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EXHIBIT 9.2
THE XXXXXX SHAREHOLDER AGREEMENT
This Agreement is made on March 1st, 1996 by and between
Xxxxxx Xxxxxx ("JB"), and CPS Capital, Ltd. ("CPS"), an Ohio limited liability
company.
WHEREAS, JB has sold to CPS 8,509,917 shares of common stock
of Sentex Sensing Technology, Inc., a New Jersey corporation ("Sentex") pursuant
to a Stock Purchase Agreement dated October 18, 1995 (the "Stock Purchase
Agreement");
WHEREAS, JB has entered into a Consulting and Noncompete
Agreement dated the date hereof (the "Consulting Agreement") with Sentex as a
condition to consummation of the transactions contemplated by the Stock Purchase
Agreement;
WHEREAS, JB and CPS desire to establish certain rights and
obligations as between them with respect to all shares of common stock of Sentex
owned of record or beneficially as of the date hereof or acquired hereafter by
JB (such owned or acquired shares being hereinafter referred to as the
"Shares");
NOW, THEREFORE, in consideration of the premises and
agreements herein contained, JB and CPS hereby agree as follows:
1. Restrictions on Sales (Tag Along,
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Registration and Lock-up).
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(a) The CPS Group (defined hereinafter) shall not sell any or
all of its shares of Sentex stock in a private transaction, unless JB
is offered, in writing, the opportunity (which offer shall remain open
for 15 days following the receipt of notice of such private
transaction) to sell a number of her Shares for the same price and upon
the same terms and conditions as offered to the CPS Group that is equal
to the product of the number of shares that the CPS Group has the
opportunity to sell in such private transaction (as described in such
notice to JB) multiplied by the percentage that is calculated by
dividing the total number of Shares owned by JB by the aggregate total
of all the shares owned by the CPS Group, JB and, if Xxxx Xxxxxxxxx
("AL") is eligible and elects to participate in such private
transaction, the total number of shares of common stock of Sentex owned
by AL. For example, if CPS is provided the opportunity to sell
1,000,000 of its shares in a private transaction and the CPS Group owns
11,000,000 shares, JB owns 1,000,000 and AL owns 8,000,000 shares then,
if AL were eligible and elected to participate, CPS would be permitted
to sell 550,000 shares, JB would be permitted to sell 50,000 shares and
AL would be permitted to sell 400,000 shares in such private
transaction. If, however, AL were not eligible or elected not to
participate in such private transaction, then the CPS Group and JB
could sell 916,667 and 83,333 shares, respectively.
(b) The CPS Group shall not sell any or all of its shares of
Sentex stock pursuant to a public offering registered under the
Securities Act of 1933 unless JB is offered the opportunity (which
offer shall remain open for 15 days following the receipt of notice of
such offering) to include in any such offering a number of her Shares
for the same price and upon the same terms and conditions that the CPS
Group has the opportunity to offer its shares in such offering that is
equal to the product of the number of shares that the CPS Group has the
opportunity to offer in such offering (as described in such notice to
JB) multiplied by the percentage that is calculated by dividing the
total number of Shares owned by JB by the aggregate total of all the
shares owned by the CPS Group, JB and, if AL is eligible and elects to
participate in such offering, the total number of shares of common
stock of Sentex owned by AL. For example, if CPS is provided the
opportunity to include 1,000,000 of its shares in a public offering, as
described above, and the CPS Group owns 11,000,000 shares, JB owns
1,000,000 and AL owns 8,000,000 shares then, if AL were
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eligible and elected to participate, CPS would be permitted to include
550,000 shares, JB would be permitted to include 50,000 shares and AL
would be permitted to include 400,000 shares in such public offering.
If, however, AL were not eligible or elected not to participate in such
public offering, then the CPS Group and JB could include 916,667 and
83,333 shares, respectively, in such public offering.
(c) For any transaction contemplated in subsections (a) or (b)
of this Section 1, CPS shall provide JB with written notice that
describes in reasonable detail the nature of the transaction,
including, without limitation, the price and number of shares the CPS
Group has the opportunity to sell in a private transaction or offer for
sale through a registered public offering, as the case may be.
(d) Until the second anniversary of the date hereof, JB shall
not sell any Shares without the written consent of CPS, except pursuant
to Section 1(a) and 1(b).
(e) For purposes of this Section 1 the following definitions
shall apply: (i) the term "CPS Group" shall mean CPS, Xxxxxx X. Xxxxxxx
or any Related Party or Affiliate of the foregoing; (ii) the term
"Related Party" shall mean, with respect to any Person, any of such
Person's issue, spouse, parents, parent-in-law, any trust settled or
established principally for the benefit of the foregoing or any of
their respective issue, the executor, administrator or other legal
representative of the estate of any of the foregoing individuals and
any of the legatees and heirs who are issue of the foregoing
individuals or are trusts established principally for the benefits of
any or all of such issue, or any corporation or other business entity
wholly owned by such Person or any Related Party of such Person; (iii)
the term "Person" shall mean any individual, corporation, partnership,
trust, unincorporated association, business or other legal entity; and
(iv) the term "Affiliate" shall mean any Person that directly, or
indirectly through one or more intermediaries, controls, is under
common control with or is controlled by CPS, Xxxxxx X. Xxxxxxx or any
Related Party.
