Exhibit 4.2


 


EXECUTION COPY


 




 


 





REGISTRATION RIGHTS AGREEMENT


 


by and among


 


ABP DISTRIBUTION HOLDINGS INC.


 


and


 


THE INITIAL HOLDERS SPECIFIED


 


ON THE SIGNATURE PAGES HEREOF


 


Dated as of May 7, 2004


 




 





 
















 


TABLE OF CONTENTS


 


	
  1.

  	
  DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
  REGISTRATION
  UNDER THE SECURITIES ACT

  	
   

  
	
  2.1.

  	
  Demand
  Registration

  	
   

  
	
  2.2.

  	
  Incidental
  Registration

  	
   

  
	
  2.3.

  	
  S-3 Registration; Shelf Registration

  	
   

  
	
  2.4.

  	
  Expenses

  	
   

  
	
  2.5.

  	
  Underwritten
  Offerings

  	
   

  
	
  2.6.

  	
  Conversions; Exercises

  	
   

  
	
  2.7.

  	
  Postponements

  	
   

  
	
   

  	
   

  	
   

  
	
  3.

  	
  HOLDBACK ARRANGEMENTS

  	
   

  
	
  3.1.

  	
  Restrictions on Sale
  by Holders of Registrable Securities

  	
   

  
	
  3.2.

  	
  Restrictions on
  Sale by the Company and Others

  	
   

  
	
  3.3.

  	
  Confidentiality
  of Notices

  	
   

  
	
   

  	
   

  	
   

  
	
  4.

  	
  REGISTRATION PROCEDURES

  	
   

  
	
  4.1.

  	
  Obligations of
  the Company

  	
   

  
	
  4.2.

  	
  Seller Information

  	
   

  
	
  4.3.

  	
  Notice to Discontinue

  	
   

  
	
   

  	
   

  	
   

  
	
  5.

  	
  INDEMNIFICATION;
  CONTRIBUTION

  	
   

  
	
  5.1.

  	
  Indemnification
  by the Company

  	
   

  
	
  5.2.

  	
  Indemnification by Holders

  	
   

  
	
  5.3.

  	
  Conduct of Indemnification
  Proceedings

  	
   

  
	
  5.4.

  	
  Contribution

  	
   

  
	
  5.5.

  	
  Other
  Indemnification

  	
   

  
	
  5.6.

  	
  Indemnification
  Payments

  	
   

  
	
   

  	
   

  	
   

  
	
  6.

  	
  GENERAL

  	
   

  
	
  6.1.

  	
  Adjustments Affecting
  Registrable Securities

  	
   

  
	
  6.2.

  	
  Registration
  Rights to Others

  	
   

  
	
  6.3.

  	
  Availability of
  Information; Rule 144; Rule 144A; Other Exemptions

  	
   

  
	
  6.4.

  	
  Amendments and
  Waivers

  	
   

  
	
  6.5.

  	
  Notices

  	
   

  
	
  6.6.

  	
  Successors and
  Assigns

  	
   

  
	
  6.7.

  	
  Counterparts

  	
   

  
	
  6.8.

  	
  Descriptive
  Headings, Etc

  	
   

  
	
  6.9.

  	
  Severability

  	
   

  
	
  6.10.

  	
  Governing Law

  	
   

  
	
  6.11.

  	
  Consent to Jurisdiction

  	
   

  
	
  6.12.

  	
  Waiver of Jury Trial

  	
   

  



 


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  6.13.

  	
  Remedies; Specific
  Performance

  	
   

  
	
  6.14.

  	
  Entire Agreement

  	
   

  
	
  6.15.

  	
  Nominees for Beneficial
  Owners

  	
   

  
	
  6.16.

  	
  Further Assurances

  	
   

  
	
  6.17.

  	
  No Inconsistent Agreements

  	
   

  
	
  6.18.

  	
  Construction

  	
   

  



 


ii
















 


REGISTRATION RIGHTS AGREEMENT


 


This
REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered
into as of May 7, 2004, by and among ABP Distribution Holdings Inc. a Georgia
corporation (the “Company”), Cerberus ABP Investor LLC, a Delaware
limited liability company (“Cerberus”), and the executives specified on
the signature pages hereof (the “Executives” and together with Cerberus, the “Initial
Holders”).


 


W  I  T
N  E  S  S  E  T  H :


 


WHEREAS,
the Company has entered into (i) Subscription Agreements with Cerberus (the “Cerberus
Subscription Agreements”), pursuant to which Cerberus is acquiring shares
of the Company’s Common Stock and (ii) Executive Purchase Agreements with each
of the Executives, dated as of the Closing Date (together with the Cerberus
Subscription Agreements, the “Stock Purchase Agreements”), pursuant to
which the Company is issuing and selling and the Executives are purchasing shares
of Common Stock;


 


WHEREAS,
simultaneously herewith, the Company and each of the Initial Holders are
entering into a Stockholders Agreement (the “Stockholders Agreement”);
and


 


WHEREAS, in order to
induce the Initial Holders to enter into the Stock Purchase Agreements and the
Stockholders Agreement, the Company has agreed to provide certain registration
rights on the terms and subject to the conditions set forth herein;


 


NOW,
THEREFORE, in consideration of the premises and of the mutual agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:


 


1.                                       DEFINITIONS.
As used in this Agreement, the following terms shall have the following
meanings:


 


“Affiliate”
shall mean with respect to any Person, any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person, and with respect to any individual, shall mean his or her spouse,
sibling, child, step child, grandchild or parent of such Person, or the spouse
thereof (“Immediate Family”), or a trust or family limited partnership for the
benefit of any such Person or Persons and, with respect to Cerberus, shall mean
its respective members, stockholders, general partners and/or limited partners,
as applicable. For purposes of this definition, “control” (including, with
correlative meanings, the terms “controlling,” “controlled by” and “under
common control with”), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided,  however,
that beneficial ownership of 20% or more of the voting securities of a Person
shall be deemed to be control.


 


“Agents”
shall have the meaning set forth in Section 5.1.


 
















 


“Blackout
Period” shall have the meaning set forth in Section 2.7.


 


“Cerberus
Subscription Agreements” shall have the meaning set forth in the recitals.


 


“Claims”
shall have the meaning set forth in Section 5.1.


 


“Closing
Date” shall mean the date on which the transactions contemplated by that
certain Asset Purchase Agreement, dated as of March 12, 2004, among ABP
Distribution Inc., Georgia-Pacific Corporation and Georgia-Pacific Building
Materials Sales, Ltd. are consummated.


 


“Common
Shares” shall mean, shares of the Company’s Common Stock.


 


“Company”
shall have the meaning set forth in the preamble.


 


“Demand
Registration” shall mean a registration required to be effected by the
Company pursuant to Section 2.1.


 


“Demand
Registration Statement” shall mean a registration statement of the Company
which covers the Registrable Securities requested to be included therein
pursuant to the provisions of Section 2.1 and all amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference (or deemed to be
incorporated by reference) therein.


 


“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended from time
to time, and the rules and regulations thereunder, or any successor statute.


 


“Executives”
shall have the meaning set forth in the preamble.


 


“Holders”
shall mean each of the Initial Holders for so long as it owns any Registrable
Securities and such of its respective heirs, successors and permitted assigns
(including any permitted transferees of Registrable Securities) who acquire or
are otherwise the transferee of Registrable Securities, directly or indirectly,
from such Initial Holder (or any subsequent Holder), for so long as such heirs,
successors and permitted assigns own any Registrable Securities. For purposes
of this Agreement, a Person will be deemed to be a Holder whenever such Person
holds Registrable Securities, an option to purchase, or a security convertible
into or exercisable or exchangeable for, Registrable Securities, whether or not
such purchase, conversion, exercise or exchange has actually been effected and
disregarding any legal restrictions upon the exercise of such rights.
Registrable Securities issuable upon exercise of an option or upon conversion,
exchange or exercise of another security shall be deemed outstanding for the
purposes of this Agreement.


 


“Holders’
Counsel” shall mean one firm of counsel (per registration) to the Holders
of Registrable Securities participating in such registration, which counsel
shall be selected (i) in the case of a Demand Registration or an S-3
Registration, by the Initiating Holders


 


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holding a majority of the
Registrable Securities for which registration was requested in the Request, and
(ii) in all other cases, by the Majority Holders of the Registration.


 


“Incidental
Registration” shall mean a registration required to be effected by the
Company pursuant to Section 2.2.


 


“Incidental
Registration Statement” shall mean a registration statement of the Company
which covers the Registrable Securities requested to be included therein
pursuant to the provisions of Section 2.2 and all amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference (or deemed to be
incorporated by reference) therein.


 


“Initial
Holders” shall have the meaning set forth in the preamble.


 


“Initial
Public Offering” shall mean the first public offering of any class of
equity securities of the Company pursuant to a registration statement filed
with and declared effective by the SEC.


 


“Initiating
Holders” shall mean, with respect to a particular registration, the Holders
who initiated the Request for such registration.


 


“Inspectors”
shall have the meaning set forth in Section 4.1(g).


 


“Investor
Holders” shall mean each of the Investors and its Affiliates for so long as
it owns any Registrable Securities and such of its respective successors and
permitted assigns (including any permitted transferees of Registrable
Securities) who acquire or are otherwise the transferee of Registrable
Securities, directly or indirectly, from such Investor (or any subsequent
holder), for so long as such successors and permitted assigns own any
Registrable Securities.


 


“Investors”
shall mean Cerberus.


 


“Majority
Holders of the Registration” shall mean, with respect to a particular
registration, one or more Holders of Registrable Securities who would hold a
majority of the Registrable Securities to be included in such registration.


 


“Majority
Investor Holders” shall mean one or more Investor Holders who hold a
majority of the Registrable Securities then outstanding and held by the
Investor Holders.


 


“Majority
Investor Holders of the Registration” shall mean, with respect to a
particular registration, one or more Investor Holders of Registrable Securities
who would hold a majority of the Registrable Securities held by Investor
Holders to be included in such registration.


