Exhibit 10.1
SHAREHOLDERS
AGREEMENT
THIS SHAREHOLDERS
AGREEMENT (the “
Agreement ”) is made and entered into as of July 14,
2009 (the “ Effective Date ”) by and among
AMALPHIS GROUP INC. , a British Virgin Islands corporation
(“ Amalphis ” or the “ Company
”), RINEON GROUP, INC. , a Nevada corporation (“
Rineon ”), and NATPROV HOLDINGS INC. , a
British Virgin Islands corporation (“ NatProv
”), and any other person(s) or entity(ies) which becomes a
party to this Agreement. Rineon and NatProv are
hereinafter sometimes individually referred to as a “
Shareholder ” and collectively referred to as the
“ Shareholders ”.
RECITALS:
WHEREAS , NatProv is the current owner of an aggregate of
451,666 ordinary shares, $0.01 par value per share, of the Company
(the “ Ordinary Shares ”), representing 100% of
the issued and outstanding Ordinary Shares of the Company;
and
WHEREAS, pursuant to a stock purchase agreement between
NatProv and Rineon, dated as of May 14, 2009 (the “ Stock
Purchase Agreement ”), NatProv agreed to sell and Rineon
agreed to purchase for $36,000,000 in cash, an aggregate of
1,985,834 Ordinary Shares of the Company, representing
approximately 81.5% of the 2,437,500 issued and outstanding
Ordinary Shares of the Company owned by NatProv; and,
WHEREAS , Rineon has paid to NatProv the $36,000,000
purchase price contemplated by the Stock Purchase Agreement;
and
WHEREAS , with the approval of Rineon and in order to
enable Amalphis’ Subsidiary, Allied Provident Insurance, Inc,
to continue to comply with applicable insurance regulations in
Barbados, immediately prior to the Effective Date of this
Agreement, NatProv has:
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(a)
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converted all of the 1,985,834
Ordinary Shares of the Company to be sold to Rineon under the Stock
Purchase Agreement into 36,000 shares of non voting Series A
Preferred Shares of the Company, containing such rights,
privileges, powers and designations as are set forth on Exhibit
A annexed hereto; and
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(b)
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assigned and transferred all right,
title and interest in and to such 36,000 Series A Preferred Shares
to Rineon; and
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WHEREAS , the Company and the Shareholders also wish to
enter into this Agreement to document their agreement and
understanding regarding certain restrictions and controls on the
Company and the Shares; and
NOW THEREFORE,
in consideration of the foregoing
recitals and the mutual covenants and agreements contained herein,
and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
ARTICLE 1 -CERTAIN
DEFINITIONS
Section 1.1 As used in this
Agreement, the following terms shall have the following respective
meanings:
“ Affiliate ”
means, with respect to any Person, any other Person directly or
indirectly controlling (including, but not limited to, all
directors and officers of such Person), controlled by, or under
direct or indirect common control with, such Person. A
Person shall be deemed to control another Person if such Person
possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of such other Person,
whether through the ownership of voting securities, by contract or
otherwise. Control will be presumed by the ownership of
10% or more of the voting securities of any such
Person. For purposes of Section 3.10 ( Drag-Along
Rights ) each director, shareholder, general partner, member,
officer and employee (to the extent applicable) of a Person or the
spouse or children of any such director, shareholder, general
partners, member, officer or employee or a trust of
trusts solely for the benefit of such director, shareholder,
general partner, member, officer or employee and/or the spouse or
children of such director, shareholder, general partner, member,
officer or employee shall, in each case, be deemed to be a
Affiliate.
“ Agreement ”
means this Agreement as the same may be amended, restated,
supplemented or modified from time to time in accordance with the
terms herein.
“ Allied Provident
” means Allied Provident Insurance, Inc., a Barbados exempt
insurance company, and a Subsidiary of the Company.
