STOCKHOLDER AGREEMENT
Exhibit (e)(13)
This Agreement (this “Agreement”) is made and entered into as of this 27th day of September,
2010, by and among BlueLinx Holdings Inc., a Delaware corporation (the “Company”), Cerberus ABP
Investor LLC, a Delaware limited liability company (“CAI”), and Cerberus Capital Management, L.P.
(“Cerberus Capital”), a Delaware limited partnership and the managing member of CAI.
RECITALS
WHEREAS, CAI owns 18,100,000 shares of common stock, par value $0.01 per share, of the
Company, which shares represent approximately 55.39% of the aggregate outstanding shares of common
stock of the Company;
WHEREAS, CAI and Cerberus Capital have made an offer to the Company’s stockholders (the
“Tender Offer”) to purchase any and all of the outstanding shares of the Company’s common stock,
par value, $0.01 per share (the “Shares”), at $3.40 per share (the “Offer Price”), on the terms and
subject to the conditions set forth in the Offer to Purchase dated August 2, 2010, (the “Offer to
Purchase”), and in the related letter of transmittal (in each case, as heretofore or hereafter
amended or supplemented);
WHEREAS, the Offer to Purchase specifies that the Tender Offer is conditioned, which condition
may not be waived, upon there being validly tendered and not withdrawn a number of Shares
representing at least a majority of the Shares (excluding Shares owned by CAI and by officers and
directors of the Company) issued and outstanding as of the date the Shares are accepted for payment
pursuant to the Tender Offer (the “Minimum Tender Condition”);
WHEREAS, the Offer to Purchase specifies that the Tender Offer is also conditioned, which
condition may not be waived, upon the special committee of independent directors of the Company
(the “Special Committee”) amending its “Solicitation/Recommendation Statement” on Schedule 14D-9 to
affirmatively recommend the Offer, or the Offer as amended, and not having subsequently withdrawn
or amended or modified in any manner adverse to CAI or Cerberus Capital (whether by further
amendment to the Company’s Schedule 14D-9 or otherwise) such affirmative recommendation of the
Offer, or the Offer as amended, at any time on or prior to the Expiration Date (as defined in the
Offer to Purchase) (the “Special Committee Recommendation Condition”);
WHEREAS, the Offer to Purchase specifies that the Tender Offer is also conditioned, which
condition may be waived by CAI in its sole discretion, upon there being validly tendered and not
withdrawn a sufficient number of Shares such that, upon acceptance for payment and payment for the
Shares tendered pursuant to the Offer, CAI will own a number of Shares representing at least 90% of
the issued and outstanding Shares as of the date the Shares are accepted for payment pursuant to
the Tender Offer (the “90% Condition”);
WHEREAS, the Offer to Purchase also specifies that if, following the consummation of the
Tender Offer, CAI owns at least 90% of the outstanding Shares, then it shall promptly cause CAI to
consummate a merger with the Company, without holding a meeting of the stockholders, in accordance
with Section 267 of the Delaware General Corporation Law (the “DGCL”) (a “Short-Form Merger”), in
which all Shares held by stockholders who have not tendered their Shares in the Tender Offer and
who do not exercise their appraisal rights under the DGCL will be converted into the right to
receive an amount in cash equal to the Offer Price;
WHEREAS, the Special Committee of the Board of Directors of the Company has requested that CAI
amend the terms of the Tender Offer for, among things, the following purposes: (i) to provide for
a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under
the Securities Exchange Act of 1934, amended (the “Exchange Act”), as set forth herein, and (ii) to
provide that, in the event CAI consummates the Tender Offer but after giving effect thereto owns,
beneficially or of record, less than 100% of the outstanding Shares, CAI and Cerberus Capital will
(A) maintain the Company’s status as a public reporting company under the rules and regulations of
the Exchange Act, (B) cause the Shares to continue to be listed for trading on the New York Stock
Exchange or on another marketplace that offers sufficient liquidity for stockholders, (C) maintain
a board of directors that consists of at least three directors who meet the definition of
“independent” under the rules of the New York Stock Exchange, and (D) not acquire, or agree, offer
or propose to acquire, any assets of the Company, or any equity securities issued by the Company or
engage in any transaction involving the Company, without the approval or recommendation of the
Independent Committee (as defined herein), all as set forth hereinbelow;
WHEREAS, CAI and Cerberus Capital have agreed to amend the terms of the Tender Offer in
accordance with the request of the Special Committee, and to enter into this Agreement to
effectuate certain agreements among the Company, CAI and Cerberus Capital as set forth herein; and
WHEREAS, CAI, Cerberus Capital and the Company are entering into this Agreement for the
benefit of those stockholders of the Company (other than CAI) who do not tender their Shares in the
Tender Offer and to set forth the terms and conditions upon which CAI and Cerberus Capital will be
bound during the period beginning on the date the Tender Offer is consummated by CAI accepting
tendered Shares for payment and ending on the date that CAI acquires 100% of the outstanding Shares
of the Company, whether through effecting a Short-Form Merger, or otherwise, such period being
referred to herein as the “Minority Stub Period”.