 


“Management
Holders” shall mean each of the Executives and their respective Affiliates,
for so long as such Person owns any Registrable Securities.


 


“NASD”
shall mean the National Association of Securities Dealers, Inc.


 


3
















 


“Person”
shall mean any individual, firm, partnership, corporation, trust, joint
venture, association, joint stock company, limited liability company,
unincorporated organization or any other entity or organization, including a
government or agency or political subdivision thereof, and shall include any
successor (by merger or otherwise) of such entity.


 


“Prospectus”
shall mean the prospectus included in a Registration Statement (including,
without limitation, any preliminary prospectus and any prospectus that includes
any information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A promulgated under
the Securities Act), and any such Prospectus as amended or supplemented by any
prospectus supplement, and all other amendments and supplements to such
Prospectus, including post-effective amendments, and in each case including all
material incorporated by reference (or deemed to be incorporated by reference)
therein.


 


“Records”
shall have the meaning set forth in Section 4.1(g).


 


“Registrable
Securities” shall mean (i) any Common Shares issued to the Initial Holders
or any Affiliate thereof pursuant to any of the Stock Purchase Agreements, (ii)
any Common Shares otherwise or hereafter purchased or acquired by the Holders
or their Affiliates and (iii) any other securities of the Company (or any
successor or assign of the Company, whether by merger, consolidation, sale of
assets or otherwise) which may be issued or issuable with respect to, in
exchange for, or in substitution of, Registrable Securities referenced in
clauses (i) and (ii) above by reason of any dividend or stock split,
combination of shares, merger, consolidation, recapitalization,
reclassification, reorganization, sale of assets or similar transaction. As to
any particular Registrable Securities, such securities shall cease to be
Registrable Securities when (A) a registration statement with respect to the
sale of such securities shall have been declared effective under the Securities
Act and such securities shall have been disposed of in accordance with such
registration statement, (B) such securities are sold pursuant to Rule 144 (or
any similar provisions then in force) under the Securities Act, (C) such
securities have been otherwise transferred, a new certificate or other evidence
of ownership for them not bearing the legend restricting further transfer shall
have been delivered by the Company and subsequent public distribution of them
shall not require registration under the Securities Act, or (D) such securities
shall have ceased to be outstanding.


 


“Registration
Expenses” shall mean any and all expenses incident to performance of or
compliance with this Agreement by the Company and its subsidiaries, including,
without limitation (i) all SEC, stock exchange, NASD and other registration,
listing and filing fees, (ii) all fees and expenses incurred in connection with
compliance with state securities or blue sky laws and compliance with the rules
of any stock exchange (including fees and disbursements of counsel in
connection with such compliance and the preparation of a blue sky memorandum
and legal investment survey), (iii) all expenses of any Persons in preparing or
assisting in preparing, word processing, printing, distributing, mailing and
delivering any Registration Statement, any Prospectus, any underwriting
agreements, transmittal letters, securities sales agreements, securities
certificates and other documents relating to the performance of or compliance
with this Agreement, (iv) the fees and disbursements of counsel for the
Company, (v) the fees and disbursements of Holders’ Counsel, (vi) the fees and
disbursements of all independent public accountants (including the expenses of
any audit and/or “cold comfort” letters) and the fees and


 


4
















 


expenses of other
Persons, including experts, retained by the Company, (vii) the expenses
incurred in connection with making road show presentations and holding meetings
with potential investors to facilitate the distribution and sale of Registrable
Securities which are customarily borne by the issuer, (viii) any fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities, and (ix) premiums and other costs of policies of insurance against
liabilities arising out of the public offering of the Registrable Securities
being registered; provided, however, Registration Expenses shall
not include discounts and commissions payable to underwriters, selling brokers,
dealer managers or other similar Persons engaged in the distribution of any of
the Registrable Securities; and provided  further, that in any
case where Registration Expenses are not to be borne by the Company, such
expenses shall not include salaries of Company personnel or general overhead
expenses of the Company, auditing fees, premiums or other expenses relating to
liability insurance required by underwriters of the Company or other expenses
for the preparation of financial statements or other data normally prepared by
the Company in the ordinary course of its business or which the Company would
have incurred in any event; and provided, further, that in the
event the Company shall, in accordance with Section 2.2 or
Section 2.7 hereof, not register any securities with respect to which it
had given written notice of its intention to register to Holders,
notwithstanding anything to the contrary in the foregoing, all of the costs
incurred by the Holders in connection with such registration shall be deemed to
be Registration Expenses.


 


“Registration
Statement” shall mean any registration statement of the Company which
covers any Registrable Securities and all amendments and supplements to any
such Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference (or deemed to be incorporated by reference)
therein.


 


“Request”
shall have the meaning set forth in Section 2.1(a).


 


“S-3
Registration” shall mean a registration required to be effected by the
Company pursuant to Section 2.3(a).


 


“SEC”
shall mean the Securities and Exchange Commission, or any successor agency
having jurisdiction to enforce the Securities Act.


 


“Securities
Act” shall mean the Securities Act of 1933, as amended from time to time,
and the rules and regulations thereunder, or any successor statute.


 


“Shelf
Registration” shall have the meaning set forth in Section 2.1(a).


 


“Stock
Purchase Agreements” shall have the meaning set forth in the recitals.


 


“Underwriters”
shall mean the underwriters, if any, of the offering being registered under the
Securities Act.


 


“Underwritten
Offering” shall mean a sale of securities of the Company to an Underwriter
or Underwriters for reoffering to the public.


 


5
















 


“Withdrawn
Demand Registration” shall have the meaning set forth in
Section 2.1(a).


 


“Withdrawn
Request” shall have the meaning set forth in Section 2.1(a). 


 


2.                                       REGISTRATION
UNDER THE SECURITIES
ACT.


 


2.1.                              Demand
Registration.


 


(a)                                  Right to Demand Registration. (i)                 Subject
to Section 2.1(c), at any time or from time to time the Majority Investor
Holders shall have the right to request in writing that the Company register
all or part of such Holders’ Registrable Securities (a “Request”) (which
Request shall specify the amount of Registrable Securities intended to be
disposed of by such Holders and the intended method of disposition thereof) by
filing with the SEC a Demand Registration Statement. As promptly as
practicable, but no later than 15 days after receipt of a Request, the Company
shall give written notice of such requested registration to all Holders of
Registrable Securities. Subject to Section 2.l(b), the Company shall
include (A) in a Demand Registration, the Registrable Securities intended to be
disposed of by the Initiating Holders and (B) in any Demand Registration other
than an Initial Public Offering, the Registrable Securities intended to be
disposed of by any other Holder which shall have made a written request (which
request shall specify the amount of Registrable Securities to be registered and
the intended method of disposition thereof) to the Company for inclusion
thereof in such registration within 15 days after the receipt of such written
notice from the Company. The Company shall, as expeditiously as possible
following a Request, use its best efforts to cause to be filed with the SEC a
Demand Registration Statement providing for the registration under the
Securities Act of the Registrable Securities which the Company has been so
requested to register by all such Holders, to the extent necessary to permit
the disposition of such Registrable Securities so to be registered in
accordance with the intended methods of disposition thereof specified in such
Request or further requests (including, without limitation, by means of a shelf
registration pursuant to Rule 415 under the Securities Act (a “Shelf
Registration”) if so requested and if the Company is then eligible to use
such a registration). The Company shall use its best efforts to have such
Demand Registration Statement declared effective by the SEC as soon as
practicable thereafter and to keep such Demand Registration Statement
continuously effective for the period specified in Section 4. l(b).


 


(ii)                                  A Request may be withdrawn prior to the
filing of the Demand Registration Statement by the Majority Investor Holders of
the Registration (a “Withdrawn Request”) and a Demand Registration
Statement may be withdrawn prior to the effectiveness thereof by the Majority
Investor Holders of the Registration (a “Withdrawn Demand Registration”),
and such withdrawals shall be treated as a Demand Registration which shall have
been effected pursuant to this Section 2.1, unless the Investor Holders of
Registrable Securities to be included in such Registration Statement reimburse
the Company for its reasonable out-of-pocket Registration Expenses relating to
the preparation and filing of such Demand Registration Statement (to the extent
actually incurred); provided, however, that if a Withdrawn
Request or Withdrawn Demand Registration is made (A) because of a material
adverse change in the business, financial condition or prospects of the
Company, or (B) because the sole or lead managing Underwriter advises that the
amount of Registrable Securities to be


 


6
















 


sold
in such offering be reduced pursuant to Section 2.1(b) by more than 15% of
the Registrable Securities requested to be included in such Registration
Statement, or (C) because of a postponement of such registration pursuant to
Section 2.7, then such withdrawal shall not be treated as a Demand
Registration effected pursuant to this Section 2.1 (and shall not be
counted toward the number of Demand Registrations to which such Investor
Holders are entitled), and the Company shall pay all Registration Expenses in
connection therewith. Any Holder requesting inclusion in a Demand Registration
may, at any time prior to the effective date of the Demand Registration
Statement (and for any reason) revoke such request by delivering written notice
to the Company revoking such requested inclusion.


 


(iii)                               The registration rights granted pursuant to
the provisions of this Section 2.1 shall be in addition to the
registration rights granted pursuant to the other provisions of Section 2
hereof.


