- Registration Statement for securities to be issued in business combination transactions (S-4/A)
08 Janvier 2010 - 7:30PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on
January 8, 2010
Registration
No. 333-163620
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Amendment No. 3 to
Form S-4
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
OVERTURE ACQUISITION
CORP.
(Exact name of registrant as
specified in its charter)
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Cayman Islands
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6311
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98-0576724
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(State or other jurisdiction of
incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification No.)
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c/o Maples
Corporate Services Limited
Ugland House, Grand Cayman KY1-1104, Cayman
Islands
(646) 736-1376
(Address, including
zip code, and telephone number, including area code, of
registrants principal executive offices)
Corporation Service Company
1133 Avenue of the Americas
Suite 3100
New York, New York 10036-6710
Telephone: (212) 299-5600
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
Copies to:
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Douglas S. Ellenoff, Esq.
Kathleen L. Cerveny, Esq.
Sarah E. Williams, Esq.
Ellenoff Grossman & Schole LLP
150 East 42nd Street
New York, NY 10017
(212) 370-1300
(212) 370-7889
Facsimile
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John F. W. Hunt
Chief Executive Officer
Overture Acquisition Corp.
c/o Maples
Corporate Services
Limited
PO Box 309
Ugland House
Grand Cayman KY1-1104
Cayman Islands
(646) 736-1376
(646) 224-8971 Facsimile
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Ira J. Schacter, Esq.
Cadwalader, Wickersham &
Taft LLP
One World Financial Center
New York, New York 10281
(212) 504-6000
(212) 504-6666 Facsimile
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Approximate date of commencement of proposed sale to the
public:
As soon as practicable after this
registration statement becomes effective and all other
conditions to the transactions contemplated by the Master
Agreement described in the included proxy statement/prospectus
have been satisfied or waived.
If the securities being registered on this form are being
offered in connection with the formation of a holding company
and there is compliance with General Instruction G, check
the following
box:
o
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same
offering.
o
If this form is a post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering.
o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in Rule
12b-2
of the
Exchange Act. (Check one):
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Large
accelerated
filer
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Accelerated
filer
þ
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Non-accelerated
filer
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Smaller reporting
company
o
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(Do not check if a smaller
reporting company)
If applicable, place an X in the box to designate the
appropriate rule provision relied upon in conducting this
transaction:
o
Exchange
Act
Rule 13e-4(i)
(Cross-Border Issuer Tender Offer)
o
Exchange
Act
Rule 14d-1(d)
(Cross-Border Third-Party Tender Offer)
CALCULATION
OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Amount of
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Title of Each Class of
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Amount to be
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Offering
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Aggregate
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Registration
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Securities to be Registered
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Registered(1)
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Price Per Security
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Offering Price
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Fee(2)
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Ordinary Shares, par value $0.0001 per share
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19,380,000
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$9.96(3)
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$193,024,800
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$10,770.79
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Warrants exercisable for one Ordinary Share par value $0.0001
per share
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19,380,000
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$0.22(4)
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$4,263,600
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$237.91
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Total
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$197,288,400
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$11,008.70
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(5)
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(1)
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In accordance with Rule 416,
Ordinary Shares offered hereby shall also be deemed to cover
additional securities to be offered or issued to prevent
dilution pursuant to stock splits, stock dividends or similar
transactions.
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(2)
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Determined in accordance with
Section 6(b) of the Securities Act at a rate equal to
$55.80 per $1,000,000 of the proposed maximum aggregate offering
price.
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(3)
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Estimated pursuant to
Rule 457(f)(1) solely for the purpose of computing the
amount of the registration fee, based on the average of the high
and low prices of the Ordinary Shares, par value $0.0001 per
share, of Overture Acquisition Corp. on the NYSE Amex on
December 8, 2009.
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(4)
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Estimated pursuant to
Rule 457(f)(1) solely for the purpose of computing the
amount of the registration fee, based on the average of the high
and low prices of the of the warrants exercisable for Ordinary
Shares, par value $0.0001 per share, of Overture Acquisition
Corp. on the NYSE Amex on December 4, 2009.
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(5)
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Previously paid.
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The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the registrant shall file a further Amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933, as amended, or until the
Registration Statement shall become effective on such date as
the SEC, acting pursuant to said Section 8(a), may
determine.
Explanatory Note
This Amendment No. 3 to the Registration Statement on
Form S-4 of Overture Acquisition Corp. is being filed for the
sole purpose of filing Exhibits 5.1, 5.2, 99.3 and 99.4.
Part II
Information
Not Required in Prospectus
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Item 20.
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Indemnification
of Directors and Officers.
