AGREEMENT
AGREEMENT
THIS
AGREEMENT (this “Agreement”), dated as of
January 26, 2010, is made by and among OVERTURE ACQUISITION CORP., a Cayman
Islands exempted company (“OAC”), and VICTORY PARK
CAPITAL ADVISORS, LLC, on behalf of one or more entities for which it acts as
investment manager and other purchasers acceptable to Victory Park Capital
Advisors, LLC and OAC (collectively, “Victory Park”).
WHEREAS,
OAC was organized for the purpose of acquiring, through a merger, share capital
exchange, asset acquisition, share purchase, reorganization or other similar
business combination, an operating business (“Business
Combination”);
WHEREAS,
OAC consummated an initial public offering in January 2008 (“IPO”) in connection with which
it raised gross proceeds of approximately $150 million, a significant portion of
which was placed in a trust account (the “Trust Account”) maintained by
American Stock Transfer and Trust Company (“American”) pending the
consummation of a Business Combination, or the dissolution and liquidation of
Buyer in the event it is unable to consummate a Business Combination on or prior
to January 30, 2010;
WHEREAS,
OAC has entered into the Master Agreement, dated as of December 10, 2009 (the
“Master Agreement”), by
and among OAC, Overture Re Holdings Ltd., OAC’s newly formed, wholly owned
Bermuda holding company (“Overture Re Holdings”),
Jefferson National Financial Corp., a Delaware corporation (“JNF”), Jefferson National Life
Insurance Company, a Texas insurance company and a wholly owned subsidiary of
JNF (“JNL”), and JNL
Bermuda LLC, a Delaware limited liability company and a newly formed wholly
owned subsidiary of JNL (“JNL
Bermuda”), JNF Asset Management LLC, a Delaware limited liability company
(“JNFAM”) and the
founders of OAC which, among other things, provides for the amalgamation of JNL
Bermuda and Overture Re Ltd., a to be formed, wholly owned Bermuda subsidiary of
Overture Re Holdings, pursuant to which the amalgamated company shall be a long
term reinsurer domiciled in Bermuda (collectively, the “Transaction”);
and
WHEREAS,
the approval of the Transaction is contingent upon, among other things, the
affirmative vote of holders of a majority of the outstanding ordinary shares of
OAC which are present and entitled to vote at the meeting called to approve the
Acquisition;
WHEREAS,
pursuant to certain provisions in Buyer’s memorandum and articles of
association, a holder of Buyer’s ordinary shares issued in the IPO may, if it
votes against the Transaction, demand that Buyer convert such ordinary shares
into cash (“Conversion
Rights”);
WHEREAS,
the Transaction cannot be consummated if holders of 30% or more of the OAC
ordinary shares issued in the IPO exercise their Conversion Rights.
NOW,
THEREFORE, the undersigned parties agree as follows:
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1.
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Agreement to Make
Purchases of OAC Ordinary Shares. Victory Park agrees to
use its reasonable best efforts to make privately negotiated purchases of
up to approximately 2.0 million OAC ordinary shares at purchase prices not
to exceed $10.04 per share (at the discretion of OAC) on or prior to
January 27, 2010, provided that OAC agrees to enter into the form of
forward contract (“Forward Contract”)
attached hereto as Annex A with
the purchaser of such ordinary shares in connection therewith. Purchases
by Victory Park shall not begin until OAC has publicly announced that it
has entered into this Agreement and affirmative approval to specific third
party purchases has been electronically provided by
OAC.
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2.
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Fees. In
addition, in exchange for its services in aggregating blocks of shares for
purchase by Victory Park from OAC stockholders that have indicated an
intention to convert their OAC ordinary shares and or vote against the
Transaction, OAC shall pay to Victory Park on the Closing Date (as defined
in the Forward Contract) a fee equal to 1.5% of the cost to Victory Park
of all OAC ordinary shares purchased by Victory Park from third parties;
provided that such fee shall not be payable in the event that the Business
Combination is not consummated.
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3.
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Expenses. All
costs and expenses incurred in connection with the transactions
contemplated by this Agreement, including, without limitation, legal fees
and expenses and all other out-of-pocket costs and expenses of third
parties incurred by a party in connection with the negotiation and
effectuation of the terms and conditions of this Agreement and the
transactions contemplated thereby, shall be the obligation of the
respective party incurring such fees and expenses; provided that OAC shall
pay up to $50,000 of the reasonably incurred and properly documented costs
and expenses incurred by Victory Park in connection with the transactions
contemplated by this Agreement, it being understood that OAC has, prior to
the date hereof, deposited $25,000 with Victory Park in furtherance of the
foregoing.
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4.
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Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument.
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5.
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Governing Law;
Jurisdiction. This Agreement shall for all purposes be
deemed to be made under and shall be construed in accordance with the laws
of the State 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 be brought and enforced in the courts
of the State of New York or the United States District Court for the
Southern District of New York, 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 and irrevocably waive
trial by jury.
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[Signature
page to follow]
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.
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By:
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/s/
Xxxx X. Xxxxxx
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Name:
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Xxxx X. Xxxxxx | ||
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Title:
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President | ||
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VICTORY
PARK CAPITAL ADVISORS, LLC
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By:
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/s/
Xxxxx X. Xxxxxxx
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Name:
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Xxxxx X. Xxxxxxx | ||
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Title:
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General Counsel | ||
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Annex A
