Exhibit 4.7


 


EXECUTION COPY


 


 




 





 


 


 


 


 


EXECUTIVE PURCHASE AGREEMENT


by and among


ABP DISTRIBUTION
HOLDINGS INC.,


CERBERUS ABP INVESTOR LLC


and


CHARLES H. McELREA


Dated as of May 7, 2004




 




















 


EXECUTIVE PURCHASE AGREEMENT


This Executive Purchase
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 Charles H. McElrea (the “Purchaser”).


W  I  T  N  E  S  S
E  T  H:


WHEREAS, the Company desires
to sell to the Purchaser the number of (i) the Company’s common shares (the “Common
Shares”) set forth opposite the Purchaser’s name on Schedule 1
hereto, and the Purchaser desires to purchase the Common Shares upon the terms
and conditions set forth in this Agreement.


NOW, THEREFORE, in
consideration of the mutual covenants and agreements herein contained and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:


1.             Definitions.


“Asset Purchase Agreement” shall mean that
certain Asset Purchase Agreement, dated March 12, 2004, by and among BlueLinx
Corporation (f/k/a ABP Distribution Inc.), Georgia-Pacific Corporation and Georgia-Pacific
Building Materials Sales, Ltd.


“Board” shall mean the Company’s board of
directors.


“Cause” shall have the meaning given to such
term in the Severance Agreement.


“Cerberus Investor Holders” shall mean
Cerberus and any Permitted Transferees thereof, directly or indirectly, for so
long as such Person owns any Common Shares.


“Change of Control” shall have the meaning
given to such term in the Stockholders Agreement.


“Closing” shall have the meaning given to
such term in Section 2.2 of this Agreement.


“Closing Date” shall mean May 7, 2004.


“Disability” shall have the meaning given to
such term in the Severance Agreement.


“Fair Market Value” shall mean the fair
market value of the Common Shares shall be calculated for each calendar year
during the first 120 days of such calendar year and such calculation shall be
applicable for the entire calendar year; provided, that if the Board
determines in good faith that events or conditions have materially affected the
Fair Market Value following


 


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such
determination, Fair Market Value at the option of the Board shall be
re-calculated at any time during a calendar year, and such calculation shall
supersede the prior calculation and thereafter be applicable; provided, further
that each such calculation shall be performed by a nationally recognized
investment bank or valuation firm as shall be selected by the Board.


“Good Reason” shall have the meaning given to
such term in the Severance Agreement.


“Initial Public Offering” shall have the
meaning given to such term in the Stockholders Agreement.


“Option Plan” shall mean the option plan or
plans of the Company in effect from time to time as approved by the Board of
Directors.


“Performance Target” shall mean the
performance based goal or objective to be achieved by the Company as determined
by the Board, based on the Company’s business plan, on a yearly and cumulative
basis. The Performance Target for 2004 shall be based on achievement of the
2004 business plan, and the Performance Target for 2005, 2006 and 2007 shall be
established by the Board, in its sole discretion, based on the annual budgets
approved by the Board for such years.


“Permitted Transferee” shall have the meaning
given to such term in the Stockholders Agreement.


“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.


“Purchase Notice” shall have the meaning
given to such term in Section 4(b) of this Agreement.


“Purchase Price” shall have the meaning given
to such term in Section 2.1 of this Agreement.


“Registration Rights Agreement” shall mean
that certain Registration Rights Agreement, dated as of the Closing Date, by
and among the Company and the other stockholders party thereto.


“Repurchaser” shall have the meaning given to
such term in Section 4(c) of this Agreement.


“Severance Agreement” shall mean the
Severance Agreement between the Purchaser and the Company dated as of the date
hereof.


“Stockholders Agreement” shall mean that
certain Stockholders Agreement, dated as of the Closing Date, by and among the
Company and the stockholders party thereto.


 


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“Transaction Documents” shall mean this
Agreement, the Stockholders Agreement and the Registration Rights Agreement.


“Unvested Shares” shall mean any Common
Shares that are not Vested Shares.