 


(b)                                 Priority in Demand Registrations. If a Demand Registration involves an
Underwritten Offering, and the sole or lead managing Underwriter, as the case
may be, of such Underwritten Offering shall advise the Company in writing (with
a copy to each Holder requesting registration) on or before the date five days
prior to the date then scheduled for such offering that, in its opinion, the
amount of Registrable Securities requested to be included in such Demand
Registration exceeds the number which can be sold in such offering within a
price range acceptable to the Majority Holders of the Registration (such writing
to state the basis of such opinion and the approximate number of Registrable
Securities which may be included in such offering), the Company shall include
in such Demand Registration, to the extent of the number which the Company is
so advised may be included in such offering without such effect, (A) first, the
Registrable Securities requested to be included in the Demand Registration by
Cerberus, and (ii) second, the Registrable Securities requested to be included
in the Demand Registration by the other Holders allocated pro rata in
proportion to the number of Registrable Securities requested to be included in
such Demand Registration by each of them. In the event the Company shall not,
by virtue of this Section 2.1(b), include in any Demand Registration all
of the Registrable Securities of any Holder requesting to be included in such
Demand Registration, such Holder may, upon written notice to the Company given
within five days of the time such Holder first is notified of such matter,
reduce the amount of Registrable Securities it desires to have included in such
Demand Registration, whereupon only the Registrable Securities, if any, it
desires to have included will be so included and the Holders not so reducing
shall be entitled to a corresponding increase in the amount of Registrable
Securities to be included in such Demand Registration.


 


(c)                                  Limitations on Registrations. The rights of the Majority Investor Holders
to request Demand Registrations pursuant to Section 2.1(a) are subject to
the limitation that in no event shall the Company be obligated to pay
Registration Expenses of more than four Demand Registrations initiated by the
Majority Investor Holders; provided, however, (x) that such
number shall be increased to the extent the Company does not include in what
would otherwise be the final Demand Registration to which the Investor Holders
are entitled and for which the Company is required to pay Registration Expenses
the number of Registrable Securities requested to be registered by the Investor
Holders by reason of Section 2.1(b), and (y) the Investor Holders shall be
deemed not to have expended a Demand Registration right to the


 


7
















 


extent
the Company terminates a Shelf Registration pursuant to Section 2.3 prior
to the time that all Registrable Securities covered by such Shelf Registration
have been sold.


 


(d)                                 Underwriting; Selection of Underwriters. Notwithstanding anything to the contrary
contained in Section 2.1(a), if the Initiating Holders holding a majority
of the Registrable Securities for which registration was requested in the
Request so elect, the offering of such Registrable Securities pursuant to such
Demand Registration shall be in the form of a firm commitment Underwritten
Offering; and such Initiating Holders may require that all Persons (including
other Holders) participating in such registration sell their Registrable
Securities to the Underwriters at the same price and on the same terms of
underwriting applicable to the Initiating Holders. If any Demand Registration
involves an Underwritten Offering, the sole or managing Underwriters and any
additional investment bankers and managers to be used in connection with such
registration shall be selected by the Initiating Holders holding a majority of
the Registrable Securities for which registration was requested in the Request,
subject to the approval of the Company (such approval not to be unreasonably
withheld).


 


(e)                                  Registration of Other Securities. Whenever the Company shall effect a Demand
Registration, no securities other than the Registrable Securities shall be
covered by such registration unless the Majority Holders of the Registration
shall have consented in writing to the inclusion of such other securities.


 


(f)                                    Effective Registration Statement; Suspension. A Demand Registration Statement shall not
be deemed to have become effective (and the related registration will not be
deemed to have been effected) (i) unless it has been declared effective by the
SEC and remains effective in compliance with the provisions of the Securities
Act with respect to the disposition of all Registrable Securities covered by
such Demand Registration Statement for the time period specified in
Section 4.1(b), (ii) if the offering of any Registrable Securities
pursuant to such Demand Registration Statement is interfered with by any stop
order, injunction or other order or requirement of the SEC or any other
governmental agency or court, (iii) if the offering of Registrable Securities
is not consummated for any reason, including, without limitation, if the
Underwriters of an Underwritten Offering advise the Holders that the
Registrable Securities cannot be sold at a net price per share equal to or
above the net price disclosed in the preliminary prospectus, (iv) if, in the
case of an Underwritten Offering, the conditions to closing specified in an
underwriting agreement to which the Company is a party are not satisfied other
than by the sole reason of any breach or failure by the Holders of Registrable
Securities or are not otherwise waived or (v) if the Initiating Holders are cut
back to fewer than fifty percent (50%) of the Registrable Securities requested
to be registered.


 


(g)                                 Other Registrations. During the period (i) beginning on the date
of a Request and (ii) ending on the date that is 90 days after the date that a
Demand Registration Statement filed pursuant to such Request has been declared
effective by the SEC or, if the Majority Investor Holders of the Registration
shall withdraw such Request or such Demand Registration Statement, on the date
of such Withdrawn Request or such Withdrawn Registration Statement, the Company
shall not, without the consent of the Majority Investor Holders of the
Registration, file a registration statement pertaining to any other securities
of the Company.


 


8
















 


(h)                                 Registration Statement Form. Registrations under this Section 2.1
shall be on such appropriate registration form of the SEC (i) as shall be
selected by the Initiating Holders holding a majority of the Registrable
Securities for which registration was requested in the Request, and (ii) which
shall be available for the sale of Registrable Securities in accordance with
the intended method or methods of disposition specified in the requests for
registration. The Company agrees to include in any such Registration Statement
all information which any selling Investor Holder, upon advice of counsel,
shall reasonably request.


 


2.2.                              Incidental
Registration.


 


(a)                                  Right to Include Registrable Securities. 
(i)   If the Company at any time
or from time to time proposes to register any of its securities under the
Securities Act (other than in a registration on Form S-4 or S-8 or any
successor form to such forms and other than pursuant to Section 2.1 or
2.3) whether or not pursuant to registration rights granted to other holders of
its securities and whether or not for sale for its own account, the Company
shall deliver prompt written notice (which notice shall be given at least 30
days prior to such proposed registration) to all Holders of Registrable
Securities of its intention to undertake such registration, describing in
reasonable detail the proposed registration and distribution (including the
anticipated range of the proposed offering price, the class and number of
securities proposed to be registered and the distribution arrangements) and of
such Holders’ right to participate in such registration under this
Section 2.2 as hereinafter provided. 
Subject to the other provisions of this paragraph (a) and
Section 2.2(b), upon the written request of any Holder made within 20 days
after the receipt of such written notice (which request shall specify the
amount of Registrable Securities to be registered and the intended method of
disposition thereof), the Company shall effect the registration under the
Securities Act of all Registrable Securities requested by Holders to be so
registered (an “Incidental Registration”), to the extent requisite to
permit the disposition (in accordance with the intended methods thereof as
aforesaid) of the Registrable Securities so to be registered, by inclusion of
such Registrable Securities in the Registration Statement which covers the
securities which the Company proposes to register and shall cause such Registration
Statement to become and remain effective with respect to such Registrable
Securities in accordance with the registration procedures set forth in
Section 4. If an Incidental Registration involves an Underwritten
Offering, immediately upon notification to the Company from the Underwriter of
the price at which such securities are to be sold, the Company shall so advise
each participating Holder. The Holders requesting inclusion in an Incidental
Registration may, at any time prior to the effective date of the Incidental
Registration Statement (and for any reason), revoke such request by delivering
written notice to the Company revoking such requested inclusion.


 


(ii)                                  If at any time after giving written notice of
its intention to register any securities and prior to the effective date of the
Incidental Registration Statement filed in connection with such registration,
the Company shall determine for any reason not to register or to delay
registration of all of such securities, the Company may, at its election, give
written notice of such determination to each Holder of Registrable Securities
and, thereupon, (A) in the case of a determination not to register, the Company
shall be relieved of its obligation to register any Registrable Securities in
connection with such registration (but not from its obligation to pay the
Registration Expenses incurred in connection therewith), without prejudice,
however, to the rights of Holders to cause such registration to be effected as
a


 


9
















 


registration
under Section 2.1 or 2.3(a), and (B) in the case of a determination to
delay such registration, the Company shall be permitted to delay the
registration of such Registrable Securities for the same period as the delay in
registering such other securities; provided, however, that if
such delay shall extend beyond 120 days from the date the Company received a
request to include Registrable Securities in such Incidental Registration, then
the Company shall again give all Holders the opportunity to participate therein
and shall follow the notification procedures set forth in the preceding
paragraph. There is no limitation on the number of such Incidental
Registrations pursuant to this Section 2.2 which the Company is obligated
to effect.


 


(iii)                               The registration rights granted pursuant to
the provisions of this Section 2.2 shall be in addition to the
registration rights granted pursuant to the other provisions of Section 2
hereof, provided; however, that, in the event that the sole or
lead managing Underwriter of an Initial Public Offering shall advise the
Company in writing that the inclusion of shares of the Management Holders
requested to be included in such registration would materially interfere with
the successful marketing of the securities being offered, the registration
rights granted pursuant to the provisions of this Section 2.2 shall not
apply to the Management Holders in connection with such Initial Public
Offering.


 


(b)                                 Priority in Incidental Registration. If an Incidental Registration involves an
Underwritten Offering (on a firm commitment basis), and the sole or the lead
managing Underwriter, as the case may be, of such Underwritten Offering shall
advise the Company in writing (with a copy to each Holder requesting registration)
on or before the date two days prior to the date then scheduled for such
offering that, in its opinion, the amount of securities (including Registrable
Securities) requested to be included in such registration exceeds the amount
which can be sold in such offering without materially interfering with the
successful marketing of the securities being offered (such writing to state the
basis of such opinion and the approximate number of such securities which may
be included in such offering without such effect), the Company shall include in
such registration, to the extent of the number which the Company is so advised
may be included in such offering without such effect, (i) in the case of a
registration initiated by the Company, (A) first, the securities that the
Company proposes to register for its own account, (B) second, the Registrable
Securities requested to be included in such registration by Cerberus, (C)
third, the Registrable Securities requested to be included in such registration
by the Holders, allocated pro  rata in proportion to the number of
Registrable Securities requested to be included in such registration by each of
them, and (D) fourth, other securities of the Company to be registered on
behalf of any other Person, allocated pro  rata in proportion to
the number of Registrable Securities requested to be included in such
registration by each of them, and (ii) in the case of a registration initiated
by a Person other than the Company, (A) first, the Registrable Securities
requested to be included in such registration by any Persons initiating such
registration, allocated pro  rata in proportion to the number of
Registrable Securities requested to be included in such registration by each of
them, (B) second, the Registrable Securities requested to be included in such
registration by Cerberus, (C) third, the Registrable Securities requested to be
included in such registration by the Holders, allocated pro  rata
in proportion to the number of securities requested to be included in such
registration by each of them, (D) fourth, the securities that the Company
proposes to register for its own account and (D) fifth, other securities of the
Company to be registered on behalf of any other Person, allocated pro  rata
in proportion to the number of Registrable Securities requested to be included
in such registration by each of them, provided, however, that in
the event the Company will not,


 


10
















 


by
virtue of this Section 2.2(b), include in any such registration all of the
Registrable Securities of any Holder requested to be included in such
registration, such Holder may, upon written notice to the Company given within
five days of the time such Holder first is notified of such matter, reduce the
amount of Registrable Securities it desires to have included in such
registration, whereupon only the Registrable Securities, if any, it desires to
have included will be so included and the Holders not so reducing shall be
entitled to a corresponding increase in the amount of Registrable Securities to
be included in such registration.


