sv3za
As
filed with the Securities and Exchange Commission on August 24, 2011
Registration No. 333-176131
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Pre-effective Amendment No. 1
to
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BLUELINX HOLDINGS INC.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware
(State or Other Jurisdiction of
Incorporation or Organization)
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5031
(Primary Standard Industrial
Classification Number)
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77-0627356
(IRS Employer
Identification Number) |
4300 Wildwood Parkway
Atlanta, Georgia 30339
(404) 953-7000
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrants
Principal Executive Offices)
Sara E. Epstein
Senior Counsel
BlueLinx Holdings Inc.
4300 Wildwood Parkway
Atlanta, Georgia 30339
(404) 953-7000
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for
Service)
Copies of Communications to:
David W. Ghegan, Esq.
Patrick W. Macken, Esq.
Troutman Sanders LLP
600 Peachtree Street, N.E., Suite 5200
Atlanta, Georgia 30308
(404) 885-3000
Approximate date of commencement of proposed sale to the public: As soon as practicable after
the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box. o
If any of the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box:
þ
If this Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering: o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities
Act, check the following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering: o
If this Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. o
If this Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act. (Check one):
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Large accelerated filer o
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Accelerated filer o
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Non-accelerated filer þ
(Do not check if a smaller reporting company)
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Smaller reporting company o |
The Registrant hereby amends this Registration Statement on such date or dates as may be
necessary to delay its effective date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may
determine.
The information in this prospectus is not complete and may be changed.
We may not sell these securities until the registration statement filed with
the Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and is not soliciting an offer to buy these
securities in any state or jurisdiction where the offer or sale is not
permitted.
SUBJECT
TO COMPLETION, DATED AUGUST 24, 2011
PROSPECTUS
2,108,098 SHARES
OF COMMON STOCK
The selling stockholders named herein may offer and sell from time to time up to 2,108,098
shares of our common stock covered by this prospectus. The selling stockholders acquired the
common stock from us in connection with their exercise of rights distributed by us in connection
with the rights offering we completed in July 2011. The selling stockholders will receive all of
the proceeds from any sales of the shares offered hereby. We will not receive any of the proceeds,
but we will incur expenses in connection with the offering.
The selling stockholders identified in this prospectus may sell the shares from time to time
in public transactions or in privately negotiated transactions, without limitation, at market
prices prevailing at the time of sale or at negotiated prices. The timing and amount of any sale
are within the sole discretion of the selling stockholders. Our registration of the shares of
common stock covered by this prospectus does not mean that the selling stockholders will offer or
sell any of the shares. For further information regarding the possible methods by which the shares
may be distributed, see Plan of Distribution beginning on page 11 of this prospectus.
Our
common stock is traded on the NYSE under the symbol BXC.
On August 23, 2011 the last
reported sale price of our common stock on the NYSE was $1.69 per share.
Investing in our common stock involves risks. See Risk Factors beginning on page 2.
Neither the Securities and Exchange Commission nor any state securities regulator has approved
or disapproved of these securities or determined if this prospectus is accurate or complete. Any
representation to the contrary is a criminal offense.
The date of this prospectus is , 2011.
TABLE OF CONTENTS
You should rely only on the information contained in or incorporated by reference into this
prospectus. We have not, and the selling stockholders have not, authorized any other person to
provide you with different or additional information. If anyone provides you with different or
additional information, you should not rely on it. This prospectus is not an offer to sell, nor are
the selling stockholders seeking an offer to buy, the shares offered by this prospectus in any
jurisdiction where the offer or sale is not permitted. The information contained in this prospectus
and the documents incorporated by reference herein is accurate only as of the dates of the
respective documents in which such information is included, regardless of the time of delivery of
this prospectus or any sale of the shares of common stock offered hereby.
ABOUT THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we filed with the
Securities and Exchange Commission, or the SEC. You should read this prospectus, together with
additional information described below under the caption Where You Can Find More Information. We
have prepared the information contained in this prospectus and the documents incorporated by
reference herein and therein that have been filed by us with the SEC. We have not authorized anyone
to provide you with any other information and we do not take any responsibility for other
information others may give you. In this prospectus (including the documents incorporated by
reference herein), we rely on and refer to information and statistics regarding our industry. We
obtained this market data from independent publications or other publicly available information
that we believe are reliable.
No action is being taken in any jurisdiction outside the United States to permit a public
offering of our securities or possession or distribution of this prospectus in that jurisdiction.
Persons who come into possession of this prospectus in jurisdictions outside the United States are
required to inform themselves about and to observe any restrictions as to this offering and the
distribution of this prospectus applicable to those jurisdictions.
Unless the context indicates otherwise, all references in this prospectus to the Company,
BlueLinx, we, us and our refer to BlueLinx Holdings Inc. and our wholly owned subsidiary,
BlueLinx Corporation.
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained in, or incorporated by reference into, this prospectus are
forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as
amended (the Securities Act), and Section 21E of the Securities Exchange Act of 1934, as amended
(the Exchange Act). These forward-looking statements include, without limitation, any statement
that may predict, forecast, indicate or imply future results, performance or achievements, and may
contain the words believe, anticipate, expect, estimate, intend, project, plan, will
be, will likely continue, will likely result or words or phrases of similar meaning. All of
these forward-looking statements are based on estimates and assumptions made by our management
that, although believed by us to be reasonable, are inherently uncertain. Forward-looking
statements involve risks and uncertainties, including, but not limited to, economic, competitive,
governmental and technological factors outside of our control, that may cause our business,
strategy or actual results to differ materially from the forward-looking statements. We operate in
a changing environment in which new risks can emerge from time to time. It is not possible for
management to predict all of these risks, nor can it assess the extent to which any factor, or a
combination of factors, may cause our business, strategy or actual results to differ materially
from those contained in forward-looking statements. Factors you should consider that could cause
these differences include, among other things:
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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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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;
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 January 1, 2011. |
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Given these risks and uncertainties, we caution you not to place undue reliance on
forward-looking statements. We undertake no obligation to publicly update or revise any
forward-looking statement as a result of new information, future events or otherwise, except as
required by law.
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SUMMARY
The following summary contains basic information about us. Because it is a summary, it may not
contain all of the information that is important to you. Before making a decision to invest in our
common stock, you should read this prospectus carefully, including the section entitled Risk
Factors, and the information incorporated by reference in this prospectus.
Our Company
BlueLinx Holdings Inc., operating through our wholly-owned subsidiary, BlueLinx Corporation,
is a leading distributor of building products in the United States. We operate in all of the major
metropolitan areas in the United States and distribute approximately 10,000 products from over 750
suppliers to service more than 11,500 customers nationwide, including dealers, industrial
manufacturers, manufactured housing producers and home improvement retailers. We operate our
distribution business from sales centers in Atlanta and Denver, and our network of approximately 60
distribution centers. We distribute products through our owned and leased fleet of over 600 trucks
and over 1,000 trailers, as well as by common carrier.
