EXHIBIT 10.2
RETIREMENT AND CONSULTING AGREEMENT
THIS RETIREMENT AND CONSULTING AGREEMENT ("Agreement") is made and entered
into as of this 20th day of October, 2005, by and between BlueLinx Corporation
(the "Company") and Xxxxxxx X. XxXxxxx, an individual resident of the State of
Georgia ("Consultant").
WITNESSETH:
WHEREAS, Consultant was employed by the Company as Chief Executive Officer
and has served as a member of the Board of Directors of the Company since May 7,
2004, and has during his service to the Company and its business (including when
previously operated by Georgia-Pacific Corporation) developed substantial
expertise in the building products distribution industry, and has provided
valuable services to the Company and its predecessor in various executive
capacities for a number of years;
WHEREAS, Consultant has retired from the employment of the Company
effective October 20, 2005; and
WHEREAS, the Company wishes to retain the services of Consultant in the
capacity of an independent consultant for the purposes more fully described
below, and Consultant desires to provide services from time to time in said
capacity as requested by the Company;
NOW, THEREFORE, in consideration of the premises and the mutual promises
contained herein, the receipt and sufficiency of which are hereby acknowledged,
Consultant and the Company agree as follows:
1. Retirement from Active Employment. Consultant's active employment by the
Company terminated upon his retirement, which was effective October 20,
2005 ("Retirement Date").
2. Payments by the Company Upon Retirement. Following the Effective Date of
this Agreement, the Company shall provide Consultant with a payment of all
accrued, but unpaid, base salary and any accrued, but unpaid, portion of
any bonus payments previously awarded to Consultant, if any, through the
Retirement Date.
3. Engagement as Consultant. The Company hereby engages Consultant to
perform, and Consultant hereby agrees to perform, as an independent
contractor to provide consulting services to the Company, including, but
not limited to, providing advice on the strategic direction of the Company
and attraction of new customers, as the Company shall request from time to
time (collectively referred to as "Consulting Services"). The Consulting
Services hereunder shall be performed at such locations and at such times
as may be mutually convenient to the Company and Consultant. During this
engagement, Consultant shall report to and act under the direction of the
Company's Chief Executive Officer. All other aspects of Consultant's
engagement by the Company shall be
consistent with the Company's policies applicable to independent
contractors, if any, and in accordance with applicable governing laws.
Consultant's Consulting Services for the Company pursuant to this
Agreement shall commence on the effective date of this agreement, and
shall continue for a period of two years (the "Consulting Term.")
It is acknowledged by the parties that, at the effective date of
this Agreement, Consultant is serving as a member of the Board of
Directors of BlueLinx Holdings Inc. ("BHI"), the sole stockholder of the
Company, and that Consultant is expected to continue to serve in such
capacity for the duration of his term as such member, subject to BHI's
governing documents and Delaware law. The duties assigned to Consultant
pursuant to this Agreement are separate and distinct from those that
Consultant is expected to perform as a member of the Board of Directors of
BHI, which duties are described in BHI's governing documents and as
prescribed by law. Consultant agrees that he will not receive any
additional compensation for his service on the BHI Board of Directors
during the term of this Agreement; provided, however, that Consultant will
be entitled to reimbursement of expenses incurred in attending BHI board
and committee meetings consistent with BHI's customary policies applicable
to all directors from time to time.
4. Compensation for Consulting Services. In consideration for the Consulting
Services provided for under this Agreement, and the other undertakings and
agreement made by Consultant hereunder, the Company shall pay Consultant:
(a) a consulting fee of $58,890 per month (the "Consulting Fee"),
payable in 24 monthly installments. The first such installment shall
be due and payable on the date that is 6 months after the Retirement
Date.
(b) continued health and dental benefits (the "Continued Benefits") to
Consultant and his family for the Consulting Term, such as those
provided to Consultant prior to the Retirement Date, or if more
favorable to Consultant, such benefits as in effect generally at any
time during the Consulting Term with respect to other similarly
situated executives of the Company and their families, at no
additional cost to Consultant other than the cost of such benefits
to Consultant as in effect immediately prior to the Retirement Date.
At the end of the Consulting Term, the Company shall provide
Consultant (and Consultant's eligible dependents) with retiree
medical and dental benefit coverage no less favorable than the
coverage provided to retirees of the Company (and their dependents)
immediately prior to the Retirement Date; provided, that, in all
cases, Consultant shall pay the full cost of any applicable premium
without any subsidy provided by the Company in a manner which
results in no cost to the Company on a FAS 106 basis. In the event
Consultant accepts employment with another employer-provided plan or
becomes eligible for Medicare, the medical and other welfare
benefits described herein shall be secondary to those provided under
such other plan or Medicare, as applicable, during such applicable
period of eligibility.