“ Board of Directors
” means the Board of Directors of the Company
“ Business Day ”
means any day other than a Saturday, Sunday or other day on which
commercial banks in the State of New York are authorized or
required by law or executive order to close.
“ Certificate of
Designation ” means the Certificate of Designation,
Powers, Preferences and Rights of the Series A Preferred Shares of
the Company in the form annexed hereto as Exhibit A
.
“ Company ”
has the meaning set forth in the preamble to this
Agreement.
“ Effective Date
” has the meaning set forth in the preamble to this
Agreement.
“ Memorandum and Articles
of Association ” means the Memorandum and Articles of
Association of the Company in effect on the Effective Date, as the
same may be amended from time to time.
“ NatProv ” has
the meaning set forth in the preamble to this Agreement.
“ Ordinary Shares
” means the 100,000,000 ordinary shares, $0.01 par value per
share, of the Company that is authorized for issuance pursuant to
the Memorandum and Articles of Association.
“ Person ” means
any individual, firm, corporation, partnership, trust, incorporated
or unincorporated association, joint venture, joint stock company,
limited liability company, governmental agency or authority or
other entity of any kind, and shall include any successor (by
merger or otherwise) of such entity.
“ Rineon ” has
the meaning set forth in the preamble to this Agreement.
“ Rineon Series A Preferred
Shares ” shall mean the 36,000 Series A Preferred Shares
that were transferred and assigned by NatProv to Rineon pursuant to
the Stock Purchase Agreement, in lieu of 1,985,834 Ordinary Shares
of the Company.
“ Sale of Control
” shall mean the collective reference to any one of the
following events:
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(a)
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a sale of all of the issued and
outstanding Shares of the Company in one transaction or in a series
of transactions; or
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(b)
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a merger of the Company with or into
any Person (or a Subsidiary of such Person) who is not an Affiliate
of the Company or any of the Shareholders; or
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the sale of all or substantially all
of the securities, assets or business of the Company to, or the
merger or consolidation of the Company with, any Person who is not
an Affiliate of the Company or any of the Shareholders.
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“ Series A Preferred
Shares ” means the 3,000,000 Series A Preferred Shares,
$0.01 par value per share, and $1,000 liquidation value per share,
of the Company that are authorized for issuance pursuant to the
Certificate of Designation.
“ Shares ” means
and includes all Ordinary Shares and all Rineon Series A Preferred
Shares now owned or hereafter acquired by any
Shareholder.
“ Shareholder ”
or “ Shareholders ” have the meanings set forth
in the preamble to this Agreement.
“ Stock Purchase
Agreement ” has the meaning set forth in the preamble to
this Agreement.
“ Subsidiary ”
means any corporation or other entity of which at least a majority
of the securities or other ownership interest having ordinary
voting power (absolutely or contingently) for the election of
directors or other Persons performing similar functions are at the
time owned directly or indirectly by the Company and/or any of its
other subsidiaries.
“ Triggering Date
” shall mean (i) for Section 3.2 , the date of the
occurrence of an event of insolvency; and (ii) for Section 3.3, the
date that the Offer (as defined in Section 3.3(b) ) is
delivered to the Offerees.
ARTICLE 2
- TRANSFER OF RINEON SERIES A PREFERRED
SHARES
Section 2.1 Receipt of
Rineon Series A Preferred Shares in Lieu of Ordinary Shares.
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(a)
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By its execution of this Agreement,
each of NatProv and Rineon agree to amend the Stock Purchase
Agreement to the extent that Rineon agrees to accept, in lieu of
1,985,834 Ordinary Shares of the Company, the 36,000 Series A
Preferred Shares representing the Rineon Series A Preferred
Shares.
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(b)
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NatProv hereby acknowledges receipt
of payment of the $36,000,000 purchase price for the Rineon Series
A Preferred Shares. NatProv hereby covenants that it
heretofore converted all of the 1,985,834 Ordinary Shares of the
Company to be sold to Rineon under the Stock Purchase Agreement
into 36,000 shares of Series A Preferred Shares of the Company and
has transferred to Rineon a stock certificate of the Company
representing the Rineon Series A Preferred Shares, properly
endorsed for transfer. Rineon hereby consents to such
conversion and acknowledges receipt of such stock certificate
evidencing the Rineon Series A Preferred Shares.
