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Exhibit 2
MANAGEMENT AGREEMENT
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MANAGEMENT AGREEMENT
This Management Agreement is entered into as of the 1st day of December
2000, by and among SportSoft Golf, Inc. ("SSG") and Visual Data Corporation
("VDAT") in connection with that certain Agreement (the "Merger Agreement")
among SSG, certain SSG shareholders and VDAT, effective as of December 1, 2000.
All capitalized terms not otherwise defined herein shall have the meanings set
forth in the Merger Agreement.
WHEREAS, as of December 1, 2000, SSG and VDAT entered into the Merger
Agreement pursuant to which SSG agreed to merge with a wholly-owned subsidiary
of VDAT on the terms and conditions contained in the Merger Agreement.
WHEREAS, SSG desires to retain the services of VDAT, or an affiliate
thereof, to manage and oversee the business of SSG and its subsidiaries with
respect to all of its and their operations until the Effective Time (as defined
in the Merger Agreement) occurs under the Merger Agreement as therein provided.
WHEREAS, VDAT is a corporation which is capable of providing management
services and wants to provide such services to SSG.
NOW, THEREFORE, in consideration of the covenants and promises
contained herein and in the Merger Agreement, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
1. APPOINTMENT AND TERM. SSG hereby appoints VDAT as the manager (the
"Manager") for its corporation and its subsidiaries for the period (the
"Management Period") commencing as of close of business on the date hereof until
the earlier to occur of (a) the Effective Time (as such term is defined in the
Merger Agreement) or (b) the termination of the Merger Agreement.
2. DUTIES OF MANAGER. Subject to the terms and conditions of this
Agreement, the Manager shall assume complete and absolute managerial day-to-day
control over SSG and its subsidiaries for the Management Period. Such control
shall include, but not be limited to:
(a) The hiring and discharging of personnel for SSG and its
subsidiaries; provided that no personnel of SSG or its subsidiaries shall be
discharged without the express written consent of SSG.
(b) Maintenance of all books, records and accounts of SSG and
its subsidiaries including all operating bank accounts.
(c) Payments of all bills and other financial obligations
incident to the maintenance and operation of SSG and its subsidiaries, including
without limitation payroll, taxes, current operating expenses and accounts
payable necessary to maintain SSG and its subsidiaries in the ordinary course of
their business during the Management Period.
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(d) Ordering of all necessary supplies, provisions and
equipment; provided, however, that no purchases for replacements of or additions
to existing physical equipment in excess of $5,000 shall be made without the
express written consent of SSG.
(e) The right to promote and market SSG and its subsidiaries
in consultation with SSG.
(f) Use commercially reasonable efforts to maintain good
working relationships with vendors, customers, employees, consultants and
agents.
3. POWERS OF MANAGER. SSG hereby grants to VDAT all the power and
authority necessary to carry out, in the manner deemed best by Manager, the
management of SSG and its subsidiaries as contemplated herein. VDAT agrees to
secure SSG's approval for all extraordinary expenditures except emergency
expenditures if such emergency expenditures are necessary, in the reasonable
opinion of VDAT, to protect SSG and its subsidiaries from immediate risk of
damage.
4. COMPLIANCE. Notwithstanding Paragraph 2, the governing authority of
SSG and its subsidiaries shall remain absolute with responsibility for
compliance with all statutory and regulatory requirements; full legal authority
of the operation of SSG and its subsidiaries; independent control of SSG and its
subsidiaries' corporate books and records; authority for disposition of assets;
incurring extraordinary liabilities and authority for enforcement of policies
affecting the delivery of business services. Each party, respectively, agrees to
comply with and this Agreement is intended to comply with all federal and state
laws, rules, regulations and guidelines.
5. CONTROL RETAINED BY THE BOARD OF DIRECTORS OF SSG. The Board of
Directors of SSG shall at all times retain responsibility over the affairs of
SSG and its subsidiaries. SSG shall be solely responsible for ensuring that the
officers and other employees of SSG and its subsidiaries spend the necessary
time to perform the administrative and supervisory functions required by this
Agreement and federal and state laws, regulations, rules and guidelines.
6. COMPENSATION; ADVANCES. For its services, VDAT shall receive as
compensation all the consolidated income of SSG and its subsidiaries, having
paid out of operating income of SSG and its subsidiaries all expenses incurred
in the operation of SSG and its subsidiaries. In the event VDAT advances
additional funds to SSG during the term of this Agreement and the Merger is not
consummated, SSG is to pay such amounts in accordance with the terms and
conditions of the certain Note dated September 22, 2000, between VDAT and SSG.
7. INSURANCE. SSG shall, use its best efforts to secure liability, and
such appropriate insurance necessary to permit VDAT to provide the managerial
services
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under this Agreement. SSG shall name VDAT as an additional insured under said
policies.
