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/ ▇▇▇▇▇▇ ▇. Small
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Name: ▇▇▇▇▇▇ ▇. Small
Title: President
BERKSHIRE STOCKHOLDERS:
BERKSHIRE FUND V INVESTMENT CORP.
By: /s/ ▇▇▇▇▇▇ ▇. Small
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Name: ▇▇▇▇▇▇ ▇. Small
Title: Vice President
BERKSHIRE FUND VI INVESTMENT CORP.
By: /s/ ▇▇▇▇▇▇ ▇. Small
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Name: ▇▇▇▇▇▇ ▇. Small
Title: Vice President
BERKSHIRE INVESTORS LLC
By: /s/ ▇▇▇▇▇▇ ▇. Small
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Name: ▇▇▇▇▇▇ ▇. Small
Title: Managing Director
WP STOCKHOLDERS:
WESTON PRESIDIO CAPITAL IV, L.P.
By: Weston Presidio Capital Management
IV, LLC, its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Member
WPC ENTREPRENEUR FUND II, L.P.
By: Weston Presidio Capital Management IV,
LLC, its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Member
OTHER STOCKHOLDERS:
SPECIALTY INVESTMENT I, LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: CFO & Manager
SQUAM LAKE INVESTORS VI, LP
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
SUNAPEE SECURITIES, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: Assistant Treasurer
WABAN INVESTORS II, LP
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Clerk
RGIP, LLC
By: /s/ ▇. ▇▇▇▇▇▇▇▇ Malt
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Name: ▇. ▇▇▇▇▇▇▇▇ Malt
Title: Managing Member
MANAGEMENT STOCKHOLDERS:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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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.