 


(c)                                  Selection of Underwriters. If any Incidental Registration involves an
Underwritten Offering, the sole or managing Underwriter(s) and any additional
investment bankers and managers to be used in connection with such registration
shall be subject to the approval of the Majority Holders of the Registration
(such approval not to be unreasonably withheld).


 


2.3.                              S-3 Registration; Shelf Registration.


 


(a)                                  S-3 Registration. If at any time (i) any Majority Investor
Holder requests that the Company file a registration statement on Form S-3 or
any successor form thereto for a public offering of all or any portion of the
shares of Registrable Securities held by such Majority Investor Holder, and (ii)
the Company is a registrant entitled to use Form S-3 or any successor form
thereto to register such securities, then the Company shall, as expeditiously
as possible following such Request, use its best efforts to register under the
Securities Act on Form S-3 or any successor form thereto, for public sale in
accordance with the intended methods of disposition specified in such Request
or any subsequent requests (including, without limitation, by means of a Shelf
Registration) the Registrable Securities specified in such Request and any
subsequent requests; provided, that if such registration is for an
Underwritten Offering, the terms of Sections 2.1(b) and 2.1(d) shall apply (and
any reference to “Demand Registration” therein shall, for purposes of this Section 2.3,
instead be deemed a reference to “S-3 Registration”). If the sole or lead
managing Underwriter (if any) or the Majority Investor Holders of the
Registration shall advise the Company in writing that in its opinion additional
disclosure not required by Form S-3 is of material importance to the success of
the offering, then such Registration Statement shall include such additional
disclosure. Whenever the Company is required by this Section 2.3 to use
its best efforts to effect the registration of Registrable Securities, each of
the procedures and requirements of Section 2.1(a) and 2.1(e) (including
but not limited to the requirements that the Company (A) notify all Holders of
Registrable Securities from whom such Request for registration has not been
received and provide them with the opportunity to participate in the offering
and (B) use its best efforts to have such S-3 Registration Statement declared
and remain effective for the time period specified herein) shall apply to such
registration (and any reference in such Sections 2.1(a) and 2.1(e) to “Demand
Registration” shall, for purposes of this Section 2.3, instead be deemed a
reference to “S-3 Registration”). Notwithstanding anything to the contrary
contained herein, no Request may be made under this Section 2.3 within 90
days after the effective date of a Registration Statement filed by the Company
covering a firm commitment Underwritten Offering in which the Holders of
Registrable Securities shall have been entitled to join pursuant to this Agreement
and in which there shall have been effectively registered all shares of
Registrable Securities as to which registration shall have been requested.
Demands for S-3 Registrations will not be deemed to be Demand Registrations and
there is no limitation on the number of S-3 Registrations that the


 


11
















 


Company
is obligated to effect. The registration rights granted pursuant to the
provisions of this Section 2.3(a) shall be in addition to the registration
rights granted pursuant to the other provisions of this Section 2.


 


(b)                                 Shelf Registration. If a request made pursuant to
Section 2.1 or 2.3(a) is for a Shelf Registration, the Company shall use
its best efforts to keep the Shelf Registration continuously effective through
the date on which all of the Registrable Securities covered by such Shelf
Registration may be sold pursuant to Rule 144(k) under the Securities Act (or
any successor provision having similar effect); provided, however,
that prior to the termination of such Shelf Registration, the Company shall
first furnish to each Holder of Registrable Securities participating in such
Shelf Registration (i) an opinion, in form and substance satisfactory to the
Majority Holders of the Registration, of counsel for the Company satisfactory
to the Majority Holders of the Registration stating that such Registrable
Securities are freely saleable pursuant to Rule 144(k) under the Securities Act
(or any successor provision having similar effect) or (ii) a “No-Action Letter”
from the staff of the SEC stating that the SEC would not recommend enforcement
action if the Registrable Securities included in such Shelf Registration were
sold in a public sale other than pursuant to an effective registration
statement.


 


2.4.                              Expenses. The Company shall pay all Registration
Expenses in connection with any Demand Registration, Incidental Registration,
S-3 Registration or Shelf Registration, whether or not such registration shall
become effective and whether or not all Registrable Securities originally
requested to be included in such registration are withdrawn or otherwise
ultimately not included in such registration, except as otherwise provided with
respect to a Withdrawn Request and a Withdrawn Demand Registration in Section 2.1(a).


 


2.5.                              Underwritten Offerings.


 


(a)                                  Demand Underwritten Offerings. If requested by the sole or lead managing
Underwriter for any Underwritten Offering effected pursuant to a Demand
Registration or an S-3 Registration, the Company shall enter into a customary
underwriting agreement with the Underwriters for such offering, such agreement
to be reasonably satisfactory in substance and form to the Majority Investor
Holders of the Registration and to contain such representations and warranties
by the Company and such other terms as are generally prevailing in agreements
of that type, including, without limitation, indemnification and contribution
to the effect and to the extent provided in Section 5.


 


(b)                                 Holders of Registrable Securities to be
Parties to Underwriting Agreement. The Holders of Registrable Securities to be distributed by
Underwriters in an Underwritten Offering contemplated by Section 2 shall
be parties to the underwriting agreement between the Company and such
Underwriters and may, at such Holders’ option, require that any or all of the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such Underwriters shall also be made to and
for the benefit of such Holders of Registrable Securities and that any or all
of the conditions precedent to the obligations of such Underwriters under such
underwriting agreement be conditions precedent to the obligations of such
Holders of Registrable Securities; provided, however, that the
Company shall not be required to make any representations or warranties with
respect to written information specifically provided by a selling Holder for
inclusion in the


 


12
















 


Registration
Statement. No Holder shall be required to make any representations or
warranties to, or agreements with, the Company or the Underwriters other than
representations, warranties or agreements regarding such Holder, such Holder’s
Registrable Securities and such Holder’s intended method of disposition.


 


(c)                                  Participation in Underwritten Registration. Notwithstanding anything herein to the
contrary, no Person may participate in any underwritten registration hereunder
unless such Person (i) agrees to sell its securities on the same terms and conditions
provided in any underwritten arrangements approved by the Persons entitled
hereunder to approve such arrangement and (ii) accurately completes and
executes in a timely manner all questionnaires, powers of attorney,
indemnities, custody agreements, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.


 


2.6.                              Conversions; Exercises. Notwithstanding anything to the contrary herein, in order for any
Registrable Securities that are issuable upon the exercise of conversion
rights, options or warrants to be included in any registration pursuant to
Section 2 hereof, the exercise of such conversion rights, options or
warrants must be effected no later than immediately prior to the closing of any
sales under the Registration Statement pursuant to which such Registrable
Securities are to be sold.


 


2.7.                              Postponements.
The Company shall be entitled to postpone a Demand Registration and an S-3
Registration and to require the Holders of Registrable Securities to
discontinue the disposition of their securities covered by a Shelf Registration
during any Blackout Period (as defined below) (i) if the Board of Directors of
the Company determines in good faith that effecting such a registration or
continuing such disposition at such time would have a material adverse effect
upon a proposed sale of all (or substantially all) of the assets of the Company
or a merger, reorganization, recapitalization or similar current transaction
materially affecting the capital structure or equity ownership of the Company,
or (ii) if the Company is in possession of material information which the Board
of Directors of the Company determines in good faith it is not in the best
interests of the Company to disclose in a registration statement at such time; provided,
however, that the Company may only delay a Demand Registration or an S-3
Registration pursuant to this Section 2.7 by delivery of a Blackout Notice
(as defined below) within 30 days of delivery of the request for such Registration
under Section 2.1 or Section 2.3, as applicable, and may delay a
Demand Registration or an S-3 Registration and require the Holders of
Registrable Securities to discontinue the disposition of their securities
covered by a Shelf Registration only for a reasonable period of time not to
exceed 90 days (or such earlier time as such transaction is consummated or no
longer proposed or the material information has been made public) (the “Blackout
Period”). There shall not be more than two Blackout Periods in any 12 month
period. The Company shall promptly notify the Holders in writing (a “Blackout
Notice”) of any decision to postpone a Demand Registration or an S-3
Registration or to discontinue sales of Registrable Securities covered by a
Shelf Registration pursuant to this Section 2.7 and shall include a
general statement of the reason for such postponement, an approximation of the
anticipated delay and an undertaking by the Company promptly to notify the
Holders as soon as a Demand Registration or an S-3 Registration may be effected
or sales of Registrable Securities covered by a Shelf Registration may resume.
In making any such determination to initiate or terminate a Blackout Period,
the Company shall not be required to


 


13
















 


consult
with or obtain the consent of any Holder, and any such determination shall be
the Company’s sole responsibility. Each Holder shall treat all notices received
from the Company pursuant to this Section 2.7 in the strictest confidence and
shall not disseminate such information. If the Company shall postpone the
filing of a Demand Registration Statement or an S-3 Registration Statement, the
Majority Investor Holders of the Registration shall have the right to withdraw
the request for registration by giving written notice to the Company within 30
days after receipt of the Blackout Notice. Such withdrawn registration request
shall not be treated as a Demand Registration effected pursuant to
Section 2.1 (and shall not be counted towards the number of Demand
Registrations effected by such Persons), and the Company shall pay all
Registration Expenses in connection therewith.


