EXHIBIT 5.6
STOCK EXCHANGE AGREEMENT
This Stock Exchange Agreement (this "Agreement") is entered into as of
March 31, 1999, by and between Telescan, Inc., a Delaware corporation
("Telescan"), and MicroCap Financial ▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation
(the "MicroCap"),
WHEREAS, the parties believe that a strategic alliance between them is
mutually beneficial, and in furtherance thereof, they have agreed (i) to
exchange shares of common stock and (ii) to have Telescan provide to MicroCap
certain content and other services as more particularly described herein; and
WHEREAS, Telescan and the MicroCap desire to enter into this Agreement
pursuant to which MicroCap will exchange an aggregate of 5,176,161 unregistered
shares of its common stock, par value $0.001 per share (the "MicroCap Common
Stock"), for (i) an aggregate of 520,000 unregistered shares of Telescan common
stock, par value $0.01 per share (the "Telescan Common Stock"), and (ii) the
content and other services more particularly described herein, all upon the
terms and conditions set forth herein,
NOW, THEREFORE, in consideration of the respective representations,
warranties and covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
STOCK EXCHANGE
Section I.1 The Stock Exchange
(a) On the date hereof, Telescan shall issue and deliver to MicroCap an
aggregate of 520,000 unregistered shares of Telescan Common Stock. Telescan
shall also execute and deliver a License Agreement and a Services Agreement with
MicroCap substantially in the form of Exhibit _ and Exhibit B attached hereto,
respectively.
(b) On the date hereof, MicroCap shall issue and deliver to Telescan an
aggregate of 5,176,161 unregistered shares of MicroCap Common Stock. MicroCap
shall also execute and deliver a License Agreement and a Services Agreement with
Telescan substantially in the form of Exhibit A and Exhibit B attached hereto,
respectively.
(c) Neither party will, as a result of the stock exchange, become
liable for the liabilities or obligations of the other party except as otherwise
provided herein.
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Section I.2 Option Agreement. In connection with the transactions
contemplated by this Agreement, the parties shall enter into the Stock Option
Agreement substantially in the form of Exhibit C hereto ("Option Agreement").
Pursuant to the Option Agreement, Telescan shall have the option to purchase
shares of MicroCap Common Stock such that Telescan, after giving effect to the
5,176,161 shares referenced in I. l(b) above, would, following exercise of the
option, then own 19.9% of the outstanding MicroCap Common Stock, at an exercise
price of $3.75 per share subject to the terms and conditions set forth therein.
As consideration for such option, Telescan shall issue and deliver to MicroCap
on the date hereof, 25,000 unregistered shares of Telescan Common Stock, which
shall be in addition to the other Telescan shares being delivered to MFSI
pursuant to this Agreement.
Section I.3 Taking of Necessary Action; Further Action. Each of
Telescan and MicroCap will take all such reasonable and lawful action as may be
necessary or appropriate in order to effectuate the stock exchange and execute
and deliver the License Agreement and the Services Agreement and the Option
Agreement. If, after the date hereof, any further action is necessary or
desirable to carry out the purposes of this Agreement, the License Agreement and
the Services Agreement or the Option Agreement, each of Telescan and MicroCap
shall promptly take all such lawful and necessary action.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF MICROCAP
MicroCap hereby makes representations and warranties set forth in this
Article II to Telescan. MicroCap has delivered to Telescan the Schedules to this
Agreement referred to in this Article II on the date hereof.
Section II. 1 Organization and Qualification. MicroCap is a Delaware
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. MicroCap has all requisite corporate power and
authority to carry on its business as now being conducted and to own, lease and
operate its properties and assets as now owned, leased or operated. Except as
set forth on Schedule 2.1, or in its filings with the Securities and Exchange
Commission ("SEC"), MicroCap does not own or control any Affiliate (as defined
in Section 4.14) or Subsidiary (as defined in Section 4.14!. True and correct
copies of the Certificate of Incorporation and Bylaws of MicroCap, with all
amendments thereto through the date of this Agreement, have been delivered by
MicroCap to Telescan. MicroCap is duly qualified to do business and is in good
standing in each jurisdiction where such qualification is necessary and material
to the business and operations of MicroCap.
