Delaware |
5031 |
77-0627356 |
||||||||
(State or
Other Jurisdiction of Incorporation or Organization) |
(Primary Standard Industrial Classification Number) |
(IRS Employer Identification Number) |
Large accelerated
filer o |
Accelerated filer o |
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Non-accelerated
filer x (Do not check if a smaller reporting company) |
Smaller reporting company o |
Title of Each Class of Securities to be Registered |
Amount to be Registered |
Proposed Maximum Offering Price per Unit |
Proposed Maximum Aggregate Offering Price |
Amount of Registration Fee |
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---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Rights to
purchase common stock |
(1) |
|
| | (2) | |||||||||||||
Common stock, $0.01 par value per share, underlying the subscription rights |
22,857,142 |
$1.75 |
$ | 40,000,000 | (3) | $ | 5,456.00 | (4) | ||||||||||
Total |
$ | 40,000,000 | $ | 5,456.00 |
(1) |
Evidencing the right to subscribe for 22,857,142 shares of common stock, par value $0.01 per share. |
(2) |
The subscription rights are being issued without consideration. Pursuant to Rule 457(g), no separate registration fee is payable with respect to the subscription rights being offered hereby since the subscription rights are being registered in the same registration statement as the securities to be offered pursuant thereto. |
(3) |
Represents the aggregate gross proceeds from the exercise of the maximum number of rights that may be issued. |
(4) |
Registration fee calculated pursuant to Rule 457(o). Previously paid. |
Per Share |
Total |
|||||||||
---|---|---|---|---|---|---|---|---|---|---|
Subscription
Price |
$1.75 |
$40,000,000 |
||||||||
Estimated
Expenses |
$0.05 |
$1,200,000 |
||||||||
Proceeds to
Us |
$1.70 |
$38,800,000 |
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changes in the prices, supply and/or demand for products which we distribute, especially as a result of conditions in the residential housing market; |
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the acceptance by our customers of our privately branded products; |
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inventory levels of new and existing homes for sale; |
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general economic and business conditions in the United States; |
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the financial condition and credit worthiness of our customers; |
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the activities of competitors; |
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changes in significant operating expenses; |
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fuel costs; |
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risk of losses associated with accidents; |
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exposure to product liability claims; |
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changes in the availability of capital and interest rates; |
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immigration patterns and job and household formation; |
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our ability to identify acquisition opportunities and effectively and cost-efficiently integrate acquisitions; |
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adverse weather patterns or conditions; |
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acts of war or terrorist activities; |
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variations in the performance of the financial markets, including the credit markets; |
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failure to close the rights offering on the terms discussed herein; and |
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the risk factors described herein under Risk Factors and the risk factors discussed from time to time in our periodic reports filed with the SEC, including our Annual Report on Form 10-K for the year ended December 29, 2012. |
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deliver payment to the subscription agent before 5:00 p.m., New York City time, on March 27, 2013; and |
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deliver a properly completed and signed rights certificate to the subscription agent before 5:00 p.m., New York City time, on March 27, 2013. |
By
mail: |
By hand or overnight courier: |
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Registrar
and Transfer Company Attn: Reorg/Exchange Dept P.O. Box 645 Cranford, New Jersey 07016-0645 |
Registrar and Transfer Company Attn: Reorg/Exchange Dept 10 Commerce Drive Cranford, New Jersey 07016 |
concurrently with the completion of the rights offering. The definitive terms of, and the obligations of BlueLinx, Wells Fargo, and/or any members of the syndicate of financial institutions to enter into such an amendment to the U.S. revolving credit facility is subject to additional discussions and negotiations among the parties, and there is no assurance that an amendment to the existing U.S. revolving credit facility will be consummated.
Securities
Offered |
We
are distributing to you, at no charge, one non-transferable subscription right for each share of our common stock that you owned as of 5:00 p.m., New
York City time, on March 4, 2013, the record date, either as a holder of record or, in the case of shares held of record by brokers, dealers,
custodian banks or other nominees on your behalf, as a beneficial owner of those shares. Each subscription right will entitle its holder to purchase
0.35845026 of a share of our common stock. The shares of common stock will be represented by a certificate. If all of the subscription rights
are exercised in full by our stockholders, we expect the gross proceeds from the rights offering will be $40 million. |
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Basic
Subscription Right |
The
basic subscription right will entitle you to purchase 0.35845026 of a share of common stock at a subscription price of $1.75 per whole
share and fractional shares resulting from the exercise of the basic subscription right will be eliminated by rounding down to the nearest whole
share. |
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Over-subscription
Privilege |
If
you purchase all of the shares of common stock available to you pursuant to your basic subscription right, you may also choose to subscribe for a
portion of any shares of common stock that are not purchased by our stockholders through the exercise of their basic subscription
rights. |
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Subscription
Price |
$1.75 per share, payable in cash. To be effective, any payment related to the exercise of a subscription right must clear before the
rights offering expires. |
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Record Date
|
5:00
p.m., New York City time, on March 4, 2013. |
|||||
Expiration of the
Rights Offering |
5:00
p.m., New York City time, on March 27, 2013, unless we extend the rights offering period. |
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Use of Proceeds
|
We
intend to use the proceeds of the rights offering to repay debt under our U.S. revolving credit facility. See Use of
Proceeds. |
Transferability
of Rights |
Your
subscription rights will be non-transferable. |
|||||
No Revocation
|
All
exercises of subscription rights are irrevocable, even if you later learn of information that you consider to be unfavorable to the exercise of your
subscription rights. You should not exercise your subscription rights unless you are certain that you wish to purchase shares of common stock at a
subscription price of $1.75 per share. |
|||||
Material U.S.
Federal Income Tax Consequences |
For
U.S. federal income tax purposes, you will not recognize income or loss upon receipt or exercise of a subscription right. You should consult your own
tax advisor as to the tax consequences to you of the receipt, exercise or lapse of the subscription rights in light of your particular circumstances.
