EXHIBIT 99.5 TO SCHEDULE 13D/A
VOTING AGREEMENT
THIS VOTING AGREEMENT, dated as of May 3, 2001 (the "Agreement"), is
made by and between ZiaSun Technologies, Inc., a Nevada corporation ("ZiaSun"),
and NBC-TSCN Holding, Inc., and GE Capital Equity Investments, Inc. (the
"Stockholder"). Capitalized terms not otherwise defined herein shall have the
respective meanings set forth in the Merger Agreement (as defined below).
WHEREAS, simultaneously herewith, ZiaSun and Telescan, Inc., a
Delaware corporation ("Telescan"), have entered into an Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"), pursuant to which
ZiaSun has agreed to engage in a business combination with Telescan on the terms
set forth therein (the "Mergers");
WHEREAS, the Stockholder is a stockholder of Telescan and has voting
power with respect to the number of shares (the "Shares") of common stock of
Telescan (the "Telescan Common Stock") set forth below the Stockholder's
signature hereto; and
WHEREAS, in order to induce ZiaSun to enter into the Merger
Agreement and to provide reasonable assurances that the transactions
contemplated by the Merger Agreement will be consummated, the Stockholder is
making certain agreements regarding the Shares upon the terms and subject to the
conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained in this Agreement, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. Voting of Shares.
(a) The Stockholder agrees to vote all of its Shares of Telescan
Common Stock, Shares of Telescan Common Stock of any person the voting of
which is controlled by the Stockholder and any Shares of Telescan Common
Stock hereafter acquired by the Stockholder or by any person controlled by
the Stockholder (collectively, the "Stockholder's Shares") as follows:
(i) At any meeting of Telescan stockholders called to vote
upon the Telescan Merger or the Merger Agreement or at any
adjournment thereof or in any other circumstances upon which a
vote, consent or other approval with respect to the Telescan
Merger or the Merger Agreement is sought (the "Telescan
Stockholders' Meeting"), the Stockholder shall vote (or cause
to be voted) all of the Stockholder's Shares in favor of the
Telescan Merger, the execution and delivery by Telescan of the
Merger Agreement and the approval of the terms thereof, and
each of the other transactions contemplated by the Merger
Agreement.
2. Certain Events. The Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Stockholder's Shares and be
binding upon any transferee of such shares. In the event of any stock split,
stock dividend, merger, reorganization, recapitalization or other change in the
capital structure of Telescan affecting the Telescan capital stock, or the
acquisition of additional shares of Telescan capital stock or other voting
securities of Telescan by the Stockholder, the number of the Stockholder's
Shares subject to the terms of this Agreement shall be adjusted appropriately
and this Agreement and the obligations hereunder shall attach to any additional
shares of Telescan capital stock or other voting securities of Telescan issued
to or acquired by the Stockholder.
3. Representation and Warranties of the Stockholder. The Stockholder
hereby represents and warrants to ZiaSun that:
(a) The Stockholder is the record and/or beneficial owner of the
number of Shares listed below its signature hereto.
(b) This Agreement has been duly authorized, executed and delivered
by, and constitutes a valid and binding agreement of, the Stockholder,
enforceable against the Stockholder in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws of general application
respecting creditors' rights and by general equitable principles.
(c) Neither the execution and delivery of this Agreement nor the
consummation by the Stockholder of the transactions contemplated hereby
will result in a violation of, or a default under, or conflict with, any
contract, trust, commitment, agreement, understanding, arrangement or
restriction of any kind to which the Stockholder is a party or bound or to
which the Stockholder's Shares are subject, other than a violation,
default or conflict which does not materially impair the ability of the
Stockholder to perform its obligations under this Agreement. If the
Stockholder is married and the Stockholder's Shares constitute community
property, this Agreement has been duly authorized, executed and delivered
by, and constitutes a valid and binding agreement of, the Stockholder's
spouse, enforceable against such person in accordance with its terms.
Consummation by the Stockholder of the transactions contemplated hereby
will not violate, or require any consent, approval, or notice under, any
provision of any judgment, order, decree, statute, law, rule or regulation
applicable to the Stockholder or the Stockholder's Shares.
(d) The Stockholder's Shares and the certificates representing the
Stockholder's Shares are now, and at all times all such shares then held
will be, held by the Stockholder, or by a nominee or custodian for the
benefit of such Stockholder, free and clear of all liens, security
interest, proxies, voting trusts or voting agreements or any other
encumbrances whatsoever, except for (i) any such encumbrances or proxies
arising hereunder and (ii) any arrangements that do not materially impair
the ability of the Stockholder to perform its obligations hereunder.
(e) The Stockholder understands and acknowledges that ZiaSun is
entering into the Merger Agreement in reliance upon the Stockholder's
execution and delivery of this Agreement.
4. Covenants.
(a) The Stockholder agrees with, and covenants to, ZiaSun that it
shall not deposit such shares into a voting trust or enter into a voting
agreement or arrangement with respect to such shares, except for any
arrangements which do not materially impair the ability of the Stockholder
to perform its obligations under this Agreement.
(b) The Stockholder shall use commercially reasonable efforts to
take, or cause to be taken, all necessary actions, and to do, or cause to
be done all things necessary, proper or advisable under this Agreement to
consummate the transactions contemplated by this Agreement, including,
without limitation, executing and delivering, or causing to be executed
and delivered (including by any record holder of any of the Stockholder's
Shares), such additional or further consents, documents and other
instruments, as ZiaSun may reasonably request, for the purpose of
effectively carrying out the transactions contemplated by this Agreement.