Section II.2 Company Capitalization. As of the date hereof, the
authorized capital stock of MicroCap consists solely of (a) 100,000,000 shares
of MicroCap Common Stock, of which 47,108,296 shares are issued and outstanding,
and of which 15,000 are held in treasury, (b) 25,000,000 shares of Class B
common stock, par value $0.001 per share (the 'MicroCap Class B Common Stock"),
of which 0 shares are issued and outstanding, and none of which are held in
treasury, and (c) 20,000,000 shares of preferred stock, par value $0.001 per
share, (the "MicroCap Preferred Stock"), of which 0 shares are issued and
outstanding, and none of which are held in treasury. The MicroCap Common Stock,
the MicroCap Class B Common Stock and the MicroCap
MicroCap 1000 Stock Exchange Agreement
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Preferred Stock shall be hereinafter collectively referred to as the "MicroCap
Capital Stock". Except as set forth on Schedule 2.2, there are no outstanding
subscriptions, options, convertible securities, rights, warrants, calls, or
other agreements or commitments of any kind issued or granted by, or binding
upon, MicroCap to purchase or otherwise acquire any security of or equity
interest in MicroCap. Except as set forth on Schedule 2.2, there are no
outstanding subscriptions, options, rights, warrants, calls, convertible
securities or other agreements or commitments obligating MicroCap to issue any
shares of MicroCap Capital Stock, irrevocable proxies, or any agreements
restricting the transfer of or otherwise relating to shares of MicroCap Capital
Stock. All of the shares of MicroCap Capital Stock have been duly authorized,
validly issued and are fully paid and non-assessable, and are free of preemptive
rights.
Section II.3 Authority Relative to the Agreement. MicroCap has full
corporate power and authority, and no further proceedings, corporate or
otherwise, on the part of MicroCap are necessary, to execute, deliver and
perform this Agreement or to consummate the transactions contemplated hereby,
all of which have been duly and validly authorized by its Board of Directors.
This Agreement has been duly executed and delivered by MicroCap and is a duly
authorized, valid, legally binding and enforceable obligation of MicroCap,
subject to the effect of bankruptcy, insolvency, reorganization, moratorium, or
other similar laws relating to creditors' rights generally and general equitable
principles. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will not conflict with, or
result in any violation or breach of or default under the Certificate of
Incorporation or Bylaws of MicroCap or any agreement, document or instrument by
which MicroCap is obligated or bound.
Section II.4 No Violation. Neither the execution, delivery nor
performance of this Agreement in its entirety, nor the consummation of the
transactions contemplated hereby, will (i) violate (with or without the giving
of notice or the passage of time), any law, order, writ, judgment, injunction,
award, decree, rule, statute, ordinance or regulation applicable to MicroCap or
(ii) be in conflict with, result in a breach or termination of any provision of,
cause the acceleration of the maturity of any debt or obligation pursuant to,
constitute a default (or give rise to any right of termination, cancellation or
acceleration) under, or result in the creation of any security interest, lien,
charge or other encumbrance upon any property or assets of MicroCap pursuant to,
any terms, conditions or provisions of any note, license, instrument, indenture,
mortgage, deed of trust or other agreement or understanding or any other
restriction of any kind or character, to which MicroCap is a party or by which
any of its assets or properties are subject or bound. Except as set forth on
Schedule 2.4, there are no claims, suits, actions or proceedings pending or, to
the knowledge of MicroCap, threatened, against or involving MicroCap, the
MicroCap Capital Stock, at law or in equity or before or by any foreign,
federal, state, municipal or other governmental court, department, commission,
board, bureau, agency, instrumentality or other person which may result in
liability to Telescan upon the consummation of the transactions contemplated
hereby or which would prevent or delay such consummation. Except as set forth on
Schedule 2.4 or as contemplated hereby, the corporate existence, business
organization, assets, licenses, permits, authorizations and contracts of
MicroCap will not be terminated or impaired by reason of the execution, delivery
or performance by MicroCap of this Agreement or consummation by MicroCap of the
transactions contemplated hereby.