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Cayman Islands law permits a companys amended and restated
memorandum and articles of association to provide for
indemnification of officers and directors, save to the extent
the liability arises from their own actual fraud or willful
default. Our memorandum and articles of association provides for
indemnification of our officers and directors for any liability
incurred in their capacities as such, except through their own
fraud or willful default.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to our directors, officers, and
controlling persons pursuant to the foregoing provisions, or
otherwise, we have been advised that, in the opinion of the SEC,
such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment of expenses incurred or paid by a
director, officer or controlling person in a successful defense
of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, we will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to
the court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final
adjudication of such issue.
Our amended and restated memorandum and articles of association
provides:
Every Director, agent or officer of the Company shall be
indemnified out of the assets of the Company against any
liability incurred by him as a result of any act or failure to
act in carrying out his functions other than such liability (if
any) that he may incur by his own fraud or willful default. No
such Director, agent or officer shall be liable to the Company
for any loss or damage in carrying out his functions unless that
liability arises through the fraud or willful default of such
Director, agent or officer.
Pursuant to the Underwriting Agreement filed as Exhibit 1.1
to this Registration Statement, we have agreed to indemnify the
Underwriters and the Underwriters have agreed to indemnify us
against certain civil liabilities that may be incurred in
connection with this offering, including certain liabilities
under the Securities Act.
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Item 21.
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Exhibits
and Financial Statement Schedules.
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The exhibits listed on the accompanying Exhibit Index are
filed or incorporated by reference as part of this Registration
Statement.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
i. To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
ii. To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the
effective registration statement;
II-1
iii. To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That for the purpose of determining any liability under
the Securities Act of 1933 in a primary offering of securities
of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser:
i. Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
ii. Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used
or referred to by the undersigned registrant;
iii. The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned registrant or its securities provided by or on
behalf of the undersigned registrant; and
iv. Any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
(5) That prior to any public reoffering of the securities
registered hereunder through use of a prospectus which is a part
of this registration statement, by any person or party who is
deemed to be an underwriter within the meaning of
Rule 145(c), the issuer undertakes that such reoffering
prospectus will contain the information called for by the
applicable registration form with respect to reofferings by
persons who may be deemed underwriters, in addition to the
information called for by the other items of the applicable form.
(6) That every prospectus: (i) that is filed pursuant
to the immediately preceding paragraph, or (ii) that
purports to meet the requirements of Section 10(a)(3) of
the Act and is used in connection with an offering of securities
subject to Rule 415, will be filed as a part of an
amendment to the registration statement and will not be used
until such amendment is effective, and that, for purposes of
determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial
bona fide
offering thereof.
(b) The undersigned registrant hereby undertakes to respond
to requests for information that is incorporated by reference
into the prospectus pursuant to Item 4, 10(b), 11, or 13 of
this form, within one business day of receipt of such request,
and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained
in documents filed subsequent to the effective date of the
registration statement through the date of responding to the
request.
(c) The undersigned registrant hereby undertakes to supply
by means of a post-effective amendment all information
concerning a transaction, and the company being acquired
involved therein, that was not the subject of and included in
the registration statement when it became effective.
(d) The undersigned registrant hereby undertakes to
supplement the prospectus, after the expiration of the
subscription period, to set forth the results of the
subscription offer, the transactions by the underwriters during
the subscription period, the amount of unsubscribed securities
to be purchased by the underwriters, and the terms of any
subsequent reoffering thereof. If any public offering by the
underwriters is to be made on terms differing from those set
forth on the cover page of the prospectus, a post-effective
amendment will be filed to set forth the terms of such offering.
II-2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on the
8th day of January, 2010.
Overture Acquisition Corp.
John F. W. Hunt
Principal Executive Officer
In accordance with the requirements of the Securities Act of
1933, this Amendment No. 1 to the Registration Statement
has been signed by the following persons in the capacities and
on the dates indicated.
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Name
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Position
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Date
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John
F. W. Hunt
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Chairman of the Board,
Chief Executive Officer
(Principal executive officer) and Secretary
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January 8, 2010
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/s/ Marc
J. Blazer
Marc
J. Blazer
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President and Treasurer (Principal financial and accounting
officer) and Director
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January 8, 2010
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Lawton
W. Fitt
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Director
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January 8, 2010
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Andrew
H. Lufkin
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Director
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January 8, 2010
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*
Paul
S. Pressler
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Director
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January 8, 2010
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*By
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/s/ Marc
J. Blazer
Attorney-in-fact
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II-3
EXHIBIT INDEX
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Exhibit
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No.