NOW, THEREFORE, in consideration of the premises and mutual promises herein made, and for
other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties to this Agreement hereby agree as follows:
1. Subsequent Offering Period. CAI shall, and Cerberus Capital shall cause CAI to,
provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule
14d-11 under the Exchange Act, of no less than five (5) business
2
days, if, upon the expiration of the Tender Offer, the Minimum Tender Condition shall have
been satisfied but the 90% Condition shall not have been satisfied, and CAI shall nevertheless have
determined to waive the 90% Condition and to accept for payment all Shares validly tendered in the
Tender Offer. The Subsequent Offering Period shall commence no later than the first business day
following the expiration date of the Tender Offer. Subject to the foregoing, including the
requirements of Rule 14d-11 under the Exchange Act, and upon the terms and subject to the
conditions of the Tender Offer, if CAI determines to accept for payment any Shares tendered
pursuant to the Tender Offer then CAI shall accept for payment and pay for, as promptly as
practicable, all Shares (A) validly tendered and not withdrawn pursuant to the Tender Offer and (B)
validly tendered in any Subsequent Offering Period.
2. Exchange Act Reporting and Listing Requirements. At all times during the Minority
Stub Period, the Company shall, and CAI and Cerberus Capital shall use their best efforts to and
shall not take any action, directly or indirectly, to cause the Company to cease to, (i) maintain
its status as a public reporting company subject to, among other things, the reporting requirements
under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, or if not subject thereto, to
voluntarily file reports required under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, and
(ii) continue to have the Shares listed on the New York Stock Exchange (the “NYSE”); provided,
however, that if the Company no longer meets the requirements of, or is otherwise ineligible to
continue to list its Shares on, the NYSE, then CAI, Cerberus Capital and the Company shall take all
appropriate actions to enable the Shares to be quoted on the Nasdaq Global Select Market (the
“Nasdaq Market”); and provided further that if the Company does not meet the requirements to be
quoted, or otherwise become ineligible to have the Shares quoted, on the Nasdaq Market, then CAI,
Cerberus Capital and the Company shall take all appropriate actions to enable the Shares to be
listed on the OTCQX U.S. over-the-counter market place (the “OTCQX”) (or if the OTCQX is no longer
in existence, a comparable premier tier over-the-counter trading market that requires that issuers
remain current in their filings with the Securities and Exchange Commission (the “Commission”) or
applicable regulatory authority).
3. Independent Directors. During the Minority Stub Period, the Board of Directors of
the Company (the “Board”) shall consist of at least three directors who are independent (the
“Independent Directors”) within the meaning of the rules of the New York Stock Exchange (the “NYSE
Rules”) (or if the Shares are listed on another national securities exchange, the comparable and
applicable rules and policies of such other national securities exchange). Upon the commencement
of the Minority Stub Period, the Company shall form a committee of at least three Independent
Directors (the “Independent Committee”). Any action taken by the Company under this Agreement,
including the approval of any amendment or waiver of this Agreement, any approval of the assignment
of any rights, interests or obligations under this Agreement or any negotiations to modify this
Agreement, shall require the approval, or to the extent that approval by the Board is required by
applicable law, the favorable recommendation to the Board, of a majority of the Independent
Committee. The Independent Committee shall, to the fullest extent permitted by law, have the full
power and authority of the Company’s Board of Directors to enforce the provisions of this
Agreement.