5. Representations and Warranties of ZiaSun. ZiaSun represents and
warrants that this Agreement has been duly authorized, executed and delivered
by, and constitutes a valid and binding agreement of, ZiaSun, enforceable
against ZiaSun in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws of general application respecting creditors' rights and by
general equitable principles, and that ZiaSun is simultaneously entering into
similar voting agreements with Vulcan Ventures, Inc. and LJH Corporation.
6. Miscellaneous.
(a) Benefit and Assignment. This Agreement shall be binding upon
each party hereto and such party's successors and assigns. This Agreement
shall not be assignable by the Stockholder, but may be assigned by ZiaSun
in whole or in part to any direct or indirect wholly-owned subsidiary of
ZiaSun, provided that ZiaSun shall remain liable for any obligations so
assigned.
(b) Headings. The section headings herein are for convenience only
and shall not affect the construction hereof.
(c) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware. Any suit, action or
proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement or the transactions
contemplated hereby or thereby may be brought in any federal or state
court located in the State of Delaware, and each of the parties hereby
consents to the jurisdiction of such courts (and of the appropriate
appellate courts
therefrom) in any such suit, action or proceeding and irrevocably waives,
to the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such suit, action or
proceeding in any such court or that any such suit, action or proceeding
which is brought in any such court has been brought in an inconvenient
forum. Process in any such suit, action or proceeding may be served on any
party anywhere in the world, whether within or without the jurisdiction of
any such court. Without limiting foregoing, each party agrees that service
of process on such party as provided in Section 6(h) shall be deemed
effective service of process on such party.
(d) Severability. If any term, provision, covenant or restriction of
this Agreement is held to be invalid, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
(e) Enforcement of Agreement. The parties agree that ZiaSun would be
irreparably damaged if for any reason the Stockholder failed, in breach of
its obligations hereunder, to perform any of its obligations under this
Agreement, and that ZiaSun would not have an adequate remedy at law for
money damages in such event. Accordingly, ZiaSun shall be entitled to seek
specific performance and injunctive and other equitable relief to enforce
the performance of this Agreement by the Stockholder. This provision is
without prejudice to any other rights that ZiaSun may have against the
Stockholder for any failure to perform its respective obligations under
this Agreement.
(f) Amendments; Entire Agreement. This Agreement may not be
modified, amended, altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties hereto. This
Agreement contains the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior and
contemporaneous agreements and understandings, oral or written, with
respect to such transactions.
(g) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of which
together shall constitute one and the same Agreement.
(h) Notices. All notices, requests and other communications to
either party hereunder shall be in writing (including facsimile or similar
writing) and shall be given,
(i) if to ZiaSun:
ZiaSun Technologies, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 000
Attention: Xxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Jones, Waldo, Xxxxxxxx & XxXxxxxxx
0000 Xxxxx Xxxxx Xxxxx
000 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
and
Wenthur & Chachas
0000 Xx Xxxxx Xxxxxxx Xxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxx, Esq.
(ii) if to Stockholder, to its address shown below its
signature on the last page hereof;
or to such other address or facsimile number as either party may hereafter
specify for the purpose by notice to the other party hereto. Each such
notice, request or other communication shall be effective (i) if given by
facsimile, when such facsimile is transmitted to the facsimile number
specified in this Section 6(h) and the appropriate facsimile confirmation
is received or (ii) if given by any other means, when delivered at the
address specified in this Section 6(h).
(i) Expenses. Each party hereto shall pay its own expenses incurred
in connection with this Agreement, except as otherwise specifically
provided herein.
(j) Survival. All representations, warranties and covenants
contained herein shall survive the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby.
(k) Termination. This Agreement shall terminate upon the earliest to
occur of (a) the termination of the Merger Agreement in accordance with
its terms or (b) consummation of the Mergers or (c) September 30, 2001
(l) Action in Stockholder Capacity Only. No Stockholder who is a
director or officer of Telescan makes any agreement in this Agreement in
his or her capacity as such director or officer. The Stockholder signs
solely in its capacity as a record holder and beneficial owner of Shares.
The provisions of this Agreement shall not apply to actions taken or
omitted to be taken by any such person in his or her capacity as a
director or officer of Telescan.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed as of the date first above written.
ZIASUN TECHNOLOGIES, INC.
By: /s/ D. Xxxxx Xxxxx
Name: D. Xxxxx Xxxxx
Title: Chairman and Chief Executive Officer
STOCKHOLDER: GE Capital Equity Investments, Inc.
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Vice President, GE Capital Equity
Investments, Inc.
Address: 000 Xxxx Xxxx Xxxx, Xxxxxxxx, XX 00000
Number of Shares Beneficially Owned: 1,165,674
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed as of the date first above written.
ZIASUN TECHNOLOGIES, INC.
By: /s/ D. Xxxxx Xxxxx
Name: D. Xxxxx Xxxxx
Title: Chairman and Chief Executive Officer
STOCKHOLDER: NBC-TSCN Holding, Inc.
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Assistant Treasurer
Address: 00 Xxxxxxxxxxx Xxxxx, XX, XX 00000
Number of Shares Beneficially Owned: 1,165,674
