Exhibit 4.3
CONSENT, AMENDMENT AND JOINDER AGREEMENT
THIS CONSENT, AMENDMENT AND JOINDER AGREEMENT (this "Agreement"), dated as
of this 13th day of April, 2006 (the "Effective Date"), is hereby entered into
by and among CompBenefits Corporation, a Delaware corporation (the "Company"),
Alpinvest Partners Mezzanine 2006 C.V., a Netherlands C.V. ("Alpinvest"), New
York Life Investment Management Mezzanine Partners, LP, a Delaware limited
partnership ("New York Life"), and NYLIM Mezzanine Partners Parallel Fund, LP, a
Delaware limited partnership ("NYLIM," together with Alpinvest and New York
Life, each, an "Additional Stockholder," and collectively the "Additional
Stockholders"), and each of the persons and entities listed on Schedule I
attached hereto (collectively, the "Existing Stockholders").
WHEREAS, the Additional Stockholders have agreed to purchase (the
"Purchase") from certain existing stockholders of the Company 8,438.3669 shares
of Series A Convertible Preferred Stock, par value $0.01 per share, of the
Company (the "Series A Stock"), 2695.4288 shares of Series B Convertible
Preferred Stock, par value $0.01 per share, of the Company (the "Series B
Stock"), and 970,942.34 shares of Common Stock, par value $0.01 per share, of
the Company (the "Common Stock");
WHEREAS, the Additional Stockholders, the Company and the Existing
Stockholders have agreed that the Additional Stockholders may make the following
transfers to Newstone Capital Partners, LLC or affiliated funds controlled or
managed by Newstone Capital Partners, LLC (each a "Newstone Party" and
collectively the "Newstone Parties"), after the Purchase: (a) Alpinvest may
transfer 2,496.3502 shares of Series A Stock, 797.3977 shares of Series B Stock,
and 287,237.1089 shares of Common Stock, (b) New York Life may transfer
1,183.5738 shares of Series A Stock, 378.0636 shares of Series B Stock, and
136,185.3435 shares of Common Stock, and (c) NYLIM may transfer 546.2914 shares
of Series A Stock, 174.4994 shares of Series B Stock, and 62,857.8361 shares of
Common Stock (all such transfers, the "Secondary Transfer," and with the
Purchase, the "Transfer);
WHEREAS, in connection with, and as a condition to, the Purchase, the
parties hereto desire to amend and waive conditions in that certain Amended and
Restated Stockholders Agreement, dated as of July 12, 2000, by and among the
Company and the Stockholders listed therein (the "Stockholders Agreement") as
set forth herein; and
WHEREAS, in connection with, and as a condition to, the Purchase, each of
the Additional Stockholders desire to join and become a party to each of the
Stockholders Agreement and that certain Amended and Restated Registration
Agreement, dated as of July 12, 2000, by and among the Company and the
Stockholders named therein (the "Registration Agreement") as set forth herein;
and that after the Secondary Transfer the Newstone Parties, as applicable,
desire to become parties to the Stockholders Agreement and the Registration
Agreement.
NOW THEREFORE, in consideration of the mutual promises and covenants made
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby consent
to the following and covenant and agree as follows:
1. Stockholders Agreement.
(a) Amendments.
(i) Section 3(c)(vi) of the Stockholders Agreement is hereby
amended by deleting in its entirety and replacing such subsection with the
following:
"(vi) in the case of the TCW/Crescent Investors, (a) as a pledge to a
trustee for the benefit of secured noteholders pursuant to documents
relating to the financing of such TCW/Crescent Investor (provided that
this exception shall not be applicable in the event that any entity to
which any such TCW/Crescent Investor makes a pledge attempts to
foreclose, sell or otherwise take any action with respect to the
securities subject to such pledge) or (b) in connection with the
registration of securities pursuant to the Amended and Restated
Registration Agreement dated as of the date hereof by and among the
Company, the TCW/Crescent Investors and the other parties named
therein;"
(ii) Section 11 of the Stockholders Agreement is hereby amended
by deleting in its entirety and replacing each of the defined terms
"Notes," "Subdebt Investor" and "TCW/Crescent Investors" with the
following:
""Notes" means, collectively, the promissory notes of the Company
originally issued to Alpinvest Partners Mezzanine 2006 C.V., a
Netherlands C.V., New York Life Investment Management Mezzanine
Partners, LP, and NYLIM Mezzanine Partners Parallel Fund, LP pursuant
to that certain Senior Subordinated Note Purchase Agreement dated as
of April __, 2006 by and among the Company, the Subsidiary Guarantors
listed on the signature pages thereto and the Purchasers listed on the
signature pages thereto."
