EXHIBIT 99.7
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
Vulcan Ventures, 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; Grant of Irrevocable Proxy; Appointment of Proxy.
(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.
(ii) At any meeting of Telescan 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
Telescan's Certificate of Incorporation or Bylaws or other proposal
or transaction involving Telescan or any of its subsidiaries which
amendment or other proposal or transaction would in any manner
impede, frustrate, prevent or nullify the Telescan Merger, the
Merger Agreement or any of the other transactions contemplated by
the Merger Agreement.
(b) The Stockholder hereby irrevocably grants to, and appoints,
ZiaSun and D. Xxxxx Xxxxx, Chief Executive Officer of ZiaSun, and Xxxx
Xxxxxxx, Chief Financial Officer of ZiaSun, in their respective
capacities as officers of ZiaSun, and any individual who shall hereafter
succeed to any such office of ZiaSun, 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 212 of the Delaware General
Corporation Law. This proxy shall survive the bankruptcy, merger,
dissolution or liquidation of the Stockholder. In the event that the
stockholders of Telescan take action to approve the Telescan 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 ZiaSun.
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.
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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 ZiaSun 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
ZiaSun.
4. Covenants.
(a) The Stockholder agrees with, and covenants to, ZiaSun 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
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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 NBC-TSCN Holding, Inc./GE Capital Equity
Investments, 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.
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(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
specific performance and injunctive and other equitable relief to enforce
the performance of this Agreement by the Stockholder; and, if ZiaSun
should institute an action or proceeding seeking specific enforcement of
the provisions hereof, the Stockholder hereby waives the claim or defense
that ZiaSun 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 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
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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.
(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.
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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.
ZIASUN TECHNOLOGIES, INC.
By: /s/ D. Xxxxx Xxxxx
------------------------------------
Name: D. Xxxxx Xxxxx
Title: CEO, Chairman
STOCKHOLDER:
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
Address: 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Number of Shares Beneficially Owned:
1,290,000
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