Section II.5 Consents and Approvals. No prior consent, approval or
authorization of, or declaration, filing or registration with any person,
domestic or foreign, is required of MicroCap
MicroCap 1000 Stock Exchange Agreement
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in connection with the execution, delivery and performance by MicroCap of this
Agreement and the transactions contemplated hereby.
Section II.6 Reports and Financial Statements. Since March 14, 1997,
MicroCap has filed with the SEC all material forms, statements, reports and
documents (including all exhibits, amendments and supplements thereto) required
to be filed by it under each of the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, and the respective rules and
regulations thereunder (collectively, the "MicroCap SEC Reports"), all of which
complied in all material respects with all applicable requirements of the
appropriate act and the rules and regulations thereunder. MicroCap has
previously made available or delivered to Telescan all of such MicroCap SEC
Reports.
As of their respective dates, and to the knowledge of MicroCap, the
MicroCap SEC Reports did not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
The audited consolidated financial statements and unaudited interim
consolidated financial statements of MicroCap included in such MicroCap SEC
Reports have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis (except as may be indicated therein or
in the notes thereto) and fairly present in all material respects the
consolidated financial position of MicroCap and its Subsidiaries as of the dates
thereof and the consolidated results of their operations and cash flows for the
periods then ended, subject, in the case of the unaudited interim financial
statements, to normal year-end and audit adjustments and any other adjustments
described therein.
Section II.7 Absence of Certain Changes. Except as and to the extent
set forth on Schedule 2.7, since September 30, 1998 MicroCap has not:
(a) made any amendment to its Certificate of Incorporation or Bylaws or
changed the character of its business in any material manner;
(b) suffered any Material Adverse Effect (as defined in Section 4.14!;
or
(c) issued, reserved for issuance, granted, sold or authorized the
issuance of any shares of MicroCap Capital Stock or subscriptions, options,
warrants, calls, rights or commitments of any kind relating to the issuance or
sale of or conversion into shares of MicroCap Capital Stock.
MicroCap 1000 Stock Exchange Agreement
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Section II.8 Compliance with Laws. Except as set forth on Schedule 2.8,
MicroCap is not in default with respect to or is in violation of any judgment,
order, writ, injunction or decree of any court or any statute, law, ordinance,
rule, order or regulation of any governmental department, commission, board,
bureau, agency or instrumentality, federal, state or local, and the consummation
of the transactions contemplated by this Agreement will not constitute such a
default or violation as to MicroCap, except such as in the aggregate do not now
have and will not have in the future have a material adverse effect upon the
operations, business and assets of MicroCap.
Section II.9 Investment Intent. MicroCap is acquiring the shares of
Telescan Common Stock hereunder and in consideration for the Option Agreement
for its own account for investment, and not with a view to, or for the sale in
connection with, any distribution of such shares, except in compliance with
applicable federal and state securities laws. MicroCap and its representatives
have been provided, to their satisfaction, the opportunity to discuss the
transactions contemplated hereby with Telescan and its representatives, and has
had the opportunity to obtain such information pertaining to Telescan as has
been requested. MicroCap has such knowledge and experience in business and
financial matters that it is (i) capable of evaluating the merits and risks of
an investment in the Telescan Common Stock, (ii) capable of bearing the economic
risks of such investment and (iii) able to bear a complete loss of its
investment in the Telescan Common Stock. MicroCap acknowledges that the Telescan
Common Stock issued hereunder and in consideration for the Option Agreement has
not been registered under the Securities Act of 1933, as amended ("Securities
Act"), and understands that such Telescan Common Stock must be held indefinitely
unless it is subsequently registered under the Securities Act or such sale is
permitted pursuant to an available exemption from such registration requirement.
