STOCK PURCHASE AGREEMENT
This
STOCK PURCHASE AGREEMENT (this “Agreement”) is made as of this ___ day of
January, 2010 by and between Overture Acquisition Corp., a limited life company
organized under the laws of the Cayman Islands (“Buyer” or “Overture”) and the
signatory on the execution page hereof and its Affiliates (collectively,
“Seller”).1
WHEREAS,
Overture was organized for the purpose of acquiring, through a merger, capital
stock exchange, asset acquisition or other similar business combination, an
operating business (“Business Combination”); and
WHEREAS,
Overture consummated an initial public offering in January, 2008 (“IPO”) in
connection with which it raised gross proceeds of approximately $150,000,000, a
significant portion of which was placed in a trust fund established by Overture
for the benefit of its public stockholders (the “Trust Account”) pending the
consummation of a Business Combination, or the dissolution and liquidation of
Overture in the event it is unable to consummate a Business Combination on or
prior to January 30, 2010; and
WHEREAS,
Overture has entered into that certain Master Agreement, dated December 10,
2009, by and among Overture, Overture Re Holdings, Ltd., Overture’s newly-formed
wholly-owned holding company (“Overture Re Holdings”), Jefferson National
Financial Corp., a Delaware corporation (“JNF”), Jefferson National Life
Insurance Company, a Texas insurance company and wholly-owned subsidiary of JNF
(“JNL”), JNL Bermuda LLC, a newly formed Delaware limited liability company and
wholly-owned subsidiary of JNL (“JNL Bermuda”), JNF Asset Management LLC, a
Delaware limited liability company and certain founders of Overture, pursuant to
which, among other things, following a future closing and amalgamation with JNL
Bermuda, Overture Re Ltd., a to-be-formed wholly-owned subsidiary of Overture Re
Holdings (“Overture Re”) will reinsure blocks of annuities and acquire a
portfolio of securities in consideration for up to $120,000,000 and Overture Re
will be a long term reinsurer domiciled in Bermuda (collectively, the
“Acquisition”); and
WHEREAS,
pursuant to certain provisions in Overture’s Memorandum and Articles of
Association, as amended (the “Memorandum of Association”), a holder of
Overture’s ordinary shares, par value $.0001 per share (the “Ordinary Shares”),
issued in Overture’s IPO may, if it votes against the Business Combination,
demand that Overture redeem such Ordinary Shares into cash (“Redemption
Rights”); and
WHEREAS,
the Acquisition will not be consummated if the holders of 30% or more of the
Ordinary Shares issued in the IPO vote against the Acquisition and request
Redemption Rights; and
WHEREAS,
Buyer has requested Seller sell, and Seller has agreed to sell, the number of
Ordinary Shares set forth on the signature page hereof (the
“Shares”).
NOW,
THEREFORE, in consideration of the mutual covenants hereinafter set forth and
other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
1
“Affiliates” shall have the meaning ascribed to such term under Rule 501 of
Regulation D of the Securities Exchange Act of 1934, as
amended.
ARTICLE
I
Purchase
and Closing
Section 1.01 Purchase. Seller hereby agrees to sell to Buyer and Buyer hereby agrees to purchase from Seller at the Closing (as defined below) the Shares at
$____ per share
(the “Purchase Price Per
Share”) for the aggregate
purchase price set forth on
the signature page hereto
(the “Aggregate Purchase Price”). Following the execution of
this Agreement, Buyer hereby agrees to provide irrevocable instructions to its
transfer agent in the form attached hereto as Exhibit
A, to deliver the Aggregate
Purchase Price at the Closing. Buyer’s obligation to purchase the
Shares from Seller shall be conditioned on the consummation of the
Acquisition.