 


3.                                       HOLDBACK ARRANGEMENTS.


 


3.1.                              Restrictions on Sale by Holders of Registrable Securities. Each Holder of Registrable Securities
agrees, by acquisition of such Registrable Securities, if timely requested in
writing by the sole or lead managing Underwriter in an Underwritten Offering of
any Registrable Securities (other than in connection with an S-3 Registration),
not to make any short sale of, loan, grant any option for the purchase of or
effect any public sale or distribution, including a sale pursuant to Rule 144
(or any successor provision having similar effect) under the Securities Act of
any Registrable Securities or any other equity security of the Company (or any
security convertible into or exchangeable or exercisable for any equity
security of the Company) (except as part of such underwritten registration),
during the five business days (as such term is used in Regulation M under the
Exchange Act) prior to, and during the time period reasonably requested by the
sole or lead managing Underwriter not to exceed 90 days or, in the case of an
Initial Public Offering, 180 days beginning on the effective date of the applicable
Registration Statement, unless the sole or lead managing Underwriter in such
Underwritten Offering otherwise agrees; provided, however, that
to the extent the Company or the sole lead managing Underwriter releases any
other Person from the foregoing or equivalent restrictions in whole or in part
it shall, on the same day, notify the Holders of such release and such parties
shall automatically be released to the same extent. Such restriction shall be
subject to reasonable and customary exceptions, including, without limitation,
the right of a Holder to make transfers to certain Affiliates and transfers
related to Common Shares owned by Holders as a result of open market purchases
made following the closing of the Initial Public Offering.


 


3.2.                              Restrictions on Sale by the Company and Others. The Company agrees that if timely requested
in writing by the sole or lead managing Underwriter in an Underwritten Offering
of any Registrable Securities (other than in connection with an S-3
Registration), not to make any short sale of, loan, grant any option for the
purchase of or effect any public or private sale or distribution of any of the
Company’s equity securities (or any security convertible into or exchangeable
or exercisable for any of the Company’s equity securities) during the five
business days (as such term is used in Regulation M under the Exchange Act)
prior to, and during the time period reasonably requested by the sole or lead
managing Underwriter not to exceed 90 days or, in the case of an Initial Public
Offering, 180 days, beginning on the effective date of the applicable
Registration Statement (except as part of such underwritten registration or
pursuant to registrations on Forms S-4 or S-8 or any successor form to such
forms), unless the sole or lead Managing Underwriter in such Underwritten
Offering otherwise agrees. The Company will use its reasonable best efforts to
cause each


 


14
















 


director
and officer of the Company and each holder of 5% or more of the equity
securities (or any security convertible into or exchangeable or exercisable for
any of its equity securities) of the Company to so agree.


 


3.3.                              Confidentiality of Notices. Any Holder receiving any notice from the Company
regarding the Company’s plans to file a registration statement shall treat such
notice confidentially and shall not disclose such information to any person
other than as necessary to exercise its rights under this Agreement.


 


4.                                       REGISTRATION PROCEDURES.


 


4.1.                              Obligations of the Company. Whenever the Company is required to effect the registration of
Registrable Securities under the Securities Act pursuant to Section 2 of
this Agreement, the Company shall, as expeditiously as possible:


 


(a)                                  prepare and file with the SEC (promptly, and
in any event within 60 days after receipt of a request to register Registrable
Securities) the requisite Registration Statement to effect such registration,
which Registration Statement shall comply as to form in all material respects
with the requirements of the applicable form and include all financial
statements required by the SEC to be filed therewith, and the Company shall use
its best efforts to cause such Registration Statement to become effective (provided,
that the Company may discontinue any registration of its securities that are
not Registrable Securities, and, under the circumstances specified in
Section 2.2, its securities that are Registrable Securities); provided,
however, that before filing a Registration Statement or Prospectus or
any amendments or supplements thereto, or comparable statements under
securities or blue sky laws of any jurisdiction, the Company shall (i) provide
Holders’ Counsel and any other Inspector with an adequate and appropriate
opportunity to participate in the preparation of such Registration Statement
and each Prospectus included therein (and each amendment or supplement thereto
or comparable statement) to be filed with the SEC, which documents shall be
subject to the review and comment of Holders’ Counsel, and (ii) not file any
such Registration Statement or Prospectus (or amendment or supplement thereto
or comparable statement) with the SEC to which Holder’s Counsel, any selling
Holder or any other Inspector shall have reasonably objected on the grounds
that such filing does not comply in all material respects with the requirements
of the Securities Act or of the rules or regulations thereunder;


 


(b)                                 prepare and file with the SEC such amendments
and supplements to such Registration Statement and the Prospectus used in
connection therewith as may be necessary (i) to keep such Registration
Statement effective, and (ii) to comply with the provisions of the Securities
Act with respect to the disposition of all Registrable Securities covered by
such Registration Statement, in each case until such time as all of such
Registrable Securities have been disposed of in accordance with the intended
methods of disposition by the seller(s) thereof set forth in such Registration
Statement; provided, that except with respect to any Shelf Registration,
such period need not extend beyond nine months after the effective date of the
Registration Statement; and provided, further, that with respect
to any Shelf Registration, such period need not extend beyond the time period
provided in Section 2.3, and which periods, in any event, shall terminate
when all Registrable Securities covered by such Registration


 


15
















 


Statement
have been sold (but not before the expiration of the 90 day period referred to
in Section 4(3) of the Securities Act and Rule 174 thereunder, if
applicable);


 


(c)                                  furnish, without charge, to each selling
Holder of such Registrable Securities and each Underwriter, if any, of the
securities covered by such Registration Statement, such number of copies of
such Registration Statement, each amendment and supplement thereto (in each
case including all exhibits), and the Prospectus included in such Registration
Statement (including each preliminary Prospectus) in conformity with the
requirements of the Securities Act, and other documents, as such selling Holder
and Underwriter may reasonably request in order to facilitate the public sale
or other disposition of the Registrable Securities owned by such selling Holder
(the Company hereby consenting to the use in accordance with applicable law of
each such Registration Statement (or amendment or post-effective amendment
thereto) and each such Prospectus (or preliminary prospectus or supplement
thereto) by each such selling Holder of Registrable Securities and the
Underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by such Registration Statement or Prospectus);


 


(d)                                 prior to any public offering of Registrable
Securities, use its best efforts to register or qualify all Registrable
Securities and other securities covered by such Registration Statement under
such other securities or blue sky laws of such jurisdictions as any selling
Holder of Registrable Securities covered by such Registration Statement or the
sole or lead managing Underwriter, if any, may reasonably request to enable
such selling Holder to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such selling Holder and to continue such
registration or qualification in effect in each such jurisdiction for as long
as such Registration Statement remains in effect (including through new filings
or amendments or renewals), and do any and all other acts and things which may
be necessary or advisable to enable any such selling Holder to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
selling Holder; provided, however, that the Company shall not be
required to (i) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this Section 4.1(d),
(ii) subject itself to taxation in any such jurisdiction, or (iii) consent to
general service of process in any such jurisdiction;


 


(e)                                  use its best efforts to obtain all other
approvals, consents, exemptions or authorizations from such governmental
agencies or authorities as may be necessary to enable the selling Holders of
such Registrable Securities to consummate the disposition of such Registrable
Securities;


 


(f)                                    promptly notify Holders’ Counsel, each Holder
of Registrable Securities covered by such Registration Statement and the sole
or lead managing Underwriter, if any: (i) when the Registration Statement, any
pre-effective amendment, the Prospectus or any prospectus supplement related
thereto or post-effective amendment to the Registration Statement has been
filed and, with respect to the Registration Statement or any post-effective
amendment, when the same has become effective, (ii) of any request by the SEC
or any state securities or blue sky authority for amendments or supplements to
the Registration Statement or the Prospectus related thereto or for additional
information, (iii) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the


 


16
















 


initiation
or threat of any proceedings for that purpose, (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of any Registrable Securities for sale under the securities or blue sky laws of
any jurisdiction or the initiation of any proceeding for such purpose, (v) of
the existence of any fact of which the Company becomes aware or the happening
of any event which results in (A) the Registration Statement containing an
untrue statement of a material fact or omitting to state a material fact
required to be stated therein or necessary to make any statements therein not
misleading or (B) the Prospectus included in such Registration Statement
containing an untrue statement of a material fact or omitting to state a
material fact required to be stated therein or necessary to make any statements
therein, in the light of the circumstances under which they were made, not
misleading, (vi) if at any time the representations and warranties contemplated
by Section 2.5(b) cease to be true and correct in all material respects
and (vii) of the Company’s reasonable determination that a post-effective
amendment to a Registration Statement would be appropriate or that there exists
circumstances not yet disclosed to the public which make further sales under
such Registration Statement inadvisable pending such disclosure and
post-effective amendment; and, if the notification relates to an event described
in any of the clauses (ii) through (vii) of this Section 4.l(f), the
Company shall promptly prepare a supplement or post-effective amendment to such
Registration Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that (1) such
Registration Statement shall not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and (2) as thereafter
delivered to the purchasers of the Registrable Securities being sold
thereunder, such Prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein in the light of the circumstances
under which they were made not misleading (and shall furnish to each such
Holder and each Underwriter, if any, a reasonable number of copies of such
Prospectus so supplemented or amended); and if the notification relates to an
event described in clause (iii) of this Section 4.1(f), the Company shall
take all reasonable action required to prevent the entry of such stop order or
to remove it if entered;


 