See Material U.S. Federal Income Tax Consequences. |
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Extension and
Cancellation |
Although we do not presently intend to do so, we have the option to extend the rights offering period. The Committee may for any reason
cancel the rights offering at any time before the expiration date. If we cancel the rights offering, the subscription agent will return all
subscription payments, without interest or penalty, as soon as practicable. |
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Procedures for
Exercising Rights |
To
exercise your subscription rights, you must take the following steps: |
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If you are a registered holder of our common stock, you must deliver payment and a properly completed rights certificate to
the subscription agent to be received before 5:00 p.m., New York City time, on March 27, 2013. You may deliver the documents and payments by
hand delivery, first class mail or courier service. If you use first class mail for this purpose, we recommend using registered mail, properly insured,
with return receipt requested. |
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If you are a beneficial owner of shares that are registered in the name of a broker, dealer, custodian bank or other
nominee, or if you would rather an institution conduct the transaction on your behalf, you should instruct your broker, dealer, custodian bank or other
nominee to exercise your subscription rights on your behalf. Please follow the instructions of your nominee, who may require that you meet a deadline
earlier than 5:00 p.m., New York City time, on March 27, 2013. |
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Reason for Rights
Offering Structure |
We
believe raising capital through this rights offering as compared to other methods, such as an underwritten public offering of our common stock, has the
advantage of providing our stockholders the opportunity to participate in this transaction on a pro rata basis and, if all stockholders exercise
their rights, avoid dilution of their ownership interest in the Company. |
Indications from
Certain Stockholders |
Cerberus, our majority stockholder, which beneficially owned approximately 52% of our outstanding shares of common stock as of the
record date, has indicated that it intends to exercise all of the rights issued to it under the pro rata basic subscription right and to
subscribe for the maximum additional shares pursuant to the over-subscription privilege that it would be entitled to purchase. However, such indication
is not binding, and Cerberus is not legally obligated to do so. Assuming no other holders exercise their rights in this offering, and that Cerberus
exercises its basic and over-subscription privileges in full as indicated, after giving effect to this offering, Cerberus would own approximately
65% of our outstanding common stock. The purchase of any shares by Cerberus upon its participation in the rights offering would be effected
in a transaction exempt from the registration requirements of the Securities Act and, accordingly, would not be registered pursuant to
the registration statement of which this prospectus forms a part. Any shares acquired by Cerberus pursuant to its participation in the rights
offering would become subject to our existing registration rights agreement with Cerberus. |
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Subscription
Agent |
Registrar and Transfer Company. |
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Information
Agent |
Eagle
Rock Proxy Advisors, LLC. |
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Shares
Outstanding Before the Rights Offering |
63,766,566 shares of our common stock were outstanding as of the record date. |
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Shares
Outstanding After Completion of the Rights Offering |
We expect approximately 86,623,708 shares of our common stock will be outstanding immediately after completion of the rights offering. |
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Fees and
Expenses |
We
will pay the fees and expenses related to the rights offering. |
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The New York
Stock Exchange |
Our
shares of common stock are currently listed for trading on the New York Stock Exchange under the ticker symbol BXC. |
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No Board
Recommendation Regarding Exercise of Subscription Rights |
Our board of directors is making no recommendation regarding your exercise of the subscription rights. You are urged to make an independent investment decision about whether to exercise your rights based on your own assessment of our business and the rights offering. |
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Risk
Factors |
Before you exercise your subscription rights to purchase our shares of common stock, you should carefully consider risks described in the
section entitled Risk Factors, beginning on page 7 of this prospectus. |
Year Ended December 29, 2012 |
Year Ended December 31, 2011 |
Year Ended January 1, 2011 |
Year Ended January 2, 2010 |
Year Ended January 3, 2009 |
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Statement
of Operations Data: |
|||||||||||||||||||||||
Net sales
|
$1,907,842 | $ | 1,755,431 | $ | 1,804,418 | $ | 1,646,108 | $ | 2,779,699 | ||||||||||||||
Cost of sales
|
1,677,772 | 1,545,282 | 1,593,745 | 1,452,947 | 2,464,766 | ||||||||||||||||||
Gross profit
|
230,070 | 210,149 | 210,673 | 193,161 | 314,933 | ||||||||||||||||||
Operating
expenses: |
|||||||||||||||||||||||
Selling,
general and administrative |
215,996 | 207,857 | 221,185 | 210,214 | 303,403 | ||||||||||||||||||
Net gain from
terminating the Georgia-Pacific supply agreement |
| | | (17,772 | ) | | |||||||||||||||||
Depreciation
and amortization |
8,565 | 10,562 | 13,365 | 16,984 | 20,519 | ||||||||||||||||||
Total
operating expenses |
224,461 | 218,419 | 234,550 | 209,426 | 323,922 | ||||||||||||||||||
Operating
income (loss) |
5,509 | (8,270 | ) | (23,877 | ) | (16,265 | ) | (8,989 | ) | ||||||||||||||
Non-operating expenses (income): |
|||||||||||||||||||||||
