CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 1
WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH "***"
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***CONFIDENTIAL TREATMENT REQUESTED***
Note: Portions hereof have been omitted and filed separately with the
Securities and Exchange Commission pursuant to a request for confidential
treatment in accordance with Rule 24b-2 of the Securities Exchange
Act of 1934, as amended.
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OPTION PURCHASE AGREEMENT
OPTION PURCHASE AGREEMENT (this "Agreement") made as of this 25th
day of January, 2010 between Malibu Capital Partners, LLC, a California limited
liability company ("Buyer"), and the signatory on the execution page hereof
("Seller").
WHEREAS, Overture Acquisition Corporation (the "Company"), a
Cayman Islands corporation, 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, the Company consummated an initial public offering in
January, 2008 in connection with which it raised gross proceeds of approximately
$150 million, a significant portion of which was placed in a trust account
pending the consummation of a Business Combination on or prior to January 30,
2010; and
WHEREAS, pursuant to certain provisions in the Company's
Certificate of Incorporation, as amended (the "Certificate of Incorporation"), a
holder of Common Stock issued in the Company's initial public offering may, if
it votes against the Business Combination, demand that the Company redeem such
Common Stock into cash ("Redemption Rights"); and
WHEREAS, the Business Combination will not be consummated if the
holders of more than 30% of the Common Stock vote against the Business
Combination and request Redemption Rights; and
WHEREAS, Buyer has requested Seller, and Seller has agreed, to
enter into this Agreement with respect to the number of shares of common stock,
par value $.0001 per share (the "Common Stock"), of the Company set forth on the
signature page hereof that Seller beneficially owns (the "Shares"); and
WHEREAS, Buyer has agreed to purchase from Seller an option to
purchase Seller's Common Stock at any time prior to the Termination (as defined
hereinafter) of this Agreement; and
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:
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WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH "***"
1. OPTION. Seller hereby sells to Buyer and Buyer hereby purchases
from Seller, concurrently with the execution of this Agreement, at a price of
*** per Share (the "Option Price"), an option (the "Purchase Option") to
purchase all (but not less than all) of the Shares from Seller at any time prior
to the Termination of this Agreement. On execution of this Agreement, Buyer
shall pay to the order of Seller, by wire transfer of immediately available
funds pursuant to the instructions set forth on SCHEDULE 1 hereto, the aggregate
Option Price. Seller shall have confirmed none of the Shares are being lent by
Seller, an affiliate of Seller (as such term is defined in Section 501(b) of the
Securities Act of 1934, as amended) or Seller's broker, to any third party
immediately prior to the execution of this Agreement.
2. PURCHASE. If the Buyer exercises the Purchase Option in
accordance with Section 4 then at the Closing (as defined hereinafter), Seller
shall sell to Buyer and Buyer shall purchase from Seller, the Shares at a price
per share (the "Purchase Price") equal to that certain pro rata portion of the
Company's trust account (the "Trust Amount") due its public stockholders as set
forth in the Company's final definitive proxy statement filed with the U.S.
Securities and Exchange Commission (the "SEC") in connection with the Business
Combination.
3. AGREEMENT TO VOTE AND REDEEM PRIOR TO EXERCISE OF THE PURCHASE
OPTION.
(a) VOTE AGAINST; REDEMPTION. In further consideration of the
Option Price and unless withdrawn and revoked pursuant to the terms of this
Agreement, Seller hereby agrees that within 1 business day after execution of
this Agreement, Seller will send an electronic and written instruction through
its prime broker holding the Shares requesting the prime broker to: (i) exercise
its Redemption Rights, (ii) vote the Shares against the Business Combination,
and (iii) vote the Shares against any amendment to the Certificate of
Incorporation, each in the manner set forth in the Company's respective proxy
statement(s) filed with the SEC, as applicable and in a timely manner; PROVIDED,
FURTHER, that in all applicable cases, Seller shall take such other actions in
connection therewith as may be reasonably requested by Buyer.
(b) PRIOR VOTES. If Seller has already voted in connection
with any such Business Combination or amendment to the Certificate of
Incorporation, Seller shall either (i) send an electronic and written
instruction through its prime broker holding the Shares requesting the prime
broker to withdraw and revoke Seller's vote in favor of such Business
Combination or amendment to the Certificate of Incorporation with respect to the
Shares or (ii) continue to vote the Shares, against any Business Combination or
amendment to the Certificate of Incorporation; PROVIDED, FURTHER, that in all
applicable cases, Seller shall exercise, or continue to exercise, its Redemption
Rights in accordance with the proxy statement(s) and take such other actions in
connection therewith as may be reasonably requested by Buyer.