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(c)
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Promptly following the Effective
Date of this Agreement, against delivery of the stock certificate
referred to in Section 2.1(b) above, the Company shall cause to be
issued in the name of Rineon a stock certificate evidencing such
Rineon Series A Preferred Shares, free and clear of all liens,
security interests, pledges, charges or other encumbrances of any
nature whatsoever.
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ARTICLE 3
- TRANSFERS AND SALE OF CONTROL
Section 3.1 General
Restriction Against Transfer; Permitted Transfers
.
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(a)
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Each Shareholder covenants and
agrees that, except as specifically set forth in this Article 3 and
subject to Section 3.1(b), neither such Shareholder nor such
Shareholder’s successors or Affiliates shall sell, donate,
assign as collateral, pledge, hypothecate, mortgage, encumber,
allow to be encumbered, transfer or otherwise dispose of in any
manner whatsoever (each, a “ Transfer ”) any
Shares.
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(b)
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Any attempt to Transfer or to agree
to Transfer any Shares in contravention of the provisions of this
Agreement shall be void and shall have no
effect. Compliance with the provisions of this Agreement
shall be a condition precedent to the recording or documentation of
any Transfer of any Shares in the books and records of the
Company.
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(c)
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Notwithstanding any of the
restrictions on Transfer of the Shares contained in this Agreement,
Transfers of any Shares owned by record by any one or more of the
Shareholders to any Affiliate or to any Person who is an equity
owner of the Shareholder or who controls, is controlled by or is
under common control with such Shareholder or any family member of
such Person or Persons, or any trust for the benefit of the
foregoing or any entity the majority of whose interests are owned
by any of the foregoing (individually or collectively, a “
Permitted Transferee ”), shall be permitted (each a
“ Permitted Transfer ”); provided ,
however , that (A) any Shares so Transferred shall continue
to be subject to the restrictions of this Agreement, (B) such
Transfer does not violate any of the provisions of this Agreement,
and (C) such Transfer shall not be effective until the Permitted
Transferee executes and delivers an agreement in the form supplied
by the Company whereby such Permitted Transferee agrees to become a
party to this Agreement and to be bound by each of the terms and
conditions of this Agreement.
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Section 3.2
Sale Upon
Insolvency . Each Shareholder agrees that upon
the occurrence of any of the following events: (i) a
Shareholder’s adjudication as a bankrupt; (ii) institution by
or against a Shareholder of a petition for arrangement or any other
type of insolvency proceeding under any bankruptcy law or
otherwise; (iii) a Shareholder’s making of a general
assignment for the benefit of such Shareholder’s creditors,
(iv) the appointment of a receiver or trustee in bankruptcy of such
Shareholder for any of a Shareholder’s assets; or (v) the
taking, making or institution of any like or similar act or
proceeding involving a Shareholder, provided that such
event, adjudication, institution, making, appointment or similar
act or proceeding is not cured or rescinded within sixty (60) days
(the “ Cure Period ”), then, at the end of the
Cure Period, such Shareholder or such Shareholder’s successor
or successors in interest shall offer to sell to the Offerees, and
the Offerees may, but shall not be required to, purchase all, but
not less than all, of such Shareholder’s Shares and such sale
shall be made in accordance with Section 3.4, Section 3.5, Section
3.6 and Section 3.7.
Section 3.3 Right of
First Refusal .
(a) Notwithstanding
any other provision of this Agreement, except as provided in
Section 3.3(c) below, neither NatProv nor any Permitted Transferee
of NatProv may Transfer all or any portion of its Shares following
the Effective Date.