Interest
expense |
28,157 | 30,510 | 33,788 | 32,456 | 38,547 | ||||||||||||||||||
Changes
associated with the ineffective interest rate swap, net |
| (1,676 | ) | (4,603 | ) | 6,252 | | ||||||||||||||||
Write-off of
debt issue costs |
| | 183 | 1,407 | | ||||||||||||||||||
Other expense
(income), net |
(7 | ) | 501 | 587 | 519 | 601 | |||||||||||||||||
Loss before
(benefit from) provision for income taxes |
(22,641 | ) | (37,605 | ) | (53,832 | ) | (56,899 | ) | (48,137 | ) | |||||||||||||
(Benefit
from) provision for income taxes |
386 | 962 | (589 | ) | 4,564 | (16,434 | ) | ||||||||||||||||
Net loss
|
$(23,027 | ) | $ | (38,567 | ) | $ | (53,243 | ) | $ | (61,463 | ) | $ | (31,703 | ) | |||||||||
Basic
weighted average number of common shares outstanding |
60,080 | 43,187 | 30,688 | 31,017 | 31,083 | ||||||||||||||||||
Basic net
loss per share applicable to common stock |
$(0.38 | ) | $ | (0.89 | ) | $ | (1.73 | ) | $ | (1.98 | ) | $ | (1.02 | ) | |||||||||
Diluted
weighted average number of common shares outstanding |
60,080 | 43,187 | 30,688 | 31,017 | 31,083 | ||||||||||||||||||
Diluted net
loss per share applicable to common stock |
$(0.38 | ) | $ | (0.89 | ) | $ | (1.73 | ) | $ | (1.98 | ) | $ | (1.02 | ) | |||||||||
Dividends
declared per share of common stock |
$ | $ | | $ | | $ | | $ | |
Year Ended December 29, 2012 |
Year Ended December 31, 2011 |
Year Ended January 1, 2011 |
Year Ended January 2, 2010 |
Year Ended January 3, 2009 | |||||||||||||||||||
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Other
Financial Data: |
|||||||||||||||||||||||
Capital
expenditures |
$2,826 | $6,533 | $ | 4,140 | $ | 1,815 | $ | 4,919 | |||||||||||||||
Net cash
provided by (used in) operating activities |
$(74,250 | ) | $(50,332 | ) | $ | (29,861 | ) | $ | (19,853 | ) | $ | 190,390 | |||||||||||
Net cash
provided by (used in) investing activities |
$16,369 | $11,882 | $ | (3,429 | ) | $ | 12,636 | $ | 985 | ||||||||||||||
Net cash
provided by (used in) financing activities |
$58,171 | $ | 29,111 | $ | 18,130 | $ | (113,679 | ) | $ | (56,781 | ) | ||||||||||||
EBITDA(1)
|
$14,081 | $1,791 | $ | (11,099 | ) | $ | 200 | $ | 10,929 | ||||||||||||||
Balance
Sheet Data (at end of period): |
|||||||||||||||||||||||
Cash and cash
equivalents |
$5,188 | $ | 4,898 | $ | 14,297 | $ | 29,457 | $ | 150,353 | ||||||||||||||
Working
capital |
$272,403 | $ | 233,414 | $ | 236,168 | $ | 247,722 | $ | 320,527 | ||||||||||||||
Total assets
|
$544,736 | $ | 503,915 | $ | 525,019 | $ | 546,846 | $ | 729,178 | ||||||||||||||
Total debt(2)
|
$383,783 | $341,017 | $384,256 | $ | 341,669 | $ | 444,870 | ||||||||||||||||
Stockholders (deficit) equity |
$(20,592 | ) | $ | 8,374 | $ | 991 | $ | 50,820 | $ | 102,852 |
(1) |
EBITDA is an amount equal to net (loss) income plus interest expense, and all interest expense related items (e.g. changes associated with ineffective interest rate swap, write-off of debt issue costs, charges associated with mortgage refinancing), income taxes, and depreciation and amortization. EBITDA is presented herein because we believe it is a useful supplement to cash flow from operations in understanding cash flows generated from operations that are available for debt service (interest and principal payments) and further investment in acquisitions. However, EBITDA is not a presentation made in accordance with U.S. generally accepted accounting principles, (GAAP), and is not intended to present a superior measure of the financial condition from those determined under GAAP. EBITDA, as used herein, is not necessarily comparable to other similarly titled captions of other companies due to differences in methods of calculations. |
(2) |
Total debt represents long-term debt, including current maturities. |
Year Ended December 29, 2012 |
Year Ended December 31, 2011 |
Year Ended January 1, 2011 |
Year Ended January 2, 2010 |
Year Ended January 3, 2009 |
||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Net cash
(used in) provided by operating activities |
$(74,250 | ) | $(50,332 | ) | $ | (29,861 | ) | $ | (19,853 | ) | $ | 190,390 | ||||||||||
Amortization
of debt issue costs |
(3,746 | ) | (2,940 | ) | (1,963 | ) | (2,459 | ) | (2,479 | ) | ||||||||||||
Net gain from
terminating the Georgia-Pacific supply agreement |
| | | 17,772 | | |||||||||||||||||
Payments from
terminating the Georgia-Pacific supply agreement |
| | (4,706 | ) | (14,118 | ) | | |||||||||||||||
Vacant
property charges, net |
30 | 291 | (53 | ) | (1,222 | ) | (4,441 | ) | ||||||||||||||
Payments on
modification of lease agreement |
5,875 | | | | | |||||||||||||||||
Deferred
income tax benefit (provision) |
20 | 25 | 600 | (24,220 | ) | 2,935 | ||||||||||||||||
Prepayment
fees associated with sale of property |
| | | (616 | ) | (1,868 | ) | |||||||||||||||
Gain on sale
of properties |
9,885 | 10,604 | | 10,397 | 1,936 | |||||||||||||||||
Gain from
insurance settlement |
476 | 1,230 | | | | |||||||||||||||||
Gain from
modification of lease agreement |
| 1,971 | | | | |||||||||||||||||
Share-based
compensation |
(2,797 | ) | (1,974 | ) | (3,978 | ) | (2,922 | ) | (2,614 | ) | ||||||||||||
Excess tax
benefits from share-based arrangements |
| | | | 81 | |||||||||||||||||
Changes in
assets and liabilities |
50,045 | 11,444 | (4,337 | ) | 421 | (195,124 | ) | |||||||||||||||
Interest
expense |
28,157 | 30,510 | 33,788 | 32,456 | 38,547 | |||||||||||||||||
(Benefit
from) provision for income taxes |
386 | 962 | (589 | ) | 4,564 | (16,434 | ) | |||||||||||||||
EBITDA |
$14,081 | $1,791 | $ | (11,099 | ) | $ | 200 | $ | 10,929 |
|
make it difficult for us to satisfy our debt obligations; |
|
make us more vulnerable to general adverse economic and industry conditions; |
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limit our ability to obtain additional financing for working capital, capital expenditures, acquisitions and other general corporate requirements as our excess liquidity likely will decrease while our industry and our Company begins its recovery from the historic housing market downturn; |
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expose us to interest rate fluctuations because the interest rate on the debt under our U.S. revolving credit facility is variable; |