3
4. Standstill. During the Minority Stub Period, neither CAI, Cerberus Capital, nor
their Affiliates shall (and neither CAI, Cerberus Capital nor any of their Affiliates shall assist,
provide or arrange financing to or for others or encourage others to), directly or indirectly,
acting alone or in concert with others (including by forming, joining or entering a group (within
the meaning of Section 13(d)(4) of the Exchange Act)), unless prior to the consummation of any
action described in subsection (a) or (b) below, such action is, in the case of a tender offer,
affirmatively recommended, or, in any other case, approved by a majority of the Independent
Committee:
(a) acquire or agree, offer, seek or propose to acquire ownership (including, but not limited
to, beneficial ownership as such term is defined in Rule 13d-3 under the Exchange Act) of any
assets or businesses of the Company or any equity securities issued by the Company, or any rights
or options to acquire such ownership (including from a third party), other than pursuant to a
Short-Form Merger; or
(b) propose or enter into, directly or indirectly, any merger, share exchange, consolidation,
recapitalization, reverse stock split, business combination or other similar transaction involving
the Company or any of its Affiliates, other than pursuant to Short-Form Merger.
As used in this Agreement:
“Affiliate” means a person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with the person specified.
5. Stockholder Capacity. The Company acknowledges and agrees that CAI is executing
this Agreement solely in its capacity as a stockholder of the Company, and nothing in this
Agreement shall limit or restrict any partner, member, director, officer, employee or affiliate (as
such term is defined in Rule 12b-2 under the Exchange Act) of CAI who is or becomes during the term
hereof a member of the Board from acting, omitting to act or refraining from taking any action,
solely in such person’s capacity as a member of the Board consistent with his or her fiduciary
duties in such capacity as required by applicable law.
6. Representations and Warranties of the Company. The Company hereby represents and
warrants to CAI and Cerberus Capital as follows:
(a) The Company has the corporate power and authority to execute, deliver and carry out the
terms and provisions of this Agreement and to consummate the transactions contemplated hereby.
(b) This Agreement has been duly and validly authorized, executed and delivered by the
Company, constitutes a valid and binding obligation and agreement of the Company, and is
enforceable against the Company in accordance with its terms, except as enforcement thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
similar laws affecting the rights of creditors and subject to general equity principles.
4
(c) The execution, delivery and performance of this Agreement by the Company does not and will
not (i) violate or conflict with any law, rule, regulation, order, judgment or decree applicable to
it or (ii) result in any breach or violation of any of its organizational documents.
7. Representations and Warranties of CAI and Cerberus Capital. CAI and Cerberus
Capital each hereby represent and warrant to the Company as follows:
(a) Each of CAI and Cerberus Capital has the entity power and authority, as applicable, to
execute, deliver and carry out the terms and provisions of this Agreement and to consummate the
transactions contemplated hereby.
(b) This Agreement has been duly and validly authorized, executed, and delivered by each of
CAI and Cerberus Capital, constitutes a valid and binding obligation and agreement of each of CAI
and Cerberus, and is enforceable against each of CAI and Cerberus Capital in accordance with its
terms, except as enforcement thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or similar laws affecting the rights of creditors
and subject to general equity principles.
(c) The execution, delivery and performance of this Agreement by CAI and Cerberus Capital does
not and will not (i) violate or conflict with any law, rule, regulation, order, judgment or decree
applicable to CAI or to Cerberus Capital or (ii) result in any breach or violation of CAI or
Cerberus Capital organizational documents.
8. Term of this Agreement. This Agreement is made and entered into as of the date
first above written. This Agreement shall automatically terminate upon the earlier of (A) the date
that CAI terminates or withdraws the Tender Offer without accepting for payment any Shares tendered
pursuant thereto, (B) the date the Minority Stub Period ends in accordance with the terms and
conditions hereof, or (C) the date the Special Committee Recommendation Condition is no longer
satisfied.
9. Miscellaneous.
(a) This Agreement may not be amended except by an instrument in writing signed by each of the
parties hereto. The failure or delay by any party to this Agreement to assert any of its rights
under this Agreement or otherwise shall not constitute a waiver of such rights nor shall any single
or partial exercise by any party to this Agreement of any of its rights under this Agreement
preclude any other or further exercise of such rights or any other rights under this Agreement.
Any waiver shall be effective only in the specific instance and for the specific purpose for which
the waiver is given and shall not constitute a waiver to any subsequent or other exercise of any
right, remedy, power or privilege hereunder.
(b) All notices, requests, claims, demands, waivers and other communications required or
permitted under this Agreement shall be in writing and shall be deemed duly given (a) on the date
of delivery if delivered personally, or by telecopy or facsimile, upon confirmation of receipt by
the recipient, or (b) on the first business day
5
following the date of dispatch if delivered by a recognized next-day courier service. All
notices hereunder shall be delivered addressed to the parties (and shall be deemed delivered only
if delivered by one of the means described in the immediately preceding sentence) at the following
addresses (or at such other address for a party as shall be specified by notice hereunder):
if to CAI or Cerberus Capital, to:
Cerberus Capital Management, L.P.
