Exhibit 9.2
VOTING TRUST AGREEMENT
AGREEMENT made as the 4th day of September, 1996, by and between
PATRICK DEPAOLO, SR. ("DePaolo"), an individual currently residing at 300
Argyle Road, Cheshire, CT and MANTIS PARTNERS IV, L.P.("Mantis"), an individual
with offices at 407 E. Grand River, Brighton, Michigan 48116.
W I T N E S S E T H:
WHEREAS, Mantis owns indirectly though Mantis V. L.L.C. 95,000 shares
of Common Stock of Discas, Inc., a Delaware corporation (the "Voting Stock")
and desires to vest the voting rights with respect to the Voting Stock in
DePaolo, as Trustee, in the manner and upon the terms and conditions set forth
in this Agreement; and
WHEREAS, Mantis and Mantis Partners III, L.P. are the founding members
of Mantis V, L.L.C., responsible for conducting the affairs of Mantis V,
L.L.C., and consequently along with Mantis Partners III, L.P., Mantis is in a
position to exercise voting control over the Voting Stock, whether held by
Mantis V, L.L.C. or Mantis.
NOW, THEREFORE, in consideration of good and valuable consideration,
the receipt of which is hereby acknowledged, the parties hereby agree as
follows:
APPOINTMENT OF TRUSTEE. Mantis hereby irrevocably appoints DePaolo as
trustee for purposes of this Agreement, and DePaolo hereby accepts such
appointment and trusts created herein. During the term of this Agreement,
DePaolo shall be entitled to exercise all voting rights of every kind and
nature, including the right to vote in person or by proxy, or execute and
deliver written shareholder consents, in any respect, in and to any shares of
Voting Stock. Mantis or its assigns shall be entitled to receive payments of
all dividends, including pro rata distributions of additional voting shares of
the Company by way of stock dividends or partial liquidations, if any, declared
by the Company with respect to the shares of Voting Stock. Any such share
distributions shall be subject to the terms of this Agreement.
1. LEGEND ON VOTING STOCK CERTIFICATES. The certificates representing
the Voting Stock shall bear a legend to reflect the existence of this
Agreement.
2. TERM OF AGREEMENT. This Agreement shall be effective and remain in
force among the parties hereto for a term which shall commence on the date
hereof and shall end upon the earlier of five years from the date hereof or the
date on which Mantis sells or otherwise disposes of the Voting Shares to a
non-affiliated person or entity.
3. TERMINATION OF VOTING TRUST AGREEMENT. Upon the termination of this
Agreement, the certificates representing the
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Voting Stock shall be delivered to the Company and new certificates reissued
without a legend referencing this Agreement.
4. DUTY OF CARE. In voting on all matters which may come before any
meeting of shareholders, DePaolo shall exercise his best judgment, but it is
understood that DePaolo will incur no responsibility or liability to Mantis by
reason of any error of law or by any matter or thing done or omitted under this
Agreement.
5. TRANSFERS AND RIGHT OF FIRST REFUSAL. Mantis shall not be
prohibited from transferring, pledging, selling or otherwise disposing of the
Voting Stock. However, at the time of any transfer of Voting Stock to an
affiliate, the Holders shall cause the affiliate to deliver to DePaolo a Voting
Trust Agreement covering the subject shares of Voting Stock in form
substantially identical to this Agreement. An affiliate shall be defined as any
family members of Richard Campbell and any corporation or other entity owned or
controlled by Richard Campbell, either directly or indirectly. In the case of
Voting Stock pledged by the holder, or in other transactions where beneficial
ownership of the shares is retained by Mantis, DePaolo shall continue to
exercise his right with respect to such shares in accordance with the terms of
this Agreement. During the term of this Agreement Mantis shall give DePaolo no
less than three (3) business days notice of its intention to sell any Voting
Stock and DePaolo shall have the right to purchase the Shares proposed to be
sold on the identical terms and conditions as those proposed for a period of
three (3) business days after the sending of such notice (time being of the
essence);
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provided however, this right shall not apply to any sales made by Mantis
pursuant to Rule 144 or similar securities rules or regulations.
6. GENERAL PROVISIONS.
(a) All of the covenants and agreements contained in this Agreement
shall be binding upon, and enure to the benefit of, the respective parties and
their successors, assigns, heirs, executors, administrators and other legal
representatives, as the case may be.
(b) This Agreement, and the rights of the parties hereto, shall be
governed by and construed in accordance with the laws of Delaware.
(c) This Agreement may be executed in one or more counterparts,
each of which will be deemed an original but all of which together shall
constitute one and the same instrument.
(d) If any provision of this Agreement shall be declared void or
unenforceable by any court or administrative board of competent jurisdiction,
such provision shall be deemed to have been severed from the remainder of this
Agreement and this Agreement shall continue in all respect to be valid and
enforceable.
(e) Each of the parties confirms that damages at law may be an
inadequate remedy for any breach or threatened breach of this Agreement and
agrees that, in the event of a breach or a threatened breach of any provision
hereof, the respective rights and obligations hereunder shall be enforceable by
specific performance, injunction or other equitable remedy. Nothing herein
contained is
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intended to, nor shall it, limit or affect any rights at law or by statute or
otherwise which any party aggrieved has against the other for breach or
threatened breach of any provision hereof, it being the intention of this
paragraph to make clear the agreement of the parties that the respective rights
and obligations of each of them hereunder shall be enforceable in equity as
well as at law or otherwise.
IN WITNESS WHEREOF, each of the parties have hereunto set their
respective hands as of the date first above written.
/S/ RICHARD L. CAMPBELL
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MANTIS PARTNERS IV, L.P.
BY:RICHARD L.CAMPBELL,
ITS GENERAL PARTNER
/S/ PATRICK A. DEPAOLO, SR.
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PATRICK DEPAOLO, SR.
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