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The Company shall reimburse Consultant for expenses reasonably
incurred by him in the performance of the Consulting Services, subject to
the Company's customary expense reimbursement policies as in effect from
time to time.
Consultant shall not receive any compensation, payments, or benefits
from the Company in addition to that described in this Section 4, unless
the Company in its sole discretion decides otherwise.
In the event that the Consulting Services are terminated for any
reason, the Consultant (or his estate in the event of his death) shall
continue to be entitled to the Consulting Fee and the Continued Benefits
for the remainder of the Consulting Term.
5. Independent Contractor Status. Consultant understands and agrees that he
is being engaged by the Company as an independent contractor. Nothing in
this Agreement shall transform Consultant into an employee, agent, or
legal representative of the Company in any capacity whatsoever. The
Consultant has no authority to bind or obligate the Company in any manner
and shall not hold himself out to others as having any such authority. The
Consultant shall be responsible for any and all of his acts or omissions.
The Consultant agrees to indemnify and hold harmless the Company from all
losses, liabilities, and costs incurred by the Company on account of any
acts or omissions of the Consultant. As an independent contractor, the
Consultant understands and agrees that he will be responsible for
obtaining his own workers' compensation insurance. The Consultant
acknowledges and understands that, due to the fact that the Consultant is
an independent contractor, the Company will not withhold monies for taxes
and will not provide any workers' compensation coverage for injuries
sustained while engaged by the Company.
6. Confidential Information.
(a) Consultant shall hold in a fiduciary capacity for the benefit of the
Company all secret or confidential information, knowledge, or data
relating to the Company or any of its Affiliated Companies (as
defined below), and their respective businesses, which (i) was or is
obtained by Consultant during his employment with the Company or any
of its Affiliated Companies or during the Consulting Term or (ii)
was acquired by the Company or any of its Affiliated Companies from
Georgia-Pacific Corporation, and which in each case shall not be or
become public knowledge (other than by acts by the Consultant or
representatives of the Consultant in violation of this Agreement)
("Confidential Information"). During, and for a period of two years
following the end of, the Consulting Term, Consultant shall not,
without the prior written consent of the Company or as may otherwise
be required by law or legal process, communicate or divulge any such
information, knowledge or data to anyone other than the Company and
those designated by it. For purposes of this Agreement, "Affiliated
Companies" shall mean the Company's subsidiaries and BHI so long as
BHI owns a majority of the outstanding common stock of the Company.
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(b) All files, records, documents, drawings, specifications, data,
computer programs, customer or vendor lists, specific customer or
vendor information, marketing techniques, business strategies,
contract terms, pricing terms, discounts and management compensation
of the Company and its Affiliated Companies, whether prepared by
Consultant or otherwise coming into the Consultant's possession,
shall remain the exclusive property of the Company and its
Affiliated Companies, and Consultant shall not remove any such items
from the premises of the Company and its Affiliated Companies,
except in furtherance of the Consulting Services under this
Agreement.
(c) As requested by the Company and at the Company's expense, from time
to time and upon the end of the Consulting Term, Consultant will
promptly deliver to the Company and its Affiliated Companies all
copies and embodiments, in whatever form, of all Confidential
Information in Consultant's possession or within his control
(including, but not limited to, memoranda, records, notes, plans,
photographs, manuals, notebooks, documentation, program listings,
flow charts, magnetic media, disks, diskettes, tapes and all other
materials containing any Confidential Information) irrespective of
the location or form of such material. If requested by the Company,
Consultant will provide the Company with written confirmation that
all such materials have been delivered to the Company as provided
herein.
7. Non-Solicitation or Hire. During the Consulting Term and for a period of
eighteen months (18) months following the Consulting Term, Consultant
shall not solicit or attempt to solicit (a) any party who is a customer of
the Company or its Affiliated Companies, for the purpose of marketing,
selling or providing to any such party any services or products offered by
the Company or its Affiliated Companies to such customer other than
general solicitations to the public and not directed specifically at a
customer of the Company, (b) any party who is a vendor of the Company or
its Affiliated Companies to sell similar products or (c) any employee of
the Company or any of its Affiliated Companies to terminate such
employee's employment relationship with the Company and its Affiliated
Companies in order, in either case, to enter into a similar relationship
with Consultant, or any other person or any entity in competition with the
Company or any of its Affiliated Companies (other than with respect to
general employment solicitations to the public and not directed
specifically at employees of the Company and its Affiliated Companies).