We distribute products in two principal categories: structural products and specialty
products. Structural products, which represented approximately 46%, 44% and 50% of our fiscal 2010,
fiscal 2009 and fiscal 2008 gross sales, respectively, include plywood, oriented strand board
(OSB), rebar and remesh, lumber and other wood products primarily used for structural support,
walls and flooring in construction projects. Specialty products, which represented approximately
54%, 56% and 50% of our fiscal 2010, fiscal 2009 and fiscal 2008 gross sales, respectively, include
roofing, insulation, specialty panels, moulding, engineered wood products, vinyl products (used
primarily in siding), outdoor living and metal products (excluding rebar and remesh).
Corporate Information
Our principal executive office is located at 4300 Wildwood Parkway, Atlanta, Georgia 30339.
Our telephone number is (770) 953-7000. Information on BlueLinx is available on our internet
website www.bluelinxco.com. The information contained on our websites or that can be
accessed through our websites does not constitute part of this prospectus and is not incorporated
in any manner into this prospectus.
Our common stock trades on the New York Stock Exchange under the ticker symbol BXC.
The Offering
We are registering 2,108,098 shares of our common stock for resale by the selling stockholders
identified in this prospectus. The shares were issued to the selling stockholders in connection
with the exercise of rights distributed by us through our rights offering to all of our
stockholders. We will not receive any of the proceeds from the sale of these shares by the selling
stockholders.
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RISK FACTORS
An investment in our common stock involves a high degree of risk. In evaluating an investment
in our securities, you should consider carefully the risks described below, which discuss the most
significant factors that affect an investment in our common stock, together with the other
information included or incorporated by reference in this prospectus, including the risk factors
set forth in Item 1A of our Annual Report on Form 10-K for the year ended January 1, 2011 and in
the other reports that we file from time to time with the Securities and Exchange Commission, which
are incorporated by reference into this prospectus and any applicable prospectus supplement. If
any of the events described in the risk factors actually occurs, or if additional risks and
uncertainties not presently known to us or that we currently deem immaterial, materialize, then our
business, results of operations and financial condition could be materially adversely affected. The
risks discussed below include forward-looking statements, and our actual results may differ
materially from those discussed in these forward-looking statements.
Risks Related to Our Company
Our industry is highly cyclical, and prolonged periods of weak demand or excess supply may reduce
our net sales and/or margins, which may reduce our net income or cause us to incur losses.
The building products distribution industry is subject to cyclical market pressures. Prices of
building products are determined by overall supply and demand in the market for building products.
Market prices of building products historically have been volatile and cyclical and we have limited
ability to control the timing and amount of pricing changes for building products. Demand for
building products is driven mainly by factors outside of our control, such as general economic and
political conditions, interest rates, availability of mortgage financing, the construction, repair
and remodeling and industrial markets, weather and population growth. The supply of building
products fluctuates based on available manufacturing capacity, and excess capacity in the industry
can result in significant declines in market prices for those products. To the extent that prices
and volumes experience a sustained or sharp decline, our net sales and margins likely would decline
as well. Because we have substantial fixed costs, a decrease in sales and margin generally may have
a significant adverse impact on our financial condition, operating results and cash flows. Our
results in some periods have been affected by market volatility, including a reduction in gross
profits due to a decline in the resale value of our structural products inventory. All of these
factors make it difficult to forecast our operating results.
Our industry is dependant on the homebuilding industry which is suffering from a prolonged
significant downturn, and any further downturn or sustained continuation of the current downturn
will continue to materially affect our business, liquidity and operating results.
Our sales depend heavily on the strength of national and local new residential construction
and home improvement and remodeling markets. The strength of these markets depends on new housing
starts and residential renovation projects, which are a function of many factors beyond our
control. Some of these factors include general economic conditions, employment levels, job and
household formation, interest rates, housing prices, tax policy, availability of mortgage
financing, prices of commodity wood and steel products, immigration patterns, regional demographics
and consumer confidence.
The downturn in the residential construction market is in its fifth consecutive year and it
has become one of the most severe housing downturns in United States history. Along with high
unemployment, tighter lending standards and general economic uncertainty, there is an oversupply of
unsold homes on the market and the pool of qualified home buyers has declined significantly.
Moreover, the governments legislative and administrative measures aimed at restoring liquidity to
the credit markets and providing relief to homeowners facing foreclosure have had limited results.
In 2009, the government provided eligible home buyers a tax credit that was extended until April
30, 2010. As a result of the home buyers tax credit, the residential construction market improved
during the first quarter and second quarter of fiscal 2010, but experienced a decline in the third
and fourth quarters of fiscal 2010 following expiration of the credits. It is unclear if and to
what extent the residential construction market will improve during fiscal 2011.
Our results of operations have been adversely affected by the severe downturn in new housing
activity in the United States and we expect the severe downturn in new housing activity to continue
to adversely affect our
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operating results in 2011. A prolonged continuation of the current downturn and any future
downturns in the markets that we serve or in the economy generally will have a material adverse
effect on our operating results, liquidity and financial condition. Reduced levels of construction
activity may result in continued intense price competition among building materials suppliers,
which may adversely affect our gross margins. We cannot provide assurance that our responses to the
downturn or the governments attempts to address the difficulties in the economy will be
successful.
A significant portion of our sales are on credit to our customers. Material changes in their credit
worthiness or our inability to forecast deterioration in their credit position could have a
material adverse effect on our operating results, cash flow and liquidity.
The majority of our sales are on account where we provide credit to our customers. Continued
market disruptions could cause additional economic downturns, which may lead to lower demand for
our products and increased incidence of customers inability to pay their accounts. Bankruptcies by
our customers may cause us to incur bad debt expense at levels higher than historically
experienced. In fiscal 2010, less than 0.1% in bad debt expense to total net sales was incurred
related to credit sales. Our customers are generally susceptible to the same economic business
risks as we are. Furthermore, we may not necessarily be aware of any deterioration in their
financial position. If our customers financial position becomes impaired, it could have a
significant impact on our bad debt exposure and could have a material adverse effect on our
operating results, cash flow and liquidity.
In addition, certain of our suppliers potentially may be impacted as well, causing disruption
or delay of product availability. These events would adversely impact our results of operations,
cash flows and financial position.
Our cash flows and capital resources may be insufficient to make required payments on our
substantial indebtedness and future indebtedness or to maintain our required level of excess
liquidity.
We have a substantial amount of debt. As of July 2, 2011, outstanding borrowings under our
revolving credit facility were approximately $188.9 million, borrowing availability was
approximately $94.0 million and outstanding letters of credit on the facility were approximately
$2.5 million. We also have a mortgage loan in the amount of $247.3 million.
