EXHIBIT 99.8
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
LJH Corporation (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 with Vulcan Ventures, Inc. and NBC-TSCN Holding, Inc./ GE
Capital Equity Investments, Inc.
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
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Name: D. Xxxxx Xxxxx
Title: CEO, Chairman
STOCKHOLDER:
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: President, LJH, Ltd.
Address: 000 Xxxx Xxxx
Xxxxxxx, Xxxxx 00000
Number of Shares Beneficially Owned:
2,314,000
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