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8-K - FORM 8-K - HealthMarkets, Inc. | c18332e8vk.htm |
Exhibit 10.1
AMENDMENT TO STOCKHOLDERS AGREEMENT
This Amendment, dated as of May 27, 2011 (the Amendment), amends the Stockholders
Agreement, dated as of April 5, 2006 (the Agreement), by and among HealthMarkets, Inc., a
Delaware corporation previously known as UICI (the Company), and the other parties
thereto. Capitalized terms not defined in this Amendment shall have the meanings ascribed to them
in the Agreement.
WHEREAS, in connection with certain amendments to the Companys Charter, the Company and the
Sponsor Stockholders desire to amend the Agreement as set forth in this Amendment; and
WHEREAS, Sections 1.05 and 7.09 provide that the Agreement may be amended, modified or
supplemented only in a writing signed by Sponsor Stockholders that own not less than 70% of the
Sponsor Shares and approved by each Investor Group which would be subject to materially adverse
differential treatment as a result thereof, as compared to the other Investor Groups.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
to this Amendment hereby agree as follows:
1. Board Committees. Section 1.04 of the Agreement is hereby amended to include the
following as the third sentence thereto:
Notwithstanding the foregoing, at no time shall any Investor Director nominated by
the GS Investor Group serve as (i) the chairman of any committee of the Board; (ii)
a member of any committee of the Board if such Investor Director would occupy more
than 25% of the seats on such committee; (iii) a member of a committee of the Board
if at any time such committee would have decision-making authority for policies or
actions on managerial matters (other than decisions related to retaining third party
consultants or advisers in connection with carrying out committee duties) unless (1)
recommendations of such committee as to policy or actions on managerial matters are
reviewed and approved or reviewed and ratified by the full Board or (2) such
committee is carrying out functions in accordance with a policy or parameters
approved by the full Board; or (iv) a member of any committee if such Investor
Director has the authority or practical ability unilaterally to make, or block the
making of, policy or other decisions that bind the Board, any committee of the
Board, or management of the Company.
2. Approval Rights. Section 1.05(b) of the Agreement is hereby amended and restated
in its entirety to read as follows:
(b)(1) In addition to any other approval required, the Company shall not, and shall
cause its Subsidiaries not to, take any of the following actions or facilitate any
of the following actions without an approval of the Board that includes (1) for so
long as all three Investor Groups are not Non-Qualifying Investor Groups, the
approval of at least 80% of the Investor Directors (where, for the purposes of
giving such approval, the Blackstone Directors shall collectively have 3 votes, the
Investor Directors nominated by the GS Investor Group shall collectively have 1 vote
and the Investor Directors nominated by the DLJ Investor Group shall collectively
have 1 vote) or (2) for so long as the Blackstone Investor Group is not a
Non-Qualifying Investor Group and there are less than three Investor Groups that are
not Non-Qualifying Investor Groups, the approval of the Blackstone Directors:
(i) in the case of the Company entering into any merger, consolidation or
other business combination, reorganization, or liquidation or consummation
of a similar transaction (other than any such transaction between or among
the Company and one or more wholly-owned (directly or indirectly)
Subsidiaries of the Company, which transactions would not adversely affect
the rights of any Investor Groups);
(ii) acquiring or disposing of (in each case, including by merger, business
combination, reorganization or other similar transaction), in a single
transaction or a series of related transactions, any business or assets for
consideration having a value (valuing any non-cash consideration at fair
market value as determined by the Board in good faith) in excess of 20% of
the fair market value of the total assets of the Company and its
Subsidiaries, taken as a whole, as of immediately prior to such transaction
or series of transactions (as determined by the Board in good faith);
(iii) (A) incurring any indebtedness for borrowed money or issuing any debt
securities (other than indebtedness or debt securities owed between or among
the Company and/or one or more wholly-owned Subsidiaries) or (B) issuing to
any third party any preferred stock (1) that the Company is required on a
date certain, or can be required by the holder at the option of the holder,
to redeem or repurchase, or with respect to which the Company is required to
pay cash dividends or (2) of a type other than the types of preferred stock
set forth in clause (1), to the extent that the aggregate liquidation value
of all such preferred stock described in this clause (2) exceeds $50 million
in the aggregate, if, in the cases of either of clause (A) or (B) and in the
aggregate for all transactions described in clauses (A) and (B), the amount
of such new indebtedness or the liquidation value of such preferred stock
exceeds 20% of the fair market value of the total assets of the Company and
its Subsidiaries, taken as a whole, as of immediately prior to such
incurrence or issuance (as determined by the Board in good faith);
(iv) entering into or effecting any agreement or transaction after the
Closing between or among the Company and/or any of its Subsidiaries, on the
one hand, and any Affiliates of either the Company or any Stockholder, on
the other hand, other than DE MINIMIS transactions on arms length terms;
and
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(v) effecting any amendment to the Charter or Bylaws with the purpose or
effect of facilitating any actions referred to in clauses (i)-(iv) or that
otherwise would directly conflict with the terms of this Agreement.