""Subdebt Investor" means, collectively, Alpinvest Partners Mezzanine
2006 C.V., New York Life Investment Management Mezzanine Partners, LP,
and NYLIM Mezzanine Partners Parallel Fund, LP and any transferee who,
from time to time, acquires Stockholder Shares from one or more of
them and becomes party to this Agreement by executing and delivering
to the Company an instrument in form satisfactory to the Company
pursuant to which such Person agrees to be bound by the terms of this
Agreement to the same extent as Alpinvest Partners Mezzanine 2006
C.V., New York Life Investment Management Mezzanine Partners, LP, and
NYLIM Mezzanine Partners Parallel Fund, LP."
""TCW/Crescent Investors" means, collectively, TCW/Crescent Mezzanine
Partners II, L.P., a Delaware limited partnership, TCW/Crescent
Mezzanine Trust II, a Delaware business trust,
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TCW Leveraged Income Trust, L.P. a Delaware limited partnership, TCW
Leveraged Income Trust II, L.P., a Delaware limited partnership, and
TCW Leveraged Income Trust IV, L.P., a Delaware limited partnership,
any of their Affiliates or any holder of Stockholders Shares for whom
Trust Company of the West or any Affiliate of Trust Company of the
West acts as an account manager, and any transferee who, from time to
time, acquires Stockholder Shares from one or more of the foregoing
parties and becomes party to this Agreement by executing and
delivering to the Company an instrument in form satisfactory to the
Company pursuant to which such Person agrees to be bound by the terms
of this Agreement to the same extent as a TCW/Crescent Investor."
(iii) The Notice Schedule attached to the Stockholders Agreement
is hereby amended to include the following contact information for the
Additional Stockholders:
Alpinvest Partners Mezzanine 2006 C.V.
c/o AlpInvest Partners CV
Xxxxxxxxxxxxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Attention: Xxxxxxx de van der Xxxxxxxx
Email: xxxxxxx.xx.xxx.xxxxxxxx@xxxxxxxxx.xxx
Facsimile: x00 0000 00000
Telephone: x00 0000 00000
With copies to:
AlpInvest Partners, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Email: xxxxxx.xxxxxx@xxxxxxxxx.xxx
Facsimile: 000-000-0000
Telephone: 000-000-0000
and
Ropes & Xxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Email: xxxxxx.xxxx@xxxxxxxxx.xxx
Facsimile 000-000-0000
Telephone: 000-000-0000
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New York Life Investment Management Mezzanine Partners, LP
NYLIM Mezzanine Partners, LP
c/o NYLCAP Manager LLC
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: CompBenefits Deal Team
Phone: 000-000-0000
Facsimile: 000-000-0000
Email: Xxxxxx_xxxxxxxxxxxxxx@xxxxx.xxx
With a copy to:
Ropes & Xxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Email: xxxxxx.xxxx@xxxxxxxxx.xxx
Facsimile 000-000-0000
Telephone: 000-000-0000
NYLIM Mezzanine Partners Parallel Fund, LP
c/o NYLCAP Manager LLC
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: CompBenefits Deal Team
Phone: 000-000-0000
Facsimile: 000- 000-0000
Email: Xxxxxx_xxxxxxxxxxxxxx@xxxxx.xxx
With a copy to:
Ropes & Xxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Email: xxxxxx.xxxx@xxxxxxxxx.xxx
Facsimile 000-000-0000
Telephone: 000-000-0000
(b) Representations. Each of the Additional Stockholders represents
and warrants as of the date hereof that (i) this Agreement has been duly
authorized, executed and delivered by such Additional Stockholder and
constitutes the valid and binding obligations of such Additional Stockholder,
enforceable in accordance with its terms, (ii) such Additional Stockholder has
not granted and is not a party to any proxy, voting trust or other agreement
which is inconsistent with, conflicts with or violates any provision of the
