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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