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Description
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2
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.1
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Master Agreement dated December 10, 2009 by and among the
Registrant, Overture Re Holdings Ltd., Jefferson National
Financial Corp., Jefferson National Life Insurance Company, JNL
Bermuda LLC, JNF Asset Management LLC and the Founders of the
Company*+
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2
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.2
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Form of Amendment to Underwriting Agreement by and between
J.P. Morgan Securities Inc.**
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3
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.1
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Memorandum and Articles of Association (incorporated by
reference to Exhibit 3.1 to the Registrants Current Report
on Form 8-K filed on February 11, 2008)
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3
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.2
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Form of Amended and Restated Memorandum and Articles of
Association (incorporated by reference to Exhibit 3.2 to
Amendment No. 4 to the Registrants Registration Statement
on Form S-1 filed on January 18, 2008)
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4
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.1
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Specimen Unit Certificate (incorporated by reference to Exhibit
4.1 to the Registrants Annual Report on Form 10-K filed on
April 28, 2008)
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4
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.2
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Specimen Ordinary Share Certificate (incorporated by reference
to Exhibit 4.2 to the Registrants Annual Report on Form
10-K filed on April 28, 2008)
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4
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.3
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Specimen Warrant Certificate (incorporated by reference to
Exhibit 4.3 to the Registrants Annual Report on Form 10-K
filed on April 28, 2008)
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4
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.4
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Warrant Agreement between American Stock Transfer & Trust
Company and the Registrant (incorporated by reference to Exhibit
4.4 to the Registrants Annual Report on Form 10-K filed on
April 28, 2008)
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4
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.5
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Form of Amendment No. 1 to Warrant Agreement*
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4
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.6
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Revised Specimen Warrant Certificate**
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5
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.1
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Opinion of Maples and Calder***
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5
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.2
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Opinion of Ellenoff Grossman & Schole LLP***
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10
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.1
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Promissory Note issued by the Registrant to John F. W. Hunt on
October 1, 2007 (incorporated by reference to Exhibit 10.1 to
the Registrants Current Report on Form 8-K filed on
February 11, 2008)
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10
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.2
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Promissory Note issued by the Registrant to Marc J. Blazer on
October 1, 2007 (incorporated by reference to Exhibit 10.2 to
Amendment No. 4 to the Registrants Registration Statement
on Form S-1 filed on December 3, 2007)
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10
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.3
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Share Purchase Agreement, dated October 1, 2007, between the
Registrant, Marc J. Blazer and John F. W. Hunt
(incorporated by reference to Exhibit 10.3 to Amendment No. 4 to
the Registrants Registration Statement on Form S-1 filed
on December 3, 2007)
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10
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.4
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Insider Letter Agreement for Marc Blazer (incorporated by
reference to Exhibit 10.4 to the Registrants Annual Report
on Form 10-K filed on April 28, 2008)
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10
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.5
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Insider Letter Agreement for Blazer Investments (incorporated by
reference to Exhibit 10.5 to the Registrants Annual Report
on Form 10-K filed on April 28, 2008)
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10
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.6
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Insider Letter Agreement for Marc J. Blazer (incorporated by
reference to Exhibit 10.6 to the Registrants Annual Report
on Form 10-K filed on April 28, 2008)
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10
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.7
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Insider Letter Agreement for John F. W. Hunt (incorporated by
reference to Exhibit 10.7 to the Registrants Annual Report
on Form 10-K filed on April 28, 2008)
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10
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.8
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Insider Letter Agreement for Lawton Fitt (incorporated by
reference to Exhibit 10.8 to the Registrants Annual Report
on Form 10-K filed on April 28, 2008)
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10
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.9
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Insider Letter Agreement for Andrew Lufkin (incorporated by
reference to Exhibit 10.9 to the Registrants Annual Report
on Form 10-K filed on April 28, 2008)
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10
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.10
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Insider Letter Agreement for Paul Pressler (incorporated by
reference to Exhibit 10.10 to the Registrants Annual
Report on Form 10-K filed on April 28, 2008)
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10
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.11
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Insider Letter Agreement for Domenico De Sole (incorporated by
reference to Exhibit 10.11 to the Registrants Annual
Report on Form 10-K filed on April 28, 2008)
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10
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.12
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Insider Letter Agreement for Mark Booth (incorporated by
reference to Exhibit 10.12 to the Registrants Annual
Report on Form 10-K filed on April 28, 2008)
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10
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.13
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Investment Management Trust Agreement (incorporated by reference
to Exhibit 10.13 to the Registrants Annual Report on Form
10-K filed on April 28, 2008)
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10
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.14
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Escrow Agreement (incorporated by reference to Exhibit 10.14 to
the Registrants Annual Report on Form 10-K filed on April
28, 2008)
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Exhibit
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No.