(c) APPOINTMENT OF PROXY.
(i) Subject to the limitations of Section 3(c)(ii), Seller
hereby appoints Kenneth J. Abdalla as its true and lawful proxy and
attorney-in-fact, with full power of substitution, to vote all of the Shares in
accordance with the terms of this Agreement in a manner consistent with Clause
5. The proxy and power of attorney granted herein shall be deemed to be coupled
with an interest, shall be irrevocable, and shall survive the death, disability,
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WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH "***"
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 3(c). Upon the termination of this Agreement in accordance with Section
10, this Section 3(c) shall be of further force and effect.
(ii) This Section 3(c) shall become effective only if: (i)
Seller fails to vote the Shares in accordance with this Agreement, and/or (ii)
Buyer notifies Seller of its intent to exercise the Purchase Option in
accordance with Section 4 and payment of the Aggregate Purchase Price has been
made to the Escrow Agent (as defined in Section 5).
(d) EVIDENCE OF VOTE. Seller shall provide further evidence of
both (i) its vote against any such Business Combination or amendments to the
Certificate of Incorporation, and (ii) its exercise of Redemption Rights, within
one (1) business day of any reasonable request by Buyer for such evidence.
4. EXERCISE OF PURCHASE OPTION. Buyer shall exercise the Purchase
Option by delivering to Seller written notice, by electronic mail, facsimile or
otherwise, at the address set forth in Section 20, such that it is received by
Seller (i) at least two business days prior to the Meeting or any stockholder
vote taken by written consent or (ii) at least one business day prior to the
date set by Seller's prime broker as the date it must receive votes with respect
to the Meeting or any stockholder vote taken by written consent (the later of
(i) or (ii), the "Minimum Exercise Time"), containing (A) an acknowledgement of
Buyer's intent to exercise the Purchase Option and (B) whether Seller should
vote the Shares in favor of, against or abstain from voting upon, each proposal
to be presented at the Meeting or upon any such action by written consent. The
exercisability of the Purchase Option shall terminate in accordance with Section
10 hereof.
5. AGREEMENT TO VOTE UPON EXERCISE OF THE PURCHASE OPTION. Upon
the exercise of the Purchase Option and receipt by the mutually agreed upon
escrow agent (the "Escrow Agent") of: (i) the Aggregate Purchase Price and (ii)
a letter in substantially the form of EXHIBIT B hereto: Seller shall send an
electronic and written instruction through its prime broker holding the Shares
requesting the prime broker to: (1) withdraw and revoke its exercise of
Redemption Rights and (2) vote in favor of, or abstain from voting upon, the
Business Combination and the other proposals set forth in the Proxy Statement
and/or any amendment to the Certificate of Incorporation and take such other
actions in connection therewith as may be reasonably requested by Buyer. Until
such time the Shares have settled in the account specified by Buyer, Seller
shall promptly execute all necessary documents and take all actions as, in each
case, are reasonably requested by Buyer in furtherance of such required action
and revocation, with respect to the proposals to be submitted (i) by written
consent of the stockholders of Company, or (ii) at the special (or annual)
meeting, or adjournment thereof, each as called for by the Company or the
consenting stockholders to vote upon (A) the Business Combination or (B) any
amendment to the Certificate of Incorporation (the "Meeting"). If, (i) Buyer
exercises the Purchase Option prior to the expiration of the Minimum Exercise
Time and the Escrow Agent has confirmed receipt of the Aggregate Purchase Price
as aforesaid but Seller does not revoke its exercise of redemption rights and
vote in favour of (or abstain from voting) upon the Business
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WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH "***"
Combination pursuant to this Section 5 as a result of circumstances beyond the
reasonable control of Seller then Buyer's sole remedy shall be the return of the
Option Price and the Aggregate Purchase Price received by the Seller from the
Escrow Agent or Buyer (if any) for such subject Shares within one (1) business
day of the Meeting and Seller shall not be obliged to deliver such subject
Shares to Buyer pursuant to Section 6, PROVIDED THAT if the Shares have been
transferred to the Buyer or the Escrow Agent, the Buyer shall procure that they
are promptly (and in any event within one (1) business day) transferred back to
the Seller or (ii) if Buyer exercises the Purchase Option after the expiration
of the Minimum Exercise Time, then Seller shall use reasonable efforts to comply
with this Section 5; PROVIDED, HOWEVER, Seller shall have no liability
whatsoever in connection therewith and should Seller be unable to comply with
this Section 5, Seller shall not be obliged to deliver any non-complying Shares
to Buyer pursuant to Section 6.