Section II.10 Representations Not Misleading. To MicroCap's knowledge,
no representation or warranty by MicroCap in this Agreement, nor any statement,
summary, exhibit or schedule furnished to Telescan by MicroCap under and
pursuant to, or in anticipation of this Agreement, contains or will contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements contained herein or therein not misleading.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF TELESCAN
Telescan hereby makes the representations and warranties set forth in
this Article III to MicroCap. Telescan has delivered to MicroCap the Schedules
to this Agreement referred to in this Article III on the date hereof
Section III. 1 Organization and Qualification. Telescan is a Delaware
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. Telescan has all requisite corporate power and
authority to carry on its business as now being conducted and to own, lease and
operate its properties and assets as now owned, leased or operated. Except as
set forth on Schedule 3.1 or in its filings with the SEC, Telescan does not own
or control any Affiliate (as defined in Section 4.14) or Subsidiary (as defined
in Section 4.14!. True and correct copies of the Certificate of Incorporation
and Bylaws of Telescan, with all amendments thereto through the date of this
Agreement, have been delivered by Telescan to MicroCap. Telescan is duly
qualified to
MicroCap 1000 Stock Exchange Agreement
Page 5 of 18
do business and is in good standing in each jurisdiction where such
qualification is necessary and material to the business and operations of
Telescan.
Section III.2 Company Capitalization. As of the date hereof, the
authorized capital stock of Telescan consists solely of (a) 15,000,000 shares of
Telescan Common Stock, of which 12,476,406 shares are issued and outstanding,
and none of which are held in treasury, and (b) 10,000,000 shares of preferred
stock, par value $0.01 per share, (the "Telescan Preferred Stock"), of which
120,000 shares are issued and outstanding, and none of which are held in
treasury. The Telescan Common Stock and the Telescan Preferred Stock shall be
hereinafter collectively referred to as the "Telescan Capital Stock". Except as
set forth on Schedule 3.2, there are no outstanding subscriptions, options,
convertible securities, rights, warrants, calls, or other agreements or
commitments of any kind issued or granted by, or binding upon, Telescan to
purchase or otherwise acquire any security of or equity interest in Telescan.
Except as set forth on Schedule 3.2, there are no outstanding subscriptions,
options, rights, warrants, calls, convertible securities or other agreements or
commitments obligating Telescan to issue any shares of Telescan Capital Stock,
irrevocable proxies, or any agreements restricting the transfer of or otherwise
relating to shares of Telescan Capital Stock. All of the shares of Telescan
Capital Stock have been duly authorized, validly issued and are fully paid and
non-assessable, and are free of preemptive rights.
Section III.3 Authority Relative to the Agreement. Telescan has full
corporate power and authority, and no further proceedings, corporate or
otherwise, on the part of Telescan are necessary, to execute, deliver and
perform this Agreement or to consummate the transactions contemplated hereby,
all of which have been duly and validly authorized by its Board of Directors.
This Agreement has been duly executed and delivered by Telescan and is a duly
authorized, valid, legally binding and enforceable obligation of Telescan,
subject to the effect of bankruptcy, insolvency, reorganization, moratorium, or
other similar laws relating to creditors' rights generally and general equitable
principles. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will not conflict with, or
result in any violation or breach of or default under the Certificate of
Incorporation or Bylaws of Telescan or any agreement, document or instrument by
which Telescan is obligated or bound.
