Exhibit 9.4
VOTING TRUST AGREEMENT
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THIS VOTING TRUST AGREEMENT ("Agreement"), made as of the 25th day of
February, 1997, by and between PATRICK A. DEPAOLO, SR., an individual residing
at 300 Argyle Road, Cheshire, Connecticut 06410 (hereinafter referred to as
"DePaolo") and JACK MILGROM, an individual residing at 160 Overlook Avenue,
Apt. 5D, Hackensack, New Jersey 07601 (hereinafter referred to as "Milgrom").
W I T N E S S E T H:
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WHEREAS, Milgrom owns shares of Common Stock (hereinafter referred to
as the Voting Stock") of Discas, Inc., a Delaware corporation (hereinafter
referred to as the "Company") 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
NOW, THEREFORE, in consideration of good and valuable consideration,
the receipt of which is hereby acknowledged, the parties hereby agree as
follows:
1. APPOINTMENT OF TRUSTEE. Milgrom 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. Milgrom or their 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,
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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.
2. LEGEND ON VOTING STOCK CERTIFICATES. The certificates representing
the Voting Stock shall bear a legend to reflect the existence of this
Agreement.
3. 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 (5) years from the date hereof or
the date on which Milgrom sells or otherwise disposes of the Voting Stock to a
non-affiliated person or entity.
4. TERMINATION OF VOTING TRUST AGREEMENT. Upon the termination of this
Agreement, the certificates representing the Voting Stock shall be delivered to
the Company and new certificates reissued without a legend referencing this
Agreement.
5. 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 Milgrom by
reason of any error of law or by any matter or thing done or omitted under this
Agreement. An affiliate shall be defined as any family member of Milgrom and
any corporation or other entity owned or controlled by Milgrom, 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 Milgrom,
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
Milgrom shall give DePaolo not less than fifteen (15) business days notice of
their 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 within fifteen (15) business days
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of delivery of such notice (time being of the essence); provided, however, this
right shall not apply to any sales made by Milgrom 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 inure 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 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
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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/ Patrick A. DePaolo, Sr.
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Patrick A. DePaolo, Jr.
/s/ Jack Milgrom
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Jack Milgrom
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