Section 1.02 Closing. The closing of the purchase and sale of the
Shares (“Closing”) will
occur as soon as practicable, but in no event more than three (3) business days
after the consummation of
the Acquisition. At the Closing, Seller shall deliver the Shares
to an account specified by Buyer
using the Depository Trust
Company’s DWAC (Deposit/Withdrawal at Custodian) System and,
upon receipt of all (but not less than all) of the Shares, the Aggregate Purchase Price shall be paid to Seller by wire
transfer of immediately available funds from Buyer’s Trust Account to an account specified by
Seller. It shall
be a condition to the obligation of Buyer on the one hand and Seller on the
other hand, to consummate the transfer of the Shares and payment of the Aggregate Purchase
Price contemplated
hereunder that the other party’s representations and warranties are
true and correct at the
Closing with the same
effect as though made on such date, unless waived in writing by the party to
whom such representations and warranties are made.
ARTICLE II
Voting of the Shares; Proxy and Waiver
of Redemption
Section 2.01 Voting;
Redemption. In further consideration of the
Aggregate
Purchase Price, Seller
hereby agrees that as soon
as practicable, Seller
will vote or send
electronic and written instructions to its prime broker holding the Shares to
vote the Shares in favor of the Acquisition and each of the other proposals (the “Proposals”) to be submitted at the special meeting, or adjournment thereof, called for by Buyer for the purpose of
voting upon (i) the Acquisition and (ii) any other proposal
set forth in Buyer’s definitive proxy statement describing the Acquisition and
Proposals (the “Meeting”), each in the manner set forth in such definitive proxy
statement.
2
Section 2.02 Prior
Votes. If Seller has already voted in connection
with the Meeting, Seller shall either (i)(a) withdraw and revoke its vote
against the Acquisition and Proposals with respect to the Shares or (b) send
electronic and written instructions to its prime broker holding the Shares
to withdraw and
revoke its vote against the
Acquisition and Proposals with respect to the Shares and shall then send
electronic and written instructions to its prime broker to vote the Shares in
accordance with Section 2.01 or (ii) continue to vote the Shares in
favor of the Acquisition and the Proposals; provided, further, that in all applicable cases, Seller
shall rescind its demand, or not demand, its Redemption Rights with respect to the
Shares.
Section 2.03 Appointment of
Proxy. Seller
hereby appoints each of Xxxx X. Xxxxxx and Xxxxx Xxxxxxxx as its true and lawful
proxies
and attorneys-in-fact, with full power of substitution, to vote all of the
Shares in accordance with the terms of this Agreement. The
proxy and power of attorney granted
herein shall be deemed to be coupled with an interest, shall be irrevocable
during the term of this Agreement, and shall survive the death, disability,
incompetency, bankruptcy, insolvency or dissolution of Seller. Furthermore,
Seller will, from time to time as reasonably requested by Buyer, execute and
deliver such further instruments, ancillary agreements or other documents or
take such other actions as may be necessary or advisable to give effect to,
confirm, evidence or effectuate the purposes of the proxy granted by this Section
2.03. Upon the termination of this Agreement in accordance with
Section 7.01, this Section 2.03 shall be of no further force and
effect.
Section 2.04 Evidence of
Vote. Seller shall provide further evidence of both
(i) its vote in favor of the Acquisition and Proposals, and (ii) its non-demand
or withdrawal of Redemption
Rights, within one (1) business day of any reasonable request
by Buyer for such evidence.
Section 2.05 Waiver of Right of
Redemption. By
entering into this Agreement, Seller hereby waives its rights to redeem the
Shares. The waiver granted by Seller pursuant to this Section 2.05 is
irrevocable unless and until this Agreement is terminated in accordance with
Section 7.01 and is granted in consideration of Buyer entering into this
Agreement and incurring certain related fees and expenses.
ARTICLE III
Representations and Warranties of the
Seller
Seller hereby represents and warrants to
Buyer on the date hereof and on the Closing Date that:
Section 3.01 Organization. Seller has the legal authority to execute, deliver and carry
out the terms of this Agreement and to consummate the transactions contemplated
hereby and thereby.
Section 3.02 Authority;
Non-Contravention. This Agreement has been
validly authorized, executed and delivered by Seller and, assuming the due
authorization, execution and delivery thereof by Buyer, is a valid and binding
agreement enforceable in accordance with its terms, subject to the general
principles of equity and to bankruptcy or other laws affecting the enforcement
of creditors’ rights generally. The execution, delivery and
performance of this Agreement by Seller does not and will not conflict with,
violate or cause a breach of, constitute a default under, or result in a
violation of (i) any agreement, contract or instrument to which Seller is a
party which would prevent Seller from performing its obligations hereunder or
(ii) any law, statute, rule or regulation to which Seller is
subject.