Section III.4 No Violation. Neither the execution, delivery nor
performance of this Agreement in its entirety, nor the consummation of the
transactions contemplated hereby, will (i) violate (with or without the giving
of notice or the passage of time), any law, order, writ, judgment, injunction,
award, decree, rule, statute, ordinance or regulation applicable to any Telescan
or (ii) be in conflict with, result in a breach or termination of any provision
of, cause the acceleration of the maturity of any debt or obligation pursuant
to, constitute a default (or give rise to any right of termination, cancellation
or acceleration) under, or result in the creation of any security interest,
lien, charge or other encumbrance upon any property or assets of Telescan
pursuant to, any terms, conditions or provisions of any note, license,
instrument, indenture, mortgage, deed of Oust or other agreement or
understanding or any other restriction of any kind or character, to which
Telescan is a party or by which any of its assets or properties are subject or
bound. Except as set forth on Schedule 3.4, there are no claims, suits, actions
or proceedings pending or, to the knowledge of Telescan, threatened, against or
involving Telescan, the Telescan Capital Stock, at law or in equity or before or
by any foreign, federal, state, municipal or other governmental court,
department, commission, board, bureau, agency, instrumentality or other person
which may result in liability to Telescan upon the consummation of the
transactions contemplated hereby or which would prevent
MicroCap 1000 Stock Exchange Agreement
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or delay such consummation. Except as set forth on Schedule 3.4, or as
contemplated hereby, the corporate existence, business organization, assets,
licenses, permits, authorizations and contracts of Telescan will not be
terminated or impaired by reason of the execution, delivery or performance by
Telescan of this Agreement or consummation by Telescan of the transactions
contemplated hereby.
Section III.5 Consents and Approvals. No prior consent, approval or
authorization of, or declaration, filing or registration with any person,
domestic or foreign, is required of Telescan in connection with the execution,
delivery and performance by Telescan of this Agreement and the transactions
contemplated hereby.
Section III.6 Reports and Financial Statements. Since January 1, 1996,
Telescan has filed with the SEC all material forms, statements, reports and
documents (including all exhibits, amendments and supplements thereto) required
to be filed by it under each of the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, and the respective rules and
regulations thereunder (collectively, the "Telescan SEC Reports"), all of which
complied in all material respects with all applicable requirements of the
appropriate act and the rules and regulations thereunder. Telescan has
previously made available or delivered to MicroCap all of such Telescan SEC
Reports.
As of their respective dates, and to the knowledge of Telescan, the
Telescan SEC Reports, did not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
The audited consolidated financial statements and unaudited interim
consolidated financial statements of Telescan included in such Telescan SEC
Reports have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis (except as may be indicated therein or
in the notes thereto) and fairly present in all material respects the
consolidated financial position of Telescan and its Subsidiaries as of the dates
thereof and the consolidated results of their operations and cash flows for the
periods then ended, subject, in the case of the unaudited interim financial
statements, to normal year-end and audit adjustments and any other adjustments
described therein.
Section III.7 Absence of Certain Changes. Except as and to the extent
set forth on Schedule 3.7, since September 30, 1998 Telescan has not:
(a) made any amendment to its Certificate of Incorporation or Bylaws or
changed the character of its business in any material manner;
(b) suffered any Material Adverse Effect (as defined in Section 4.14!;
or
(c) issued, reserved for issuance, granted, sold or authorized the
issuance of any shares of Telescan Capital Stock or subscriptions, options,
warrants, calls, rights or commitments of any kind relating to the issuance or
sale of or conversion into shares of Telescan Capital Stock.
Section III.8 Compliance with Laws. Except as set forth on Schedule
3.8, Telescan is not in default with respect to or is in violation of any
judgment, order, writ, injunction or decree of
MicroCap 1000 Stock Exchange Agreement
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any court or any statute, law, ordinance, rule, order or regulation of any
governmental department, commission, board, bureau, agency or instrumentality,
federal, state or local, and the consummation of the transactions contemplated
by this Agreement will not constitute such a default or violation as to
Telescan, except such as in the aggregate do not now have and will not in the
future have a material adverse effect upon the operations, business and assets
of Telescan.