Our substantial debt could have important consequences to you. For example, it could:
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make it difficult for us to satisfy our debt obligations; |
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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
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. |
In addition, our ability to make scheduled payments or refinance our obligations depends on
our successful financial and operating performance, cash flows and capital resources, which in turn
depend upon prevailing economic conditions and certain financial, business and other factors, many
of which are beyond our control. These factors include, among others:
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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. |
If our cash flows and capital resources are insufficient to fund our debt service obligations,
we may be forced to reduce or delay capital expenditures, sell material assets or operations,
obtain additional capital or restructure our debt. Obtaining additional capital or restructuring
our debt could be accomplished in part through new or additional borrowings or placements of debt
or equity securities. There is no assurance that we could obtain additional capital or restructure
our debt on terms acceptable to us or at all. In the event that we are required to dispose of
material assets or operations to meet our debt service and other obligations, the value realized on
such assets or operations will depend on market conditions and the availability of buyers.
Accordingly, any such sale may not, among other things, be for a sufficient dollar amount. Our
obligations under the amended revolving credit facility are secured by a first priority security
interest in all of our operating companys inventories, receivables and proceeds from those items.
In addition, our mortgage loan is secured by the majority of our real property. The foregoing
encumbrances may limit our ability to dispose of material assets or operations. We also may not be
able to restructure our indebtedness on favorable economic terms, if at all. We may incur
substantial additional indebtedness in the future, including under the revolving credit facility.
Our incurrence of additional indebtedness would intensify the risks described above.
The instruments governing our indebtedness contain various covenants limiting the discretion of our
management in operating our business, including requiring us to maintain a minimum level of excess
liquidity.
Our amended revolving credit facility and mortgage loan contain various restrictive covenants
and restrictions, including financial covenants customary for asset-based loans that limit our
managements discretion in operating our business. In particular, these instruments limit our
ability to, among other things:
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incur additional debt; |
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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. |
Under our amended revolving credit facility, we are required to maintain our excess
availability above the greater of $35 million or the amount equal to 15% of the lesser of the
borrowing base, as defined therein, or $400 million. If we fail to maintain this minimum excess
availability, the amended revolving credit facility requires us to (i) maintain certain financial
ratios, which we will not meet with our current operating results and (ii) limit our capital
expenditures. If we fail to comply with the restrictions in the amended revolving credit facility,
the mortgage loan documents or any other current or future financing agreements, a default may
allow the creditors under the relevant instruments to accelerate the related debt and to exercise
their remedies under these agreements, which will typically include the right to declare the
principal amount of that debt, together with accrued and unpaid interest and other related amounts,
immediately due and payable, to exercise any remedies the creditors may have to foreclose on assets
that are subject to liens securing that debt and to terminate any commitments they had made to
supply further funds.
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We are dependent upon a single supplier, Georgia-Pacific, for a significant percentage of our
products.
Although we have been working to diversify our supplier base, we are still dependent on
Georgia-Pacific for a significant percentage of our products. Purchases from Georgia-Pacific
accounted for approximately 12% and 16% of our purchases during fiscal 2010 and fiscal 2009,
respectively. We currently operate without a supply agreement for many of the products that we
purchase from Georgia-Pacific. As a result, our purchases from Georgia-Pacific are subject to
greater volatility with respect to sales terms, including volume and pricing, than when we had a
long-term supply agreement in place. In addition, if we are unable to agree on supply arrangements
for the products not currently covered by supply agreements or if Georgia-Pacific otherwise
discontinues sales of product to us, we could experience a product shortage unless and until we
obtain a replacement supplier or suppliers. We may not be able to obtain replacement products on
favorable economic terms. An inability to replace products on favorable economic terms could
adversely impact our net sales and our costs, which in turn could impact our gross profit, net
income and cash flows.
We continue to distribute a variety of Georgia-Pacific building products, including Engineered
Lumber, which is covered under a three-year purchase agreement dated February 12, 2009. If
Georgia-Pacific and BlueLinx are unable to agree on supply arrangements for products other than
engineered lumber, if Georgia-Pacific otherwise discontinues sales of product to us, or if BlueLinx
and Georgia-Pacific are unable to agree on product pricing in accordance with the mechanism set
forth in the purchase agreement for purchases we make from Georgia-Pacific, we could experience a
product shortage unless and until we obtain a replacement supplier or suppliers. We may not be able
to obtain replacement products on favorable economic terms, or may not be able to obtain comparable
alternative products. An inability to replace products on favorable economic terms or with
comparable products could adversely impact our net sales and our costs, which in turn could impact
our gross profit, net income and cash flows.
Our industry is highly fragmented and competitive. If we are unable to compete effectively, our net
sales and operating results will be reduced.
The building products distribution industry is highly fragmented and competitive and the
barriers to entry for local competitors are relatively low. Competitive factors in our industry
include pricing and availability of product, service and delivery capabilities, ability to assist
with problem-solving, customer relationships, geographic coverage and breadth of product offerings.
Also, financial stability is important to suppliers and customers in choosing distributors for
their products and affects the favorability of the terms on which we are able to obtain our
products from our suppliers and sell our products to our customers.
Some of our competitors are part of larger companies and therefore have access to greater
financial and other resources than us. In addition, certain product manufacturers sell and
distribute their products directly to customers. Additional manufacturers of products distributed
by us may elect to sell and distribute directly to end-users in the future or enter into exclusive
supply arrangements with other distributors. Finally, we may not be able to maintain our costs at a
level sufficiently low for us to compete effectively. If we are unable to compete effectively, our
net sales and net income will be reduced.
Integrating acquisitions may be time-consuming and create costs that could reduce our operating
results and cash flows.
We may elect to selectively pursue acquisitions. Any integration process may be complex and
time consuming, may be disruptive to the business and may cause an interruption of, or a
distraction of managements attention from, the business as a result of a number of obstacles,
including but not limited to:
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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. |
Any of the foregoing obstacles, or a combination of them, could increase selling, general and
administrative expenses in absolute terms and/or as a percentage of net sales, which could in turn
negatively impact our operating results and cash flows.
We may not be able to consummate acquisitions in the future on terms acceptable to us, or at
all. In addition, future acquisitions are accompanied by the risk that the obligations and
liabilities of an acquired company may not be adequately reflected in the historical financial
statements of that company and the risk that those historical financial statements may be based on
assumptions which are incorrect or inconsistent with our assumptions or approach to accounting
policies. Any of these material obligations, liabilities or incorrect or inconsistent assumptions
could adversely impact our results of operations.
A significant percentage of our employees are unionized. Wage increases or work stoppages by our
unionized employees may reduce our results of operations.
As of January 1, 2011, approximately 30% of our employees were represented by various labor
unions. As of January 1, 2011, we had 46 collective bargaining agreements, of which 4, covering
approximately 40 total employees, are up for renewal in 2011, and one collective bargaining
agreement expired in March 2010. We are in active negotiations with the subject union, and, in the
interim, are operating under the terms and conditions of the expired agreement. Although we have
historically had good relations with our unionized employees and expect to renew the collective
bargaining agreements that will expire in 2011 and the collective bargaining agreement that expired
in 2010, no assurances can be provided that we will be able to reach a timely agreement as to the
renewal of the agreements and their expiration or continued expired status, as applicable, could
result in a work stoppage. In addition, we may become subject to material cost increases, or
additional work rules imposed by agreements with labor unions. The foregoing could increase our
selling, general and administrative expenses in absolute terms and/or as a percentage of net sales.