000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000
Attention: Xxxx X. Neporent, Esq.
Facsimile: (000) 000-0000
Cerberus Capital Management, L.P.
000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000
Attention: Xxxx X. Neporent, Esq.
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice pursuant to this Section 8(b)) to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
if to the Company, to:
BlueLinx Holdings Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
0000 Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice pursuant to this Section 8(b)) to:
Xxxxx Day
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
(c) The headings contained in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement. Wherever the words “include”,
“includes” or “including” are used in this Agreement, they shall be deemed to be followed by the
words “without limitation”. The words “hereof”, “hereto”, “hereby”, “herein” and “hereunder” and
words of similar import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement. The words “date hereof’ shall refer to the date
of this Agreement. The term “or” is not exclusive.
6
(d) This Agreement may be executed in one or more counterparts (including by facsimile), all
of which shall be considered one and the same agreement. This Agreement shall become effective
when (i) one or more counterparts have been signed by each of the parties hereto and delivered to
the other parties and (ii) the Special Committee Recommendation Condition has been satisfied. Each
party need not sign the same counterpart.
(e) This Agreement (i) constitutes the entire agreement and supersedes all prior agreements,
understandings and negotiations, both written and oral, among the parties hereto with respect to
the subject matter of this Agreement and (ii) is not intended to confer upon any person other than
the parties hereto any rights or remedies.
(f) This Agreement shall be governed by, and construed in accordance with, the internal
procedural and substantive laws of the State of Delaware, applicable to instruments and agreements
made and performed entirely in such state and without regard to the conflicts of law principles of
such state.
(g) The parties agree that irreparable damage would occur and that the parties would not have
any adequate remedy at law in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It is accordingly
agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions of this Agreement in the Court
of Chancery of the State of Delaware (the “Chancery Court”) or in any Federal court located in the
State of Delaware, this being in addition to any other remedy to which they are entitled at law or
in equity. In addition, each of the parties hereto hereby agrees that all legal proceedings
arising out of or relating to this Agreement shall be heard and determined in the Chancery Court or
the United States Federal District Court for the State of Delaware, and the parties hereto hereby
irrevocably submit to the exclusive jurisdiction of such courts in any such legal proceeding and
irrevocably waive the defense of an inconvenient forum to the maintenance of any such legal
proceeding. The parties hereto agree that a final judgment in any such legal proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by applicable law.
(h) Neither this Agreement nor any of the rights, interests or obligations hereunder shall be
assigned, in whole or in part, by operation of law or otherwise, by CAI or Cerberus Capital, on the
one hand, without the prior written consent of the Company nor by the Company, on the other hand,
without the prior written consent of CAI and Cerberus Capital, and any assignment without such
consent shall be null and void, except that CAI may assign their rights hereunder to any affiliate
(as such term is defined in Rule 12b-2 under the Exchange Act) to whom any such entity transfers
shares of Common Stock, provided that in such case, such affiliate agrees to be bound by the terms
and conditions of this Agreement. Any purported assignment in violation of this Section 9(h) shall
be void. Subject to the preceding sentences of this Section 9(h), this Agreement shall be binding
upon, inure to the benefit of and be enforceable by the parties hereto and their respective heirs,
personal representatives, successors and assigns.
7
(i) Each party hereto hereby waives, to the fullest extent permitted by applicable law, any
right it may have to a trial by jury in respect of any suit, action or other proceeding directly or
indirectly arising out of, under or in connection with this Agreement.
(j) If any term or other provision of this Agreement is invalid, illegal or incapable of being
enforced by any rule of law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the parties as closely
as possible to the fullest extent permitted by applicable law in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the extent possible.
8
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date first
above written.
| THE COMPANY: BLUELINX HOLDINGS INC. |
||||
| By: | /s/ H. Xxxxxxx Xxxxxxx | |||
| Name: | H. Xxxxxxx Xxxxxxx | |||
| Title: | Chief Financial Officer and Treasurer | |||
| CERBERUS ABP INVESTOR LLC |
||||
| By: | /s/Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Its: Managing Director | ||||
| CERBERUS CAPITAL MANAGEMENT, L.P. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Its: Managing Director | ||||
9