Section III.9 Investment Intent. Telescan is acquiring the shares of
MicroCap Common Stock hereunder for its own account for investment, and not with
a view to, or for the sale in connection with, any distribution of such shares,
except in compliance with applicable federal and state securities laws. Telescan
and its representatives have been provided, to their satisfaction, the
opportunity to discuss the transactions contemplated hereby with MicroCap and
its representatives, and has had the opportunity to obtain such information
pertaining to MicroCap as has been requested. Telescan has such knowledge and
experience in business and financial matters that it is (i) capable of
evaluating the merits and risks of an investment in the MicroCap Common Stock,
(ii) capable of bearing the economic risks of such investment and (iii) able to
bear a complete loss of its investment in the MicroCap Common Stock. Telescan
acknowledges that the MicroCap Common Stock issued hereunder has not been
registered under the Securities Act, and understands that such MicroCap Common
Stock must be held indefinitely unless it is subsequently registered under the
Securities Act or such sale is permitted pursuant to an available exemption from
such registration requirement.
Section III.9 Investment Intent. Telescan is acquiring the shares of
MicroCap Common Stock hereunder for its own account for investment, and not with
a view to, or for the sale in connection with, any distribution of such shares,
except in compliance with applicable federal and state securities laws. Telescan
and its representatives have been provided, to their satisfaction, the
opportunity to discuss the transactions contemplated hereby with MicroCap and
its representatives, and has had the opportunity to obtain such information
pertaining to MicroCap as has been requested. Telescan has such knowledge and
experience in business and financial matters that it is (i) capable of
evaluating the merits and risks of an investment in the MicroCap Common Stock,
(ii) capable of bearing the economic risks of such investment and (iii) able to
bear a complete loss of its investment in the MicroCap Common Stock. Telescan
acknowledges that the MicroCap Common Stock issued hereunder has not been
registered under the Securities Act, and understands that such MicroCap Common
Stock must be held indefinitely unless it is subsequently registered under the
Securities Act or such sale is permitted pursuant to an available exemption from
such registration requirement
Section III.10 Representations Not Misleading. To Telescan's knowledge,
no representation or warranty by Telescan in this Agreement, nor any statement,
summary, exhibit or schedule furnished to Telescan by Telescan under and
pursuant to, or in anticipation of this Agreement, contains or will contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements contained herein or therein not misleading.
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ARTICLE IV
MISCELLANEOUS
Section IV.1 Public Announcement. Subject to written advice of counsel
with respect to legal requirements relating to public disclosure of matters
related to the subject matter of this Agreement, the timing and content of any
announcements, press releases or other public statements concerning the
transactions contemplated hereby will occur upon, and be determined by, the
mutual consent of MicroCap and Telescan.
Section IV.2 Expenses. All costs and expenses incurred in connection
with the transactions contemplated by this Agreement shall be paid by Telescan,
on the one hand, or MicroCap, on the other hand, depending on who incurs such
costs and expenses.
Section IV.3 Survival of Representations and Warranties. The parties
hereto agree that all of their respective representations and warranties
contained in this Agreement shall survive the consummation of the transactions
contemplated hereby.
Section IV.4 Brokers and Finders. All negotiations on behalf of
Telescan and MicroCap relating to this Agreement and the transactions
contemplated hereby have been carried on by the parties hereto and their
respective agents directly without the intervention of any other person in such
manner as to give rise to any claim against Telescan or MicroCap for financial
advisory fees, brokerage or commission fees, finder's fees or other like payment
in connection with the consummation of the transactions contemplated hereby.
Section IV.5 Entire Agreement; Assignment. This Agreement, the License
Agreement, the Services Agreement and the Option Agreement (a) constitute the
entire agreement among the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties or any of them with respect to the subject matter hereof, and
(b) shall not be assigned by operation of law or otherwise.
Section IV.6 Enforcement of the Agreement. The parties hereto agree
that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions hereof, this being in
addition to any other remedy to which they are entitled at law or in equity.
Section IV.7 Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provisions of this Agreement, which shall remain in full force and
effect.