In addition, work stoppages or other labor disturbances may occur in the future, which could
adversely impact our net sales and/or selling, general and administrative expenses. All of these
factors could negatively impact our operating results and cash flows.
Increases in the cost of employee benefits, such as pension and other postretirement benefits,
could impact our financial results and cash flow.
Unfavorable changes in the cost of our pension retirement benefits and current employees
medical benefits could materially impact our financial results and cash flow. We sponsor several
defined benefit pension plans covering substantially all of our hourly employees. Our estimates of
the amount and timing of our future funding obligations for our defined benefit pension plans are
based upon various assumptions. These assumptions include, but are not limited to, the discount
rate, projected return on plan assets, compensation increase rates, mortality rates, retirement
patterns, and turnover rates. In addition, the amount and timing of our pension funding obligations
can be influenced by funding requirements that are established by the Employee Retirement Income
and Security Act of 1974 (ERISA), the Pension Protection Act, Congressional Acts, or other
governing bodies. During fiscal 2010, we met our required contribution to our defined benefit
pension plans. As of January 1, 2011, the net underfunded status of our benefit plan was $18.8
million. The Companys minimum required contribution in 2011 is $4.1 million, $2.8 million of which
will be funded through a pre-funded balance. The difference will be funded through a $1.3 million
cash contribution. If the status of our defined benefit plan continues to be underfunded it will
require additional future cash contributions.
We participate in various multi-employer pension plans in the United States. The majority of
these plans are underfunded. If, in the future, we choose to withdraw from these plans, we likely
would need to record a withdrawal liability, which may be material to our financial results.
6
The payment of dividends has been suspended, and resumption is dependant on business conditions,
among other factors. Further, the instruments governing our indebtedness contain various covenants
that may limit our ability to pay dividends.
We suspended the payment of dividends on our common stock for an indefinite period of time on
December 5, 2007. Resumption of the payment of dividends will depend on, among other things,
business conditions in the housing industry, our results of operations, cash requirements,
financial condition, contractual restrictions, provisions of applicable law and other factors that
our board of directors may deem relevant. Accordingly, we may not be able to resume the payment of
dividends at the same quarterly rate in the future, if at all.
Federal and state transportation regulations could impose substantial costs on us which would
reduce our net income.
We use our own fleet of over 600 trucks and over 1,000 trailers to service customers
throughout the United States. The U.S. Department of Transportation, or DOT, regulates our
operations in domestic interstate commerce. We are subject to safety requirements governing
interstate operations prescribed by the DOT. Vehicle dimensions and driver hours of service also
remain subject to both federal and state regulation. More restrictive limitations on vehicle weight
and size, trailer length and configuration, or driver hours of service would increase our costs,
which, if we are unable to pass these cost increases on to our customers, will increase our
selling, general and administrative expenses and reduce our operating results.
Environmental laws impose risks and costs on us.
Our operations are subject to federal, state, provincial and local laws, rules and regulations
governing the protection of the environment, including, but not limited to, those regulating
discharges into the air and water, the use, handling and disposal of hazardous or toxic substances,
the management of wastes, the cleanup of contamination and the control of noise and odors. We have
made, and will continue to make, expenditures to comply with these requirements. While we believe,
based upon current information, that we are in substantial compliance with all applicable
environmental laws, rules and regulations, we could be subject to potentially significant fines or
penalties for any failure to comply. Moreover, under certain environmental laws, a current or
previous owner or operator of real property, and parties that generate or transport hazardous
substances that are disposed of at that real property, may be held liable for the cost to
investigate or clean up such real property and for related damages to natural resources. We may be
subject to liability, including liability for investigation and cleanup costs, if contamination is
discovered at one of our current or former warehouse facilities, or at a landfill or other location
where we have disposed of, or arranged for the disposal of, wastes. Georgia-Pacific has agreed to
indemnify us against any claim arising from environmental conditions that existed prior to May 7,
2004 in connection with the properties we acquired when we purchased the assets of the Division
from Georgia-Pacific. We also carry environmental insurance. However, any remediation costs either
not related to conditions existing prior to May 7, 2004 or on properties acquired after May 7, 2004
may not be covered by indemnification. In addition, certain remediation costs may not be covered by
insurance. We could also be subject to claims brought pursuant to applicable laws, rules or
regulations for property damage or personal injury resulting from the environmental impact of our
operations. Increasingly stringent environmental requirements, more aggressive enforcement actions,
the discovery of unknown conditions or the bringing of future claims may cause our expenditures for
environmental matters to increase, and we may incur material costs associated with these matters.
Failure to comply with governmental laws and regulations could harm our business.
Our business is subject to regulation by various federal, state, local and foreign
governmental agencies, including agencies responsible for monitoring and enforcing employment and
labor laws, workplace safety, product safety, environmental laws, consumer protection laws,
anti-bribery laws, import/export controls, federal securities laws and tax laws and regulations.
Noncompliance with applicable regulations or requirements could subject us to investigations,
sanctions, mandatory product recalls, enforcement actions, disgorgement of profits, fines, damages,
civil and criminal penalties or injunctions. If any governmental sanctions are imposed, or if we do
not prevail in any possible civil or criminal litigation, our business, operating results and
financial condition could be materially adversely affected. In addition, responding to any action
will likely result in a significant diversion of managements
7
attention and resources and an increase in professional fees. Enforcement actions and
sanctions could harm our business, operating results and financial condition.
Affiliates of Cerberus control us and may have conflicts of interest with other stockholders in the
future.
Cerberus ABP Investor LLC (Cerberus), which we refer to as the controlling stockholder,
beneficially owned approximately 55% of our common stock as of August 1, 2011. As a result, the
controlling stockholder will continue to be able to control the election of our directors,
determine our corporate and management policies and determine, without the consent of our other
stockholders, the outcome of any corporate transaction or other matter submitted to our
stockholders for approval, including potential mergers or acquisitions, asset sales and other
significant corporate transactions. This concentrated ownership position limits other stockholders
ability to influence corporate matters and, as a result, we may take actions that some of our
stockholders do not view as beneficial.
The controlling stockholder is controlled by Cerberus Capital Management. Four of our eight
directors are, or recently were, employees of or advisors to Cerberus Capital management. The
controlling stockholder also has sufficient voting power to amend our organizational documents. The
interests of the controlling stockholder may not coincide with the interests of other holders of
our common stock. Additionally, the controlling stockholder is in the business of making
investments in companies and may, from time to time, acquire and hold interests in businesses that
compete directly or indirectly with us. The controlling stockholder may also pursue, for its own
account, acquisition opportunities that may be complementary to our business, and as a result,
those acquisition opportunities may not be available to us. So long as the controlling stockholder
continues to own a significant amount of the outstanding shares of our common stock, it will
continue to be able to strongly influence or effectively control our decisions, including potential
mergers or acquisitions, asset sales and other significant corporate transactions. In addition,
because we are a controlled company within the meaning of the New York Stock Exchange rules, we are
exempt from the NYSE requirements that our board be composed of a majority of independent
directors, that our compensation committee be composed entirely of independent directors, and that
we maintain a nominating/corporate governance committee composed entirely of independent directors.
