EXHIBIT 10
Voting Trust Agreement - Eggers
106
IRREVOCABLE VOTING TRUST
THIS AGREEMENT dated October 15, 1998 by and between Bryan Eggers ("Grantor") and Joel Arberman, as Trustee ("Trustee").
RECITALS:
WHEREAS, Grantor desires to transfer 50,000 shares of Preferred Shares Class C (the "Preferred Shares") of SMD Group Inc., a Delaware corporation (the "Corporation") and receive Voting Trust Certificates (the "Certificates") for Preferred Shares of the Corporation issued hereunder pursuant to the applicable provisions of the Delaware Corporation Act.
NOW, THEREFORE, for valuable consideration, the receipt, adequacy and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Recitals. The above recitals are those of the Grantor and are true and correct and are incorporated herein by reference.
2. Transfer of Preferred Shares and Acceptance of Trust. Grantor hereby transfers and assigns to the Trustee the Preferred Shares of the Corporation, to be held in trust by the Trustee for Grantor under the terms and conditions contained herein, and directs that the Preferred Shares be transferred to the Trustee on the books of the Corporation.
3. Duties of Trustee.
a. The Trustee undertakes to perform such duties and only such duties as are specifically set forth in the Agreement, and no implied covenants or obligations shall be read into this Agreement against the Trustee. The specific duties of the Trustee are as follows:
To vote, consent and otherwise exercise all of the voting rights in
respect of the Preferred Shares, without any consent or agreement of
Grantor as to such votes;
To execute and deliver to the Grantor the Certificates;
To hold the Preferred Shares until they may be released pursuant to the
provisions of Paragraph 3 (b) below; and
To record this Agreement and all other documents necessary to effect this
Agreement with the Corporation.
b. The Preferred Shares shall be released pro-rated from this Agreement during its term as follows: 1/36th of the aggregate number of Preferred Shares initially deposited hereunder shall be released each month, subject to the limitation that for every Preferred Share released the Corporation on a cumulative basis must have had twenty individual copies of the Corporations CD player software installed onto separate and individual computers ("installation"). For example, assume Grantor was entitled to have 100 Preferred Shares released pursuant to the 1/36th provision during a month, but the Corporation only had 100 installations for such period. Only 5 Preferred Shares (100 downloads / 20 = 5 Preferred Shares) shall be released. Assume the following month the Corporation had 300 installations, 10 Preferred Shares for such month, plus 5 Preferred Shares withheld for the prior month shall be released.
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