6. CLOSING MATTERS.
(a) CLOSING. If Buyer exercises the Purchase Option, the
closing of the purchase and sale of the Shares ("Closing") will occur
simultaneously with the delivery of the Shares pursuant to Section 6(b).
(b) CLOSING PROCEDURES. As soon as reasonably practicable and
in any event, within one (1) business day after the exercise of the Purchase
Option and the Escrow Agent's confirmation of receipt of the Aggregate Purchase
Price and a letter substantially in the form of EXHIBIT B, Seller shall deliver
the Shares to Buyer electronically to an account specified by Buyer. Upon the
settlement of the Shares, the Escrow Agent shall pay to the order of Seller the
aggregate Purchase Price by wire transfer of immediately available funds to an
account specified by Seller in accordance with EXHIBIT B. 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 contemplated hereunder that the
other party's representations and warranties are true and correct as of 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.
7. REPRESENTATIONS AND WARRANTIES OF THE SELLER. Seller hereby
represents and warrants to Buyer on the date hereof and on the Closing that:
(a) 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.
(b) 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. Seller has had access
to all of the filings made by the Company with the SEC, pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and the
Securities Act of 1933, as amended (the "Securities Act") in each case to the
extent available publicly via the SEC's Electronic Data Gathering, Analysis and
Retrieval system.
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WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH "***"
(c) AUTHORITY. 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.
(d) NO LEGAL ADVICE FROM BUYER. Seller acknowledges that it
has had the opportunity to review this Agreement and the transactions
contemplated by this Agreement with Seller's own legal counsel and 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.
(e) OWNERSHIP OF SHARES; NO PROXY. Seller is the legal and
beneficial owner of the Shares, has held the Shares for at least sixty (60) days
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. Seller beneficially owned all of the Shares
as of the date of this Agreement and 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. 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.
(f) 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.
(g) NON-TRANSFER OF SHARES; NUMBER OF SHARES. Except for a
transfer of the Shares pursuant to Section 7(g)(i) - (iii), the Shares which are
subject to the Purchase Option shall not be transferred, sold, assigned or
borrowed in any manner, whether by merger, consolidation or otherwise by the
operation of law, following the execution of this Agreement. Seller may transfer
the Shares under the following circumstances: (i) in accordance with Section
7(f), (ii) to the Buyer or its assigns in connection with the exercise of the
Purchase Option or (iii) to the Company (via its transfer agent or otherwise) in
connection with Seller's perfection of its demand for Redemption Rights.
(h) 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.
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WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH "***"
8. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby
represents to the Seller that:
(a) 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.
(b) INDEPENDENT INVESTIGATION. Buyer, in making the decision
to (i) pay the Option Price, (ii) exercise the Purchase Option and (iii)
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 the representations and warranties set forth in this Agreement. Buyer has
had access to all of the filings made by the Company with the SEC, pursuant to
the Exchange Act and the Securities Act in each case to the extent available
publicly via the SEC's Electronic Data Gathering, Analysis and Retrieval system.
(c) AUTHORITY. 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.
(d) NO LEGAL ADVICE FROM SELLER. Buyer acknowledges that is
has had the opportunity to review this Agreement and the transactions
contemplated by this Agreement with Buyer's own legal counsel and 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.
9. COVENANTS.
(a) SELLER. Seller hereby covenants and agrees (i) Seller has
owned the Shares for at least sixty (60) days, (ii) Seller will, within 1
business day of execution of this Agreement, provide instructions to its prime
broker substantially in the form of EXHIBIT A, which shall not allow the Shares
to be borrowed by, or lent to, any other person or entity whatsoever, (iii) that
except pursuant to the terms of this Agreement, Seller shall not, directly or
indirectly, (A) 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,(B) 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 (C) seek or
solicit any such assignment, transfer, encumbrance or other disposition or any
such contract, option or other arrangement or
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CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 1
WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH "***"
understanding with respect to the Shares, (iv) Seller will use reasonable
efforts to notify Buyer, and to provide all details reasonably requested by
Buyer, if Seller is approached or solicited, directly or indirectly, by any
reasonably well-known alternative investment or institutional investor offering
to purchase all (or part) of the Shares, (v) Seller shall comply with all of its
filing obligations, if any, under the Securities Act, and the Exchange Act with
respect to the Purchase Option, exercise of the Purchase Option, or any other
transactions contemplated by this Agreement; PROVIDED, HOWEVER, Seller shall
file for confidential treatment of this Agreement, which at a minimum shall
include the Option Price and Section 11, and PROVIDED, FURTHER, Seller shall,
where legally permitted and practicably possible, allow counsel to Buyer one (1)
day to review any submissions to the SEC (if such Filing contains information
with respect to the Buyer other than what is disclosed in this Agreement) and
shall incorporate reasonable comments that pertain to information regarding
Buyer, (vi) Seller shall not share this Agreement or disclose any provisions of
this Agreement with any other person; PROVIDED, HOWEVER, Seller may disclose
this Agreement to (A) its group companies and its and their respective employees
and (B) its counsel and other advisors, each of whom Seller shall direct to keep
this Agreement confidential and (C) where required by any law, rule or
regulation (including the rules of a professional body) binding on the Seller
and (vii) upon being contacted by the Company or any of its affiliates,
including, but not limited to the Company's investment bankers, attorneys or
other representatives, Seller may disclose to the Company that Seller no longer
controls the vote with respect to the Shares as a result of Seller entering into
an option agreement with respect to the Shares.