8. Non-Competition. During the Consulting Term, Consultant shall not, whether
individually, as a director, manager, member, stockholder, partner, owner,
employee, consultant or agent of any business, or in any other capacity,
other than on behalf of the Company or it Affiliated Companies, organize,
establish, own, operate, manage, control, engage in, participate in,
invest in, permit his name to be used by, act as a consultant or advisor
to, render services for (alone or in association with any person, firm,
corporation or business organization), or otherwise assist any person or
entity that engages in or owns, invests in, operates, manages or controls
any venture or enterprise which engages or proposes to engage in the
building products distribution business in the United States or Canada
(the "Business"). Notwithstanding the foregoing, nothing in this Agreement
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shall prevent Consultant from owning for passive investment purposes not
intended to circumvent this Agreement, less than five percent (5%) of the
publicly traded voting securities of any company engaged in the Business
(so long as Consultant has no power to manage, operate, advise, consult
with or control the competing enterprise and no power, alone or in
conjunction with other affiliated parties, to select a director, manager,
general partner, or similar governing official of the competing enterprise
other than in connection with the normal and customary voting powers
afforded Consultant in connection with any permissible equity ownership).
9. Non-Disparagement. Consultant shall not, directly or indirectly, publish,
utter, broadcast, or otherwise communicate, directly or indirectly, any
information, misinformation, comments, opinions, remarks, articles,
letters, or any other form of communication, whether written or oral,
regardless of its believed truth, to any person or entity (including,
without limitation, current or former Company employees, Consultant's
potential and/or subsequent employers and coworkers, and the Company
suppliers, vendors, and competitors) that are adverse to, reflect
unfavorably upon, or tend to disparage the Company or any of its employees
or the business, products, prospects, or financial condition of the
Company, except as otherwise required by court order or subpoena issued by
a court or governmental agency.
10. Remedies; Specific Performance. The parties acknowledge and agree that
Consultant's breach or threatened breach of any of the restrictions set
forth in Sections 6 through 9 will result in irreparable and continuing
damage to the Company and its Affiliated Companies for which there may be
no adequate remedy at law and that the Company and its Affiliated
Companies shall be entitled to equitable relief, including specific
performance and injunctive relief as remedies for any such breach or
threatened or attempted breach. Consultant hereby consents to the grant of
an injunction (temporary or otherwise) against Consultant or the entry of
any other court order against Consultant prohibiting and enjoining him
from violating, or directing him to comply with any provision of Sections
. Consultant also agrees that such remedies shall be in addition to any
and all remedies, including damages, available to the Company and its
Affiliated Companies against him for such breaches or threatened or
attempted breaches. In addition, without limiting the remedies of the
Company and its Affiliated Companies for any breach of any restriction on
Consultant set forth in Sections 6 through 9, except as required by law,
Consultant shall not be entitled to any payments set forth in Section 4
hereof if Consultant breaches the covenants applicable to Consultant
contained in Sections 6 through 9 and the Company and its Affiliated
Companies will have no obligation to pay any of the amounts that remain
payable by the Company under Section 4.
11. Future Cooperation. As a material inducement to the Company to enter into
this Agreement, Consultant agrees to cooperate with the Company in any
pending or future matters, including, but not limited to, any litigation,
investigation, or other dispute in which Consultant, by virtue of his
prior employment with the Company, has relevant knowledge or information.
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12. Release by Consultant. As a material inducement to the Company to enter
into this Agreement, Consultant is concurrently herewith executing a valid
release in substantially the form attached hereto as Exhibit A.
13. Additional Terms.
(a) Successors and Assigns. This Agreement is personal to the Consultant
and, without prior written consent of the Company, shall not be
assignable by the Consultant. To the extent provisions contained
herein relate to the Consultant's legal representatives, this
Agreement shall inure to the benefit of and be enforceable by such
legal representatives. The covenants, terms, and provisions set
forth herein shall inure to the benefit of and be enforceable by the
Company, its successors, assigns, and successors in interest,
including, without limitation, any corporation or entity with which
the Company may be merged or by which it may be acquired.
(b) Integrated Agreement. This Agreement constitutes the entire
agreement between the parties hereto with regard to the subject
matter hereof, and there are no agreements, understandings,
restrictions, warranties, or representations relating to said
subject matter between the parties other than those set forth herein
or herein provided for.
(c) Notices. All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, post
prepaid, addressed as follows:
If to the Consultant:
Xxxxxxx X. XxXxxxx
000 Xxxxxx Xxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
If to the Company:
BlueLinx Corporation
0000 Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
or to such other address as either party shall have furnished to the
other in writing in accordance herewith. Notice and communications
shall be effective when actually received by the addressee.
(d) Modification. No supplement, modification, or amendment of this
Agreement shall be binding unless executed in writing by all parties
to this Agreement.
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(e) Waiver. The waiver by the Company of a breach of any provision of
this Agreement by Consultant shall not operate or be construed as a
waiver of any subsequent breach by Consultant or any of the
Company's rights hereunder.