8. LIABILITY. In performance of its duties hereunder, VDAT shall not be
liable for errors in judgment or any acts or omissions unless caused by or
arising from the gross negligence or willful misconduct or bad faith of, or
breach of trust by, VDAT. Each party will be and act as an independent
contractor and not as the agent, employee or partner of, or joint venturer with,
the other party for any purpose, and neither party, by virtue of this Agreement,
shall have any right, power or authority to act or create any obligation,
express or implied, on behalf of the other party.
9. INDEMNIFICATION.
(a) SSG agrees to indemnify and hold VDAT harmless to the
fullest extent permitted by law from and against any and all liabilities,
losses, interest, damages, costs or expenses (including, without limitation,
reasonable attorneys' fees, whether suit is instituted or not, and if
instituted, whether incurred at any trial or appellate level or post judgment)
threatened or assessed against, levied upon, or collected from, VDAT, arising
out of, from, or in any way related to, the duties performed and obligations
incurred hereunder (collectively, the "Liabilities"). Notwithstanding the
foregoing, SSG shall not be required to indemnify VDAT with respect to
Liabilities suffered as (i) a result of the willful misconduct or gross
negligence of VDAT or any of the agents or employees of VDAT; (ii) to the extent
such Liabilities arise out of, from, or in any way relate to the breach or
default by VDAT of any of the provisions hereof; or (iii) to the extent that the
same may be covered by proceeds of insurance maintained by SSG and its
subsidiaries.
(b) VDAT agrees to indemnify and hold SSG harmless from all
liabilities, losses, interest, damages, costs or expenses (including without
limitation, reasonable attorneys' fees, whether suit is instituted or not, and
if instituted, whether incurred at any trial or appellate level or post
judgment), threatened or assessed against, levied upon, or collected from, SSG
arising from the willful misconduct or gross negligence or material breach or
default of any of the terms and conditions of this Agreement by VDAT of any of
the agents or employees of VDAT, provided that VDAT shall not be required to
indemnify SSG or its subsidiaries with respect to any of the foregoing to the
extent that the same may be covered by proceeds of insurance maintained by SSG
or otherwise.
(c) A party's duty to indemnify pursuant to the provisions of
this Section shall be conditioned upon the giving of notice by such party of any
action, suit or proceeding and upon the indemnifying party being permitted to
assume the defense of any such action, suit or proceeding; provided that the
failure to provide notice shall not relieve any party of its indemnification
obligations hereunder except to the extent it is prejudiced thereby. Except as
set forth in paragraphs (a) and (b) above, each party shall bear its own
expenses in connection with the defense of such action, suit or proceeding.
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10. MISCELLANEOUS.
(a) All notices and other communications required or permitted
under this Agreement shall be in writing (including telex and telegraphic
communication) and shall be deemed to have been duly given when received if
delivered personally, telecommunicated, or mailed by registered or certified
mail (postage prepaid), return receipt requested, addressed:
(i) If to SSG, to:
SportSoft Golf, Inc.
1350 Campus Parkway
Wall Township, New Jersey 07753
Attention: Chief Executive Officer
Facsimile No. (732) 751-8812
with a copy to:
Edwards & Angell, LLP
750 Lexington Avenue
New York, N.Y. 10022
Attention: Patricia L. Kantor, Esq.
Facsimile No. (212) 308-4844
(ii) If to VDAT, to:
Visual Data Corporation
1291 S.W. 29th Avenue
Pompano Beach, Florida 33069
Attention: Randy Selman
Facsimile No. (954) 917-6660
with a copy to:
Atlas Pearlman, P.A.
Suite 1700
350 East Las Olas Boulevard
Fort Lauderdale, Florida 33301
Attention: Joel D. Mayersohn, Esq.
Facsimile No.: (954) 766-7800
or to such other addresses as any party may hereafter designate in writing to
the other parties.
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(b) This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which counterparts together shall
constitute one and the same instrument.
(c) VDAT may not assign its respective rights and obligations
without the proper written consent of SSG except to an affiliate of VDAT, which
shall have adequate personnel and experience to perform VDAT's duties with the
same level of competence as Manager.
(d) This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Florida, without regard to
the laws which might otherwise be applicable under principles of conflict of
laws.
(e) Captions are for descriptive purposes only and shall not
control or alter the meaning of this Agreement.
(f) This Agreement and the applicable portions of the Merger
Agreement constitute the entire agreement between the parties hereto related to
the subject matter hereof and no modification hereof shall be effective unless
made by a supplemental agreement in writing executed by all of the parties
hereto.
THIS SPACE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals, or caused these presents to be signed by their proper corporate officers
and their proper corporate seal to be hereto affixed, the day and year first
above written.
SSG:
SPORTSOFT GOLF, INC.,
By: /s/ Alfred R. Paliani
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Name: Alfred R. Paliani
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Its: President and COO
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VDAT:
VISUAL DATA CORPORATION
By: /s/ Randy S. Selman
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Name: Randy S. Selman
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Its: President
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