(b) BUYER. Buyer hereby covenants and agrees that (i) Buyer
shall comply with all filing obligations, if any, under the Securities Act and
the Exchange Act, with respect to the Purchase Option, exercise of the Purchase
Option, any subsequent ownership of the Shares, or any other transactions
contemplated by this Agreement and (ii) Buyer shall be responsible for all costs
and expenses of the Escrow Agent.
10. TERMINATION. Notwithstanding any provision in this Agreement
to the contrary and provided that the Buyer has not, at such time, exercised the
Purchase Option, this Agreement shall become null and void and of no further
force and effect upon the earlier to occur: (i) the day on which the Company
liquidates its trust account or (ii) by unilateral decision of the Buyer
communicated to the Seller in writing. Upon any termination pursuant to Section
10, Seller shall retain the entirety of the aggregate Option Price.
11. ***
12. 13D FILING. Each of Buyer and Seller acknowledge and
understand that by virtue of this Purchase Option, or the exercise of such
Purchase Option, Buyer and/or Seller may be required to file a Schedule 13D or
Schedule 13D/A with the U.S. Securities and Exchange Commission (each, the
"Filing") and hereby consents to any such Filing reasonably required in the
opinion of Buyer, Seller and/or their respective counsels. Each of Buyer and
Seller further acknowledge and understand that Buyer and/or Seller may be
required, pursuant to the Exchange Act, to divulge certain information of Buyer
and/or Seller, including, but not limited to, its name, principals, Share
position, Option Price, Purchase Price and may be required to file this
Agreement as an exhibit to any such Filing. Each of Buyer and Seller further
covenant and agree that it shall allow the other party or its counsel one (1)
business day to review
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CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 1
WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH "***"
the Filing (if such Filing contains information with respect to the Buyer or
Seller (as applicable) other than what is disclosed in this Agreement) and shall
incorporate reasonable comments that pertain to information regarding such
party.
13. 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.
14. GOVERNING LAW. 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 Delaware. 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 Delaware
Chancery Court, then to such other court in the State of Delaware 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.
15. REMEDIES. 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 shall not seek the posting of any bond in connection with
such request for an injunction. Furthermore, in any action to enforce this
Agreement, The parties each waive their right to assert set-off as a defense.
The non-prevailing party agrees to pay all costs and expenses, including
reasonable attorneys' and experts' fees incurred by the prevailing party in
connection with the enforcement of this Agreement in such amount as may be
determined by the court of competent jurisdiction hearing such dispute.
16. 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.
17. BINDING EFFECT; ASSIGNMENT AND TRANSFER. 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 or transferred by Seller. Buyer may assign,
transfer or sell any of its rights under this Agreement at any time prior to the
exercise of the Purchase Option (collectively, a "Transfer"). All rights and
obligations of the Buyer shall terminate upon any such Transfer and all such
rights and obligations shall be assumed by the transferee.
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CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 1
WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH "***"
18. HEADINGS. The descriptive headings of the Sections hereof are
inserted for convenience only and do not constitute a part of this Agreement.
19. 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 not any provision hereof may be changed or
amended orally, but only by an agreement in writing signed by the other party
hereto.
20. NOTICE. All notices, statements or other documents which are
required or contemplated by this Agreement shall be in writing and delivered
personally or sent by first class registered or certified mail, electronic mail,
overnight courier service or facsimile transmission to the address or fax number
most recently provided to such Person or such other address or fax number as may
be designated in writing by such Person. Any notice or other communication so
transmitted shall be deemed to have been given on the day of delivery, if
delivered personally or if sent by electronic mail or facsimile transmission,
one (1) business day after delivery to an overnight courier service or five (5)
days after mailing if sent by mail.