Even if Cerberus no longer controls us in the future, certain provisions of our charter documents
and agreements and Delaware law could discourage, delay or prevent a merger or acquisition at a
premium price.
Our Amended and Restated Certificate of Incorporation and Bylaws contain provisions that:
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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 |
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limit the stockholders ability to call special meetings. |
These provisions may discourage, delay or prevent a merger or acquisition at a premium price.
In addition, we are subject to Section 203 of the General Corporation Law of the State of
Delaware, or the DGCL, which also imposes certain restrictions on mergers and other business
combinations between us and any holder of 15% or more of our common stock. Further, certain of our
incentive plans provide for vesting of stock options and/or payments to be made to our employees in
connection with a change of control, which could discourage, delay or prevent a merger or
acquisition at a premium price.
We may incur substantial costs relating to Georgia-Pacifics product liability related claims.
Georgia-Pacific is a defendant in suits brought in various courts around the nation by
plaintiffs who allege that they have suffered personal injury as a result of exposure to products
containing asbestos. These suits allege a variety of lung and other diseases based on alleged
exposure to products previously manufactured by Georgia-Pacific. Although the terms of the asset
purchase agreement provide that Georgia-Pacific will indemnify us against all obligations and
liabilities arising out of, relating to or otherwise in any way in respect of any product liability
8
claims (including, without limitation, claims, obligations or liabilities relating to the
presence or alleged presence of asbestos-containing materials) with respect to products purchased,
sold, marketed, stored, delivered, distributed or transported by Georgia-Pacific and its
affiliates, including the Division prior to the acquisition, it could be possible that
circumstances may arise under which asbestos-related claims against Georgia-Pacific could cause us
to incur substantial costs.
For example, in the event that Georgia-Pacific is financially unable to respond to an asbestos
product liability claim, plaintiffs lawyers may, in order to obtain recovery, attempt to sue us,
in our capacity as owner of assets sold by Georgia-Pacific, despite the fact that the assets sold
to us did not contain asbestos. Asbestos litigation has, over the years, proved unpredictable, as
the aggressive and well-financed asbestos plaintiffs bar has been creative, and often successful,
in bringing claims based on novel legal theories and on expansive interpretations of existing legal
theories. These claims have included claims against companies that did not manufacture asbestos
products. As a result of these factors, a number of companies have been held liable for amounts far
in excess of their perceived exposure. Although we believe, based on our understanding of the law
as currently interpreted, that we should not be held liable for any of Georgia-Pacifics
asbestos-related claims, and, to the contrary, that we would prevail on summary judgment on any
such claims, there is nevertheless a possibility that new theories could be developed, or that the
application of existing theories could be expanded, in a manner that would result in liability for
us. Any such liability ultimately could be borne by us if Georgia-Pacific is unable to fulfill its
indemnity obligation under the asset purchase agreement with us.
Risks Related to the Common Stock
Only a limited market exists for our common stock which could lead to price volatility.
The limited trading market for our common stock may cause fluctuations in the market value of
our common stock to be exaggerated, leading to price volatility in excess of that which would occur
in a more active trading market of our common stock.
Concentrated ownership of our common stock creates a risk of sudden change in our share price.
Investors who purchase our common stock may be subject to certain risks due to the
concentrated ownership of our common stock. The sale by any of our large stockholders of a
significant portion of that stockholders holdings could have a material adverse effect on the
market price of our common stock. As of August 1, 2011, Cerberus beneficially owned approximately
55% of our common stock.
There may be future sales or other dilution of our equity, which may adversely affect the market
price of our common shares.
We are not restricted from issuing additional common shares, including any securities that are
convertible into or exchangeable for, or that represent the right to receive, common shares, as
well as any common shares that may be issued pursuant to our stockholder rights plan. The market
price of our common shares could decline as a result of sales of our common shares made after this
offering or the perception that such sales could occur. It could also decline if we issue
additional common shares in connection with a proposed exchange of a portion of our trust preferred
shares for our common shares.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the shares of common stock offered
and sold pursuant to this prospectus. We, and not the selling stockholders, will pay the costs,
expenses and fees in connection with the registration and sale of the shares covered by this
prospectus, but the selling stockholders will pay all discounts, commissions or brokers fees or
fees of similar securities industry professionals and transfer taxes, if any, attributable to sales
of the shares.
9
SELLING STOCKHOLDERS
This prospectus relates to the possible disposition of up to 2,108,098 shares of our common
stock by the selling stockholders identified below. We issued the shares of common stock to the
selling stockholders in connection with their exercise of rights distributed by us to all of our
stockholders in the rights offering we completed in July 2011. The following table sets forth
information with respect to the beneficial ownership of our common stock held as of August 1, 2011
by each selling stockholder, the number of shares being offered hereby and information with respect
to shares to be beneficially owned by each selling stockholder assuming all the shares registered
hereunder are sold. We prepared this table based on the information supplied to us by the selling
stockholders and we have not sought to verify such information. The percentage ownership for both
before the offering and after completion of the offering is based on 61,811,862 shares of our
common stock outstanding as of August 1, 2011.
Based upon information provided by the selling stockholders, none of the selling stockholders nor
any of their respective affiliates, officers, directors or principal equity holders has held any
position or office or had any material relationship with us within
the past three years. In addition, none of the selling stockholders
identified below are broker-dealers or affiliates of broker-dealers.
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Shares |
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Shares Beneficially Owned |
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Offered |
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Shares Beneficially Owned |
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Prior to the Offering |
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Hereby |
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After the Offering(1) |
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Name |
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Number |
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Percentage |
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Number |
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Number |
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Percentage |
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Stadium
Capital Partners, L.P. (2) |
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3,529,164 |
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5.71 |
% |
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1,828,477 |
(3) |
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1,700,687 |
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2.75 |
% |
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Stadium
Capital Qualified Partners, L.P. (2) |
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539,701 |
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* |
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279,621 |
(3) |
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260,080 |
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* |
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* |
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Less than 1%. |
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(1) |
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Assumes the sale of all shares offered under this prospectus by the selling stockholder. |
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(2) |
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Stadium Capital Management, LLC, as investment advisor for
the selling stockholder,
exercises shared voting and investment authority over the shares identified in this table in
conjunction with Alexander M. Seaver and Bradley R. Kent. |
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(3) |
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Represents shares of common stock acquired upon the exercise of subscription rights by
the selling stockholder on July 21, 2011 at the exercise price of $2.10 per share in
connection with our rights offering. |
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10
PLAN OF DISTRIBUTION
We are registering shares of common stock on behalf of the selling stockholders. The common
stock may be sold in one or more transactions at fixed prices, at prevailing market prices at the
time of sale, at prices related to the prevailing market prices, at varying prices determined at
the time of sale, or at negotiated prices. These sales may be effected at various times in one or
more of the following transactions, or in other kinds of transactions:
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transactions on the New York Stock Exchange or on any other national securities
exchange or U.S. inter-dealer system of a registered national securities association on
which our common stock may be listed or quoted at the time of sale; |
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in the over-the-counter market; |
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in private transactions and transactions otherwise than on these exchanges or systems
or in the over-the-counter market; |
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in connection with short sales of shares of our common stock; |
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by pledge to secure or in payment of debt and other obligations; |
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through the writing of options, whether the options are listed on an options exchange
or otherwise; |
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in connection with the writing of non-traded and exchange-traded call options, in hedge
transactions and in settlement of other transactions in standardized or over-the-counter
options; or |
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through a combination of any of the above transactions. |
The selling stockholders and their respective successors, including their transferees,
pledgees or donees or their successors, may sell the common stock directly to purchasers or through
underwriters, broker-dealers or agents, who may receive compensation in the form of discounts,
concessions or commissions from the selling stockholders or the purchasers. These discounts,
concessions or commissions as to any particular underwriter, broker-dealer or agent may be in
excess of those customary in the types of transactions involved.