“Vested
Shares” shall mean (A) with respect to 50% of the Common Shares (i) for the
period from the date hereof up to the first anniversary of the date hereof,
none of such Common Shares, (ii) for the period from the first anniversary of
the date hereof up to the second anniversary of the date hereof, 1/3 of such
Common Shares, (iii) for the period from the second anniversary of the date
hereof up to the third anniversary of the date hereof, 2/3 of such Common
Shares, and (iv) for the period from and after the third anniversary of the
date hereof, 100% of such Common Shares, in each case subject to Purchaser
remaining employed by the Company in good standing on each applicable
anniversary date, and (B) with respect to the other 50% of the Common Shares,
(i) for the period from the date hereof up to December 31, 2004, none of such
Common Shares, (ii) for the period from December 31, 2004 up to December 31,
2005, 25% of such Common Shares, (iii) for the period from December 31, 2005 up
to December 31, 2006, 50% of such Common Shares, (iv) for the period from
December 31, 2006 up to December 31, 2007, 75% of such Common Shares and (iv)
for the period from and after December 31, 2007, 100% of such Common Shares, in
each case subject to the Company’s attainment of the “Performance Target” for
each such year and subject to the Purchaser remaining employed by the Company
in good standing on each applicable anniversary date; provided, however,
that in the event the Company does not attain the Performance Target for one
year, but achieves on a cumulative basis the combined Performance Targets with
respect to the previous year and the current year, all Common Shares not yet
vested for the previous year and all Common Shares subject to vesting for the
current year shall be considered Vested Shares.  Notwithstanding anything to the contrary in the preceding
sentence, 100% of such Common Shares shall become Vested Shares upon a Change
of Control or an Initial Public Offering.


2.             Sale and Purchase of Shares; Closing.


                2.1.          Sale and Transfer
of Shares.


(a)           Upon the terms and subject to the
conditions set forth in this Agreement, on the Closing Date (as defined below)
the Company hereby agrees to sell to the Purchaser and the Purchaser hereby
agrees to purchase from the Company, the Common Shares set forth opposite the
Purchaser’s name on Schedule 1 hereto for the aggregate purchase
price set forth opposite the Purchaser’s name on Schedule 1 hereto
(the “Purchase Price”).


(b)           At the Closing (as defined below),
the Company shall deliver to the Purchaser duly executed certificates
registered in the Purchaser’s name and representing the Common Shares purchased
by the Purchaser, against the Purchaser’s payment of the Purchase Price.


2.2.          Closing.  Upon the terms and subject to the conditions
set forth in this Agreement, the closing of the sale and purchase of the Common
Shares (the “Closing”) shall take place at the offices of Schulte Roth
& Zabel LLP, 919 Third Avenue, New York, New York on the Closing Date.


 


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                2.3.          Payment.  At
the Closing, the Purchaser shall pay the Company the Purchase Price by check or
by wire transfer to the account of the Company (designated in writing at least
two business days prior to the Closing Date).


3.             Transfers of Shares by the Purchaser.  The Common Shares may not be sold, disposed
of or otherwise transferred by the Purchaser except in accordance with this
Agreement and the Stockholders Agreement. 
In the event that the Purchaser transfers all or any of the Common
Shares to a person other than the Company or the Cerberus Investor Holders
(whether or not such person is a Permitted Transferee), such transferee shall be
obligated to comply with the provisions of this Agreement and the Stockholders
Agreement.


4.             Repurchase by the Company or the Cerberus Investor
Holders.  (a)  At any time within 90 days following the
Purchaser’s (i) death, (ii) termination of employment with the Company as a
result of Disability, (iii) termination of employment by the Company
without Cause, (iv) resignation of employment with the Company for Good Reason,
(v) termination of employment by the Company for Cause or (vi) resignation of employment
with the Company without Good Reason, the Company shall have the right, but not
the obligation, to purchase from the Purchaser, and to cause the Purchaser to
sell to the Company, the Common Shares as follows:


                (A)          if such termination occurs pursuant to
clauses (v) or (vi) above, (1) the Unvested Shares for an amount equal to the
lesser of (x) the Fair Market Value of the Unvested Shares and (y) the purchase
price paid for the Unvested Shares by the Purchaser, payable in cash in a lump
sum upon the closing of the repurchase, and (2) the Vested Shares for the Fair
Market Value of such Common Shares, payable in cash in a lump sum upon the
closing of the repurchase; and


                (B)           if such termination occurs pursuant
to clauses (i), (ii), (iii) or (iv) above, all of the Vested and Unvested
Shares for an amount equal to the Fair Market Value of the Common Shares,
payable in cash in a lump sum upon the closing of the repurchase.