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require us to dedicate a substantial portion of our cash flow from operations to payments on our debt, thereby reducing the availability of our cash flow for operations and other purposes; |
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limit our flexibility in planning for, or reacting to, changes in our business and the industry in which we operate; and |
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place us at a competitive disadvantage compared to competitors that may have proportionately less debt, and therefore may be in a better position to get favorable credit terms. |
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economic and demand factors affecting the building products distribution industry; |
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pricing pressures; |
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increased operating costs; |
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competitive conditions; and |
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other operating difficulties. |
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incur additional debt; |
|
grant liens on assets; |
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make investments, including capital expenditures; |
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sell or acquire assets outside the ordinary course of business; |
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engage in transactions with affiliates; and |
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make fundamental business changes. |
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the loss of key customers of the acquired company; |
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the incurrence of unexpected expenses and working capital requirements; |
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a failure of our due diligence process to identify significant issues or contingencies; |
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difficulties assimilating the operations and personnel of the acquired company; |
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difficulties effectively integrating the acquired technologies with our current technologies; |
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our inability to retain key personnel of acquired entities; |
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failure to maintain the quality of customer service; |
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our inability to achieve the financial and strategic goals for the acquired and combined businesses; and |
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difficulty in maintaining internal controls, procedures and policies. |
|
permit us to issue, without any further vote or action by the stockholders, up to 30 million shares of preferred stock in one or more series and, with respect to each series, to fix the number of shares constituting the series and the designation of the series, the voting powers (if any) of the shares of such series, and the preferences and other special rights, if any, and any qualifications, limitations or restrictions, of the shares of the series; and |
|
limit the stockholders ability to call special meetings. |
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the announcement or completion of this rights offering; |
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future announcements concerning us, key customers or competitors; |
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quarterly variations in operating results and liquidity; |
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changes in financial estimates and recommendations by securities analysts; |
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developments with respect to technology or litigation; |
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changes in applicable laws and regulations; |
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the operating and stock price performance of other companies that investors may deem comparable to our company; |
|
acquisitions and financings; and |
|
sales and purchases of our stock by insiders. |
|
permit us to issue, without any further vote or action by our stockholders, up to 30 million shares of preferred stock in one or more series and, with respect to each series, fix the number of shares constituting the series and the designation of the series, the voting powers (if any) of the shares of such series, and the preferences and other special rights, if any, and any qualifications, limitations or restrictions, of the shares of the series; and |
|
limit stockholders ability to call special meetings. |
Year Ending December 28, 2013 |
Year Ended December 29, 2012 |
Year Ended December 31, 2011 |
||||||||||||||||||||||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Low |
High |
Dividend(1) |
Low |
High |
Dividend(1) |
Low |
High |
Dividend(1) |
||||||||||||||||||||||||||||||||||
1st
Quarter |
$2.70 (2 | ) | $3.48 (2 | ) | $ | | $ | 1.45 | $ | 2.87 | $ | | $ | 3.41 | $ | 3.90 | $ | | ||||||||||||||||||||||||
2nd
Quarter |
| | $ | | $ | 1.96 | $ | 2.89 | $ | | $ | 2.23 | $ | 4.35 | $ | | ||||||||||||||||||||||||||
3rd
Quarter |
| | $ | | $ | 1.97 | $ | 2.72 | $ | | $ | 1.39 | $ | 2.40 | $ | | ||||||||||||||||||||||||||
4th
Quarter |
| | $ | | $ | 1.83 | $ | 2.85 | $ | | $ | 1.25 | $ | 1.90 | $ | |
(1) |
On December 5, 2007, we suspended the payment of dividends on our common stock for an indefinite period of time. See our fiscal 2011 Form 10-K, incorporated by reference in this document, for additional discussion of dividends. |
(2) |
Through February 25, 2013. |
As of December 29, 2012 (Unaudited) |
|||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|
(In thousands) |
|||||||||||
Actual |
Pro Forma Including Rights Offering |
||||||||||
Long-term
debt and liabilities: |
|||||||||||
Long-term
debt includes current maturities |
$377,392 | $338,592 | |||||||||
Other
long-term liabilities |
57,146 | 57,146 | |||||||||
Total
long-term debt and liabilities |
$434,538 | $395,738 | |||||||||