Our common stock is listed for trading on the New York Stock Exchange under the symbol BXC.
In order to comply with the securities laws of some jurisdictions, if applicable, the holders
of securities may offer and sell those securities in such jurisdictions only through registered or
licensed brokers or dealers. In addition, under certain circumstances, in some jurisdictions the
securities may not be offered or sold unless they have been registered or qualified for sale in the
applicable jurisdiction or an exemption from registration or qualification requirements is
available and is complied with.
The selling stockholders and any underwriters, broker-dealers or agents that participate in
the sale of the securities, may be underwriters within the meaning of Section 2(11) of the
Securities Act. Any discounts, commissions, concessions or profit they earn on any sale of the
common stock may be underwriting compensation under the Securities Act. If required, at the time
of a particular offering of our common stock by the selling stockholders, a supplement to this
prospectus will be circulated setting forth the name or names of any underwriters, broker-dealers
or agents, any discounts, commissions or other terms constituting compensation for underwriters and
any discounts, commissions or concessions allowed or reallowed or paid to agents or broker-dealers.
In addition, any securities covered by this prospectus which qualify for sale pursuant to Rule
144 of the Securities Act may be sold under Rule 144 rather than pursuant to this prospectus.
We entered into a registration rights agreement for the benefit of the selling stockholders to
register the common stock under applicable federal and state securities laws. The registration
rights agreement provides for cross-indemnification of the selling stockholders and us and our
respective directors, officers and controlling
11
persons against specific liabilities in connection with the offer and sale of the common
stock, including liabilities under the Securities Act.
EXPERTS
Ernst & Young LLP, independent registered public accounting firm, has audited our consolidated
financial statements included in our Annual Report on Form 10-K for the year ended January 1, 2011,
and the effectiveness of our internal control over financial reporting as of January 1, 2011, as
set forth in their reports, which are incorporated by reference in this prospectus and elsewhere in
the registration statement. Our financial statements are incorporated by reference in reliance on
Ernst & Young LLPs reports, given on their authority as experts in accounting and auditing.
LEGAL MATTERS
Certain legal matters with respect to the securities offered in this prospectus have been
passed upon for us by Troutman Sanders LLP, Atlanta, Georgia.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-3 with respect to the shares of
common stock offered hereby. This prospectus does not contain all the information set forth in the
registration statement, parts of which are omitted in accordance with the rules and regulations of
the SEC. For further information with respect to us and the common stock offered hereby, reference
is made to the registration statement. Statements contained in this prospectus as to the contents
of any contract or other documents are not necessarily complete. If a contract or document has been
filed as an exhibit to the registration statement, we refer you to the copy of the contract or
document that has been filed. Each statement in this prospectus relating to a contract or document
filed as an exhibit is qualified in all respects by the filed exhibit.
We file annual, quarterly and current reports, proxy and information statements and other
information with the SEC pursuant to the Exchange Act. The SEC maintains an Internet site at
http://www.sec.gov that contains those reports, proxy and information statements and other
information regarding us. You may also inspect and copy those reports, proxy and information
statements and other information at the Public Reference Room of the SEC at 100 F Street, N.E.,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the
operation of the Public Reference Room.
You can access electronic copies of our of our filings with the SEC, including copies of
annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and
amendments to these filings, free of charge, on our website at http://www.bluelinxco.com. Access to
those electronic filings is available as soon as reasonably practicable after they are filed with,
or furnished to, the SEC. We make our website content available for information purposes only. It
should not be relied upon for investment purposes, nor is it incorporated by reference into this
prospectus.
In addition, our common stock is traded on the New York Stock Exchange under the symbol BXC.
As a result, reports and other information concerning us can also be inspected at the offices of
the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
INCORPORATION BY REFERENCE
The SEC allows us to incorporate by reference the information we file with it. This means
that we can disclose important information to you by referring you to those documents filed
separately with the SEC. The information we incorporate by reference is an important part of this
prospectus. We incorporate by reference in two ways. First, we list certain documents that we
have already filed with the SEC. Second, the information in documents that we file in the future
will update and supersede the current information in, and incorporated by reference in, this
prospectus.
12
We incorporate by reference the documents listed below, filed separately with the SEC (except
to the extent that any information contained in those documents is deemed furnished in accordance
with SEC rules), and all documents subsequently filed with the SEC by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (other than information in those documents is
deemed furnished in accordance with SEC rules), prior to the termination of the offering:
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Annual Report on Form 10-K for the year ended January 1, 2011; |
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Quarterly Report on Form 10-Q for the quarters ended April 2, 2011 and July 2, 2011; |
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Current Reports on Form 8-K filed on April 26, 2011, May 12, 2011, May 20, 2011 (as
amended on June 23, 2011), June 20, 2011, July 14,
2011, August 1, 2011 and August 16, 2011; and |
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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. |
Any statement contained in a document that is incorporated by reference will be modified or
superseded for all purposes to the extent that a statement contained in this prospectus modifies or
is contrary to that previous statement. Any statement so modified or superseded will not be deemed
a part of this prospectus except as so modified or superseded.
Upon written or oral request, we will provide to each person, including any beneficial owner,
to whom a prospectus is delivered, a copy of any or all of the reports or documents that have been
incorporated by reference in the prospectus contained in the registration statement, but not
delivered with the prospectus. You may request a copy of any of these filings at no cost, by
writing or telephoning us at the following address or telephone number:
BlueLinx Holdings Inc.
4300 Wildwood Parkway
Atlanta, Georgia 30339
(770) 953-7000
13
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
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SEC registration fee |
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$ |
524 |
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*Legal fees and expenses |
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10,000 |
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*Accounting fees and expenses |
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10,000 |
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*Printing and engraving expenses |
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5,000 |
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*Miscellaneous |
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2,000 |
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*Total |
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$ |
27,524 |
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* |
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Estimated pursuant to Item 511 of Regulation S-K. |
Item 15. Indemnification of Directors and Officers.
