets and specifically including, without limitation any rights, and
is willing to accept such Bona Fide Offer, Seller shall promptly send a "BFO
Notice" (as hereinafter defined) to Buyer offering to sell any of the remaining
assets at the same price and upon the same terms and conditions as are contained
in the Bona Fide Offer. Buyer shall then have such rights and privileges, for
the prescribed time periods as are set forth below. The procedure is as follows:
(1) Prior to accepting an offer for the sale of such assets,
Seller must offer such assets to Buyer by BFO Notice. "Bona Fide Offer"
shall mean an offer in writing,
signed by an offeror or offerors, in a form legally enforceable against
such offeror or offerors.
(2) When notice is sent with respect to a Bona Fide Offer (by
a method provided for herein), such notice ("BFO Notice") shall contain
a true and complete copy of the Bona Fide Offer setting forth the price
and all terms and conditions of the proposed transaction, with the
name(s) and address(es) of the offeror or offerors. Any purported
notice which does not contain all such requisite information shall not
be considered a BFO Notice for the purposes of this Section 8.l.
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(3) When a Bona Fide Offer to purchase such assets has been
received, and the BFO Notice has been sent by Seller as to the Bona
Fide Offer, the following procedures shall be complied with:
(a) for a period of ten (10) business days from its
receipt of the BFO Notice, Buyer shall have the right, at its sole
option, to purchase the assets on the same terms and conditions as is
set forth in the BFO Notice.
(b) if Buyer does not elect, within the prescribed
time period, to purchase the assets covered by the Bona Fide Offer,
Seller shall have the right to accept the Bona Fide Offer, subject to
the provisions and restrictions of this Agreement, in strict accordance
with the terms of the Bona Fide Offer and only if the sale is fully
consummated within sixty (60) days after the original mailing of the
BFO Notice (if such sale is not fully consummated within sixty (60)
days after the original mailing of the BFO Notice, the provisions
herein as to the subject hereof must again be complied with by Seller).
9. Conditions of Closing.
a. Conditions Precedent to Obligations of Buyer. The obligation of
Buyer to consummate the purchase under this Agreement is subject to the
fulfillment, prior to or at the Closing, of each of the following conditions
(any or all of which may be waived by Buyer):
(1) all representations and warranties of Seller contained in
this Agreement shall be true and correct in all material respects, at
and as of the time of the Closing with the same effect as though made
again at, and as of, that time;
(2) Seller shall have performed and complied in all material
respects with all obligations and covenants required by this Agreement
to be performed or complied with by Seller prior to or at the Closing;
(3) a copy of the resolutions of the board of directors of Seller
authorizing the execution, delivery and performance of this Agreement
by Seller shall have been delivered to Buyer;
(4) Seller shall have good title to, or holds by valid and
existing lease, all of the Assets, free and clear of all liens, other
than the Permitted Liens;
(5) no provisions of any applicable law or regulation shall
prohibit, and there shall not be in effect any injunction or
restraining order issued by a court of competent jurisdiction in any
action or proceeding against the consummation of the sale and purchase
of the Assets pursuant to this Agreement.
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b. Conditions Precedent to Obligations of Seller. The obligation of
Seller to consummate the sale under this Agreement is subject to the
fulfillment, prior to or at the Closing, of each of the following conditions
(any or all of which may be waived by Seller):
(1) all representations and warranties of Buyer contained in
this Agreement shall be true and correct in all material respects at
and as of the time of the Closing with the same effect as though made
again at, and as of, that time;
(2) Buyer shall have performed and complied in all material
respects with all obligations and covenants required by this Agreement
to be performed or complied with by Buyer prior to or at the Closing;
(3) no provision of any applicable law of regulation shall
prohibit, and there shall not be in effect any injunction or
restraining order issued by a court of competent jurisdiction in any
action or proceeding against the consummation of the sale and purchase
of the Assets pursuant to this Agreement.
10. Documents to be Delivered at the Closing.
a. Documents to be Delivered by Seller. At the Closing, Seller shall
deliver, or cause to be delivered, to Buyer the following:
(1) one or more executed General Conveyance bills of sale,
instruments of assignment or certificates of title, dated the Closing
Date, transferring to Buyer all of Seller's right, title and interest
in and to the Assets;
(2) Co-ownership Agreement, to be executed by the Seller and the
Buyer, in substantially the form set forth on Exhibit A;
(3) such other certificates, documents and instruments as Buyer
may have reasonably requested in connection with the transaction
contemplated hereby.
b. Documents to be Delivered by Buyer.