Stockholders (deficit) equity: |
|||||||||||
Common stock,
$0.01 par value: 200,000,000 shares authorized; 63,664,115 issued and outstanding shares, actual; 86,521,257 issued and outstanding
shares, as adjusted |
$ | 637 | $865 | ||||||||
Additional
paid-in capital |
209,815 | 248,387 | |||||||||
Accumulated
deficit |
(201,002 | ) | (201,002 | ) | |||||||
Accumulated
other comprehensive loss |
(30,042 | ) | (30,042 | ) | |||||||
Total
stockholders (deficit) equity |
(20,592 | ) | 18,208 | ||||||||
Total
capitalization: |
$413,946 | $413,946 | |||||||||
Per share
data: |
|||||||||||
Basic net
loss per share applicable to common stock, year to date |
$(0.38 | ) | $(0.28 | ) | |||||||
Diluted net
loss per share applicable to common stock, year to date |
$(0.38 | ) | $(0.28 | ) |
|
uncertified personal check payable to Registrar and Transfer Company; or |
|
wire transfer of immediately available funds to accounts maintained by the subscription agent. |
|
clearance of any uncertified personal check deposited by the subscription agent; or |
|
receipt by the subscription agent of any wire transfer of immediately available funds. |
|
you provide on the rights certificate that shares are to be delivered to you as record holder of those subscription rights; or |
|
you are an eligible institution. |
By
mail: |
By hand or overnight courier: |
|||||
Registrar
and Transfer Company |
Registrar and Transfer Company |
|||||
Attn:
Reorg/Exchange Dept |
Attn: Reorg/Exchange Dept |
|||||
P.O. Box
645 |
10 Commerce Drive |
|||||
Cranford,
New Jersey 07016-0645 |
Cranford, New Jersey 07016 |
|
An individual who is a citizen or resident of the United States for U.S. federal income tax purposes; |
|
A corporation (or other business entity treated as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United Sates, any state thereof or the District of Columbia; |
|
An estate the income of which is subject to U.S. federal income tax regardless of its source; or |
|
A trust (a) if a court within the United States can exercise primary supervision over its administration and one or more U.S. persons are authorized to control all substantial decisions of the trust or (b) that has a valid election in effect under applicable Treasury Regulations to be treated as a U.S. person. |
By
mail: |
By hand or overnight courier: |
|||||
Registrar
and Transfer Company |
Registrar and Transfer Company |
|||||
Attn:
Reorg/Exchange Dept |
Attn: Reorg/Exchange Dept |
|||||
P.O. Box
645 |
10 Commerce Drive |
|||||
Cranford,
New Jersey 07016-0645 |
Cranford, New Jersey 07016 |
|
Annual Report on Form 10-K for the year ended December 29, 2012; |
|
Current Reports on Form 8-K filed on January 4, 2013 and January 28, 2013; and |
|
The description of our Common Stock contained in our registration statement on Form 8-A filed with the Commission on December 13, 2004, as amended on August 5, 2011 and any amendments to such registration statement or any other report that we may file in the future for the purpose of updating such description. |
SEC
registration fee |
$ | 5,456 | ||||
*Accounting
fees and expenses |
50,000 | |||||
*Legal fees
and expenses |
150,000 | |||||
*Printing and
engraving expenses |
60,000 | |||||
*Subscription
agent, information agent and registrar fees and expenses |
20,000 | |||||
*Miscellaneous |
14,544 | |||||
*Total
|
$ | 300,000 |
* |
Estimated pursuant to Item 511 of Regulation S-K. |
BLUELINX HOLDINGS INC. |
||||||
By: /s/ George R. Judd |
||||||
George R. Judd President and Chief Executive Officer: (Principal Executive Officer) |
Signature |
Title | Date | ||||||||
---|---|---|---|---|---|---|---|---|---|---|
/s/ George R.
Judd George R. Judd |
President and Chief Executive Officer and Director (Principal Executive Officer) |
February 26, 2013 |
||||||||
/s/ Howard D.
Goforth Howard D. Goforth |
Senior Vice President, Chief Financial Officer and Treasurer (Principal Financial Officer) |
February 26, 2013 |
||||||||
/s/ Scott T.
Phillips Scott T. Phillips |
Chief Accounting Officer (Principal Accounting Officer) |
February 26, 2013 |
||||||||
* Howard S. Cohen |
Director |
February 26, 2013 |
||||||||
* Richard S. Grant |
Director |
February 26, 2013 |
||||||||
* Ronald E. Kolka |
Director |
February 26, 2013 |
||||||||
* Steven F. Mayer |
Director |
February 26, 2013 |
||||||||
* Alan H. Schumacher |
Director |
February 26, 2013 |
||||||||
* M. Richard Warner |
Director |
February 26, 2013 |
||||||||
*By: /s/ George R. Judd |
||||||||||
George R.
Judd Attorney-in-Fact |
Exhibit Number |
Item |
|||||
---|---|---|---|---|---|---|
3.1 |
Second Amended and Restated Certificate of Incorporation of BlueLinx (A) |
|||||
3.2 |
Amended and Restated By-Laws of BlueLinx(B) |
|||||
4.1 |
Registration Rights Agreement, dated as of May 7, 2004, by and among BlueLinx and the initial holders specified on the signature pages
thereto(C) |
|||||
4.2 |
Letter Agreement, dated as of August 30, 2004, by and among BlueLinx, Cerberus ABP Investor LLC, Charles H. McElrea, George R. Judd, David J.
Morris, James C. Herbig, Wayne E. Wiggleton and Steven C. Hardin(C) |
|||||
4.3 |
Investment Letter, dated March 10, 2004, between BlueLinx and Cerberus ABP Investor LLC, as Purchaser of Common Stock(D) |
|||||
4.4 |
Investment Letter, dated May 7, 2004, between BlueLinx and Cerberus ABP Investor LLC, as Purchaser of Common Stock(D) |
|||||
4.5 |
Executive Purchase Agreement dated May 7, 2004 by and among BlueLinx, Cerberus ABP Investor LLC and Charles H. McElrea(D) |
|||||
4.6 |
Executive Purchase Agreement dated May 7, 2004 by and among BlueLinx, Cerberus ABP Investor LLC and George R. Judd(D) |
|||||
4.7 |
Registration Rights Agreement, dated as of June 16, 2011 between BlueLinx Holdings Inc. and Stadium Capital Management, LLC (incorporated by
reference to Form 8-K filed with the Securities and Exchange Commission on June 20, 2011) |
|||||
4.8 |
Form
of Subscription Rights Certificate** |
|||||
5.1 |
Opinion of Troutman Sanders LLP* |
|||||
8.1 |
Opinion of Troutman Sanders LLP as to certain tax matters* |
|||||
10.1 |
Asset Purchase Agreement, dated as of March 12, 2004, by and among Georgia-Pacific Corporation, Georgia-Pacific Building Materials Sales, Ltd.