(b)           If the
Company does not exercise its right to repurchase the Common Shares pursuant to
Section 4(a) hereof, the Cerberus Investor Holders shall have the right, for a
period of 30 calendar days after the expiration of the applicable 90 day period set forth above,
to repurchase the Common Shares upon the terms and conditions set forth in Section
4(a) above.


(c)           (i) At
any time within 90 days following December 31, 2007, the Company may purchase
the Unvested Shares for an amount equal to the lesser of (x) the Fair Market
Value of such Unvested Shares
and (y) the purchase price paid for the Unvested Shares by the Purchaser,
payable in cash in a lump  sum upon
the closing of the repurchase.  (ii) If
the Company does not exercise its right to repurchase the Unvested Shares
pursuant to the foregoing clause (i), the Cerberus Investor Holders shall have
the right to repurchase the Unvested Shares upon the terms and conditions set
for in clause (i).


 


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(d)           Upon
the occurrence of an event that entitles the Company or the Cerberus Investor Holders (each, a “Repurchaser”) to purchase the
Common Shares pursuant to Sections 4(a) or (b) hereof, the Repurchaser may exercise its
election to purchase the Common Shares by written notice to the Purchaser (the
“Purchase Notice”) within the applicable time periods specified above,
such Purchase Notice to disclose the Fair Market Value of the Common
Shares.  The Repurchaser and the
Purchaser shall consummate such purchase on a date to be jointly determined by
the Repurchaser and the Purchaser (not later than 30 calendar days after the
delivery of the Purchase Notice) by delivery by the Purchaser of certificates
representing the Common Shares to be repurchased and by delivery of the
purchase price therefor by the Repurchaser by wire transfer.


5.             Representations and Warranties of the Purchaser.  The Purchaser hereby represents and warrants
to the Company as follows:


(a)           The Purchaser’s execution, delivery
and performance of the Transaction Documents do not and will not (i) result in
a violation of any applicable law, statute, rule or regulation or order,
injunction, judgment or decree of any court or other governmental or regulatory
authority to which the Purchaser is bound or subject (ii) conflict with, or
result in a breach of the terms, conditions or provisions of, constitute (or,
with due notice or lapse of time or both, would constitute) a default under, or
give rise to any right of termination, acceleration or cancellation under, any
agreement, contract, license, arrangement, understanding, evidence of
indebtedness, note, lease or other instrument to which the Purchaser or any of
his properties or assets are bound, or (iii) require any authorization,
consent, approval, exemption or other action by or notice to any third
party.  The Transaction Documents have
been duly executed and delivered by the Purchaser and upon due execution and
delivery by the Company and Cerberus will constitute the legal, valid and
binding obligations of the Purchaser enforceable against the Purchaser in
accordance with their terms, except as the enforcement may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors’ rights in general or by general principles of equity.


(b)           The Purchaser understands that the
Common Shares being purchased are characterized as “restricted securities”
under the federal securities laws inasmuch as they are being acquired from the
Company in a transaction not involving a public offering, are being offered and
sold without registration under the Securities Act of 1933, as amended (the “Securities
Act”) in a private placement that is exempt from the registration
provisions of the Securities Act and that under such laws and applicable
regulations such securities may be resold without registration under the
Securities Act only in limited circumstances. 
The Purchaser understands that it must bear the economic risk of the
acquisition of the Common Shares made in connection herewith for an indefinite
period of time (subject, however, to the Company’s obligation to repurchase the
Common Shares in accordance with the terms of this Agreement and to the
Company’s obligation to effect the registration of registrable securities in
accordance with the Registration Rights Agreement) because, among other
reasons, the Common Shares have not been registered under the Securities Act or
under the securities laws of any state and, therefore, cannot be resold,
assigned or otherwise disposed of unless they are subsequently registered under
the Securities Act and under the applicable securities laws of certain states
or an exemption from such registration is available.  The Purchaser further understands that the certificates
representing the Common Shares shall bear a legend in substantially the
following form:


 


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“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), THE GEORGIA SECURITIES
ACT OF 1973, AS AMENDED (THE “GEORGIA SECURITIES ACT”) OR UNDER ANY
STATE SECURITIES LAWS, IN RELIANCE UPON CERTAIN EXEMPTIVE PROVISIONS OF SAID
ACTS, INCLUDING SECTION 10-5-9(13) OF THE GEORGIA SECURITIES ACT.  SAID SECURITIES MAY NOT BE SOLD, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION
THEREUNDER AND IN COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS.”