(f) All the certificates representing shares now or herein
after owned by either CPS or JB shall bear substantially the following
legend:
THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER CONTAINED IN THAT CERTAIN
SHAREHOLDERS AGREEMENT DATED AS OF MARCH 1, 1996, AS AMENDED
FROM TIME TO TIME, TO WHICH CPS CAPITAL LTD, AN OHIO LIMITED
LIABILITY COMPANY, AND XXXXXX XXXXXX ARE PARTIES. A COPY OF
SUCH AGREEMENT WILL BE PROVIDED TO THE HOLDER OF THIS
CERTIFICATE UPON WRITTEN REQUEST DELIVERED TO EITHER THE
CORPORATION.
For shares owned now, the legend shall be placed on such certificates
within 5 days of the execution of this Agreement. For shares owned
hereafter, the party shall deliver the certificate evidencing such
shares to Sentex within 5 days of purchasing such shares for the
purpose of having such legend placed on such certificate.
2. VOTING RIGHTS. JB agrees that, until the second
anniversary of the date hereof, so long as she owns any Shares, she will vote
such Shares in accordance with instructions received from CPS on each matter
submitted to the shareholders of Sentex, and will execute a form of proxy
(including an irrevocable proxy to CPS, or if directed by CPS, to Xxxxxx X.
Xxxxxxx or any of his Affiliates) for such Shares naming CPS, Xxxxxx X. Xxxxxxx
or his Affiliates as its proxy to vote such shares if CPS so requests in writing
from time to time on or after the date hereof. CPS shall indemnify JB from and
against any liability of JB which arises from the voting of such Shares in
accordance with this Section 2.
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3. NOTICES. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, overnight
courier service, or certified mail, returned receipt requested, to the following
addresses of the parties or at such other address as any party shall designate
by such written notice:
(a) if to CPS:
Xxxxxx X. Xxxxxxx
CPS Capital, Ltd.
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
With a copy to:
Xxxxx & Xxxxxxxxx
3200 National City Center
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
(b) if to JB:
Xxxxxx Xxxxxx
0 Xxxx Xxxx
Xxxxxx, XX 00000
With a copy to:
Xxxxxx Xxxxxxxxxx, Esq.
Xxxxxxxxxx & Xxxxxx
0000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
All such notices and communications shall be deemed to have
been duly given when delivered by hand or overnight courier; or, if mailed, five
days after being deposited in the mail, postage prepaid.
4. BINDING EFFECT AND TERM.
This Agreement shall be binding upon CPS and its successors
and upon JB and her successors, heirs and personal representatives. This
Agreement may not be assigned by any party hereto without the prior written
consent of the other parties. JB agrees that she shall not transfer ownership of
any of the Shares (other than as permitted by this Agreement, including, without
limitation, Section 1 hereof) unless the transferee agrees in writing to be
bound by the terms and conditions of this Agreement.
This Agreement shall terminate on the earlier of (i) the
second anniversary date hereof, or (ii) Xxxxxx X. Xxxxxxx'x ceasing to have
effective control of Sentex; provided, however, that Section 1 shall apply to
any sale of shares by the CPS Group that results in Xxxxxx X. Xxxxxxx ceasing to
have such control.
5. AMENDMENT. This Agreement may be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may be given, provided that the same are in writing and signed by the parties
hereto. The waiver by any party hereto of a breach of any of the provisions of
this Agreement shall not operate or be construed as a waiver of any subsequent
breach.
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6. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
7. HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
8. GOVERNING LAW. The validity and interpretation of this agreement shall
be governed by the laws of the State of New Jersey. The federal and state courts
in Bergen County, New Jersey, will have exclusive jurisdiction with respect to
any dispute relating to this Agreement.
9. ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, oral or written, between the parties hereto
with respect to the subject matter hereof.
10. UNENCUMBERED SHARES. JB represents and warrants with respect to the
Shares currently owned by her (as indicated in the Premises hereto) that she is
the owner of such Shares and, except as provided for herein, such Shares are
free and clear of all security interests, liens, claims, pledges, options,
rights of first refusal agreements limitations on voting rights, charges and
other encumbrances of any nature whatsoever. Except as provided herein, JB has
the sole voting power with respect to such Shares.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above written.
CPS CAPITAL, LTD.
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Chairman and President
XXXXXX XXXXXX
/s/ Xxxxxx Xxxxxx
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