(g)                                 make available for inspection by any selling
Holder of Registrable Securities, any sole or lead managing Underwriter
participating in any disposition pursuant to such Registration Statement,
Holders’ Counsel and any attorney, accountant or other agent retained by any
such seller or any Underwriter (each, an “Inspector” and, collectively,
the “Inspectors”), all financial and other records, pertinent corporate
documents and properties of the Company and any subsidiaries thereof as may be
in existence at such time (collectively, the “Records”) as shall be necessary,
in the opinion of such Holders’ and such Underwriters’ respective counsel, to
enable them to exercise their due diligence responsibility and to conduct a
reasonable investigation within the meaning of the Securities Act, and cause
the Company’s and any subsidiaries’ officers, directors and employees, and the
independent public accountants of the Company, to supply all information
reasonably requested by any such Inspectors in connection with such
Registration Statement; provided, however, that such inspection
shall be limited to a reasonable period of time within which to review such
material and information;


 


(h)                                 obtain an opinion from the Company’s counsel
and a “cold comfort” letter from the Company’s independent public accountants
who have certified the Company’s financial statements included or incorporated
by reference in such Registration


 


17
















 


Statement,
in each case dated the effective date of such Registration Statement (and if
such registration involves an Underwritten Offering, dated the date of the
closing under the underwriting agreement), in customary form and covering such
matters as are customarily covered by such opinions and “cold comfort” letters
delivered to underwriters in underwritten public offerings, which opinion and
letter shall be reasonably satisfactory to the sole or lead managing
Underwriter, if any, and to the Majority Holders of the Registration, and
furnish to each Holder participating in the offering and to each Underwriter,
if any, a copy of such opinion and letter addressed to such Holder (in the case
of the opinion) and Underwriter (in the case of the opinion and the “cold
comfort” letter);


 


(i)                                     provide a CUSIP number for all Registrable
Securities and provide and cause to be maintained a transfer agent and
registrar for all such Registrable Securities covered by such Registration
Statement not later than the effectiveness of such Registration Statement;


 


(j)                                     otherwise use its best efforts to comply with
all applicable rules and regulations of the SEC and any other governmental
agency or authority having jurisdiction over the offering, and make available
to its security holders, as soon as reasonably practicable but no later than 90
days after the end of any 12-month period, an earnings statement (i) commencing
at the end of any month in which Registrable Securities are sold to
Underwriters in an Underwritten Offering and (ii) commencing with the first day
of the Company’s calendar month next succeeding each sale of Registrable
Securities after the effective date of a Registration Statement, which
statement shall cover such 12-month periods, in a manner which satisfies the
provisions of Section 1l(a) of the Securities Act and Rule 158 thereunder;


 


(k)                                  if so requested by the Majority Holders of
the Registration, use its best efforts to cause all such Registrable Securities
to be listed (i) on each national securities exchange on which the Company’s
securities are then listed or (ii) if securities of the Company are not at the time
listed on any national securities exchange (or if the listing of Registrable
Securities is not permitted under the rules of each national securities
exchange on which the Company’s securities are then listed), on a national
securities exchange designated by the Majority Holders of the Registration;


 


(1)                                  keep each selling Holder of Registrable
Securities advised in writing as to the initiation and progress of any
registration under Section 2 hereunder;


 


(m)                               enter into and perform customary agreements
(including, if applicable, an underwriting agreement in customary form) and
provide officers’ certificates and other customary closing documents;


 


(n)                                 cooperate with each selling Holder of
Registrable Securities and each Underwriter participating in the disposition of
such Registrable Securities and their respective counsel in connection with any
filings required to be made with the NASD and make reasonably available its
employees and personnel and otherwise provide reasonable assistance to the
Underwriters (taking into account the needs of the Company’s businesses and the
requirements of the marketing process) in the marketing of Registrable
Securities in any Underwritten Offering;


 


18
















 


(o)                                 furnish to each Holder participating in the
offering and the sole or lead managing Underwriter, if any, without charge, at
least one manually-signed copy of the Registration Statement and any
post-effective amendments thereto, including financial statements and
schedules, all documents incorporated therein by reference and all exhibits
(including those deemed to be incorporated by reference);


 


(p)                                 cooperate with the selling Holders of
Registrable Securities and the sole or lead managing Underwriter, if any, to
facilitate the timely preparation and delivery of certificates not
bearing any restrictive legends representing the Registrable Securities to be
sold, and cause such Registrable Securities to be issued in such denominations
and registered in such names in accordance with the underwriting agreement
prior to any sale of Registrable Securities to the Underwriters or, if not an
Underwritten Offering, in accordance with the instructions of the selling
Holders of Registrable Securities at least three business days prior to any sale
of Registrable Securities;


 


(q)                                 if requested by the sole or lead managing
Underwriter or any selling Holder of Registrable Securities, immediately
incorporate in a prospectus supplement or post-effective amendment such
information concerning such Holder of Registrable Securities, the Underwriters
or the intended method of distribution as the sole or lead managing Underwriter
or the selling Holder of Registrable Securities reasonably requests to be
included therein and as is appropriate in the reasonable judgment of the
Company, including, without limitation, information with respect to the number
of shares of the Registrable Securities being sold to the Underwriters, the
purchase price being paid therefor by such Underwriters and with respect to any
other terms of the Underwritten Offering of the Registrable Securities to be
sold in such offering; make all required filings of such Prospectus supplement
or post-effective amendment as soon as notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment; and
supplement or make amendments to any Registration Statement if requested by the
sole or lead managing Underwriter of such Registrable Securities;


 


(r)                                    cause appropriate officers as are requested by a managing Underwriter to
participate in a “road show” or similar marketing effort being conducted by
such underwriter with respect to an Underwritten Offering; and


 


(s)                                  use its best efforts to take all other steps
necessary to expedite or facilitate the registration and disposition of the
Registrable Securities contemplated hereby.


 


4.2.                              Seller Information.  (a)  The Company may require each selling Holder
of Registrable Securities as to which any registration is being effected to
furnish to the Company such information regarding such Holder, such Holder’s
Registrable Securities and such Holder’s intended method of disposition as the
Company may from time to time reasonably request in writing; provided
that such information shall be used only in connection with such registration.


 


(b)                                 If any Registration Statement or comparable
statement under “blue sky” laws refers to any Holder by name or otherwise as
the Holder of any securities of the Company, then such Holder shall have the
right to require (i) the insertion therein of


 


19
















 


language,
in form and substance satisfactory to such Holder and the Company, to the
effect that the holding by such Holder of such securities is not to be
construed as a recommendation by such Holder of the investment quality of the
Company’s securities covered thereby and that such holding does not imply that
such Holder will assist in meeting any future financial requirements of the
Company, and (ii) in the event that such reference to such Holder by name or
otherwise is not in the judgment of the Company, as advised by counsel,
required by the Securities Act or any similar federal statute or any state
“blue sky” or securities law then in force, the deletion of the reference to
such Holder.


 


4.3.                              Notice to Discontinue. Each Holder of Registrable Securities
agrees by acquisition of such Registrable Securities that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 4.1(f)(ii) through (vii), such Holder shall forthwith discontinue
disposition of Registrable Securities pursuant to the Registration Statement
covering such Registrable Securities until such Holder’s receipt of the copies
of the supplemented or amended prospectus contemplated by Section 4.1(f)
and, if so directed by the Company, such Holder shall deliver to the Company
(at the Company’s expense) all copies, other than permanent file copies, then
in such Holder’s possession of the Prospectus covering such Registrable
Securities which is current at the time of receipt of such notice. If the
Company shall give any such notice, the Company shall extend the period during
which such Registration Statement shall be maintained effective pursuant to
this Agreement (including, without limitation, the period referred to in
Section 4.1(b)) by the number of days during the period from and including
the date of the giving of such notice pursuant to Section 4.1(f) to and
including the date when the Holder shall have received the copies of the supplemented
or amended prospectus contemplated by and meeting the requirements of
Section 4.1(f).


 


5.                                       INDEMNIFICATION; CONTRIBUTION.


 


5.1.                              Indemnification
by the Company. The Company agrees to indemnify and hold
harmless, to the fullest extent permitted by law, each Holder of Registrable
Securities, its officers, directors, partners, members, shareholders,
employees, Affiliates and agents (collectively, “Agents”) and each
Person who controls such Holder (within the meaning of the Securities Act) and
its Agents with respect to each registration which has been effected pursuant
to this Agreement, against any and all losses, claims, damages or liabilities,
joint or several, actions or proceedings (whether commenced or threatened) in
respect thereof, and expenses (as incurred or suffered and including, but not
limited to, any and all expenses incurred in investigating, preparing or
defending any litigation or proceeding, whether commenced or threatened, and
the reasonable fees, disbursements and other charges of legal counsel) in
respect thereof (collectively, “Claims”), insofar as such Claims arise
out of or are based upon any untrue or alleged untrue statement of a material
fact contained in any Registration Statement or Prospectus (including any
preliminary, final or summary prospectus and any amendment or supplement
thereto) related to any such registration or any omission or alleged omission
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or any violation by the Company of the
Securities Act or any rule or regulation thereunder applicable to the Company
and relating to action or inaction required of the Company in connection with
any such registration, or any qualification or compliance incident thereto; provided,
however, that the Company will not be liable in any such case to the
extent that any such Claims arise out of or are based upon any untrue statement
or alleged untrue statement of a


 


20
















 


material
fact or omission or alleged omission of a material fact so made in reliance
upon and in conformity with written information furnished to the Company in an
instrument duly executed by such Holder specifically stating that it was
expressly for use therein. The Company shall also indemnify any Underwriters of
the Registrable Securities, their Agents and each Person who controls any such
Underwriter (within the meaning of the Securities Act) to the same extent as
provided above with respect to the indemnification of the Holders of
Registrable Securities. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of any Person who may be
entitled to indemnification pursuant to this Section 5 and shall survive
the transfer of securities by such Holder or Underwriter.