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Section IV.8 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered in person, by telecopy, or by registered or certified
mail (postage prepaid, return receipt requested) to the respective parties as
follows:
If to Telescan: with a copy (not constituting notice) to:
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telescan, Inc. ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ 600 ▇▇▇▇▇▇ Street
Houston, TX 7703 ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇ Teleconv No. (▇▇▇) ▇▇▇-▇▇▇▇
If to MicroCap: with a copy (not constituting notice) to:
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇ Resch, Polster, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
MicroCap Financial ▇▇▇▇▇▇▇▇.▇▇▇, Inc. 10390 Santa ▇▇▇▇▇▇ Boulevard
2425 Olympic Boulevard - Suite ▇▇▇ ▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
MicroCap Financial ▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇,▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above
(provided that notice of any change of address shall be effective only upon
receipt thereof).
Section IV.9 Governing Law. This Agreement shall be governed by and
construed in accordance with the federal laws of the United States and the laws
of the State of Texas, regardless of the laws that might otherwise govern under
applicable principles of conflicts of laws of the State of Texas.
Section IV.10 Descriptive Headings. The descriptive headings are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
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Section IV.11 Parties in Interest. This Agreement shall be binding
upon and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to confer upon any other person any
rights or remedies of any nature whatsoever under or by reason of this
Agreement.
Section IV.12 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
Section IV.13 Incorporation by Reference. Any and all schedules,
exhibits, annexes, statements, reports, certificates or other documents or
instruments attached hereto are incorporated herein by reference hereto as
though fully set forth at the point referred to in the Agreement.
Section IV.14 Certain Definitions.
(a) "Subsidiary" shall mean, when used with reference to an entity, any
corporation, a majority of the outstanding voting securities of which are owned
directly or indirectly by such entity or any partnership, joint venture or other
enterprise in which any entity has, directly or indirectly' any equity interest.
(b) "Material Adverse Effect" shall mean any material adverse change
from that represented in this Agreement (without regard to the knowledge or lack
of knowledge of MicroCap or Telescan) in the financial condition, assets,
liabilities (absolute, accrued, contingent or otherwise), reserves, business or
results of operations of MicroCap and Telescan taken as a whole.
(c) "knowledge" or "known" -- An individual shall be deemed to have
"knowledge" of or to have "known" a particular fact or other matter if (i) such
individual is actually aware of such fact or other matter, or (ii) a prudent
person serving in the same capacity as such individual would be expected to
discover or otherwise become aware of such fact or other matter in the course of
performing the official duties of such individual. A corporation shall be deemed
to have "knowledge" of or to have "known" a particular fact or other matter if
any individual serving as a director or executive officer (or in any similar
capacity) of the corporation, has had knowledge of such fact or other matter.
(d) "Affiliate" shall mean, with respect to any person, any person or
entity that, directly or indirectly, controls, is controlled by, or is under
common control with the person or entity in question.
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Section IV.15 Exhibits. The following exhibits are hereby incorporated
into and made a part of this Agreement:
Exhibit A - "License Agreement"
Exhibit B - "Services Agreement"
Exhibit 3 - "Stock Option Agreement"
Schedule 2.1 - "MFSI Ownership"
Schedule 2.2 - "Outstanding MFSI Options Chart"
Schedule 2.7 - "MFSI Options Issued Since September 30, 1998"
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its officers thereunto duly authorized, all as of the
day and year first above written.
Agreed and Accepted By:
Company: Telescan, Inc. Company: MicroCap Financial ▇▇▇▇▇▇▇▇.▇▇▇, Inc.
Signature: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Signature: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President Title: Sr. V.P.
Date: 3/31/99 Date: 3/31/99
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EXHIBIT A
LICENSE AGREEMENT
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EXHIBIT B
SERVICES AGREEMENT
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EXHIBIT C
STOCK OPTION AGREEMENT
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SCHEDULE 2.1
MFSI OWNERSHIP
[ILLEGIBLE]
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SCHEDULE 2.2
OUTSTANDING MFSI OPTIONS CHART
[ILLEGIBLE]
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SCHEDULE 2.7
OPTIONS ISSUED SINCE SEPTEMBER 30, 1998
[ILLEGIBLE]
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