3
Section 3.03 Sophisticated
Seller. Seller
is sophisticated in financial matters and is able to evaluate the risks and
benefits attendant to the sale of Shares to Buyer.
Section 3.04 Independent
Investigation. Seller, in making the
decision to sell the Shares to Buyer, has not relied upon any oral or written
representations or assurances from Buyer or any of its officers, directors or
employees or any other representatives or agents of Buyer other
than as set forth in this Agreement. Seller has had access to
all of the filings made by
Overture with the SEC,
pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the Securities
Act of 1933, as
amended, in each case to
the extent available publicly via the SEC’s Electronic Data Gathering, Analysis
and Retrieval system.
Section 3.05 No Legal Advice from
Buyer. Seller acknowledges
it has had the opportunity
to review this Agreement and the transactions contemplated by this Agreement
with Seller’s own legal counsel, investment and tax
advisors. Seller is not relying on any statements or representations
of Buyer or any of its representatives or agents for legal, tax or investment
advice with respect to this Agreement or the transactions contemplated by the
Agreement.
Section 3.06 Ownership of
Shares. Seller is the legal and beneficial owner
of the Shares and
will transfer to Buyer at
the Closing good and marketable title to the Shares free and clear of any liens,
claims, security interests, options, charges or any other encumbrance
whatsoever. The
Seller (i) beneficially owned all of the Shares as
of the close of the trading day on January 7, 2010 (the “Record Date”), and (ii) has the sole right to exercise
Redemption Rights and vote the Shares, whether at the Meeting or upon action by
written consent, with respect to all of the Shares, and (iii) none of the Shares were lent
out by Seller or Seller’s broker as of the Record Date. Except as provided by this
Agreement, Seller has not, directly or indirectly, granted any proxies or
entered into any voting trust or other agreement or arrangement with respect to
the voting, regardless of whether such vote would occur at the Meeting or upon
action by written consent, of any of the Shares.
Section 3.07 Number of
Shares. The
Shares being transferred pursuant to this Agreement represent all of the
Ordinary Shares beneficially owned by Seller as of the date hereof,
including any such Ordinary Shares which may result from the exercise of any
option, call or other derivative security interest; provided, however, the term “derivative security
interest” shall not include any of Overture’s warrants issued in connection with
the IPO.
4
Section 3.08 Cash
Account. If the Shares are not
currently held in an account which prohibits rehypothecation by the Seller’s
prime broker, Seller will transfer the Shares into such an account as soon as
practicable following the execution of this Agreement; provided, however, in no event shall such transfer occur
more than two (2) business days from the execution of this
Agreement.
Section 3.09 Seller
Taxes. Seller
understands that Seller (and not the Buyer) shall be responsible for any and all
tax liabilities of Seller that may arise as a result of the transactions
contemplated by this Agreement.
Section 3.10 Aggregate Purchase
Price Negotiated. Seller
represents and
understands that both
the number of
Shares and the Aggregate
Purchase Price were negotiated figures by the parties and that the terms and
conditions by the parties of this Agreement may differ from arrangements entered
into with other holders of
Ordinary Shares.
Section 3.11 Finder’s
Fees. No
investment banker, broker, finder or other intermediary is entitled to a fee or
commission from Buyer in respect of this Agreement based upon any arrangement or
agreement made by or on behalf of Seller.
ARTICLE IV
Representations and Warranties of the
Buyer
Buyer hereby represents and warrants to
Seller on the date hereof
and on the Closing
Date
that:
Section 4.01 Organization. Buyer has the requisite legal authority to execute, deliver and carry
out the terms of this Agreement and to consummate the transactions contemplated
hereby and thereby.