Indemnification Under the Delaware General Corporation Law
Section 145 of the DGCL authorizes a corporation to indemnify any person who was or is a
party, or is threatened to be made a party, to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that
the person is or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against expenses, including
attorneys fees, judgments, fines and amounts paid in settlement actually and reasonably incurred
by the person in connection with such action, suit or proceeding, if the person acted in good faith
and in a manner the person reasonably believed to be in, or not opposed to, the best interests of
the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to
believe the persons conduct was unlawful. In addition, the DGCL does not permit indemnification in
any threatened, pending or completed action or suit by or in the right of the corporation in
respect of any claim, issue or matter as to which such person shall have been adjudged to be liable
to the corporation, unless and only to the extent that the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of liability, but in view
of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity
for such expenses, which such court shall deem proper. To the extent that a present or former
director or officer of a corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to above, or in defense of any claim, issue or matter, such
person shall be indemnified against expenses, including attorneys fees, actually and reasonably
incurred by such person. Indemnity is mandatory to the extent a claim, issue or matter has been
successfully defended. The DGCL also allows a corporation to provide for the elimination or limit
of the personal liability of a director to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, provided that such provision shall not eliminate or
limit the liability of a director
(1) for any breach of the directors duty of loyalty to the corporation or its stockholders,
(2) for acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law,
(3) for unlawful payments of dividends or unlawful stock purchases or redemptions, or
(4) for any transaction from which the director derived an improper personal benefit.
These provisions will not limit the liability of directors or officers under the federal
securities laws of the United States.
II-1
Indemnification Under the Companys Amended and Restated Certificate of Incorporation (the
Charter)
The Fifth Article of the Companys Charter provides that the personal liability of the
directors of the Company shall be eliminated to the fullest extent permitted by the DGCL
(including, without limitation, paragraph (7) of subsection (b) of Section 102 thereof), as the
same may be amended from time to time. No amendment or repeal of the Fifth Article shall apply to
or have any effect on the liability or alleged liability of any director of the Corporation for or
with respect to any acts or omissions of such director occurring prior to such amendment or repeal.
The Sixth Article of the Companys Charter provides that the Company shall indemnify and hold
harmless, and advance expenses, to the fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any person (a Covered Person) who (i) was or is a party or is
threatened to be made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action by or in the right
of the Company) by reason of the fact that he or she, or a person for whom he or she is the legal
representative, is or was a director or officer of the Company or, while a director or officer of
the Company, is or was serving at the request of the Company as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust, nonprofit entity or other
enterprise, including service with respect to employee benefit plans, against all liability and
loss suffered and expenses (including attorneys fees) judgments, fines and amounts paid in
settlement actually and reasonably incurred by such Covered Person in connection with such action
suit or proceeding if he or she acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the Company, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his or her conduct was unlawful or (ii)
was or is a party or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Company to procure a judgment in its favor by reason of
the fact that he or she, or a person for whom he or she is the legal representative, is or was a
director or officer of the Company or, while a director or officer of the Company, is or was
serving at the request of the Company as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust, nonprofit entity or other enterprise,
including service with respect to employee benefit plans, against all liability and loss suffered
and expenses (including attorneys fees) actually and reasonably incurred by such Covered Person in
connection with the defense or settlement of such action or suit if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the best interests of the
Company, except as otherwise provided by law. Notwithstanding the preceding sentence, except as
otherwise provided in the Amended and Restated Bylaws of the Company (as the same may provide from
time to time) (the Amended and Restated By-laws), the Company shall be required to indemnify a
Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person
only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized
by the Amended and Restated By-laws, in any written agreement with the Company, or in the specific
case by the Board of Directors or stockholders; provided, however, that if successful in whole or
in part in any suit for the advancement of expenses or indemnification hereunder, the Covered
Person shall be entitled to payment of the expense of litigating such suit. Nothing in Article VI
shall affect any rights to indemnification or advancement of expenses to which directors, officers,
employees or agents of the Company otherwise may be entitled under the Amended and Restated
By-laws, any written agreement with the Company or otherwise. The Company may, to the extent
authorized from time to time by the Board of Directors or stockholders, grant rights to
indemnification and to the advancement of expenses to any employee or agent of the Company to the
fullest extent of the provisions of Article VI with respect to the indemnification and advancement
of expenses of directors and officers of the Company. Without limiting the generality or the effect
of the foregoing, the Company may enter into one or more agreements with any person that provides
for indemnification greater or different than that provided in Article VI. No amendment or repeal
of this Article VI shall adversely affect any right or protection existing thereunder or pursuant
thereto immediately prior to such amendment or repeal.
Indemnification Under the Amended and Restated By-laws
Section 5.01 of Article V of the Companys Amended and Restated By-laws provides that the
Company shall indemnify and hold harmless, and advance expenses, to the fullest extent permitted by
applicable law as it presently exists or may hereafter be amended, any person (a Covered Person)
who (1) was or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Company) by reason of the fact that he
II-2
or she, or a person for whom he or she is the legal representative, is or was a director or
officer of the Company or, while a director or officer of the Company, is or was serving at the
request of the Company as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust, nonprofit entity or other enterprise, including service with
respect to employee benefit plans, against all liability and loss suffered and expenses (including
attorneys fees) judgments, fines and amounts paid in settlement actually and reasonably incurred
by such Covered Person in connection with such action suit or proceeding if he or she acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to the best interests
of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his or her conduct was unlawful or (2) was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right of the Company to
procure a judgment in its favor by reason of the fact that he or she, or a person for whom he or
she is the legal representative, is or was a director or officer of the Company or, while a
director or officer of the Company, is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation or of a partnership, joint venture, trust,
nonprofit entity or other enterprise, including service with respect to employee benefit plans,
against all liability and loss suffered and expenses (including attorneys fees) actually and
reasonably incurred by such Covered Person in connection with the defense or settlement of such
action or suit if he or she acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the best interests of the Company, except as otherwise provided by law.
Notwithstanding the preceding sentence, except as otherwise provided in the Amended and Restated
By-laws, the Company shall be required to indemnify a Covered Person in connection with a
proceeding (or part thereof) commenced by such Covered Person only if the commencement of such
proceeding (or part thereof) by the Covered Person was authorized by the Amended and Restated
By-laws, in any written agreement with the Company, or in the specific case by the Board or
stockholders; provided, however, that if successful in whole or in part in any suit for the
advancement of expenses or indemnification hereunder, the Covered Person shall be entitled to
payment of the expense of litigating such suit. Nothing in Article V shall affect any rights to
indemnification or advancement of expenses to which directors, officers, employees or agents of the
Company otherwise may be entitled under the Amended and Restated By-laws, any written agreement
with the Company or otherwise. The Company may, to the extent authorized from time to time by the
Board or stockholders, grant rights to indemnification and to the advancement of expenses to any
employee or agent of the Company to the fullest extent of the provisions of Article V with respect
to the indemnification and advancement of expenses of directors and officers of the Company.