Stockholders Agreement, (iii) except as contemplated by the Put and Call
Agreements, dated April 13, 2006, between Newstone Capital Partners, LLC and
each of the Additional Stockholders (the "Put and
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Call Agreements"), all Stockholder Shares (as defined in the Stockholders
Agreement) have been acquired by such Additional Stockholder for investment and
not with a view to the sale or distribution thereof, (iv) no Stockholder Shares
will be offered or sold in violation of the Securities Act of 1933, (v) except
as contemplated by the Put and Call Agreements, as of the date hereof such
Additional Stockholder has no present intention of selling or otherwise
disposing of any of the Stockholder Shares for its own account, and (vi) such
Additional Stockholder has been advised that the Stockholder Shares have not
been registered with the Securities and Exchange Commission and may not be
offered, sold or otherwise transferred except in compliance with the Securities
Act of 1933.
(c) Joinder to Stockholders Agreement.
(i) Each Additional Stockholder hereby becomes a party to, and
agrees to become bound by the terms of, the Stockholders Agreement (as
amended hereby) as a "Stockholder" for all purposes as if it was an
original party thereto, except with respect to the representations and
warranties contained in Section 2 of the Stockholders Agreement.
(ii) As a condition to the effectiveness of the Secondary
Transfer, the parties hereto agree that each Newstone Party shall execute a
Joinder Agreement in the form attached hereto as Exhibit A, pursuant to
which such Newstone Party shall be bound by the terms of the Stockholders
Agreement, as then in effect, as a "Stockholder" for all purposes as if it
were an original party thereto.
(d) Waivers to Stockholders Agreement. In accordance with Section
14(a) of the Stockholders Agreement, the Company on behalf of itself and the
Existing Stockholders on behalf of the Stockholders under the Stockholders
Agreement hereby waive (A) in connection with the Purchase, the requirement of
the holder of Stockholder Shares (as defined in the Stockholders Agreement) to
deliver an opinion to the Company with respect to such Purchase, and (B) in
connection with the Transfer, the following provisions of the Stockholders
Agreement:
(i) the provisions of Section 3(a), regarding the participation
rights of the Other Stockholders (as defined in the Stockholders
Agreement), and any and all rights to receive notice thereunder; and
(ii) the provisions of Section 3(b), regarding the first refusal
rights of the Company and the Significant Stockholders (as defined in the
Stockholders Agreement) to elect to purchase any shares proposed to be
transferred in accordance with the terms of the Stockholders Agreement.
2. Registration Agreement.
(a) Each Additional Stockholder hereby becomes a party to, and agrees
to be bound by the terms of, the Registration Agreement as a "Stockholder" for
all purposes as if it was an original party thereto.
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(b) As a condition to the effectiveness of the Secondary Transfer, the
parties hereto agree each Newstone Party shall execute a Joinder Agreement in
the form attached hereto as Exhibit B, pursuant to which such Newstone Party
shall be bound by the terms of the Registration Agreement, as then in effect, as
a "Stockholder" for all purposes as if it were an original party thereto.
(c) The parties hereto agree and acknowledge that the shares of Series
A Stock, Series B Stock and Common Stock acquired by the Additional Stockholders
and any Newstone Party in the Transfer will be treated as "Registrable
Securities" under the Registration Agreement.
