Exhibit 10(5)
Amendment No. 1 to the
AAH Holdings Corporation Stockholders Agreement
This Amendment No. 1, dated as of May 24, 2004, amends the AAH Holdings
Corporation Stockholders Agreement dated as of April 30, 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 parties desire to permit certain transfers among Stockholders
of the Company within ninety (90) days of the date of the Stockholders
Agreement; and
WHEREAS, pursuant to Section 4.3 of the Stockholders Agreement, the
Stockholders Agreement may be amended in certain respects by a majority of the
Berkshire Stockholders, the WP Stockholders, the Management Stockholders and the
Other Stockholders.
NOW, THEREFORE, the Stockholders Agreement is hereby amended as follows:
1. Definitions. In Section 1.2, the following language is added after
clause (v) in the definition of "Permitted Transfer" and before the proviso in
such definition:
"and (vi) within ninety (90) days of the date of the Stockholders
Agreement, a Transfer of Shares by any Stockholder to any of the
Berkshire Stockholders and/or the WP Stockholders, with the consent
of the Berkshire Stockholders and the WP Stockholders."
2. Miscellaneous. Except to the extent specifically amended by this
Amendment No. 1, 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.
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. 1 to the Stockholders Agreement to be duly executed as of the day and year
first above written.
THE COMPANY:
AAH HOLDINGS CORPORATION
By: /s/ Xxxxxx X. Small
---------------------------------
Name: Xxxxxx X. Small
Title: President
BERKSHIRE STOCKHOLDERS:
BERKSHIRE FUND V INVESTMENT CORP.
By: /s/ Xxxxxx X. Small
-------------------------------------
Name: Xxxxxx X. Small
Title: Vice President
BERKSHIRE FUND VI INVESTMENT CORP.
By: /s/ Xxxxxx X. Small
-------------------------------------
Name: Xxxxxx X. Small
Title: Vice President
BERKSHIRE INVESTORS LLC
By: /s/ Xxxxxx X. Small
-------------------------------------
Name: Xxxxxx X. Small
Title: Managing Director
WP STOCKHOLDERS:
WESTON PRESIDIO CAPITAL IV, L.P.
By: Weston Presidio Capital Management
IV, LLC, its general partner
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Member
WPC ENTREPRENEUR FUND II, L.P.
By: Weston Presidio Capital Management IV,
LLC, its general partner
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Member
OTHER STOCKHOLDERS:
SPECIALTY INVESTMENT I, LLC
By: /s/ Xxxx Xxxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxxx
Title: CFO & Manager
SQUAM LAKE INVESTORS VI, LP
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
SUNAPEE SECURITIES, INC.
By: /s/ Xxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxx
Title: Assistant Treasurer
WABAN INVESTORS II, LP
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Title: Assistant Clerk
RGIP, LLC
By: /s/ X. Xxxxxxxx Malt
------------------------------------
Name: X. Xxxxxxxx Malt
Title: Managing Member
MANAGEMENT STOCKHOLDERS:
/s/ Xxxxxx Xxxxxxxxxx
-----------------------------------------
Xxxxxx Xxxxxxxxxx
/s/ Xxxxx Xxxxxxxx
-----------------------------------------
Xxxxx Xxxxxxxx
Xxxx Xxxxxxxxxxxx Xxxxxxx Xxxxxxxxx
Xxxx Xxxx Xxxxx Xxxxx
Xxxx Xxxxxx Xxxxxxx Xxxxxxxx
Xxxxx Xxxxxx Xxx Xxxxxxxx
Xxxxxxxx Xxxxx Xxxxxxx Xxxxx
Xxxx Xxxxx Xxxxx Xxxxx
Xxxxxxx Xxxx Xxxxxxx Xxxxx
Xxxxx Xxxxxxxx Xxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxxx Xxxx Xxxxxx
Xxxxx Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx X. Xxxxx Xxxxx Xxxxxxx
Xxxxx Leaf Xxxxxxx Xxxx
Xxxxxx Xxxxxx Xxxxx XxXxxxxx
Xxxxxxx Xxxxxxx Xxxxx Xxxxx
Xxxxx Xxxxx Xxxxxx Xxxxxxx
Xxxx Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx Xxxxxxxxx Xxxxx Xxxxxxx
Xxxx Xxxxxxxxx XxxxXxxx Xxxxxxx
Xxxxx X. Xxxxx Xxxxx Xxxxx
Xxxx Xxxxx Xxxx Xxxxxxxx
Xxxxxx Xxxxx Xxxxxx Xxxxxxxx
Xxxxx Xxx Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx Xxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx
/s/ Xxxxx Xxxxxxxx
-----------------------------------------
By: Xxxxx Xxxxxxxx, 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.
