Securities Registration Statement (simplified Form) (s-3/a)
03 September 2020 - 6:31AM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on September 2, 2020
Registration No. 333-234965
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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)
Delaware
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77-0627356
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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1950 Spectrum Circle, Suite 300
Marietta, GA 30067
(770) 953-7000
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
Justin B. Heineman
Vice President, General Counsel &
Corporate Secretary
BlueLinx Holdings Inc.
1950 Spectrum Circle, Suite 300
Marietta, GA 30067
(770) 953-7000
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
Copies to:
W. Benjamin Barkley, Esq.
Kilpatrick Townsend & Stockton LLP
1100 Peachtree Street, N.E.
Atlanta, Georgia 30309-4530
(404) 815-6500
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE
PUBLIC: From time to time 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. ¨
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, other than securities offered
only in connection with dividend or interest reinvestment plans, check the following box. x
If this Form is filed to register additional securities for
an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. ¨
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. ¨
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. ¨
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. ¨
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions
of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging
growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer
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¨
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Accelerated filer
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x
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Non-accelerated filer
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¨
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Smaller reporting company
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x
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Emerging growth company
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¨
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If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
provided pursuant to Section 7(a)(2)(B) of Securities Act. ¨
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, as amended, or until this registration statement shall become effective on such date as the Commission, acting pursuant
to said Section 8(a), may determine.
EXPLANATORY NOTE
BlueLinx Holdings Inc. is filing this Amendment No. 1 to its
Registration Statement on Form S-3 (333-234965) (“Amendment No. 1”) as an exhibit-only filing solely to file an updated
auditor consent as Exhibit 23.1. This Amendment No. 1 consists only of the facing page, this explanatory note, Part II of the Registration
Statement, the signature page to the Registration Statement, the exhibit index and the exhibit being filed with this Amendment
No. 1.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14.
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Other Expenses of Issuance and Distribution
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The following table sets forth an estimate of the expenses payable
by the registrant in connection with the securities being registered hereby. All amounts are estimates except the SEC registration
fee.
SEC registration fee
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$
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6,490
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Printing fees and expenses
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*
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Legal fees and expenses
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*
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Accounting fees and expenses
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*
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Transfer agent and trustee fees and expenses
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*
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Miscellaneous fees and expenses
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*
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Total
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$
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*
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* These fees and expenses depend on the securities offered and
the number of issuances, and accordingly cannot be estimated at this time and will be reflected in the applicable prospectus supplement.
Item 15.
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Indemnification of Directors and Officers
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Subsection (a) of Section 145 of the General Corporation Law
of the State of Delaware, or the DGCL, empowers a corporation to indemnify any person who was or is a party or who 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 corporation) 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 person’s conduct was unlawful.
Subsection (b) of Section 145 empowers 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 or suit by
or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person acted in any of the
capacities set forth above, against expenses (including attorneys’ fees) actually and reasonably incurred by the person in
connection with the defense or settlement of such action or suit 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, except that no indemnification shall be made 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 of Chancery or 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 the Court of Chancery or such other court shall deem proper.
Section 145 further provides that to the extent a director or
officer of a corporation has been successful on the merits or otherwise in the defense of any action, suit or proceeding referred
to in subsections (a) and (b) of Section 145, or in defense of any claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith; that
indemnification provided for by Section 145 shall not be deemed exclusive of any other rights to which the indemnified party may
be entitled; and the indemnification provided for by Section 145 shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of such person’s
heirs, executors and administrators. Section 145 also empowers the corporation to purchase and maintain insurance on behalf of
any person who 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 any liability asserted against such person and incurred by such person in any such capacity, or arising out of his status
as such, whether or not the corporation would have the power to indemnify such person against such liabilities under Section 145.
Section 102(b)(7) of the DGCL provides that a corporation’s
certificate of incorporation may contain a provision eliminating or limiting 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 (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) any act
related to unlawful stock repurchases, redemptions or other distributions or payment of dividends, or (iv) for any transaction
from which the director derived an improper personal benefit.
As permitted by Section 102 of the Delaware General Corporation
Law, we have adopted provisions in our Second Amended and Restated Certificate of Incorporation, as amended, that limit or eliminate
the personal liability of our directors for a breach of their fiduciary duty of care as a director. The duty of care generally
requires that, when acting on behalf of the corporation, directors exercise an informed business judgment based on all material
information reasonably available to them. Consequently, a director will not be personally liable to us or our stockholders for
monetary damages for breach of fiduciary duty as a director, except for liability for:
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any breach of the director’s duty of loyalty to us or our stockholders;
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any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law; or
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any act related to unlawful stock repurchases, redemptions or other distributions or payment of dividends, or any transaction from which the director derived an improper personal benefit.
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As permitted by Section 145 of the Delaware General Corporation
Law, our Second Amended and Restated Certificate of Incorporation, as amended, and our Second Amended and Restated Bylaws provide
that:
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we may indemnify our directors, and officers to the fullest extent permitted by the Delaware General Corporation Law, subject to limited exceptions;
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we may advance expenses to our directors and officers in connection with a legal proceeding to the fullest extent permitted by the Delaware General Corporation Law, subject to limited exceptions; and
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the rights provided in our Second Amended and Restated Certificate of Incorporation, as amended, and our Second Amended and Restated Bylaws are not exclusive.
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We have entered into Indemnification Agreements with each of
our directors and certain of our 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. In addition, we have purchased a policy of directors’ and officers’
liability insurance that insures our directors and officers against the cost of defense, settlement or payment of a judgment in
some circumstances.
(a) Exhibits
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.
(a) 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 20 percent change in the maximum aggregate offering price set forth in the “Calculation
of Registration Fee” table in the effective registration statement; and
(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 (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above do not apply
if 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.
(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:
(A) 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
(B) 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.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to 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.
(c) 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 Securities 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 Securities Act and will be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust
Indenture Act (the “Act”) in accordance with the rules and regulations prescribed by the SEC under section 305(b)(2)
of the Act.
EXHIBIT INDEX
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 Amendment No. 1 to be signed on its behalf by the undersigned, thereunto duly authorized,
in the City of Atlanta, Georgia, on September 2, 2020.
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BLUELINX HOLDINGS INC.
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By:
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/s/ Mitchell B. Lewis
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Mitchell B. Lewis
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President and Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933,
as amended, this registration statement has been signed below by the following persons on behalf of the registrant in the capacities
and on the dates indicated.
Signature
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Title
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Date
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/s/ Mitchell B. Lewis
Mitchell B.
Lewis
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President, Chief Executive Officer and Director
(Principal Executive Officer)
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September 2, 2020
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/s/ Kelly C. Janzen
Kelly C. Janzen
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Senior Vice President, Chief Financial Officer
and Treasurer
(Principal Financial Officer and Principal Accounting Officer)
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September 2, 2020
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*
Kim S. Fennebresque
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Non-Executive Chairman of the Board of Directors
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September 2, 2020
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*
Karel K. Czanderna
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Director
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September 2, 2020
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Dominic DiNapoli
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Director
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September 2, 2020
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Alan H. Schumacher
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Director
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September 2, 2020
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J. David Smith
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Director
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September 2, 2020
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*By:
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/s/ Mitchell B. Lewis
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Name: Mitchell B. Lewis
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Title: Attorney-in-fact
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