and BlueLinx Corporation(C) |
|||||
10.2 |
First Amendment to Asset Purchase Agreement, dated as of May 6, 2004, by and among Georgia-Pacific Corporation, Georgia-Pacific Building
Materials Sales, Ltd. and BlueLinx Corporation(C) |
|||||
10.3 |
Master Purchase, Supply and Distribution Agreement, dated May 7, 2004 by and between BlueLinx Corporation and
Georgia-Pacific(B) |
|||||
10.4 |
Form
of Director and Officer Indemnification Agreement (incorporated by reference to Form 8-K filed with the Securities and Exchange Commission on January
13, 2011) |
|||||
10.5 |
BlueLinx Holdings Inc. Amended and Restated Short-Term Incentive Plan (incorporated by reference to Attachment B to the Definitive Proxy
Statement for the 2011 Annual Meeting of Stockholders, filed with the Securities and Exchange Commission on April 18, 2011) |
|||||
10.6 |
BlueLinx Holdings Inc. 2004 Long Term Equity Incentive Plan(C) |
|||||
10.7 |
BlueLinx Holdings Inc. 2004 Long-Term Equity Incentive Plan Form of Restricted Stock Award Agreement (incorporated by reference to Form 8-K
filed with the Securities and Exchange Commission on January 11, 2008) |
|||||
10.8 |
BlueLinx Holdings Inc. 2006 Long-Term Equity Incentive Plan (as amended and restated effective May 21, 2008) (incorporated by reference to
Appendix A to the Definitive Proxy Statement for the 2011 Annual Meeting of Stockholders, filed with the Securities and Exchange Commission on April
18, 2011) |
Exhibit Number |
Item | |||||
---|---|---|---|---|---|---|
10.9 |
Amended and Restated Bluelinx Holdings Inc. 2006 Long-Term Equity Incentive Plan (as amended through May 17, 2012 and restated solely for
purposes of filing pursuant to Item 601 of Regulation S-K) (Incorporated by reference to Appendix A to the Definitive Proxy Statement for the 2012
Annual Meeting of Stockholders, filed with the Securities and Exchange Commission on April 16, 2012) |
|||||
10.10 |
BlueLinx Holdings Inc. 2006 Long-Term Equity Incentive Plan Restricted Stock Award Agreement (incorporated by reference to Form 8-K filed with
the Securities and Exchange Commission on June 9, 2006) |
|||||
10.11 |
BlueLinx Holdings Inc. 2006 Long-Term Equity Incentive Plan Nonqualified Stock Option Award Agreement (incorporated by reference to Form 8-K
filed with the Securities and Exchange Commission on June 9, 2006) |
|||||
10.12 |
BlueLinx Holdings Inc. 2006 Long-Term Equity Incentive Plan Form of Performance Share Award Agreement (incorporated by reference to Form 8-K
filed with the Securities and Exchange Commission on January 4, 2013) |
|||||
10.13 |
BlueLinx Holdings Inc. Short-Term Incentive Plan (as amended and restated effective January 1, 2011) (Incorporated by reference to Appendix B
to the Definitive Proxy Statement for the 2011 Annual Meeting of Stockholders, filed with the Securities and Exchange Commission on April 18,
2011) |
|||||
10.14 |
Canadian Credit Agreement, dated August 12, 2011, by and among Bluelinx Canada, CIBC Asset-Based Lending Inc. and the lenders from time to
time parties thereto (Incorporated by reference to Form 8-K filed with the Securities and Exchange Commission on August 16, 2011) |
|||||
10.15 |
Letter Agreement, dated December 18, 2006, relating to and amending the Master Purchase, Supply and Distribution Agreement between
Georgia-Pacific Corporation and BlueLinx Corporation dated May 7, 2004 (incorporated by reference to Form 8-K filed with the Securities and Exchange
Commission on December 22, 2006) |
|||||
10.16 |
Loan
and Security Agreement, dated as of June 9, 2006, between the entities set forth therein collectively as borrower and German American Capital
Corporation as Lender (incorporated by reference to Form 10-Q filed with the Securities and Exchange Commission on November 6, 2009) |
|||||
10.17 |
Twelfth Amendment to Loan and Security Agreement, dated as of June 9, 2006, between the entities set forth therein collectively as borrower
and German American Capital Corporation as Lender (incorporated by reference to Form 8-K filed with the Securities and Exchange Commission on September
20, 2012) |
|||||
10.18 |
Guaranty of Recourse Obligations, dated as of June 9, 2006, by BlueLinx Holdings Inc. for the benefit of German American Capital Corporation
(incorporated by reference to Form 8-K filed with the Securities and Exchange Commission on June 15, 2006) |
|||||
10.19 |
Environmental Indemnity Agreement, dated as of June 9, 2006, by BlueLinx Holdings Inc. in favor of German American Capital Corporation
(incorporated by reference to Form 8-K filed with the Securities and Exchange Commission on June 15, 2006) |
|||||
10.20 |
Amended and Restated Loan and Security Agreement, dated August 4, 2006, by and between BlueLinx Corporation, Wachovia and the other
signatories listed therein (incorporated by reference to Form 10-Q filed with the Securities and Exchange Commission on November 6,
2009) |
|||||
10.21 |
First Amendment to Amended and Restated Loan and Security Agreement, dated August 4, 2006, by and between BlueLinx Corporation, Wachovia and
the other signatories listed therein, dated October 22, 2008 (incorporated by reference to Exhibit 10.19 to Annual Report on Form 10-K for the year
ended January 1, 2011, filed with the Securities and Exchange Commission on February 25, 2011) |
Exhibit Number |
Item | |||||
---|---|---|---|---|---|---|
10.22 |
Second Amendment to Amended and Restated Loan and Security Agreement, dated August 4, 2006, by and between BlueLinx Corporation, Wells Fargo,
as successor in interest to Wachovia, and the other signatories listed therein, dated July 7, 2010 (incorporated by reference to Form 8-K filed with
the Securities and Exchange Commission on July 7, 2010) |
|||||
10.23 |
Third Amendment to Amended and Restated Loan and Security Agreement, dated August 4, 2006, by and between BlueLinx Corporation, Wells Fargo,
as successor in interest to Wachovia, and the other signatories listed therein, dated May 10, 2011(incorporated by reference to Form 8-K filed with the
Securities and Exchange Commission on May 12, 2011) |
|||||
10.24 |
Fourth Amendment to Amended and Restated Loan and Security Agreement, dated August 4, 2006, by and between BlueLinx Corporation, Wells Fargo,
as successor in interest to Wachovia, and the other signatories listed therein, dated August 11, 2011 (incorporated by reference to Form 8-K filed with
the Securities and Exchange Commission on August 16, 2011) |
|||||
10.25 |
Fifth Amendment to Loan and Security Agreement, dated July 14, 2011, by and between BlueLinx Corporation and certain of its subsidiaries and
U.S. Bank National Association in its capacity as trustee for the registered holders of Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage
Pass Through Certificates, Series 2006-C 27, as successor in interest to German American Capital Corporation (Incorporated by reference to Form 8-K
filed with the Securities and Exchange Commission on November 4, 2011) |
|||||
10.26 |
Second Amended and Restated Employment Agreement between BlueLinx Corporation and George R. Judd, dated January 22, 2013,
(incorporated by reference to Form 8-K filed with the Securities and Exchange Commission on January 28, 2013) |
|||||
10.27 |
Second Amended and Restated Employment Agreement between BlueLinx Corporation and Howard D. Goforth, dated January 22,
2013 (incorporated by reference to Form 8-K filed with the Securities and Exchange Commission on January 28,
2013) |
|||||
10.28 |
Amended and Restated Employment Agreement between BlueLinx Corporation and Dean A. Adelman, dated January 21, 2011 (incorporated by reference
to Form 8-K/A filed with the Securities and Exchange Commission on January 27, 2011) |
|||||
10.29 |
Employment Agreement between BlueLinx Corporation and Ned M. Bassil, dated October 31, 2011 (Incorporated by reference to Form 8-K filed with
the Securities and Exchange Commission on November 4, 2011) |
|||||
10.30 |
Investment Agreement, dated as of April 26, 2011, between BlueLinx and Cerberus ABP Investor LLC (incorporated by reference to Form 8-K, filed
with the Securities and Exchange Commission on April 26, 2011) |
|||||
14.1 |
BlueLinx Code of Ethical Conduct (incorporated by reference to Exhibit 14 to Annual Report on Form 10-K for the year ended January 1, 2005,
filed with the Securities and Exchange Commission on March 22, 2005) |
|||||
21.1 |
List
of subsidiaries of the Company (incorporated by reference to Exhibit 21.1 to Annual Report on Form 10-K for the year ended December 29,
2012, filed with the Securities and Exchange Commission on February 20, 2013) |
|||||
23.1 |
Consent of Ernst & Young LLP* |
|||||
23.2 |
Consent of Troutman Sanders LLP (included as part of Exhibit 5.1) |
|||||
24.1 |
Powers of Attorney** |
|||||
99.1 |
Form
of Instruction for Use of BlueLinx Subscription Rights Certificates** |
|||||
99.2 |
Form
of Letter to Stockholders Who Are Record Holders** |
Exhibit Number |
Item | |||||
---|---|---|---|---|---|---|
99.3 |
Form
of Letter to Nominee Holders Whose Clients Are Beneficial Holders** |
|||||
99.4 |
Form
of Letter to Clients of Nominee Holders** |
|||||
99.5 |
Form
of Nominee Holder Certification** |
|||||
99.6 |
Form
of Beneficial Owner Election** |
* |
Filed herewith. |
** |
Previously filed. |
|
Portions of this document were omitted and filed separately with the SEC pursuant to a request for confidential treatment in accordance with Rule 24b-2 of the Exchange Act. |
(A) |
Previously filed as Appendix B to the proxy statement for the 2012 Annual Meeting of Stockholders filed on Schedule 14A with the Securities and Exchange Commission on April 16, 2012. |
(B) |
Previously filed as an exhibit to Amendment No. 3 to the Companys Registration Statement on Form S-1 (Reg. No. 333-118750) filed with the Securities and Exchange Commission on November 26, 2004. |
(C) |
Previously filed as an exhibit to Amendment No. 1 to the Companys Registration Statement on Form S-1 (Reg. No. 333-118750) filed with the Securities and Exchange Commission on October 1, 2004. |
(D) |
Previously filed as an exhibit to Amendment No. 2 to the Companys Registration Statement on Form S-1 (Reg. No. 333-118750) filed with the Securities and Exchange Commission on October 8, 2004. |
Exhibit 5.1
February 26 , 2013
BlueLinx Holdings Inc.
4300 Wildwood Parkway
Atlanta, Georgia 30339
Ladies and Gentlemen:
We have acted as counsel to BlueLinx Holdings Inc., a Delaware corporation (the Company ), in connection with the issuance by the Company to its shareholders of non-transferable subscription rights (the Rights) entitling the holders thereof to purchase up to 22,857,142 shares (the Shares) of the Companys common stock, $0.01 par value per share (Common Stock) (collectively, the Rights Offering). The Company has filed a Registration Statement on Form S-1, as amended, (the Registration Statement) with the Securities and Exchange Commission (the Commission) to effect the registration of the Rights and the Shares under the Securities Act of 1933, as amended (the Securities Act). The Registration Statement includes a prospectus (the Prospectus) to be furnished to the holders of record of the Companys Common Stock as of the record date for the distribution of the Rights, in connection with the Rights Offering. The Rights and the Shares are collectively referred to herein as the Securities. This opinion is furnished to you at your request in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated under the Securities Act.
In rendering this opinion letter, we have examined such corporate and other documents, and made such other examinations of matters of law and of fact, as we have considered appropriate or advisable for the purposes of this opinion. In our examination, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as original documents and the conformity to original documents of all documents submitted to us as certified, conformed, facsimile, electronic or photostatic copies. We have assumed that the resolutions authorizing the Company to issue, offer and sell the Securities are, and will be, in full force and effect at all times at which any Securities are offered or sold by the Company. We have relied upon the statements contained in the Registration Statement and certificates of officers of the Company, and we have made no independent investigation with regard thereto. We have further assumed that (1) the Registration Statement and any amendment thereto will have become effective (and will remain effective at the time of the issuance of the Securities thereunder) and (2) the Prospectus describing the Securities will be filed with the Commission to the extent required by applicable law and relevant rules and regulations of the Commission.
Based on the foregoing and subject to the limitations, qualifications, exceptions and assumptions set forth herein, we are of the opinion that:
(1)
The Rights have been authorized by all necessary corporate action of the Company and, when issued in accordance with the terms of the Rights Offering as set forth in the Registration Statement and the form of rights certificate included as Exhibit 4.8 thereto (the Rights Certificate), will be validly issued and will constitute valid and binding obligations of the Company, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, liquidation, reorganization, moratorium and similar laws affecting the rights of creditors generally, and by general principles of equity.
