FIRST AMENDMENT TO THE AMENDED AND RESTATED SECURITIES PURCHASE AGREEMENT
Exhibit 99.3
This amendment (“Amendment”) is made and entered into as of the 16th day of July, 2006
(“Effective Date”) by and between AEON Insurance Group, Inc. (“AEON”) and Specialty Underwriters’
Alliance, Inc., and amends the AMENDED AND RESTATED SECURITIES PURCHASE AGREEMENT(“Agreement”)
entered into by the parties on September 28, 2005. Any terms defined in the Agreement and used
herein shall have the same meaning in this Amendment as in the Agreement. In the event that any
provision of this Amendment and any provision of the Agreement are inconsistent or conflicting, the
inconsistent or conflicting provision of this Amendment shall be and constitute an amendment of the
Agreement and shall control, but only to the extent that such provision is inconsistent or
conflicting with the Agreement. Any capitalized terms not defined herein shall be defined as in
the Agreement.
NOW, THEREFORE, and in consideration of the mutual agreements and covenants set forth, the
parties wish to amend the Agreement as follows:
The following shall be inserted at the end of subsection (c) of Section 1: Sale and
Purchase of Securities; Closing,:
Notwithstanding the foregoing, with respect to any Installment Date, the Company shall not
issue, and the Purchaser shall not be required to make Payment for, any Shares if the
issuance of such Shares would result in (i) the aggregate number of all Shares issued
pursuant to this Agreement being greater than 19.9% of the number of shares of the Company’s
Common Stock issued and outstanding on the date hereof (exclusive of any shares held by
affiliates of the Company) or (ii) the Company being in violation of any listing
requirements, corporate governance rules or any other rules and regulations of the NASD or
the Nasdaq National Market or any other market or exchange on which the Company’s Common
Stock is then listed or quoted; in which case the Company and the Purchaser will, if legally
permissible, adjust the amount of the Payment due, and the number of Shares to be issued, so
that the conditions specified in sub-clauses (i) and (ii) would be satisfied.
Subsection (m) of Section 9: Miscellaneous shall be deleted in its entirety and
replaced with the following:
| (m) | Approval. The Purchaser acknowledges that (i) the Company has not sought, or received, stockholder approval as may be required under the rules and regulations of the NASD or Nasdaq National Market in respect of transactions that may result in, among other things, a change of control or the issuance of more than 20% of a company’s outstanding common stock, (ii) all of the Company’s representations and warranties contained herein are deemed modified by the disclosures in this Section 9(m), (iii) the restrictions on the issuance of Shares set forth in the last |
| sentence of Section 1(c) are intended to ensure that the Company does not violate any rules, regulations or listing requirements of the NASD or the Nasdaq National Market, and (iv) if the Company ever needs to seek shareholder approval with respect to such matters, the Purchaser shall not be entitled to vote on such matters. |
Schedule C shall be deleted in its entirety and replaced with the following:
INSTALLMENT SCHEDULE
$50,000 due and payable at the closing of a Qualified Equity Offering (as defined herein), $50,000
due and payable 180 days after the closing of a Qualified Equity Offering, $100,000 due and payable
on the one year anniversary after the closing of a Qualified Equity Offering (the “Anniversary”),
$50,000 due and payable on the first day of the month following 180 days after the Anniversary and
on the first day of each month thereafter. For purposes hereof, a “Qualified Equity Offering”
shall mean a private equity offering of the capital stock of the Company pursuant to an effective
registration statement under the Securities Act of 1933, as amended, other than pursuant to a
registration statement on Form S-4 or Form S-8 or any successor or similar form, in each case in
which the proceeds to the Company are not less than $100,000,000, before deduction of underwriting
commissions, placement agent fees or similar charges, and other offering expenses.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed on their
behalf by their duly authorized officers as of the day, month and year above written.
| SPECIALTY UNDERWRITERS’ ALLIANCE, INC. | ||||
By: Name: |
/s/ Xxxxxxx X. Xxxxx
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Title:
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Chief Underwriting Officer | |||
| AEON INSURANCE GROUP, INC. | ||||
By: Name: |
/s/ Xxx Xxxxxxxxx
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Title:
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President | |||