(d) The Notice Schedule attached to the Registration Agreement is
hereby amended to include the following contact information for the Additional
Stockholders:
Alpinvest Partners Mezzanine 2006 C.V.
c/o AlpInvest Partners CV
Xxxxxxxxxxxxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Attention: Xxxxxxx de van der Xxxxxxxx
Email: xxxxxxx.xx.xxx.xxxxxxxx@xxxxxxxxx.xxx
Facsimile: x00 0000 00000
Telephone: x00 0000 00000
With copies to:
AlpInvest Partners, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Email: xxxxxx.xxxxxx@xxxxxxxxx.xxx
Facsimile: 000-000-0000
Telephone: 000-000-0000
and
Ropes & Xxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Email: xxxxxx.xxxx@xxxxxxxxx.xxx
Facsimile 000-000-0000
Telephone: 000-000-0000
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New York Life Investment Management Mezzanine Partners, LP
NYLIM Mezzanine Partners, LP
c/o NYLCAP Manager LLC
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: CompBenefits Deal Team
Phone: 000-000-0000
Facsimile: 000-000-0000
Email: Xxxxxx_xxxxxxxxxxxxxx@xxxxx.xxx
With a copy to:
Ropes & Xxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Email: xxxxxx.xxxx@xxxxxxxxx.xxx
Facsimile 000-000-0000
Telephone: 000-000-0000
NYLIM Mezzanine Partners Parallel Fund, LP
c/o NYLCAP Manager LLC
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: CompBenefits Deal Team
Phone: 000-000-0000
Facsimile: 000- 000-0000
Email: Xxxxxx_xxxxxxxxxxxxxx@xxxxx.xxx
With a copy to:
Ropes & Xxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Email: xxxxxx.xxxx@xxxxxxxxx.xxx
Facsimile 000-000-0000
Telephone: 000-000-0000
3. Remaining Provisions of Stockholders and Registration Agreements. Except
as provided herein, each of the other provisions of the Stockholders Agreement
and Registration Agreement shall remain in full force and effect. The parties
hereto hereby confirm and agree that the amendment and/or waiver provisions of
the Stockholders Agreement shall remain in full force and effect and any
amendment or waiver of any terms of the Stockholders Agreement (as such
Stockholders Agreement is modified hereby) shall be governed by, and be effect
in accordance with, the terms of such Stockholders Agreement.
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4. Consent to Amendments. Each of the Existing Stockholders hereby
consents, pursuant to the terms of the Stockholders Agreement and the
Registration Agreement, as applicable, to the amendments to the Stockholders
Agreement contemplated hereby, and the joinder of the Additional Stockholders
and the Newstone Parties to the Stockholders Agreement and Registration
Agreement.
5. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance
with the internal laws of the State of Delaware law without regards to conflicts
of law principles.
(b) This Agreement may be executed in one or more counterparts
(including via facsimile), each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
(c) This Agreement (including any exhibit or schedule hereto) and the
Stockholders Agreement and Registration Agreement constitute the full and entire
understanding and agreement between the parties hereto with respect to the
subject matter hereof.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as
of the date first above written.
COMPBENEFITS CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
ADDITIONAL STOCKHOLDERS:
ALPINVEST PARTNERS MEZZANINE 2006 C.V.
By: /s/ X.X. xx Xxxxx
------------------------------------
Name: X.X. xx Xxxxx
Title: Managing Partner CFOO
NEW YORK LIFE INVESTMENT MANAGEMENT
MEZZANINE PARTNERS, LP
By: NYLIM Mezzanine GenPar LP,
its General Partner
By: NYLIM Mezzanine GenPar GP, LLC,
its General Partner
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
NYLIM MEZZANINE PARTNERS PARALLEL
FUND, LP
By: NYLIM Mezzanine GenPar, LP,
its General Partner
By: NYLIM Mezzanine GenPar GP, LLC,
its General Partner
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
EXISTING STOCKHOLDERS:
TA/ADVENT VIII L.P.
By: TA Associates VIII LLC,
its General Partner
By: TA Associates, Inc., its Manager
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
ADVENT/ATLANTIC AND PACIFIC III L.P.
By: TA Associates, Inc., its General
Partner
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
TA EXECUTIVES FUND LLC
By: TA Associates, Inc., its Manager
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
TA INVESTORS LLC
By: TA Associates, Inc., its Manager
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
GOLDER, THOMA, XXXXXXX,
XXXXXX FUND V, L.P.