The legend set forth
above shall be removed by the Company from any certificate evidencing Common
Shares, and the Company shall issue a certificate without such legend to the
Purchaser, if requested, upon delivery to the Company of an opinion by counsel
(which may be counsel for the Company) that a registration statement under the
Securities Act is at that time in effect with respect to the legended security
or that such security can be freely transferred in a public sale without such a
registration statement being in effect and that such transfer will not
jeopardize the exemption or exemptions from registration pursuant to which the
Company issued the Common Shares.


(c)           The Purchaser understands that the
Common Shares being purchased are subject to the Stockholders Agreement and
this Agreement.  The Purchaser further
understands that the certificates representing the Common Shares shall bear a
legend in substantially the following form:


“THE
TRANSFER OF THESE SECURITIES IS SUBJECT TO THE CONDITIONS SPECIFIED IN THE
STOCKHOLDERS AGREEMENT DATED AS OF MAY 7, 2004, AS IT MAY BE AMENDED FROM TIME
TO TIME, BY AND AMONG ABP
DISTRIBUTION HOLDINGS INC. (THE “COMPANY”) AND THE STOCKHOLDERS
PARTY THERETO AND THE EXECUTIVE PURCHASE AGREEMENT DATED AS OF MAY 7, 2004, AS
IT MAY BE AMENDED FROM TIME TO TIME, BY AND AMONG THE COMPANY, CERBERUS ABP
INVESTOR LLC AND THE PURCHASER THERETO, AND NO TRANSFER OF THESE SECURITIES
SHALL BE VALID OR EFFECTIVE UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED.  COPIES OF SUCH AGREEMENTS MAY BE OBTAINED AT
NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO
THE SECRETARY OF THE COMPANY.”


The legend set forth above
shall be removed by the Company from any certificate evidencing Common Shares,
and the Company shall issue a certificate without such legend to the Purchaser,
if requested, at such time when such Common Shares are no longer subject to the
Stockholders Agreement and this Agreement.


(d)           The Purchaser can bear the economic
risk of his investment in the Common Shares and has such knowledge and
experience in financial and business matters


 


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that he is capable of
evaluating the merits and the risks of the investment.  The Purchaser has been furnished with all
materials relating to the business, finances and operations of the Company
which have been requested, including, without limitation, all certificates, instruments,
agreements  and other documents defining
the rights, limitations and preferences of the Common Shares and the holders
thereof.  The Purchaser has conducted
his own investigation of the Company and is not relying on any representations
or warranties of the Company other than those expressly set forth herein.  The Purchaser understands that the Company
is under no obligation to register the Common Shares on the Purchaser’s behalf,
except as may be required pursuant to the Registration Rights Agreement.


(e)           The Purchaser is an “accredited
investor” within the meaning of Rule 501(a) of Regulation D promulgated under
the Securities Act or, to the extent the Purchaser is not an “accredited
investor”, another exemption from registration under the Securities Act applies
to the Purchaser’s purchase of Common Shares hereunder.


6.             Representations and Warranties of the Company.  The Company hereby represents and warrants
to the Purchaser as follows:


(a)           The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of
Georgia.  The Company has all requisite
corporate power and authority to execute, deliver and carry out the
transactions contemplated by the Transaction Documents, and to issue, sell and
deliver the Common Shares.