(1) At the Closing, Buyer shall deliver to Seller the following:
(a) certificates representing an aggregate of 140,000
shares of Buyer Common Stock;
(b) evidence of issuance of Warrants to purchase 70,000
shares of Common Stock;
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(c) Co-ownership agreement to be executed by the Seller and
the Buyer in the substantially the form set forth on Exhibit A;
and
(d) such other certificates, documents and instruments as
Seller may have reasonably requested in connection with the
transaction contemplated hereby.
11. Indemnification and Survival of Representations and Warranties.
a. Indemnification.
(1) Subject to the provisions of this Section 11, Seller agrees
to indemnify and hold Buyer and its affiliates, predecessors,
successors and assigns (and their respective officers, directors,
employees and agents) harmless from and against all actions, suits,
proceedings, claims, demands, assessments, judgments, damages, costs
and expenses, including reasonable attorneys' fees (at both trial and
appellate levels), arising or resulting from the following:
(a) a breach of any representation or warranty on the part
of Seller under the terms of this Agreement or any other document
executed by Seller pursuant hereto;
(b) non-fulfillment of any agreement on the part of Seller
under the terms of this Agreement or any other document executed
by Seller pursuant hereto; and
(c) any action, suit or proceeding pending or overtly
threatened against Seller before the Closing;
(2) Subject to the provisions of this Section 11, Buyer agrees to
indemnify and hold Seller and its affiliates, predecessors, successors
and assigns (and their respective officers, directors, employees and
agents) harmless from and against all actions, suits, proceedings,
claims, demands, assessments, judgments, damages, costs and expenses,
including reasonable attorneys' fees (at both trial and appellate
levels), arising or resulting from the following:
(a) a breach of any representation or warranty on the part
of Buyer under the terms of this Agreement or any other document
executed by Buyer pursuant hereto;
(b) non-fulfillment of any agreement on the part of Buyer
under the terms of this Agreement or any other document executed
by Buyer pursuant hereto; and
(c) any action, suit or proceeding pending or overtly
threatened against Buyer before the Closing;
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b. Survival of Representations and Warranties. All
representations, warranties, agreements, covenants, and obligations
herein made by or in any certificates or financial statements delivered
by any of the Parties hereunder are material, shall be deemed to have
been relied upon by each of the other Parties and shall survive the
Closing for a period of eighteen (18) months thereafter.
12. Miscellaneous.
a. Jurisdiction and Governing Law. Seller and Buyer each hereby consent
to personal jurisdiction in any action brought with respect to this Agreement
and the transactions contemplated hereunder in any federal or state court within
the State of Florida and specifically Broward County, Florida. This Agreement
will be governed by and construed in accordance with the law of the State of
Florida without giving effect to conflicts of law principles thereof.
b. Schedules and Headings. Any matter disclosed on any Schedule to this
Agreement shall be deemed to have been disclosed on all other Schedules to this
Agreement to the extent that it should have been disclosed on such other
Schedule. The section headings of this Agreement and titles given to Schedules
to this Agreement are for reference purposes only and are to be given no effect
in the construction or interpretation of this Agreement.
c. Notices. All notices and other communications under this Agreement
shall be in writing and shall be deemed given when delivered personally
(including by confirmed legible telecopier transmission) or mailed by certified
mail, return receipt requested, to the Parties at the following addresses (or to
such address as a Party may have specified by notice given to the other Party
pursuant to this provision):
If to Seller, to:
1300 Don Mills Road
Second Floor, West
Don Mills, Ontario M3B 2W6
Attention: Les Bresge
Telecopy No.: (416) 444-3368
If to Buyer, to:
Visual Data Corporation
1291 S.W. 29th Avenue
Pompano Beach, Florida 33069
Attention: David Goodman, COO
Telecopy No.: (954) 917-6660
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d. Severability. In the event that any provision hereof would, under
applicable law, be invalid or enforceable in any respect, such provision shall
be construed by modifying or limiting it so as to be valid and enforceable to
the maximum extent compatible with, and permissible under, applicable law. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement
which shall remain in full force and effect.