By: GTCR V, L.P., its General Partner
By: Golder, Thoma, Cressey, Rauner,
Inc., its General Partner
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Principal
GTCR ASSOCIATES V, L.P.
By: Golder, Thoma, Cressey, Rauner,
Inc., its General Partner
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Principal
FLEET PRIVATE EQUITY CO., INC.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Attorney In Fact by Power
of Attorney dated 8/4/00
FLEET EQUITY PARTNERS VII, L.P.
By: Silverado V Corp.,
a General Partner
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
XXXXXXXX PARTNERS IV, L.P.
By: Xxxxxxxx Management IV, L.P.
its General Partner
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Principal
XXXXXXX PLAZA PARTNERS II, LLC
By: Xxxxxxxx Management IV, L.P.
its Manager
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Principal
TCW/CRESCENT MEZZANINE PARTNERS II, L.P.
TCW/CRESCENT MEZZANINE TRUST II
By: TCW/Crescent Mezzanine II, L.L.C.,
its Investment Manager
By: TCW/Crescent Mezzanine, L.L.C.,
its Managing Owner
By: /s/ Xxxxxxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
TCW/LEVERAGED INCOME TRUST, L.P.
By: TCW Advisers (Bermuda), Ltd.,
its General Partner
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
By: TCW Investment Management Company
its Investment Adviser
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
TCW/LEVERAGED INCOME TRUST II, L.P.
By: TCW (XXXX XX), L.P.,
its General Partner
By: TCW Advisers (Bermuda), Ltd.,
its General Partner
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
By: TCW Investment Management Company
its Investment Adviser
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
TCW LEVERAGED INCOME TRUST IV, L.P.
By: TCW Asset Management Company
its Investment Adviser
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
By: TCW Asset Management Company
its Managing Member of
TCW (XXXX XX) L.L.C.,
the General Partner
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
EXISTING STOCKHOLDERS
SCHEDULE I
NAME
Golder, Thoma, Xxxxxxx, Xxxxxx Fund V, L.P., GTCR Associates V, L.P.
TA/Advent VIII L.P., Advent Atlantic and Pacific III, L.P., TA Executives Fund
LLC, TA Investors LLC
Fleet Private Equity Co., Inc., Fleet Equity Partners VII, L.P., Xxxxxxxx
Partners IV, L.P., Xxxxxxx Plaza Partners II, LLC
TCW/Crescent Mezzanine Partners II, L.P., TCW/Crescent Mezzanine Trust II, TCW
Leveraged Income Trust, L.P., TCW Leveraged Income Trust II, L.P., TCW Leveraged
Income Trust IV, L.P.
EXHIBIT A
JOINDER AGREEMENT
The undersigned hereby agrees, effective as of the date hereof, to become a
party to that certain Amended and Restated Stockholders Agreement (the
"Agreement") dated as of July 12, 2000, as amended, by and among CompBenefits
Corporation (f/k/a CompDent Corporation) and the Stockholders listed therein for
all purposes of the Agreement, the undersigned shall be included within the term
"STOCKHOLDER" (as defined in the Agreement). The undersigned further confirms
that the representations and warranties contained in Section 2 of the Agreement
are true and correct as to the undersigned as of the date hereof. The address
and facsimile number to which notices may be sent to the undersigned is as
follows:
Facsimile No.
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NAME:
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ADDRESS:
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EXHIBIT B
JOINDER AGREEMENT
The undersigned hereby agrees, effective as of the date hereof, to become a
party to that certain Amended and Restated Registration Agreement (the
"Agreement") dated as of July 12, 2000, as amended, by and among CompBenefits
Corporation (f/k/a CompDent Corporation) and the Stockholders listed therein for
all purposes of the Agreement, the undersigned shall be included within the term
"STOCKHOLDER" (as defined in the Agreement). The address and facsimile number to
which notices may be sent to the undersigned is as follows:
Facsimile No.
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NAME:
----------------------------------
ADDRESS:
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