exv10w31






Exhibit 10.31




AMENDMENT NO. 1 TO THE ESCROW AGREEMENT




          THIS AMENDMENT NO. 1, dated as of January [_], 2010 (the “Amendment”), to that certain escrow
agreement dated January 30, 2008 (the “Escrow Agreement”) by and among OVERTURE ACQUISITION CORP.,
an exempted limited liability company formed in the Cayman Islands (“Company”), each of John F. W.
Hunt, Marc J. Blazer, Blazer Investments, LLC, Marc Blazer 2007 GRAT, Mark Booth, Domenico De Sole,
Lawton W. Fitt, Paul S. Pressler and Andrew H. Lufkin (each an “Initial Shareholder” and
collectively “Initial Shareholders”), and American Stock Transfer & Trust Company, a New York
corporation (“Escrow Agent”), amends certain provisions of the Escrow Agreement as set forth below.





     WHEREAS, the Escrow Agreement governs the terms of the Escrowed Shares (as
defined below) and capitalized terms used, but not defined herein, shall have the
meaning given to such term in the Escrow Agreement; and




     WHEREAS, the Company and those certain Sponsors of the Company listed in Schedule
A to the Master Agreement have entered into a Master Agreement dated as of December
10, 2009 along with Jefferson National Financial Corp., Jefferson National Life
Insurance Company, JNF Asset Management, LLC, JNL Bermuda LLC and Overture Re Holdings
Ltd. (the “Master Agreement”); and




     WHEREAS, the Company and Sponsors have entered into a Sponsor Agreement dated as
of January [_], 2010 (the “Sponsor Agreement”); and




     WHEREAS, pursuant to the Master Agreement and Sponsor Agreement, the Company and
the Sponsors have agreed that the Company will repurchase (the “Repurchase”) the
ordinary shares of the Company, par value $0.0001 per share (the “Ordinary Shares”),
that are owned by the Sponsors as of the Closing Date (as that term is defined in the
Master Agreement) and held pursuant to the Escrow Agreement, as amended by this
Amendment (the “Escrowed Shares”), for the sum of $25,000; and




     WHEREAS, pursuant to the Master Agreement and Sponsor Agreement, the Company
agreed to seek the approval of the holders of its outstanding Ordinary Shares to amend
the amended and restated memorandum and articles of association (the “Articles”) to
provide the Company with the ability to effect the Repurchase of the Escrowed Shares
immediately upon the Closing Date; and




     WHEREAS, a majority in interest of the outstanding Ordinary Shares has approved
the amendment of the Articles to provide authority to effect the Repurchase.



     NOW, THEREFORE, in consideration of the mutual agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending
to be legally bound hereby, the parties hereto agree to amend the Escrow Agreement as set forth
herein:



          1. Disbursement of the Escrow Securities. The disbursement of the Escrow Securities
set forth in Section 3 of the Escrow Agreement is hereby amended in its entirety so that it now
reads in full as follows:




          “3. Disbursement of the Escrow Securities. The Escrow Agent shall hold the Escrow
Shares until the closing of the Initial Business Combination (as defined in below) and the
Sponsors’ Warrants until the date that is 30 days after the consummation of an Initial Business
Combination (defined below) (in each case, the “Escrow Period”), on which date it shall, upon
delivery of a certificate executed by the Chairman of the Board, President or other authorized
officer of the Company, in form reasonably acceptable to the Escrow Agent, countersigned by the
holder(s) of a majority in interest of the Escrowed Shares that the Repurchase has occurred,
disburse the Escrow Shares (and any applicable share power) or Sponsors’



 









 







Warrants, as the case may be, to the Company in the event of Repurchase or to such Initial
Shareholder in the case of the Sponsor Warrants; provided further, however, that if the Escrow
Agent is notified by the Company pursuant to Section 6.7 hereof that the Company is being
liquidated then the Escrow Agent shall promptly destroy the certificates representing the Escrow
Securities held pursuant to this Agreement; provided further, however, that if, after the Company
consummates an Initial Business Combination but the Repurchase has not occurred, (i) it (or the
surviving entity) subsequently consummates a liquidation, merger, share exchange or other similar
transaction which results in all of the shareholders of such entity having the right to exchange
their Ordinary Shares for cash, securities or other property or (ii) the Closing Price of the
Ordinary Shares (as defined in the Warrant Agreement) equals or exceeds $20.00 per share for any 20
trading days within any 30-trading day period, then the Escrow Agent will, upon receipt of a
certificate, executed by the Chairman of the Board, President or other authorized officer of the
Company, in form reasonably acceptable to the Escrow Agent, that such transaction is then being
consummated or such conditions have been achieved, as applicable, release the Escrow Shares to the
Initial Shareholders. An “Initial Business Combination” is defined as a merger, share capital
exchange, asset acquisition, share purchase, reorganization or similar business combination with
one or more operating businesses. The Escrow Agent shall have no further duties hereunder after the
disbursement or destruction of the Escrow Securities in accordance with this Section 3.”