(f) Entire Agreement. This Agreement, and the exhibits hereto, contain
the entire agreement between the parties and supersedes any prior or
contemporaneous agreements between the parties. It may not be
changed orally, but only by an agreement in writing, duly signed by
the party against whom enforcement of any waiver, change,
modification, extension, or discharge is sought.
(g) Severability. In the event any provision of this Agreement should be
held unenforceable or invalid, such provision shall be modified or
deleted in such a manner so as to make the Agreement, as modified,
legal and enforceable to the fullest extent permitted under
applicable law.
(h) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia, without reference
to principles of conflict of law.
Executed in Atlanta, Georgia, this 20th day of October, 2005.
/s/ Xxxxxxx X. XxXxxxx
-------------------------------
Xxxxxxx X. XxXxxxx
Executed in Atlanta, Georgia, this 20th day of October, 2005
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Xxxxxxx X. Xxxxxxx
General Counsel & Secretary
BlueLinx Corporation
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EXHIBIT A
FORM OF EMPLOYMENT GENERAL RELEASE
For good and valuable consideration, receipt whereof is hereby
acknowledged, Xxxxxxx X. XxXxxxx ("Consultant"), individually and on behalf of
his respective heirs, executors, administrators, representatives, agents,
attorneys and assigns (the "Consultant Releasor"), hereby irrevocably, fully and
unconditionally releases and forever discharges BlueLinx Corporation, (the
"Company") and its affiliated companies, parents, subsidiaries, predecessors,
successors, assigns, divisions, related entities and all of their present
employees, officers, directors, trustees, shareholders, members, partners (as
applicable), agents, investors, attorneys and representatives (the "Company
Released Parties"), from any and all manner of actions and causes of action,
suits, debts, dues, accounts, bonds, covenants, contracts, agreements,
judgments, charges, claims, and demands whatsoever which the Consultant
Releasor, has, or may hereafter have against the Company Released Parties or any
of them arising out of or by reason of any cause, matter or thing whatsoever
from the beginning of the world to the date hereof, including without limitation
any and all matters relating to employment with the Company and its
subsidiaries, and the cessation thereof and all matters arising under any
federal, state or local statute, rule or regulation or principle of contract law
or common law, including but not limited to the Age Discrimination in Employment
Act of 1967, 29 U.S.C. Section 621, et seq., Title VII of the Civil Rights Act
of 1964, 42 U.S.C. Section 2000 et seq., the Americans with Disabilities Act of
1990, 42 U.S.C. Section 12101 et seq., the Employee Retirement Income Security
Act of 1974, 29 U.S.C. Section 1001 et seq., the Fair Labor Standards Act, 29
U.S.C. Section 201 et seq., the Family and Medical Leave Act of 1993, 29 U.S.C.
Section 2601 et seq., and applicable labor and employment laws of the states of
Georgia.
PLEASE READ CAREFULLY BEFORE SIGNING. THIS DOCUMENT
INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
Consultant acknowledges that he has been given the opportunity to
review and consider this General Release for twenty-one (21) days from the date
he received a copy. If he elects to sign before the expiration of the twenty-one
(21) days, Consultant acknowledges that he will have chosen, of his own free
will without any duress, to waive his right to the full twenty-one (21) day
period.
Consultant may revoke this General Release after signing it by
giving written notice to the Company's General Counsel, within seven (7) days
after signing it. This General Release, provided it is not revoked, will be
effective on the eighth (8th) day after execution.
Consultant acknowledges that he has been advised to consult with an
attorney prior to signing this General Release.
Consultant is signing this General Release knowingly, voluntarily
and with full understanding of its terms and effects. Consultant is signing this
General Release of his own free will without any duress, being fully informed
and after due deliberation. Consultant voluntarily
accepts the consideration provided to him for the purpose of making full and
final settlement of all claims referred to above.
Consultant acknowledges that he has not relied on any
representations or statements not set forth in this General Release. Consultant
will not disclose the contents or substance of this General Release to any third
parties, other than his attorneys, accountants, or as required by law, and
Consultant will instruct each of the foregoing not to disclose the same.
This General Release will be governed by and construed in accordance
with the laws of the State of Georgia. If any provision in this General Release
is held invalid or unenforceable for any reason, the remaining provisions shall
be construed as if the invalid or unenforceable provision had not been included.
IN WITNESS WHEREOF, the Parties hereto, intending to be legally
bound hereby, have executed this General Release as of October 20, 2005.
CONSULTANT BLUELINX CORPORATION
__________________________ ___________________________________
Name: Xxxxxxx X. XxXxxxx Name: Xxxxxxx X. Xxxxxxx
Title: General Counsel & Secretary