 


5.2.                              Indemnification
by Holders. Each Holder, if Registrable Securities held
by it are included in the securities as to which a registration is being
effected, agrees to, severally and not jointly, indemnify and hold harmless, to
the fullest extent permitted by law, the Company, its directors and officers,
each other Person who participates as an Underwriter in the offering or sale of
such securities and its Agents and each Person who controls the Company or any
such Underwriter (within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act) and its Agents against
any and all Claims, insofar as such Claims arise out of or are based upon any
untrue or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus (including any preliminary, final or
summary prospectus and any amendment or supplement thereto) related to such
registration, or any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company in an instrument duly executed by such Holder specifically stating that
it was expressly for use therein; provided, however, that the
aggregate amount which any such Holder shall be required to pay pursuant to
this Section 5.2 shall in no event be greater than the amount of the net
proceeds received by such Holder upon the sale of the Registrable Securities
sold by such Holder pursuant to the Registration Statement giving rise to such
Claims less all amounts previously paid by such Holder with respect to any such
Claims. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such indemnified party and shall survive
the transfer of such securities by such Holder or Underwriter.


 


5.3.                              Conduct
of Indemnification Proceedings. Promptly after receipt by an indemnified
party of notice of any Claim or the commencement of any action or proceeding
involving a Claim under this Section 5, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party pursuant
to Section 5, (i) notify the indemnifying party in writing of the Claim or
the commencement of such action or proceeding; provided, that the
failure of any indemnified party to provide such notice shall not relieve the
indemnifying party of its obligations under this Section 5, except to the
extent the indemnifying party is materially and actually prejudiced thereby and
shall not relieve the indemnifying party from any liability which it may have
to any indemnified party otherwise than under this Section 5, and (ii)
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party; provided, however,
that any indemnified party shall have the right to employ separate counsel and
to participate in the defense of such claim, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (A) the
indemnifying party has agreed in writing to pay such fees and expenses, (B) the


 


21
















 


indemnifying
party shall have failed to assume the defense of such claim and employ counsel
reasonably satisfactory to such indemnified party within 10 days after
receiving notice from such indemnified party that the indemnified party
believes it has failed to do so, (C) in the reasonable judgment of any such
indemnified party, based upon advice of counsel, a conflict of interest may
exist between such indemnified party and the indemnifying party with respect to
such claims (in which case, if the indemnified party notifies the indemnifying
party in writing that it elects to employ separate counsel at the expense of
the indemnifying party, the indemnifying party shall not have the right to
assume the defense of such claim on behalf of such indemnified party) or (D)
such indemnified party is a defendant in an action or proceeding which is also
brought against the indemnifying party and reasonably shall have concluded that
there may be one or more legal defenses available to such indemnified party
which are not available to the indemnifying party. No indemnifying party shall
be liable for any settlement of any such claim or action effected without its written
consent, which consent shall not be unreasonably withheld. In addition, without
the consent of the indemnified party (which consent shall not be unreasonably
withheld), no indemnifying party shall be permitted to consent to entry of any
judgment with respect to, or to effect the settlement or compromise of any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is
an actual or potential party to such action or claim), unless such settlement,
compromise or judgment (1) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim, (2) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party, and (3) does not provide for any
action on the part of any party other than the payment of money damages which
is to be paid in full by the indemnifying party.


 


5.4.                              Contribution.
If the indemnification provided for in Section 5.1 or 5.2 from the
indemnifying party for any reason is unavailable to (other than by reason of
exceptions provided therein), or is insufficient to hold harmless, an
indemnified party hereunder in respect of any Claim, then the indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such Claim in
such proportion as is appropriate to reflect the relative fault of the indemnifying
party, on the one hand, and the indemnified party, on the other hand, in
connection with the actions which resulted in such Claim, as well as any other
relevant equitable considerations. The relative fault of such indemnifying
party and indemnified party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact, has been made by, or relates to information supplied by, such
indemnifying party or indemnified party, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
action. If, however, the foregoing allocation is not permitted by applicable law,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative faults but also the relative benefits of the indemnifying party
and the indemnified party as well as any other relevant equitable
considerations.


 


The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5.4 were determined by pro  rata
allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by a party as a result of any


 


22
















 


Claim
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth in Section 5.3, any legal or other
fees, costs or expenses reasonably incurred by such party in connection with
any investigation or proceeding. Notwithstanding anything in this
Section 5.4 to the contrary, no indemnifying party (other than the
Company) shall be required pursuant to this Section 5.4 to contribute any
amount in excess of the net proceeds received by such indemnifying party from
the sale of the Registrable Securities sold by such indemnifying party pursuant
to the Registration Statement giving rise to such Claims, less all amounts
previously paid by such indemnifying party with respect to such Claims. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.


 


5.5.                              Other
Indemnification. Indemnification similar to that specified
in the preceding Sections 5.1 and 5.2 (with appropriate modifications) shall be
given by the Company and each selling Holder of Registrable Securities with
respect to any required registration or other qualification of securities under
any Federal or state law or regulation of any governmental authority, other
than the Securities Act. The indemnity agreements contained herein shall be in
addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract.


 


5.6.                              Indemnification
Payments. The indemnification and contribution
required by this Section 5 shall be made by periodic payments of the
amount thereof during the course of any investigation or defense, as and when
bills are received or any expense, loss, damage or liability is incurred.


 


6.                                       GENERAL.


 


6.1.                              Adjustments Affecting Registrable Securities. The Company agrees that it shall not effect
or permit to occur any combination or subdivision of shares which would
adversely affect the ability of the Holder of any Registrable Securities to
include such Registrable Securities in any registration contemplated by this
Agreement or the marketability of such Registrable Securities in any such
registration.


 


6.2.                              Registration
Rights to Others. The Company has not previously entered into
an agreement with respect to its securities granting any registration rights to
any Person and agrees that from and after the date of this Agreement, it shall
not, without the prior written consent of the Holders of at least 87% of the
Registrable Securities then outstanding, enter into any agreement (or amendment
or waiver of the provisions of any agreement) with any holder or prospective
holder of any securities of the Company that would grant such holder
registration rights that are more favorable or senior to those granted to the
Investor Holders. If the Company shall at any time hereafter provide to any
holder of any securities of the Company rights with respect to the registration
of such securities under the Securities Act, (i) such rights shall not be in
conflict with or adversely affect any of the rights provided in this Agreement
to the Investor Holders and (ii) if such rights are provided on terms or
conditions more favorable to such holder than the terms and conditions provided
in this Agreement, the Company shall


 


23
















 


provide
(by way of amendment to this Agreement or otherwise) such more favorable terms
or conditions to the Investor Holders.


 


6.3.                              Availability of Information; Rule 144; Rule 144A; Other
Exemptions. So long as the
Company shall not have filed a registration statement pursuant to
Section 12 of the Exchange Act or a registration statement pursuant to the
requirements of the Securities Act, the Company shall, at any time and from
time to time, upon the request of any Holder of Registrable Securities and upon
the request of any Person designated by such Holder as a prospective purchaser
of any Registrable Securities, furnish in writing to such Holder or such
prospective purchaser, as the case may be, a statement as of a date not earlier
than 12 months prior to the date of such request of the nature of the business
of the Company and the products and services it offers and copies of the
Company’s most recent balance sheet and profit and loss and retained earnings
statements, together with similar financial statements for such part of the two
preceding fiscal years as the Company shall have been in operation, all such
financial statements to be audited to the extent audited statements are
reasonably available, provided that, in any event the most recent
financial statements so furnished shall include a balance sheet as of a date
less than 16 months prior to the date of such request, statements of profit and
loss and retained earnings for the 12 months preceding the date of such balance
sheet, and, if such balance sheet is not as of a date less than 6 months prior
to the date of such request, additional statements of profit and loss and
retained earnings for the period from the date of such balance sheet to a date
less than 6 months prior to the date of such request. If the Company shall have
filed a registration statement pursuant to the requirements of Section 12
of the Exchange Act or a registration statement pursuant to the requirements of
the Securities Act, the Company covenants that it shall timely file any reports
required to be filed by it under the Securities Act or the Exchange Act
(including, but not limited to, the reports under Sections 13 and 15(d) of the
Exchange Act referred to in subparagraph (c) of Rule 144 under the Securities
Act), and that it shall take such further action as any Holder of Registrable
Securities may reasonably request, all to the extent required from time to time
to enable such Holder to sell Registrable Securities without registration under
the Securities Act within the limitation of the exemptions provided by (i) Rule
144 and Rule 144A under the Securities Act, as such rules may be amended from
time to time, or (ii) any other rule or regulation now existing or hereafter
adopted by the SEC. Upon the request of any Holder of Registrable Securities,
the Company shall deliver to such Holder a written statement as to whether it
has complied with such requirements.


 


6.4.                              Amendments and Waivers. The provisions of this Agreement may not be amended, modified,
supplemented or terminated, and waivers or consents to departures from the
provisions hereof may not be given, without the written consent of the Company,
and the Holders of a majority of the Registrable Securities; provided, however,
that no such amendment, modification, supplement, waiver or consent to
departure shall reduce the aforesaid percentage of Registrable Securities
required under this Section 6.4 without the written consent of all of the
Holders of Registrable Securities; and provided, further, that
nothing herein shall prohibit any amendment, modification, supplement,
termination, waiver or consent to departure the effect of which is limited only
to those Holders who have agreed to such amendment, modification, supplement,
termination, waiver or consent to departure.


 


6.5.                              Notices. All notices and other
communications provided for or permitted hereunder to any party shall deemed to
be sufficient if contained in a written


 


24
















 


instrument
and shall be deemed to have been duly given when delivered in person, by
telecopy, by facsimile, by nationally-recognized overnight courier, or by first
class registered or certified mail, postage prepaid, addressed to such party at
the address set forth below or such other address as may hereafter be
designated in writing by the addressee as follows:


 


	
  (i)

  	
  If
  to the Company, to:

  
	
   

  	
   

  
	
   

  	
  BlueLinx
  Corporation

  
	
   

  	
  c/o
  Cerberus Capital Management, L.P.