          2. Miscellaneous.



          2.1 Governing Law. The validity, interpretation, and performance of this Amendment
shall be governed in all respects by the laws of the State of New York, without giving effect to
conflicts of law principles. The parties agree that all actions and proceedings arising out of this
Amendment or any of the transactions contemplated hereby shall be brought in the United States
District Court for the Southern District of New York or in a New York State Court in the County of
New York and that, in connection with any such action or proceeding, submit to the jurisdiction of,
and venue in, such court. Each of the parties hereto also irrevocably waives all right to trial by
jury in any action, proceeding or counterclaim arising out of this Amendment or the transactions
contemplated hereby.




          2.2 Binding Effect. This Amendment shall be binding upon and inure to the benefit of
the parties hereto and to their respective heirs, legal representatives, successors and assigns.




          2.3 Entire Agreement. This Amendment sets forth the entire agreement and understanding
between the parties as to the subject matter thereof and merges and supersedes all prior
discussions, agreements and understandings of any and every nature among them. Except as
set forth in this Amendment, provisions of the Escrow Agreement which are not inconsistent with
this Amendment shall remain in full force and effect.




          2.4 Severability. This Amendment shall be deemed severable, and the invalidity or
unenforceability of any term or provision hereof shall not affect the validity or enforceability of
this Amendment or of any other term or provision hereof. Furthermore, in lieu of any such invalid
or unenforceable term or provision, the parties hereto intend that there shall be added as part of
this Amendment a provision as similar in terms to such invalid or unenforceable provision as may be
possible and be valid and enforceable.




          2.5 Counterparts. This Amendment may be executed in any number of counterparts and
each of such counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall constitute but one and the same instrument.




          2.6 Indemnity. Notwithstanding any provision of this Amendment or the Escrow Agreement
to the contrary, the Company hereby agrees to indemnify the Escrow Agent and save it harmless from
and against any and all expenses, including reasonable counsel fees and disbursements, or losses
incurred by the Escrow Agent in connection with any action, suit or other proceeding brought
against the Escrow Agent involving any claim or potential claim, or in connection with any claim or
demand, which in any way arises out of or relates to this Agreement or the Escrow Agent’s
execution thereof.




[SIGNATURE PAGES FOLLOW]




 









 







WITNESS the execution of this Amendment No. 1 to the Escrow Agreement as of the date first above
written.




	 	 	 	 	 
	COMPANY:



OVERTURE ACQUISITION CORP.

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	Chief Executive Officer 	 	 
	 



	 	 	 	 	 
	 	INITIAL SHAREHOLDERS:

 	 
	 	
 	 
	 	John F. W. Hunt 	 
	 	 	 
	 	 	 
	 	
 	 
	 	Marc J. Blazer 	 
	 	 	 
	 
	 	Blazer Investments, LLC



By: Blazer & Co., LLC, its sole member

 	 
	 	By:  	 	 
	 	 	Name:  	Marc J. Blazer 	 
	 	 	Title:  	Managing Member 	 
	 
	 	Marc Blazer 2007 GRAT

 	 
	 	By:  	 	 
	 	 	Marc J. Blazer 	 
	 	 	Title:  	Trustee 	 
	 
	 	 	 
	 	
 	 
	 	Mark Booth 	 
	 	 	 
	 
	 	 	 
	 	
 	 
	 	Domenico De Sole 	 
	 	 	 
	 
	 	 	 
	 	
 	 
	 	Andrew H. Lufkin 	 
	 	 	 
	 
	 	 	 
	 	
 	 
	 	Lawton W. Fitt 	 
	 	 	 
	 
	 	 	 
	 	
 	 
	 	Paul S. Pressler 	 
	 	 	 
	 



Signature page to Escrow Agreement




 









 








	 	 	 	 	 
	 	ESCROW AGENT:



AMERICAN STOCK TRANSFER &

TRUST COMPANY

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	Vice President 	 
	 



Signature page to Escrow Agreement