Without limiting the generality or the effect of the foregoing, the Company may enter into one or
more agreements with any person that provides for indemnification greater or different than that
provided in Article V. No amendment or repeal of Article V shall adversely affect any right or
protection existing thereunder or pursuant thereto immediately prior to such amendment or repeal.
Section 5.02 of Article V of the Companys Amended and Restated By-laws provides that it is
the intent of Article V to require the Company, unless otherwise determined by the Board or as
provided for in Section 5.01 in the case of a proceeding (or part thereof) commenced by a Covered
Person, to indemnify the Covered Persons for judgments, fines, penalties, amounts paid in
settlement and expenses (including attorneys fees), and to advance expenses to such persons, in
each and every circumstance in which such indemnification and such advancement of expenses could
lawfully be permitted by express provision of the Amended and Restated By-laws, and the
indemnification and expense advancement provided by Article V shall not be limited by the absence
of an express recital of such circumstances.
Section 5.03 of Article V of the Companys Amended and Restated By-laws provides that
indemnification pursuant to the Amended and Restated By-laws shall inure to the benefit of the
heirs, executors, administrators and personal representatives of the Covered Persons.
Section 5.04 of Article V of the Companys Amended and Restated By-laws provides that the
Company shall to the fullest extent not prohibited by applicable law pay the expenses (including
attorneys fees) incurred by a Covered Person in defending any proceeding in advance of its final
disposition, provided, however, that, to the extent required by law, such payment
of expenses in advance of the final disposition of the proceeding shall be made only upon receipt
of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately
determined that the Covered Person is not entitled to be indemnified under Article V or otherwise.
Section 5.05 of Article V of the Companys Amended and Restated By-laws provides that if a
claim for indemnification (following the final disposition of such action, suit or proceeding) or
advancement of expenses
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under Article V is not paid in full within thirty days after a written claim therefor by the
Covered Person has been received by the Company, the Covered Person may file suit to recover the
unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid
the expense of prosecuting such claim. In any such action the Company shall have the burden of
proving that the Covered Person is not entitled to the requested indemnification or advancement of
expenses under applicable law.
Section 5.06 of Article V of the Companys Amended and Restated By-laws provides that the
rights conferred on any Covered Person by Article V shall not be exclusive of any other rights
which such Covered Person may have or hereafter acquire under any statute, provision of the
Charter, the Amended and Restated By-laws, agreement, vote of stockholders or disinterested
directors or otherwise.
Section 5.07 of Article V of the Companys Amended and Restated By-laws provides that the
Companys obligation, if any, to indemnify or to advance expenses to any Covered Person who was or
is serving at its request as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount
such Covered Person may collect as indemnification or advancement of expenses from such other
corporation, partnership, joint venture, trust, enterprise or non-profit entity.
Indemnification Under Indemnification Agreements With Certain of Our Directors and Executive
Officers
We have entered into Indemnification Agreements with each of our directors and executive
officers pursuant to which the Company has agreed to provide for the advancement of expenses and
indemnification of, to the fullest extent permitted under Delaware law, as the same may be amended
from time to time, for each person party to an Indemnification Agreement.
Item 16. Exhibits and Financial Statement Schedules.
A list of exhibits filed with this registration statement on Form S-3 is set forth on the
Exhibit Index and is incorporated herein by reference.
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the
registration statement (or the most recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and
any deviation from the low or high end of the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the Calculation of Registration Fee table in the effective
registration statement;
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to such information in
the registration statement.
Provided, however, that paragraphs (1)(i), (1)(ii), and (a)(1)(iii) do not apply if the
registration state is on Form S-3 and the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by
the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement, or is contained in a form of
prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
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(2) That, for the purpose of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be
deemed to be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing
the information required by section 10(a) of the Securities Act of 1933 shall be deemed
to be part of and included in the registration statement as of the earlier of the date
such form of prospectus is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the prospectus. As provided
in Rule 430B, for liability purposes of the issuer and any person that is at that date an
underwriter, such date shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration statement or made
in a document incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or prospectus that was
part of the registration statement or made in any such document immediately prior to such
effective date.
(5) That, for the purpose of determining liability of the Registrant under the Securities Act
of 1933 to any purchaser in the initial distribution of the securities: The undersigned Registrant
undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this
registration statement, regardless of the underwriting method used to sell the securities to the
purchaser, if the securities are offered or sold to such purchaser by means of any of the following
communications, the undersigned Registrant will be a seller to the purchaser and will be considered
to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the
offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the
undersigned Registrant or used or referred to by the undersigned Registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing
material information about the undersigned Registrant or its securities provided by or on behalf of
the undersigned Registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned
Registrant to the purchaser.
(6) The undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrants annual report pursuant
to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
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(7) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy as expressed in
the Act, and is, therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person in connection with
the securities being registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has
duly caused this registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Atlanta, State of Georgia, on
August 24, 2011.
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BLUELINX HOLDINGS INC.
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By: |
/s/ George R. Judd
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George R. Judd |
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President and Chief Executive Officer:
(Principal Executive Officer) |
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Pursuant to the requirements of the Securities Act of 1933, as amended, this registration
statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature |
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Title |
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Date |
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/s/ George R. Judd
George R. Judd
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President and Chief Executive
Officer and Director
(Principal Executive Officer)
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August 24, 2011 |
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/s/ Howard D. Goforth
Howard D. Goforth
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Senior Vice President, Chief
Financial Officer and
Treasurer (Principal Financial
Officer)
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August 24, 2011 |
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/s/ Scott T. Phillips
Scott T. Phillips
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Chief Accounting Officer
(Principal Accounting
Officer)
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August 24, 2011 |
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Director
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August 24, 2011 |
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August 24, 2011 |
Richard S. Grant |
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Director |
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Director
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August 24, 2011 |
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Director
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August 24, 2011 |
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Director
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August 24, 2011 |
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Signature |
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Title |
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Date |
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Director
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August 24, 2011 |
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Director
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August 24, 2011 |
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*By: |
/s/ George R. Judd
Attorney-in-Fact
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II-8
EXHIBIT INDEX
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Exhibit |
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Number |
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Item |
3.1
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Amended and Restated Certificate of Incorporation of BlueLinx (Previously filed
as an exhibit to Amendment No. 4 to the Companys Registration Statement on Form
S-1 (Reg. No. 333-118750) filed with the Securities and Exchange Commission on
December 10, 2004.) |
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3.2
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Amended and Restated By-Laws of BlueLinx (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.) |
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4.1
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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.) |
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5.1
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Opinion of Troutman Sanders LLP* |
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23.1
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Consent of Ernst & Young LLP* |
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23.2
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Consent of Troutman Sanders LLP (included as part of Exhibit 5.1) |
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24.1
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Powers of Attorney** |
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* |
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Filed herewith. |
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** |
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Previously filed. |
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