(b)           The Company’s (i) execution, delivery
and performance of the Transaction Documents, and (ii) offering, sale, issuance
and delivery of the Common Shares, have been duly authorized by the Company by
all requisite corporate action and do not and will not (A) result in the
violation of the organizational documents of the Company, (B) result in a
violation of any applicable law, statute, rule or regulation or order,
injunction, judgment or decree of any court or other governmental or regulatory
authority to which the Company is bound or subject, (C) conflict with, or
result in a breach of the terms, conditions or provisions of, constitute (or,
with due notice or lapse of time or both, would constitute) a default under, or
give rise to any right of termination, acceleration or cancellation under, any
agreement, contract, license, arrangement, understanding, evidence of
indebtedness, note, lease or other instrument to which the Company or any of
its properties or assets are bound, or (D) require any authorization, consent,
approval, exemption or other action by or notice to any third party. The
Transaction Documents have been duly executed and delivered by the Company and,
upon due execution and delivery by the Purchaser and Cerberus, will constitute
the legal, valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, except as the enforcement may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors’ rights in general or by general principles of equity.


(c)           A complete and correct copy of the
Company’s Articles of Incorporation, and all amendments thereto to the date
hereof, and By-Laws as presently in effect, are attached as Schedule 6(c)
hereto and shall not be changed or amended prior to Closing. As of the Closing,
the designations, powers, preferences, rights, qualifications, limitations and
restrictions with respect to each class and series of the Company’s authorized
capital stock will be as set forth in the Articles of Incorporation, as
amended, and the By-Laws, and all such


 


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designations, powers,
preferences, rights, qualifications, limitations and restrictions will be
valid, binding and enforceable and in accordance with all applicable laws.


(d)           As of the Closing Date, the
authorized share capital of the Company shall consist of (i) 25,000,000 Common
Shares, of which 20,000,000 shall be issued and outstanding, and (ii) 1,000,000
shares of Preferred Stock, of which 95,000 shall be designated Series A
Preferred Shares and which shall be issued and outstanding.  All of such issued and outstanding share
capital shall be validly issued, fully paid and non-assessable and shall be
free and clear of all liens, charges, restrictions, claims and encumbrances,
other than liens, charges, restrictions, claims and encumbrances that were
created by the holders thereof and restrictions on transfer imposed by this
Agreement, the Stockholders Agreement, the Securities Act and applicable state
securities laws.  Other than as set
forth in this Agreement and in the Stockholders Agreement, as of the Closing
Date, there shall be no outstanding options (other than pursuant to the Option
Plan), warrants, rights (including any
preemptive rights), subscriptions, stock appreciation rights, calls,
contracts, restrictions, arrangements, agreements, convertible or exchangeable
securities or other commitments or rights to purchase or acquire any of the
authorized but previously unissued share capital or other securities of the
Company.


(e)           Upon delivery to the Purchaser, the
Common Shares will be duly authorized, validly issued, fully paid and
non-assessable and shall be free and clear of all liens, charges, restrictions,
claims and encumbrances, other than liens, charges, restrictions, claims and
encumbrances that were created by the Purchaser and restrictions on transfer
imposed by this Agreement, the Stockholders Agreement, the Securities Act and
applicable state securities laws.


7.             Conditions. 
The obligations of the Purchaser, the Company and Cerberus pursuant to
this Agreement shall be subject to satisfaction of the following conditions on
the Closing Date:


(a)           The Company and the Purchaser shall
have duly executed and delivered the Stockholders Agreement substantially in
the form attached hereto as Exhibit A.


(b)           The Company and the Purchaser shall
have duly executed and delivered the Registration Rights Agreement
substantially in the form attached hereto as Exhibit B.


(c)           The representations and warranties of
the other parties under this Agreement shall be true, complete and correct at
and as of the Closing Date.


(d)           Each of the other parties shall have
performed and complied with all agreements and covenants contained herein
required to be performed or complied with by it prior to or at the Closing
Date.


(e)           Each of the other parties shall have
obtained any and all consents, waivers, registrations, approvals or
authorizations, with or by any governmental body and all consents, waivers,
approvals or authorizations of any other person required for the valid
execution of the Transaction Documents by such party and for the consummation
of the transactions contemplated hereby and thereby.


 


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(f)            No governmental body or any other
person shall have issued an order, injunction, judgment, decree, ruling or
assessment which shall then be in effect restraining or prohibiting the
completion of the transactions contemplated under any of the Transaction Documents,
nor shall any such order, injunction, judgment, decree, ruling or assessment be
pending or, to the Company’s or the Purchaser’s knowledge, threatened.