  
	
   

  	
  299
  Park Avenue

  
	
   

  	
  New
  York, New York 10171

  
	
   

  	
  Attention:
  Lenard Tessler

  
	
   

  	
  Fax
  No.: (212) 755-3009

  
	
   

  	
   

  
	
   

  	
  With
  a copy to:

  
	
   

  	
   

  
	
   

  	
  Schulte
  Roth & Zabel LLP

  
	
   

  	
  919
  Third Avenue

  
	
   

  	
  New
  York, New York 10022

  
	
   

  	
  Attn:
  Stuart D. Freedman, Esq.

  
	
   

  	
  Fax
  No.: (212) 593-5955

  
	
   

  	
   

  
	
  (ii)

  	
  If
  to Cerberus:

  
	
   

  	
   

  
	
   

  	
  Cerberus
  ABP Investor LLC

  
	
   

  	
  c/o
  Cerberus Capital Management, L.P.

  
	
   

  	
  299
  Park Avenue

  
	
   

  	
  New
  York, New York 10171

  
	
   

  	
  Attention:
  Lenard Tessler

  
	
   

  	
  Fax
  No.: (212) 755-3009

  
	
   

  	
   

  
	
   

  	
  With
  a copy to:

  
	
   

  	
   

  
	
   

  	
  Schulte
  Roth & Zabel LLP

  
	
   

  	
  919
  Third Avenue

  
	
   

  	
  New
  York, New York 10022

  
	
   

  	
  Attn:
  Stuart D. Freedman, Esq.

  
	
   

  	
  Fax
  No.: (212) 593-5955

  
	
   

  	
   

  
	
  (iii)

  	
  If
  to the Management Holders, to the address of such Management Holders set
  forth in the records of the Company.

  
	
   

  	
   

  
	
  (iv)

  	
  If
  to any subsequent Holder, to the address of such Person set forth in the
  records of the Company.

  



 


All
such notices, requests, consents and other communications shall be deemed to
have been delivered (a) in the case of personal delivery or delivery by
telecopy or confirmed facsimile, on the date of such delivery, (b) in the case
of nationally-recognized overnight courier,


 


25
















 


on
the next business day and (c) in the case of mailing, on the third business day
following such mailing if sent by certified mail, return receipt requested.


 


6.6.                              Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, successors and permitted assigns
(including any permitted transferee of Registrable Securities). Any Holder may
assign to any transferee of its Registrable Securities (other than a transferee
that acquires such Registrable Securities in a registered public offering or
pursuant to a sale under Rule 144 of the Securities Act (or any successor rule)),
its rights and obligations under this Agreement; provided, however,
if any transferee shall take and hold Registrable Securities, such transferee
shall promptly notify the Company and by taking and holding such Registrable
Securities such transferee shall automatically be entitled to receive the
benefits of and be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement as if it were a party
hereto (and shall, for all purposes, be deemed a Holder under this Agreement).
If the Company shall so request, any heir, successor or assign (including any
transferee) shall agree in writing to acquire and hold the Registrable
Securities subject to all of the terms hereof. For purposes of this Agreement,
“successor” for any entity other than a natural person shall mean a successor
to such entity as a result of such entity’s merger, consolidation, sale of
substantially all of its assets, or similar transaction. Except as provided
above or otherwise permitted by this Agreement, neither this Agreement nor any
right, remedy, obligation or liability arising hereunder or by reason hereof
shall be assignable by any Holder or by the Company without the consent of the
other parties hereto.


 


6.7.                              Counterparts.
This Agreement may be executed in two or more counterparts, each of which, when
so executed and delivered, shall be deemed to be an original, but all of which
counterparts, taken together, shall constitute one and the same instrument.


 


6.8.                              Descriptive
Headings, Etc. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein. Unless the context of this Agreement
otherwise requires: (i) words of any gender shall be deemed to include each
other gender; (ii) words using the singular or plural number shall also include
the plural or singular number, respectively; (iii) the words “hereof, “herein”
and “hereunder” and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement, and Section and paragraph references are to the Sections and
paragraphs of this Agreement unless otherwise specified; (iv) the word
“including” and words of similar import when used in this Agreement shall mean
“including, without limitation,” unless otherwise specified; (v) “or” is not
exclusive; and (vi) provisions apply to successive events and transactions.


 


6.9.                              Severability.
In the event that any one or more of the provisions, paragraphs, words,
clauses, phrases or sentences contained herein, or the application thereof in
any circumstances, is held invalid, illegal or unenforceable in any respect for
any reason, the validity, legality and enforceability of any such provision,
paragraph, word, clause, phrase or sentence in every other respect and of the
other remaining provisions, paragraphs, words, clauses, phrases or sentences
hereof shall not be in any way impaired, it being intended that all rights,
powers and privileges of the parties hereto shall be enforceable to the fullest
extent permitted by law.


 


26
















 


6.10.                        Governing Law. This Agreement will be governed by and construed in accordance with
the domestic laws of the State of Georgia, without giving effect to any choice
of law or conflicting provision or rule (whether of the State of Georgia, or
any other jurisdiction) that would cause the laws of any jurisdiction other
than the State of Georgia to be applied. In furtherance of the foregoing, the
internal laws of the State of Georgia will control the interpretation and
construction of this Agreement, even if under such jurisdiction’s choice of law
or conflict of law analysis, the substantive law of some other jurisdiction would
ordinarily apply.


 


6.11.                        Consent to Jurisdiction. Each of the parties hereto irrevocably and
unconditionally submits to the exclusive jurisdiction of (a) the State Court of
Georgia, Fulton County and (b) the United States District Court for the
Northern District of Georgia located in Atlanta, Georgia, for the purposes of
any suit, action or other proceeding arising out of this Agreement or any
transaction contemplated hereby. Each of the parties hereto further agrees that
service of any process, summons, notice or document by U.S. registered mail to
such party’s respective address set forth in Section 6.5 shall be
effective service of process for any action, suit or proceeding in Georgia with
respect to any matters to which it has submitted to jurisdiction as set forth
above in the immediately preceding sentence. Each of the parties hereto
irrevocably and unconditionally waives any objection to the laying of venue of
any action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby in (a) the State Court of Georgia, Fulton
County, or (b) the United States District Court for the Northern District of
Georgia located in Atlanta, Georgia, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.


 


6.12.                        Waiver of Jury Trial. THE COMPANY AND EACH OF THE HOLDERS HEREBY
WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY
LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF
THIS AGREEMENT OR THE VALIDITY, INTERPRETATION OR ENFORCEMENT HEREOF. THE
COMPANY AND EACH OF THE HOLDERS AGREE THAT THIS SECTION IS A SPECIFIC AND
MATERIAL ASPECT OF THIS AGREEMENT AND WOULD NOT ENTER INTO THIS AGREEMENT IF
THIS SECTION WERE NOT PART OF THIS AGREEMENT.


 


6.13.                        Remedies; Specific Performance. The parties hereto acknowledge that money
damages would not be an adequate remedy at law if any party fails to perform in
any material respect any of its obligations hereunder and accordingly agree
that each party, in addition to any other remedy to which it may be entitled at
law or in equity, shall be entitled to seek to compel specific performance of
the obligations of any other party under this Agreement, without the posting of
any bond, in accordance with the terms and conditions of this Agreement in any
court of the United States or any State thereof having jurisdiction, and if any
action should be brought in equity to enforce any of the provisions of this
Agreement, none of the parties hereto shall raise the defense that there is an
adequate remedy at law. No remedy shall be exclusive of any other remedy. All
available remedies shall be cumulative.


 


6.14.                        Entire Agreement. This Agreement is intended by the parties as a final expression of
their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained


 


27
















 


herein.
There are no restrictions, promises, representations, warranties, covenants or
undertakings relating to such subject matter, other than those set forth or
referred to herein. This Agreement supersedes all prior agreements and
understandings between the Company and the other parties to this Agreement with
respect to such subject matter.


 


6.15.                        Nominees for Beneficial Owners. In the event that any Registrable
Securities are held by a nominee for the beneficial owner thereof, the
beneficial owner thereof may, at its election in writing delivered to the
Company, be treated as the holder of such Registrable Securities for purposes
of any request or other action by any holder or holders of Registrable Securities
pursuant to this Agreement or any determination of any number or percentage of
shares of Registrable Securities held by any holder or holders of Registrable
Securities contemplated by this Agreement. If the beneficial owner of any
Registrable Securities so elects, the Company may require assurances reasonably
satisfactory to it of such owner’s beneficial ownership of such Registrable
Securities.


 


6.16.                        Further Assurances. Each party hereto shall do and perform or cause to be done and
performed all such further acts and things and shall execute and deliver all
such other agreements, certificates, instruments and documents as any other
party hereto reasonably may request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.


 


6.17.                        No Inconsistent Agreements.
The Company will not hereafter enter into any agreement which is inconsistent
with the rights granted to the Holders in this Agreement.


 


6.18.                        Construction.
The Company and the Initial Holders acknowledge that each of them has had the
benefit of legal counsel of its own choice and has been afforded an opportunity
to review this Agreement with its legal counsel and that this Agreement shall
be construed as if jointly drafted by the Company and the Initial Holders.


 


[Remainder of this page intentionally left blank. Signature page
follows.]


 


28
















 


IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first written above.


 


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  ABP DISTRIBUTION HOLDINGS
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ David S. Morris

  
	
   

  	
   

  	
   

  	
   

  	
  Name: David S. Morris

  
	
   

  	
   

  	
   

  	
   

  	
  Title:   CFO
  & Treasurer

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  INVESTORS:

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  CERBERUS ABP INVESTOR LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Lenard Tessler

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Name: Lenard Tessler

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title   
  Managing Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
										



 


 


 
















 


	
   

  	
  MANAGEMENT
  HOLDERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Charles McElrea

  	
   

  
	
   

  	
  Charles McElrea

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ George Judd

  	
   

  
	
   

  	
  George Judd

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  David Morris

  	
   

  
	
   

  	
  David
  Morris

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  James Herbig

  	
   

  
	
   

  	
  James
  Herbig

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  Wayne Wiggleton

  	
   

  
	
   

  	
  Wayne
  Wiggleton

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Steven Hardin

  	
   

  
	
   

  	
  Steven
  Hardin