(2) For the avoidance of doubt, in the event the Blackstone Investor Group becomes a
Non-Qualifying Investor Group, this Section 1.05(b) shall be void and of no effect.
3. Miscellaneous.
(a) For purposes of Section 1.05(e) of the Agreement, each Investor Group signatory
hereto shall be deemed to have approved the terms of this Amendment.
(b) Except as expressly amended by this Amendment, the Agreement is in all respects
ratified and confirmed and all the terms thereof shall remain in full force and effect.
Except to the extent specifically provided in this Amendment, this Amendment shall not be
deemed to be an amendment to any other term of the Agreement or otherwise affect or operate
as a waiver or relinquishment of any of the rights of any party under the Agreement.
(c) This Amendment shall form a part of the Agreement for all purposes and shall be
binding upon all parties to the Agreement. From and after the execution of this Amendment,
any reference to the Agreement shall be deemed a reference to the Agreement as amended by
this Amendment.
(d) THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES WHICH WOULD RESULT IN
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
(e) This Amendment may be signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signature thereto and hereto were upon the same
instrument.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date set forth
above.
BLACKSTONE CAPITAL PARTNERS IV L.P. | ||||||||
By: | Blackstone Management Associates IV L.L.C., its General Partner |
|||||||
By: | /s/ John A. Magliano | |||||||
Name: John A. Magliano | ||||||||
Title: Managing Director | ||||||||
BLACKSTONE CAPITAL PARTNERS IV-A L.P. | ||||||||
By: | Blackstone Management Associates IV L.L.C., its General Partner |
|||||||
By: | /s/ John A. Magliano | |||||||
Name: John A. Magliano | ||||||||
Title: Managing Director | ||||||||
BLACKSTONE FAMILY INVESTMENT PARTNERSHIP IV-A L.P. |
||||||||
By: | Blackstone Management Associates IV
L.L.C., its General Partner |
|||||||
By: | /s/ John A. Magliano | |||||||
Name: John A. Magliano | ||||||||
Title: Managing Director | ||||||||
BLACKSTONE PARTICIPATION PARTNERSHIP IV L.P. |
||||||||
By: | Blackstone Management Associates IV L.L.C., its General Partner |
|||||||
By: | /s/ John A. Magliano | |||||||
Name: John A. Magliano | ||||||||
Title: Managing Director |
[Blackstone Signature Page to Amendment to Stockholder Agreement]
MULBERRY HOLDINGS I, LLC | ||||||||
By: | GS Maverick Co., its Managing Member | |||||||
By: | /s/ Adrian M. Jones | |||||||
Name: Adrian M. Jones | ||||||||
Title: President | ||||||||
MULBERRY HOLDINGS II, LLC | ||||||||
By: | GS Maverick Co., its Managing Member | |||||||
By: | /s/ Adrian M. Jones | |||||||
Name: Adrian M. Jones | ||||||||
Title: President |
[Goldman Sachs Signature Page to Amendment to Stockholder Agreement]
DLJ MERCHANT BANKING PARTNERS IV, L.P. | ||||||||
By: | DLJ Merchant Banking IV, L.P., its General Partner By: DLJ MB, LLC, its General Partner |
|||||||
By: | /s/ Kenneth Lohsen | |||||||
Name: Kenneth Lohsen | ||||||||
Title: Vice President | ||||||||
DLJ OFFSHORE PARTNERS IV, L.P. | ||||||||
By: | DLJ Merchant Banking IV, L.P., its General Partner By: DLJ MB, LLC, its General Partner |
|||||||
By: | /s/ Kenneth Lohsen | |||||||
Name: Kenneth Lohsen | ||||||||
Title: Vice President | ||||||||
MBP IV PLAN INVESTORS, L.P. | ||||||||
By: | DLJ LBO Plans Management, LLC, its General Partner |
|||||||
By: | /s/ Kenneth Lohsen | |||||||
Name: Kenneth Lohsen | ||||||||
Title: President |
[DLJ Signature Page to Amendment to Stockholder Agreement]
CSFB STRATEGIC PARTNERS HOLDINGS III, L.P. | ||||||||
By: | CSFB Strategic Associates, III, L.P.,
its General Partner By: DLJ MB Advisors, LLC, its General Partner |
|||||||
By: | /s/ Verdun Perry | |||||||
Name: Verdun Perry | ||||||||
Title: Vice President | ||||||||
CSFB STRATEGIC PARTNERS PARALLEL HOLDINGS III, L.P. | ||||||||
By: | CSFB Strategic Associates III, L.P.,
its General Partner By: DLJ MB Advisors, LLC, its General Partner |
|||||||
By: | /s/ Verdun Perry | |||||||
Name: Verdun Perry | ||||||||
Title: Vice President |
[DLJ Signature Page to Amendment to Stockholder Agreement]