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Description
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10
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.15
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Registration Rights Agreement (incorporated by reference to
Exhibit 10.15 to the Registrants Annual Report on Form
10-K filed on April 28, 2008)
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10
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.17
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Right of First Review Letter Agreement (incorporated by
reference to Exhibit 10.17 to the Registrants Annual
Report on Form 10-K filed on April 28, 2008)
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10
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.18
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Securities Purchase Agreement dated as of December 9, 2009, by
and among the Registrant and Jefferson National Life Insurance
Company., a Texas insurance company (included in
Exhibit 2.1)
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10
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.19
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Form of Reinsurance Option And Contribution Agreement by and
between Jefferson National Life Insurance Company, a Texas
insurance company and JNL Bermuda LLC, a Delaware limited
liability company (included in Exhibit 2.1)
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10
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.20
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Form of Quota Share Reinsurance Agreement by and between
Jefferson National Life Insurance Company, a Texas insurance
company, and Overture Re Ltd., a Bermuda exempt company licensed
in Bermuda to operate as a reinsurer (included in
Exhibit 2.1)
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10
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.21
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Form of Investment Management Agreement by and between JNL
Bermuda LLC and JNF Asset Management, LLC (included in
Exhibit 2.1)
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10
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.22
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Form of Agreement and Plan of Amalgamation by and between
Overture Re Ltd., a Bermuda exempt company, and JNL Bermuda
LLC., a Delaware limited liability company (included in
Exhibit 2.1)
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10
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.23
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Form of Warrant Purchase Agreement by and among Jefferson
National Financial Corp., a Delaware corporation, and the
purchasers listed in Schedule A thereto (included in
Exhibit 2.1)
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10
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.24
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Form of 2010 Equity Incentive Plan*
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10
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.25
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Form of Registration Rights Agreement by and among the
Registrant and Jefferson National Life Insurance Co., a Texas
insurance company (included in Exhibit 2.1)
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10
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.26
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Form of Amended and Restated Registration Rights Agreement by
and among the Registrant and the parties listed on the signature
page thereto (included in Exhibit 2.1)
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10
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.27
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Form of Shareholders Agreement among the Registrant, Jefferson
National Life Insurance Company and the persons listed on the
schedule thereto (included in Exhibit 2.1)
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10
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.28
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Form of Sponsors Agreement by and among the Registrant and
the sponsors listed in Schedule A thereto (included in Exhibit
2.1)
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10
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.29
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Financial advisory agreement by and between the Company and
JPMorgan dated December 11, 2009**
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10
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.30
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Financial advisory agreement by and between the Company and
Credit Suisse dated November 30, 2009.**
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10
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.31
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Form of Amendment No. 1 to the Escrow Agreement dated
January 30, 2008 by and among Overture Acquisition Corp.,
John F.W. Hunt, Marc J. Blazer, Blazer Investments, LLC, Marc
Blazer 2007 GRAT, Mark Booth, Domenico De Sole, Lawton J. Fitt,
Paul S. Pressler, Andrew H. Lufkin and American Stock Transfer
& Trust Company.**
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14
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Form of Code of Ethics (incorporated by reference to Exhibit 14
to the Registrants Annual Report on Form 10-K filed on
April 28, 2008)
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21
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List of Subsidiaries**
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23
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.1
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Consent of Marcum LLP** (formerly Marcum & Kliegman LLP)
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23
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.2
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Consent of BDO Seidman LLP**
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23
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.3
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Consent of BDO Seidman LLP**
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23
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.4
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Consent of Maples and Calder (included in Exhibit 5.1)
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23
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.5
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Consent of Ellenoff Grossman & Schole LLP (included in
Exhibit 5.2)
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24
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Power of Attorney (included on signature page of this
Registration Statement)**
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99
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.1
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Opinion of Houlihan Smith & Co., Inc.*
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99
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.2
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Consent of Houlihan Smith & Co., Inc.**
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99
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.3
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Form of Warrantholder Proxy Card***
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99
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.4
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Form of Shareholder Proxy Card***
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99
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.5
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Consent of John F.W. Hunt as board nominee**
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99
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.6
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Consent of Marc J. Blazer as board nominee**
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99
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.7
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Consent of David Smilow as board nominee**
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99
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.8
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Consent of Mitchell H. Caplan as board nominee**
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99
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.9
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Consent of Antoine Schwartz as board nominee**
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Exhibit
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|
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No.
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|
Description
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|
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99
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.10
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Consent of Andrew Lufkin as board nominee**
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|
99
|
.11
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Consent of Dean C. Kehler as board nominee**
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*
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Attached as an Annex to the proxy statement of the Registrant
and prospectus for the warrants and Ordinary Shares of the
Registrant.
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***
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Filed herewith
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+
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Schedules to this exhibit have been omitted pursuant to
Item 601(b)(2) of
Regulation S-K
under the Securities Act of 1933, as amended. The Registrant
hereby agrees to furnish a copy of any omitted schedules to the
Commission upon request.
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