Section 4.02 Authority;
Non-Contravention. This Agreement has been
validly authorized, executed and delivered by Buyer and assuming the due
authorization, execution and delivery thereof by Seller, is a valid and binding
agreement enforceable in accordance with its terms, subject to the general
principles of equity and to bankruptcy or other laws affecting the enforcement
of creditors’ rights generally. The execution, delivery and
performance of this Agreement by Buyer does not and will not conflict with,
violate or cause a breach of, constitute a default under, or result in a
violation of (i) any agreement, contract or instrument to which Buyer is a party
which would prevent Buyer from performing its obligations hereunder or (ii) any
law, statute, rule or regulation to which Buyer is subject.
Section 4.03 Sophisticated
Buyer. Buyer is
sophisticated in financial matters and is able to evaluate the risks and
benefits attendant to the purchase of Shares from Seller.
Section 4.04 Independent
Investigation. Buyer, in making the
decision to purchase the Shares from Seller, has not relied upon any oral or
written representations or assurances from Seller or any of its officers,
directors, partners or employees or any other representatives or agents of Seller other
than as set forth in this Agreement.
5
Section 4.05 No Legal Advice from
Seller. Buyer
acknowledges it has had the
opportunity to review this Agreement and the transactions contemplated by this
Agreement with Buyer’s own
legal counsel, investment
and tax advisors. Buyer is relying solely on such counsel and
advisors and not on any statements or representations of Seller or any of its
representatives or agents for legal, tax or investment advice with respect to
this Agreement or the transactions contemplated by this
Agreement.
Section 4.06 Buyer Taxes. Buyer understands that Buyer (and not the
Seller) shall be
responsible for any and all
tax liabilities of Buyer
that may arise as a result of the transactions contemplated by this
Agreement.
ARTICLE V
Negative Covenants of the
Seller
Section 5.01 No Further
Acquisitions of Overture Securities. Seller hereby covenants and
agrees that following the
execution of this Agreement and prior to Closing, Seller shall not acquire any Ordinary
Shares, other securities of Overture convertible into
or exchangeable for Ordinary Shares in Overture or any options, calls or other
rights to acquire Ordinary Shares of Overture or similar securities or rights
that are derivative of, or provide economic benefits based, directly or
indirectly, on the value or price of, any Ordinary Shares or other securities of
Overture.
Section 5.02 No Other Proxies or
Voting Agreements. Seller hereby covenants and
agrees that except pursuant
to the terms of this Agreement, Seller shall not, directly or indirectly,
(i) grant any proxies or
enter into any voting trust or other agreement or arrangement with respect to
the voting of any of the
Shares, regardless of whether such vote would occur at the Meeting or upon
action by written consent or (ii) sell, assign, transfer, encumber or
otherwise dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the direct or indirect assignment, transfer,
encumbrance or other disposition of, any of the Shares during the term of this
Agreement. Seller shall not seek or solicit any
such assignment, transfer, encumbrance or other disposition or any such
contract, option or other arrangement or understanding with respect to the Shares and agrees to notify Buyer promptly,
and to provide all details requested by Buyer, if Seller shall be approached or
solicited, directly or indirectly, by any person with respect to the
Shares.
ARTICLE VI
Acknowledgement;
Waiver
Section 6.01 Acknowledgement;
Waiver. Seller
(i) acknowledges that Buyer may possess or have access to material non-public
information which has not been communicated to Seller; (ii) hereby waives any
and all claims, whether at law, in equity or otherwise, that he, she, or it may
now have or may hereafter acquire, whether presently known or unknown, against
Buyer or any of its officers, directors, employees, agents, affiliates,
subsidiaries, successors or assigns relating to any failure to disclose any
non-public information in connection with the transactions contemplated by this Agreement,
including without limitation, any such claims arising under the securities or other laws, rules and
regulations, and (iii) is
aware that Buyer is relying on the foregoing acknowledgement and waiver in
clauses (i) and (ii) above, respectively, in connection with the transactions
contemplated by this Agreement.
6
ARTICLE VII
Miscellaneous
Section 7.01 Termination. Notwithstanding any provision in this
Agreement to the contrary, this Agreement shall become null and void and of no
further force and effect upon the earlier to
occur: (i) termination by
the written agreement of the parties to this Agreement or (ii) the day on which
the Acquisition is terminated.
