Amendment No. 2 to the
AAH Holdings Corporation Stockholders Agreement
This Amendment No. 2, dated as of December 21, 2005, amends the AAH
Holdings Corporation Stockholders Agreement dated as of April 30, 2004, first
amended May 24, 2004 (the "Stockholders Agreement") by and among (i) AAH
Holdings Corporation, a Delaware corporation (the "Company"), and (ii) the
stockholders listed on the signature pages thereto (the "Stockholders"). Terms
defined in the Stockholders Agreement and not otherwise defined herein are used
herein as so defined.
WHEREAS, on April 30, 2004 the Stockholders and the Company entered into
the Stockholders Agreement for the purpose of regulating certain relationships
of the Stockholders with regard to the Company and certain restrictions on the
Common Stock and other equity securities owned by the Stockholders;
WHEREAS, the Stockholders Agreement was amended on May 24, 2005 to allow
certain Permitted Transfers (as defined therein); and
WHEREAS, pursuant to Section 4.3 of the Stockholders Agreement, the
Stockholders Agreement may be amended in certain respects as set forth herein.
NOW, THEREFORE, the Stockholders Agreement is hereby amended as follows:
1. Take Along. The following paragraph is added immediately following
Section 2.4(c):
"(d) In the event the consideration to be paid in exchange for Common Stock
Equivalents in a Company Sale proposed pursuant to this Section 2.4 includes any
securities, and the receipt thereof by a Stockholder would require under
applicable law (a) the registration or qualification of such securities or of
any person as a broker or dealer or agent with respect to such securities or (b)
the provision to any Stockholder of any information regarding the Company, such
securities or the issuer thereof, such Stockholder shall not have the right to
sell shares of Common Stock and Common Stock Equivalents in such proposed
Company Sale. In such event, the Take Along Group shall have the right, but not
the obligation, to cause to be paid to such Stockholder in lieu thereof, against
surrender of the Common Stock Equivalents which would have otherwise been
included in the Company Sale, an amount in cash equal to the Fair Market Value
of such Common Stock Equivalents as of the date such securities would have been
issued in exchange for such Common Stock Equivalents."
2. Come Along. The following paragraph is added immediately following
Section 2.5(d):
"(e) In the event the consideration to be paid in exchange for shares of
Common Stock in a Transfer proposed pursuant to this Section 2.5 includes any
securities, and the receipt thereof by a Stockholder would require under
applicable law (a) the registration or qualification
of such securities or of any person as a broker or dealer or agent with respect
to such securities or (b) the provision to any Stockholder of any information
regarding the Company, such securities or the issuer thereof, such Stockholder
shall not have the right to transfer shares of Common Stock in such proposed
Transfer. In such event, the Transferors shall have the right, but not the
obligation, to cause to be paid to such Stockholder in lieu thereof, against
surrender of the shares of Common Stock which would have otherwise been
transferred by such Stockholder in the proposed Transfer, an amount in cash
equal to the Fair Market Value of such shares of Common Stock as of the date
such securities would have been issued in exchange for such shares of Common
Stock."
3. Rights of Participation. Section 2.7(a) is amended and restated as
follows:
"(a) Rights of Participation. The Company hereby grants: (i) to each Stockholder
so long as it shall own at least 5% of the Shares, (ii) to each Berkshire
Stockholder so long as the Berkshire Stockholders collectively own at least 5%
of the Shares, and (iii) to each WP Stockholder so long as the WP Stockholders
collectively own at least 5% of the Shares, the right to purchase up to a pro
rata portion of New Securities (as defined in paragraph (b) below) which the
Company, from time to time, proposes to sell or issue following the date hereof.
For purposes of this Section 2.7(a), a Stockholder's pro rata portion, for
purposes of this Section 2.7, is the product of (i) a fraction, the numerator of
which is the number of outstanding Shares which such Stockholder then owns (on a
fully diluted basis after giving effect to the exercise of all Rollover Options,
if any, and the conversion of all securities convertible into or exchangeable
for Common Stock) and the denominator of which is the total number of such
Shares held by all Stockholders (on a fully diluted basis after giving effect to
the exercise of all Rollover Options, if any and the conversion of all
securities convertible into or exchangeable for Common Stock), multiplied by
(ii) the number of New Securities the Company proposes to sell or issue.
Notwithstanding the foregoing, in the event that the participation by any
Stockholder in a sale by the Company of New Securities would require under
applicable law (i) the registration or qualification of such securities or of
any Person as a broker or dealer or agent with respect to such securities or
(ii) the provision to any Stockholder of any information regarding the Company
or such securities, such Stockholder shall not have the right to purchase New
Securities pursuant to this Section, unless otherwise authorized by the Board.
Without limiting the generality of the foregoing, it is understood and agreed
that the Company shall not be under any obligation to effect a registration of
such securities under the 1933 Act or similar state statutes."
4. Miscellaneous. Except to the extent specifically amended by this
Amendment No. 2, the Stockholders Agreement as currently in effect shall remain
unmodified, and the Stockholders Agreement, as amended hereby is confirmed as
being in full force and effect. This Amendment shall be governed by the laws of
the State of New York (regardless of the laws that might otherwise govern under
applicable New York principles of conflicts of law) as to all matters, including
but not limited to matters of validity, construction, effect, performance and
remedies. This Amendment may be executed in two or more counterparts each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument, and all
signatures need not appear on any one counterpart. This Amendment shall bind and
inure to the benefit of the parties hereto and their respective successors and
assigns.
[The remainder of this page is intentionally left blank.]
Amendment No. 2 to Stockholders Agreement
IN WITNESS WHEREOF, the undersigned, representing the Company and a
majority of each of the Berkshire Stockholders, the WP Stockholders, the
Management Stockholders and the Other Stockholders have caused this Amendment
No. 2 to the Stockholders Agreement to be duly executed as of the day and year
first above written.
THE COMPANY:
AAH HOLDINGS CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
Amendment No. 2 to Stockholders Agreement
BERKSHIRE STOCKHOLDERS:
BERKSHIRE FUND V, LIMITED PARTNERSHIP
By: /s/ ▇▇▇▇▇▇ ▇. Small
-------------------
Name: ▇▇▇▇▇▇ ▇. Small
Title: Managing Director
BERKSHIRE FUND VI, LIMITED PARTNERSHIP
By: /s/ ▇▇▇▇▇▇ ▇. Small
-------------------
Name: ▇▇▇▇▇▇ ▇. Small
Title: Managing Director
BERKSHIRE INVESTORS LLC
By: /s/ ▇▇▇▇▇▇ ▇. Small
-------------------
Name: ▇▇▇▇▇▇ ▇. Small
Title: Managing Director
Amendment No. 2 to Stockholders Agreement
WP STOCKHOLDERS:
WESTON PRESIDIO CAPITAL IV, L.P.
By: Weston Presidio Capital Management IV,
LLC, its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Member
WPC ENTREPRENEUR FUND II, L.P.
By: Weston Presidio Capital Management IV,
LLC, its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Member
Amendment No. 2 to Stockholders Agreement
OTHER STOCKHOLDERS:
/s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------
▇▇▇▇▇▇ ▇▇▇▇
RGIP, LLC
By: /s/ ▇. ▇▇▇▇▇▇▇▇ Malt
--------------------
Name: ▇. ▇▇▇▇▇▇▇▇ Malt
Title: Managing Member
Amendment No. 2 to Stockholders Agreement
MANAGEMENT STOCKHOLDERS:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ Leaf ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, the attorney-in-fact for
each of the Stockholders listed above, in his
capacity as Management Proxy pursuant to Section
4.1 of the Stockholders Agreement.