e. Waiver. Any Party may waive compliance by another with any of the
provisions of this Agreement. No waiver of any provision shall be construed as a
waiver of any other provision. Any waiver must be in writing.
f. Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties and their respective successors and
permitted assigns. Nothing in this Agreement shall create or be deemed to create
any third party beneficiary rights in any person or entity not a party to this
Agreement. No assignment of this Agreement or of any rights or obligation
hereunder may be made by either Party (by operation of law or otherwise) without
the prior written consent of the other and any attempted assignment without the
required consent shall be void.
g. Venue. Buyer and Seller acknowledge and agree that the U.S. District
for the Southern District of Florida, or if such court lacks jurisdiction, the
Judicial Circuit in and for Broward County Florida, shall be the venue and
exclusive proper forum in which to adjudicate any case or controversy arising
either, directly or indirectly, under or in connection with this Asset Purchase
Agreement and the Parties further agree that, in the event of litigation arising
out of or in connection with this Asset Purchase Agreement in these courts, they
will not contest or challenge the jurisdiction or venue of these courts.
h. Counterparts. This Agreement may be executed in counterparts, each
of which shall be an original, but which together shall constitute one and the
same Agreement.
THERE ARE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO
THE SUBJECT MATTER HEREOF, EXCEPT AS EXPRESSLY SET FORTH HEREIN AND THE PARTIES
HEREBY WAIVE ANY SUCH REPRESENTATIONS OR WARRANTIES, AND IN PARTICULAR,
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
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THE PARTIES ACKNOWLEDGE THAT EACH HAS HAD THE OPPORTUNITY TO CONSULT WITH
INDEPENDENT COUNSEL, THAT EACH PARTY HAS READ AND UNDERSTANDS THE TERMS OF THIS
AGREEMENT AND AGREE TO ABIDE BY ITS TERMS AND CONDITIONS.
WITNESS: BUYER:
VISUAL DATA CORPORATION
________________________
By:_____________________________________
Its:_____________________________________
SELLER:
DIGITAL CRITERIA TECHNOLOGIES, INC.
________________________
By:_____________________________________
Its:_____________________________________
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SCHEDULE 1.1
Assets
1. 30% interest in CareerSelect(TM) software.
CareerSelect is a database and data search program developed in Canada.
It has been designed to provide a membership based service that allows
prospective employers to review resumes as well as see and hear
potential job candidates that meet their criteria on a computer display
and to compare the results of certain compatibility factors before they
arrange an interview. In addition, employers can present job
opportunities that can be reviewed by prospective candidates. First
time job hunters such as students can both post their educational
credentials as well as search the offered job opportunities.
Additionally, professional organizations can use the CareerSelect
database technology to develop industry specific databases for
distribution of member information.
CareerSelect records the experience, education, requirements, and
achievements of each candidate in a computer database. In addition, a
multi-media file is maintained for each candidate which includes
photographs and a voice clip as well as video footage if available.
Employers may search the CareerSelect database specifying the criteria
they are seeking in an employee. The search program selects and matches
candidates based on this set of data. In this way, employers are
assured that they only will be presented with candidates with
qualifications they require. The source code is written in Visual Basic
4.0. This software was originally estimated at $5 million+ Canadian by
Corporate Valuation Services Toronto Canada.
CareerSelect shall not include any rights in connection with the
program entitled "Public Relations."
2. 40% interest in Real Estate Select.
This program is designed to allow the viewer to enter specific criteria
and be provided with real estate properties that fit such criteria. The
database will contain complete information on each property including
pictures and other multi-media information.
Residential and commercial real estate properties can be showcased
using Real Estate Select.
Real Estate Select will be available via the Internet. Browsers will be
afforded free access to libraries and real estate agents. Property
owners will pay a fee to advertise their properties in the database.
<PAGE>
SCHEDULE 6.f.
List of Encumbrances
1. Agreement between Digital Criteria Search Technologies, Inc. and The Search
Company ("PTY) Ltd., Agnes Ralston, the Mast Trust, the Davmar Trust, the Adearl
Trust, the Investment and Property Holdings Trust and Balmoral Securities, dated
as of November 15, 1995.
2. Agreement between Digital Criteria Search Technologies, Inc. and David Bell
Executive
Search (undated).