(2)
The Shares have been authorized by all necessary corporate action of the Company and, when issued and delivered in accordance with the terms of the Rights Offering, as set forth in the Registration Statement and the Rights Certificate, against payment of the consideration for
Bluelinx Holdings Inc.
February 26, 2013
Page 2
the Shares upon exercise of the Rights as contemplated by the Prospectus, will be validly issued, fully paid and nonassessable.
Our opinions set forth herein are limited to the Delaware General Corporation Law (including the relevant statutory provisions, the applicable provisions of the Delaware Constitution and the reported judicial decisions interpreting these laws) and we do not express any opinion herein concerning any other laws.
No opinion may be implied or inferred beyond the opinions expressly stated in the numbered paragraphs above. We have no obligation to update this opinion or to advise you after the date hereof of facts or circumstances that come to our attention or changes in law or any other matters that occur which could affect the opinions and other statements contained herein.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act, and to the use of our name under the heading Legal Matters in the Prospectus, including any amendment or supplement thereto. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act, or the rules and regulations of the Commission thereunder.
This opinion may not be relied upon, furnished or quoted by you for any other purpose without our prior written consent.
Very truly yours,
/s/ Troutman Sanders LLP
Exhibit 8.1
February 26, 2013
BlueLinx Holdings Inc.
4300 Wildwood Parkway
Atlanta, Georgia 30339
Ladies and Gentlemen:
We have acted as counsel to BlueLinx Holdings Inc., a Delaware corporation (the Company), in connection with the issuance by the Company to its shareholders of non-transferable subscription rights (the Rights ) entitling the holders thereof to purchase up to 22,857,142 shares (the Shares) of the Companys common stock, $0.01 par value per share ( Common Stock) (collectively, the Rights Offering). The Company has filed a Registration Statement on Form S-1, as amended (File No. 333-185949) (the Registration Statement) with the Securities and Exchange Commission (the Commission ) to effect the registration of the Rights and the Shares under the Securities Act of 1933, as amended (the Securities Act). The Registration Statement includes a prospectus (the Prospectus) to be furnished to the holders of record of the Companys Common Stock as of the record date for the distribution of the Rights, in connection with the Rights Offering. The Rights and the Shares are collectively referred to herein as the Securities. This opinion relates to the discussion set forth under the caption Material U.S. Federal Income Tax Consequences of the Registration Statement and is furnished to you at your request in accordance with the requirements of Item 601(b)(8) of Regulation S-K promulgated under the Securities Act.
For purposes of this opinion letter, we have examined and relied upon the following documents:
1. A copy of the Prospectus;
2. A copy of the Registration Statement; and
3. Such other additional instruments and documents, representations of the Company and of certain other persons, and such matters of law, all as we have deemed necessary or appropriate for purposes of this opinion.
In our examination, we have assumed the authenticity of original documents, the accuracy of copies, the genuineness of signatures and the capacity of each person executing a document to so act. For purposes of the opinions contained herein, we have assumed, with your consent, the following:
·
that the documents shown to us are true, correct and complete and we have been shown all modifications to such documents;
·
that the documents shown to us as certified or photocopies of original documents conform to the original documents;
Bluelinx Holdings Inc.
February 26, 2013
Page 2
·
that the documents listed above that have been reviewed in proposed or draft form will be executed in substantially the same form as the documents that we have reviewed; and
·
that all of the representations, factual assumptions and statements set forth in the documents listed above, have been and will be performed or satisfied in accordance with their terms.
Our opinions are based upon the facts described in the Registration Statement and upon facts as they have been represented to us or determined by us as of this date. Any inaccuracies in or alterations of such facts may adversely affect our opinions. Further, our opinions are based upon the Internal Revenue Code of 1986, as amended (the Code), applicable Treasury Regulations promulgated or proposed under the Code, administrative pronouncements of the Internal Revenue Service (the Service), and judicial decisions, all as in effect as of the date hereof. Additionally, our opinion is not binding on the Service or any court, and there can be no assurance that contrary positions may not be taken by the Service.
Based upon and subject to the foregoing, the discussion contained in the Registration Statement under the caption Material U.S. Federal Income Tax Consequences, subject to the limitations and qualifications referred to therein, accurately sets forth the material U.S. federal income tax consequences of the receipt and exercise (on expiration) of the Rights or, if applicable, the over-subscription privilege, acquired through the Rights Offering and owning and disposing of the shares of Common Stock received upon exercise of the Rights and constitutes the opinion of Troutman Sanders LLP.
The foregoing opinion is limited to the United States federal income tax matters addressed herein, and no other opinions are rendered with respect to other federal tax matters or to any issues arising under the tax laws of any other country, or any state or locality. This opinion letter speaks only as of the date hereof and we undertake no obligation to update the opinions expressed herein after the date of this letter. Except as provided in the next paragraph, this opinion letter may not be distributed, quoted in whole or in part or otherwise reproduced in any document, or filed with any governmental agency without our express written consent.
We consent to the use of our name and the discussion of our opinion under the captions Material U.S. Federal Income Tax Consequences and Legal Matters in the Prospectus filed with the Registration Statement and to the filing of this opinion as an exhibit to the Registration Statement in which the Prospectus is included. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act, or the Rules and Regulations of the Commission thereunder.
Very truly yours,
/s/ Troutman Sanders LLP
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption Experts in Amendment No. 1 to the Registration Statement (Form S-1 No. 333-185949) and related Prospectus of BlueLinx Holdings Inc. for the registration of shares of its common stock and to the incorporation by reference therein of our reports dated February 20, 2013, with respect to the consolidated financial statements of BlueLinx Holdings Inc., and the effectiveness of internal control over financial reporting of BlueLinx Holdings Inc., included in its Annual Report (Form 10-K) for the year ended December 29, 2012, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Atlanta, Georgia
February 26, 2013
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