(b) Prior to July 14,
2012, neither NatProv nor any Permitted Transferee of NatProv may
effect any Transfer of its or their Shares. If at any
time following July 14, 2012, NatProv or any Permitted Transferee
of NatProv (each a “ Selling Shareholder ”)
desires to sell for cash or cash equivalents all or any portion of
its Shares pursuant to a bona fide offer from a third party who is
not an Affiliate (for the purposes of this Section 3.3, the “
Proposed Transferee ”), the Selling Shareholder shall
submit a written offer (the “ Offer ”) to sell
such Shares (the “ Offered Shares ”) to Rineon
on terms and conditions, including price, not less favorable to the
Offerees than those on which the Selling Shareholder proposes to
sell such Offered Shares to the Proposed Transferee. The
Offer shall disclose the identity of the Proposed Transferee, the
Offered Shares proposed to be sold, the total number of Shares
owned by the Selling Shareholder, the terms and conditions,
including price, of the proposed sale, and any other material facts
relating to the proposed sale. Rineon may assign its
right to purchase the Offered Shares by delivering written notice
to the Selling Shareholder. Any sale proposed or made
under this Section 3.3 shall be made in accordance with Section
3.4, Section 3.5, Section 3.6 and Section 3.7.
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(c)
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The provisions of this Section 3.3
(including Rineon’s Right of First Refusal) shall not apply
with respect to:
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(i)
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any redemption of Shares or sales of
Shares by a Shareholder to the Company in a transaction approved by
the Board of Directors of the Company and consented to in writing
by Rineon; or
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(ii)
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any Permitted Transfer;
or
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(iii)
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any sales or issuances of Ordinary
Shares or other equity securities by the Company with the prior
written consent of Rineon.
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Section 3.4 Option
Period; Effecting Election .
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(a)
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Option Period
. For each proposed purchase of Shares
made pursuant to Section 3.2, Section 3.3 or Section 3.4, Rineon
shall have the first option to purchase all or any portion of such
Shares. Rineon shall have thirty (30) days (the “
Rineon Option Period ”) from the effective Triggering
Date to consummate such a sale. If Rineon does not
consummate any such sale within the Rineon Option Period, the
Company shall then have an additional thirty (30) day period (the
“ Company Option Period ”) (beginning on the day
following the expiration of the Rineon Option Period) during which
it may consummate the purchase of the applicable
Shares. The Rineon Option Period and the Company Option
Period are collectively referred to herein as the “ Option
Periods .” If any such Share purchase is not
consummated by either Rineon or the Company within the applicable
Option Period, the Shares may be sold to a third party or otherwise
Transferred, as applicable, by NatProv. Any purchase
made by Rineon or the Company under this Agreement shall result in
all of the applicable Shares being purchased. Rineon may
assign the right to purchase the Shares to any third party in any
proportions that Rineon desires in its sole discretion.
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(b)
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Effecting Election
. Election by Rineon or the Company to
purchase Shares offered for sale pursuant to this Agreement shall
be effected by sending written notice of such election to such
Selling Shareholder or such its or their representative (as
applicable) prior to the expiration of the applicable Option
Period.
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Section 3.5 Effect of
Failure to Elect to Purchase All Shares .
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(a)
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If either Rineon or the Company do
not elect to purchase all of the Shares offered for sale by an
Selling Shareholder pursuant to Section 3.2 or Section 3.3, all of
the Selling Shareholder’s Shares shall continue to be owned
by such Shareholder. Such Shares may be transferred as
contemplated by NatProv or its Permitted Transferee, but such
Shares will at all times continue to be subject to the restrictions
of this Agreement and no such Transfer will be effective until each
proposed transferee executes and delivers a counterpart of this
Agreement.
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(b)
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If either Rineon nor the Company do
not elect to purchase all of the Shares offered for sale by a
Selling Shareholder pursuant to Section 3.3, all, but not less than
all, of the Selling Shareholder’s Shares not purchased by
Rineon or the Company may be transferred
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