Address for Notice:
Malibu Capital Partners, LLC [BUYER] Arrowgrass Master Fund Ltd. [SELLER]
15332 Antioch Street #528 PO Box 242, 45 Market Street
Pacific Palisades, CA 90272 Gardenia Court, Camara Bay
Grand Cayman KY1-1104
Cayman Islands
With a copy to:
Sadis & Goldberg With a copy to:
551 Fifth Avenue, 21st Floor Arrowgrass Capital Partners LLP
New York, New York 10176 Level 39, Tower 42
Attn: Paul Fasciano, Esq. 25 Old Broad Street
pfasciano@sglawyers.com London EC2N 1HQ
P: (212) 573-8025 United Kingdom
F: (212) 573-8026 Attn: Legal
[Signature Page Follows]
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CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 1
WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH "***"
IN WITNESS WHEREOF, the undersigned have executed this Agreement
as of the date set forth on the first page of this Agreement.
MALIBU CAPITAL PARTNERS, LLC
By: /s/ Kenneth J. Abdalla
----------------------------------
Name: Kenneth J. Abdalla
Title: Managing Member
ARROWGRASS MASTER FUND LTD.
By: /s/ Sean Flynn
----------------------------------
Name: Sean Flynn
Title: Director
Option Price (per Share) ***
---
Purchase Price (per Share)*:
Number of Shares: 1,856,220
Aggregate Option Price: ***
---
Aggregate Purchase Price*:
* Only to be completed in accordance with Section 2 in the event the Purchase
Option is exercised
SIGNATURE PAGE TO OPTION PURCHASE AGREEMENT
CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 1
WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH "***"
[LETTERHEAD OF SELLER]
[INSERT BROKER NAME]
[INSERT BROKER ADDRESS]
[INSERT ATTN: DETAILS]
RE: Account No. [INSERT ACCOUNT NUMBER]
Gentlemen:
[NAME OF SELLER] ("we" or the "Company") are writing in regards to
the above referenced account number (the "Account") held by [INSERT NAME OF
BROKER] ("you"). With respect to [NUMBER] of shares of the common stock of
Overture Acquisition Corporation (the "Shares") held in our Account, we hereby
request that you do not, in any manner whatsoever, lend, or allow to be
borrowed, for any period of time whatsoever, such Shares.
Very truly yours
[SELLER]
By: /s/
-----------------------------------
Name:
Title:
Agree and accepted
[BROKER]
By:/s/
-----------------------------------
Name:
Title:
CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 1
WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH "***"
[LETTERHEAD OF BUYER]
[INSERT ESCROW AGENT NAME]
[INSERT ESCROW AGENT ADDRESS]
[INSERT ATTN: DETAILS]
RE: Account No. [INSERT ACCOUNT NUMBER]
Gentlemen:
[NAME OF BUYER] ("we" or the "Company") are writing in regards to
the above referenced account number held by [INSERT NAME OF ESCROW AGENT]
("you"). Pursuant to the terms of an Option Purchase Agreement between the
Company and [INSERT SELLER], the Company has exercised its option to purchase
[INSERT NUMBER] of shares (the "Shares") of the common stock of Overture
Acquisition Corporation. In consideration for the electronic transfer of the
Shares, [using the Depository Trust Company's DWAC (Deposit/Withdrawal at
Custodian) System], to the Company's specified account, you are hereby
irrevocably instructed to wire [AMOUNT] to [SELLER], in accordance with the
wiring instructions provided below.
[INSERT WIRE INSTRUCTIONS]
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CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 1
WITH RESPECT TO CERTAIN PORTIONS HEREOF
DENOTED WITH "***"
The address for [SELLER] is [ADDRESS]. The contact person for [SELLER] is
[PERSON]. He can be reached at [NUMBER].
Kindly acknowledge where indicated below:
(a) that you hold [Amount] on behalf of the
Company, which amount is available to be transferred to [Seller] pursuant to
this letter; and
(b) your receipt and understanding of these instructions
and return a copy to Sadis & Goldberg, attn: Paul Fasciano, Esq.,
facsimile number 212-573-8026 and Arrowgrass Capital Partners LLP, facsimile
number +44 203 100 1363.
A facsimile signed and electronically delivered copy of this
letter shall be deemed an original.
Very truly yours
[BUYER]
By: /s/
-----------------------------------
Name:
Title:
Acknowledged and Agreed
[ESCROW AGENT]
By: /s/
----------------------------------------
Name:
Title:
[SELLER]
By:
----------------------------------------
Name:
Title:
-2-