Section 7.02 Counterparts;
Facsimile. This
Agreement may be executed in any number of 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 instrument. This Agreement or any
counterpart may be executed via facsimile transmission, and any such executed
facsimile copy shall be treated as an original.
Section 7.03 Governing
Law. This Agreement shall for all purposes be
deemed to be made under and shall be construed in accordance with the laws of New York. Each of the parties hereby
agrees that any action, proceeding or claim against it arising out of or
relating in any way to this Agreement shall, to the fullest extent
applicable, be brought and enforced first in the
Southern District of New York, then to such other court in the State of New York
as appropriate and
irrevocably submits to such jurisdiction, which jurisdiction shall be
exclusive. Each of the parties hereby waives any objection to such
exclusive jurisdiction and that such courts represent an inconvenient
forum.
Section 7.04 Remedies
Cumulative. Each
of the parties hereto acknowledges and agrees that, in the event of any breach
of any covenant or agreement contained in this Agreement by the other party,
money damages may be inadequate with respect to any such breach and the
non-breaching party may have no adequate remedy at law. It is
accordingly agreed that each of the parties hereto shall be entitled, in
addition to any other remedy to which they may be entitled at law or in equity,
to seek injunctive relief and/or to compel specific performance to prevent
breaches by the other party hereto of any covenant or agreement of such other
party contained in this Agreement. Accordingly, Seller hereby agrees Buyer
is entitled to an injunction prohibiting any conduct by the Seller in violation of this Agreement and Seller shall not
seek the posting of any bond in connection with such request for an
injunction. Furthermore, in any action by Buyer to enforce this
Agreement, Seller waives its right to assert any counterclaims and its right to
assert set-off as a defense. The prevailing party agrees to pay all costs and expenses,
including reasonable attorneys' and experts' fees that such prevailing party may incur in connection with
the enforcement of this
Agreement.
7
Section 7.05 Severability. If any term, provision or
covenant of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions and covenants of this Agreement shall remain in full force and effect
and shall in no way be affected, impaired or invalidated
Section 7.06 Binding Effect;
Assignment. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective legal representatives, successors and permitted
assigns. This Agreement shall not be assigned by Seller without the prior written consent of
Buyer. Buyer may assign this
Agreement to a third party without the prior consent of Seller as long as such
assignee shall immediately purchase the Shares from Seller; provided, however, upon any
such assignment in accordance with this Section 7.06, Seller hereby acknowledges
and agrees that in consideration for the immediate purchase of the Shares by the
assignee, Seller shall (i) continue to vote the Shares in accordance with
Section 2.01 or (ii) grant a proxy allowing the assignee to vote the Shares.
Section 7.07 Headings. The descriptive headings of
the Sections hereof are inserted for convenience only and do not constitute a
part of this Agreement.
Section 7.08 Entire Agreement;
Changes in Writing. This Agreement constitutes
the entire agreement among the parties hereto and supersedes and cancels any
prior agreements, representations and warranties, whether oral or written, among
the parties hereto relating to the transaction contemplated
hereby. Neither this Agreement nor any provision hereof may be changed or
amended orally, but only by an agreement in writing signed by the other party
hereto.
Section 7.09 Further
Assurances. If
at any time any of the
parties hereto shall
consider or be advised that any further documents or actions are necessary or desirable to
vest, perfect or confirm of record or otherwise the rights, title or interest in or to the Shares or under or otherwise pursuant to this Agreement, the parties hereto shall execute and deliver such further documents or take such
actions and provide all assurances and to take and do all such other actions and things as may
be necessary or desirable to vest, perfect or confirm any and all right, title
and interest in
or to the Shares or under or otherwise pursuant to this Agreement, including, without limitation, any
documentation or actions which may be required in connection with the assignment
from Buyer as permitted under Section 7.06 hereof.