(g)           The Company and the Purchaser shall
have duly executed and delivered the Severance Agreement, if applicable.


8.             General.


                8.1.          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 each of the parties hereto.


                8.2.          Notices.  All notices and other communications
provided for or permitted hereunder to any party shall be deemed to be
sufficient if contained in a written instrument and shall be deemed to have
been duly given when delivered in person, 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:


(a)           If to the Company, to:


ABP Distribution Holdings Inc.


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


 


(b)           If to Cerberus, to


Cerberus ABP Investor LLC


c/o Cerberus Capital Management, L.P.


299
Park Avenue


New
York, New York  10171


Attention:  Lenard Tessler


 


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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


(c)           If to the Purchaser, to the address
of the Purchaser set forth on the signature page hereto.


All such notices, requests,
consents and other communications shall be deemed to have been delivered (i) in
the case of personal delivery or delivery by confirmed facsimile, on the date
of such delivery, (ii) in the case of nationally-recognized overnight courier,
on the next business day and (iii) in the case of mailing, on the third
business day following such mailing if sent by certified mail, return receipt
requested.


8.3.          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.  The Purchaser may not assign any of its rights or obligations
under this Agreement without the prior written consent of the Company.


8.4.          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.


8.5.          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.


8.6.          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


 


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rights, powers and
privileges of the parties hereto shall be enforceable to the fullest extent
permitted by law.


8.7.          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.


8.8.          Consent
to Jurisdiction.  Each of the
parties hereto irrevocably and unconditionally submits to the non-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 8.2 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.


8.9.          Termination.  This Agreement shall automatically terminate
upon a termination of the Asset Purchase Agreement in accordance with its
terms.


8.10.        Waiver
of Jury Trial.  THE PARTIES HERETO
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 PARTIES HERETO 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.


8.11.        Specific
Performance.  Each of the parties
hereto acknowledges and agrees that in the event of any breach of this
Agreement, the non-breaching party would be irreparably harmed and could not be
made whole by monetary damages.  It is
accordingly agreed that the parties hereto shall and do hereby waive the
defense in any action for specific performance that a remedy at law would be
adequate and that the parties hereto, in addition to any other remedy to which
they may be entitled at law or in equity, shall be entitled to compel specific
performance of this Agreement in any action instituted in the State Court of
Georgia, Fulton County or the United
States District Court for the Northern District of Georgia located in


 


12

















 


Atlanta, Georgia, or, in the
event such courts shall not have jurisdiction of such action, in any court of
the United States or any state thereof having subject matter jurisdiction of
such action.


8.12.        Entire
Agreement.  This Agreement,
including the Schedules attached hereto, 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 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
parties hereto with respect to such subject matter.


8.13.        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.


8.14.        Construction.  The Company, Cerberus and the Purchaser
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, Cerberus and the Purchaser.


 


13

















 


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


	
   

  	
  ABP DISTRIBUTION
  HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ David
  Morris

  
	
   

  	
   

  	
  Name: David Morris

  
	
   

  	
   

  	
  Title:
  Chief Financial Officer and Treasuer  

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CERBERUS
  ABP INVESTOR LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Lenard Tessler

  
	
   

  	
   

  	
  Name: Lenard Tessler

  
	
   

  	
   

  	
  Title:  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PURCHASER:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/
  Charles H. McElrea

  
	
   

  	
  Name:

  	
  Charles
  H. McElrea

  
	
   

  	
  Address:

  	
  430
  Cherry Hill Drive

  
	
   

  	
   

  	
  Marietta,
  GA 30067

  
				



 


14

















 


SCHEDULE 1


	
  Purchaser

  	
   

  	
  Number of Common Shares to be Purchased

  	
   

  	
  Aggregate Purchase Price for the Common Shares

  
	
  Charles
  H. McElrea

  	
   

  	
  700,000

  	
   

  	
  $175,000.00

  



 

















 


SCHEDULE 6(c)


 


Articles of Incorporation and By-Laws of the Company


 

















 


EXHIBIT A


 


Stockholders Agreement


 

















 


EXHIBIT B


 


Registration Rights Agreement