EXHIBIT 99.5
VOTING AGREEMENT
THIS VOTING AGREEMENT, dated as of May 2, 2001 (the "Agreement"), is made
by and between Telescan, Inc., a Delaware corporation ("Telescan"), and Momentum
Media Ltd. (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, Telescan and Powder Technologies, Inc., a
Nevada corporation ("Powder"), have entered into an Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"), pursuant to which
Telescan has agreed to engage in a business combination with Powder on the terms
set forth therein (the "Mergers");
WHEREAS, the Stockholder is a stockholder of Powder and has voting power
with respect to the number of shares (the "Shares") of common stock of Powder
(the "Powder Common Stock") set forth below the Stockholder's signature hereto;
and
WHEREAS, in order to induce Telescan 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; Grant of Irrevocable Proxy; Appointment of Proxy.
(a) The Stockholder agrees to vote all of its Shares of Powder Common
Stock, Shares of Powder Common Stock of any person the voting of which is
controlled by the Stockholder and any Shares of Powder 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 Powder stockholders called to vote upon the
Powder 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 Powder Merger or the Merger Agreement is
sought (the "Powder Stockholders' Meeting"), the Stockholder shall
vote (or cause to be voted) all of the Stockholder's Shares in favor
of the Powder Merger, the execution and delivery by Powder of the
Merger Agreement and the approval of the terms thereof, and each of
the other transactions contemplated by the Merger Agreement.
(ii) At any meeting of Powder stockholders or at any adjournment
thereof or in any other circumstances upon which their vote, consent
or other approval is sought, the Stockholder shall
vote (or cause to be voted) all of the Stockholder's Shares against
(A) the approval of any Acquisition Proposal or (B) any amendment of
Powder's Certificate of Incorporation or Bylaws or other proposal or
transaction involving Powder or any of its subsidiaries which
amendment or other proposal or transaction would in any manner impede,
frustrate, prevent or nullify the Powder Merger, the Merger Agreement
or any of the other transactions contemplated by the Merger Agreement.
(b) The Stockholder hereby irrevocably grants to, and appoints,
Telescan and Xxx Xxxxx, Chief Executive Officer of Telescan, and Xxxx
Xxxxxxxx, Chief Financial Officer of Telescan, in their respective
capacities as officers of Telescan, and any individual who shall hereafter
succeed to any such office of Telescan and each of them individually, its
proxy and attorney-in-fact, with full power of substitution, for and in the
name, place and stead of the Stockholder, to vote upon and act with respect
to all of the Stockholder's Shares as set forth in subsections (a)(i) and
(a)(ii) of this Section 1. The Stockholder represents that any proxies
heretofore given in respect of the Stockholder's Shares are not
irrevocable, and that any such proxies are hereby revoked. The Stockholder
hereby affirms that the irrevocable proxy set forth in this Section 1(b) is
given in connection with the execution of the Merger Agreement, and that
such irrevocable proxy is given to secure the performance of the duties of
the Stockholder under this Agreement. The Stockholder hereby further
affirms that the irrevocable proxy is coupled with an interest and may not
be revoked, except as provided in this Agreement. The Stockholder hereby
ratifies and confirms all that such irrevocable proxy may lawfully do or
cause to be done by virtue hereof. Such irrevocable proxy is executed and
intended to be irrevocable in accordance with the provisions of Section
78.353 of the Nevada General Corporation Law. This proxy shall survive the
bankruptcy, merger, dissolution or liquidation of the Stockholder. In the
event that the stockholders of Powder take action to approve the Powder
Merger and the Merger Agreement by written consent in lieu of a meeting of
stockholders, the Stockholder will execute such consent and provide a copy
to Telescan.
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 Powder affecting the Powder capital stock, or the
acquisition of additional shares of Powder capital stock or other voting
securities of Powder 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
Powder capital stock or other voting securities of Powder issued to or acquired
by the Stockholder.
3. Representation and Warranties of the Stockholder. The Stockholder
hereby represents and warrants to Telescan that:
(a) The Stockholder is the record and/or beneficial owner of the
number of Shares listed below its signature hereto.
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(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 Telescan is
entering into the Merger Agreement in reliance upon the Stockholder's
execution and delivery of this Agreement. The Stockholder acknowledges that
the irrevocable proxy set forth in Section 1(b) is granted in consideration
for the execution and delivery of the Merger Agreement by Telescan.
4. Covenants.
(a) The Stockholder agrees with, and covenants to, Telescan that it
shall not (i) grant any proxy, power of attorney or other authorization in
or with respect to such shares, except for this Agreement or (ii) 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,
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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 Telescan may reasonably request, for the purpose of
effectively carrying out the transactions contemplated by this Agreement.
5. Representations and Warranties of Telescan. Telescan represents and
warrants that this Agreement has been duly authorized, executed and delivered
by, and constitutes a valid and binding agreement of, Telescan, enforceable
against Telescan 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 Telescan is simultaneously entering into
similar voting agreements with Xxxx Xxxxxxx, D. Xxxxx Xxxxx, Xxxxx Xxxxxx and
Xxxxx X. XxXxx.
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 Telescan in
whole or in part to any direct or indirect wholly-owned subsidiary of
Telescan, provided that Telescan 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 Telescan would
be irreparably damaged if for any reason the Stockholder failed, in
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breach of its obligations hereunder, to perform any of its obligations
under this Agreement, and that Telescan would not have an adequate remedy
at law for money damages in such event. Accordingly, Telescan shall be
entitled to specific performance and injunctive and other equitable relief
to enforce the performance of this Agreement by the Stockholder; and, if
Telescan should institute an action or proceeding seeking specific
enforcement of the provisions hereof, the Stockholder hereby waives the
claim or defense that Telescan has an adequate remedy at law and hereby
agrees not to assert in any such action or proceeding the claim or defense
that such a remedy at law exists. The Stockholder further agrees to waive
any requirements for the securing or posting of any bond in connection with
obtaining any such equitable relief. This provision is without prejudice to
any other rights that Telescan 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 Telescan:
Telescan, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
(ii) if to Stockholder, to its address shown below its
signature on the last page hereof;
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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 7(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 7(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.
(l) Action in Stockholder Capacity Only. No Stockholder who is a
director or officer of Powder 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 Powder.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be signed as of the date first above written.
TELESCAN, INC.
By: /s/ Xxx Xxxxx
---------------------------------------
Name: Xxx Xxxxx
Title: CEO
STOCKHOLDER:
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Name: Xxxxx Xxxxxx (Momentum Media Ltd.)
Address: X.X. Xxx 000
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxx, XX 00000
Number of Shares Beneficially Owned:
3,299,980
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