Section 7.10 Trust
Waiver. The Trust Account is invested in U.S. government
securities in a trust account at XX Xxxxxx Xxxxx Bank and held in trust by American Stock Transfer & Trust
Company (the “Trustee”)
pursuant to the Investment Management Trust Account Agreement, dated as of January 30,
2008, between Overture and
Trustee. Other than with respect to the Aggregate Purchase Price to
be paid to Seller in connection with this Agreement, Seller agrees that it does
not now have, and shall not at any time have, any claim to, or make any claim
against, the Trust
Account or any asset
contained therein, regardless of whether such claim arises as a result of, in
connection with or relating in any way to, the business relationship between
Seller, on the one hand,
and Overture, on the other
hand, this Agreement, or any other agreement or any other matter, and regardless
of whether such claim arises based on contract, tort, equity or any other theory
of legal liability. Other than with respect to the Aggregate Purchase Price to
be paid to Seller in connection with this Agreement, Seller hereby irrevocably
waives any and all claims it may have, now or in the future (in each case,
however, prior to the consummation of a business combination), and will not seek
recourse against, the Trust
Account for any other
reason whatsoever in respect thereof. Other than with respect to an action for
the recovery of the Aggregate Purchase Price to be paid to Seller in connection
with this Agreement, in the event Seller commences any other action or
proceeding based upon, in connection with, relating to or arising
out of any matter relating
to Overture, which
proceeding seeks, in whole or in part, relief against the Trust Account or the public stockholders of
Overture, whether in the
form of money damages or
injunctive relief, Overture
shall be entitled to recover from Seller the associated legal fees and costs in
connection with any such
action.
Section 7.11 Seller W-9. Seller agrees to provide to Buyer an
Internal Revenue Service Request for Taxpayer Identification Number and
Certification Form W-9 or W-8, as applicable.
8
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set
forth on the first page of this Agreement.
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By:
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Name:
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Title:
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[SELLER]
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By:
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Name:
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Title:
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Purchase
Price Per Share:
Number of
Shares:
Aggregate
Purchase Price:
9
Exhibit
A
X/X
XXXXXX XXXXXXXXX XXXXXXXX XXXXXXX
XXXXXX
XXXXX
XXXXX
XXXXXX, XXXXXX XXXXXXX
January
__, 2010
American
Stock Transfer & Trust Company
00 Xxxxxx
Xxxx, Xxxxx Xxxxx
Xxx Xxxx,
XX 00000
Attn:
Xxxxx Xxxxxxxx
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Re:
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Trust
Account No.
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Gentlemen:
Overture Acquisition Corp. (the
“Company”) is providing these irrevocable instructions to you in connection with
the above described Trust Account established in connection with and pursuant to
an Investment Management Trust Agreement dated as of January 30, 2008 between
American Stock Transfer & Trust Company as Trustee (the “Trust
Agreement”). Upper case terms used herein shall have the meanings
ascribed to such terms in the Trust Agreement.
In the event the Company notifies you
that it has consummated a Business Combination, or, in connection with this and
other required transfers of Trust Account funds will consummate a Business
Combination, and assuming you are the Trustee on such date, then, in
consideration for the electronic transfer of [NUMBER] ordinary shares of the
Company to an account specified by the Company (the “Company Account”) upon the
receipt of the shares in the Company Account, you are irrevocably instructed to
deliver the sum of [AMOUNT] to [SELLER] in accordance with the bank wire
instructions provided to you below:
[INSERT
INSTRUCTIONS]
1
Exhibit
A
The address for [SELLER] is
[ADDRESS]. The contact person for [SELLER] is [PERSON]. He
can be reached at [NUMBER].
Kindly acknowledge where indicated
below, your receipt and understanding of these instructions and return a copy to
Ellenoff Xxxxxxxx & Schole LLP, attn: Xxxxx X. Xxxxxxx, Esq. facsimile
number [NUMBER].
A facsimile signed and electronically
delivered copy of this letter shall be deemed an original.
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Very
truly yours,
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By:
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Name:
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Title:
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Acknowledged
and Agreed:
AMERICAN
STOCK TRANSFER
&
TRUST COMPANY
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By:
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Name:
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Title:
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2
