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Our management, including our Chief Executive Officer and Chief Financial Officer, performed an evaluation, as of the end of the period covered by this report, of our disclosure controls and procedures, which have been designed to permit us to record, process, summarize, and report, within time periods specified by the SEC’s rules and forms, information required to be disclosed.
−Removed: Our management, including our Chief Executive Officer and Chief Financial Officer, concluded that the controls and procedures were effective as of January 1, 2022, to ensure that material information was accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.
+Added: Our management, including our Chief Executive Officer and Chief Financial Officer, concluded that the controls and procedures were effective as of December 31, 2022, to ensure that material information was accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.
Changes in Internal Control
−Removed: During the fiscal year ended January 1, 2022, we did not make any changes in our internal control over financial reporting that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
+Added: During the fiscal year ended December 31, 2022, we did not make any changes in our internal control over financial reporting that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Management’s Annual Report on Internal Control Over Financial Reporting
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Projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies may deteriorate.
−Removed: Management conducted an evaluation of the effectiveness of our internal control over financial reporting as of January 1, 2022, using the criteria issued by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”) in the 2013 Internal Control-Integrated Framework.
−Removed: Based on that evaluation, management believes that our internal control over financial reporting was effective as of January 1, 2022.
−Removed: The effectiveness of our internal control over financial reporting as of January 1, 2022, has been audited by Ernst & Young LLP, an independent registered public accounting firm, which also audited our Consolidated Financial Statements for the year ended January 1, 2022.
+Added: Management conducted an evaluation of the effectiveness of our internal control over financial reporting as of December 31, 2022, using the criteria issued by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”) in the 2013 Internal Control-Integrated Framework.
+Added: Based on that evaluation, management believes that our internal control over financial reporting was effective as of December 31, 2022.
+Added: During fiscal 2022, we completed the acquisition of Vandermeer.
+Added: Subsequently, we have begun integration and controls assessment activities.
+Added: See Note 2, Business Combination , for more information.
+Added: Vandermeer represented approximately one percent of our net sales for the year ended December 31, 2022 and approximately five percent of our total assets at December 31, 2022.
+Added: In accordance with the SEC’s published guidance, because we acquired these operations during the current fiscal year, we have excluded these operations from our assessment of Section 404 of the Sarbanes-Oxley Act for fiscal 2022.
+Added: The effectiveness of our internal control over financial reporting as of December 31, 2022, has been audited by Ernst & Young LLP, an independent registered public accounting firm, which also audited our consolidated financial statements for the year ended December 31, 2022.
Ernst & Young LLP’s report on our internal control over financial reporting is set forth below.
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Opinion on Internal Control Over Financial Reporting
−Removed: We have audited BlueLinx Holdings Inc.
−Removed: internal control over financial reporting as of January 1, 2022, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework) (the COSO criteria).
+Added: We have audited BlueLinx Holdings Inc.’s internal control over financial reporting as of December 31, 2022, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework) (the COSO criteria).
In our opinion, BlueLinx Holdings Inc.
−Removed: (the Company) maintained, in all material respects, effective internal control over financial reporting as of January 1, 2022, based on the COSO criteria.
−Removed: We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated balance sheet of BlueLinx Holdings Inc.
−Removed: as of January 1, 2022, the related consolidated statements of operations and comprehensive income, stockholders’ equity (deficit) and cash flows for the year then ended, and the related notes and our report dated February 22, 2022 expressed an unqualified opinion thereon.
+Added: (the Company) maintained, in all material respects, effective internal control over financial reporting as of December 31, 2022, based on the COSO criteria.
+Added: As indicated in the accompanying Management’s Annual Report on Internal Control Over Financial Reporting, management’s assessment of and conclusion on the effectiveness of internal control over financial reporting did not include the internal controls of Vandermeer Forest Products, Inc.
+Added: (Vandermeer), which is included in the fiscal 2022 consolidated financial statements of the Company and constituted 5.0% and 12.0% of total and net assets, respectively, as of December 31, 2022 and 0.6% and 0.5% of net sales and net income, respectively, for the year then ended.
+Added: Our audit of internal control over financial reporting of the Company also did not include an evaluation of the internal control over financial reporting of Vandermeer.
+Added: We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated balance sheets of BlueLinx Holdings Inc.
+Added: as of December 31, 2022 and January 1, 2022, the related consolidated statements of operations and comprehensive income, stockholders’ equity (deficit) and cash flows for each of the two fiscal years in the period ended December 31, 2022, and the related notes and our report dated February 21, 2023 expressed an unqualified opinion thereon.
Basis for Opinion
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EXECUTIVE COMPENSATION
−Removed: Information regarding compensation of officers and directors of BlueLinx Holdings Inc.
−Removed: will be set forth under the captions entitled “Compensation Discussion and Analysis,” “Compensation Committee Report,” “Compensation of Executive Officers” and “Director Compensation for 2021” in the Proxy Statement, to be filed within 120 days after the end of our 2021 fiscal year and is incorporated herein by reference.
+Added: The information required by this Item is incorporated herein by reference to the applicable disclosure under the captions entitled “Compensation Discussion and Analysis,” “Compensation Committee Report,” “Compensation of Executive Officers” and “Director Compensation for 2022” in our Proxy Statement, to be filed within 120 days after the end of our 2022 fiscal year and is incorporated herein by reference.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
−Removed: Security Ownership of Certain Beneficial Owners, Management, and Related Stockholders Matters Information regarding ownership of BlueLinx Holdings Inc.
−Removed: common stock will be set forth under the captions entitled “Security Ownership of Management and Certain Beneficial Owners” and “Delinquent Section 16(a) Reports” (if applicable) in the Proxy Statement, to be filed within 120 days after the end of our 2021 fiscal year and is incorporated herein by reference.
+Added: The information required by this Item is incorporated herein by reference to the applicable disclosure under the captions entitled “Security Ownership of Management and Certain Beneficial Owners” and “Delinquent Section 16(a) Reports” (if applicable) in our Proxy Statement, to be filed within 120 days after the end of our 2022 fiscal year and is incorporated herein by reference.
Equity Compensation Plan Information
−Removed: The following table provides information about the shares of our common stock that may be issued upon the exercise of options and other awards under our existing equity compensation plans as of January 1, 2022.
+Added: The following table provides information about the shares of our common stock that may be issued upon the exercise of options and other awards under our existing equity compensation plans as of December 31, 2022.
Our stockholder-approved equity compensation plans consist of the 2021 Plan.
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CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
−Removed: Certain Relationships, Related Transactions, and Director Independence Information regarding certain relationships, and related transactions with BlueLinx Holdings Inc., and director independence will be set forth under the captions entitled “Certain Relationships and Related Transactions,” and “More Information About the Board of Directors” in the Proxy Statement, to be filed within 120 days after the end of our 2021 fiscal year and is incorporated herein by reference.
+Added: The information required by this Item is incorporated herein by reference to the applicable disclosure under the captions entitled “Certain Relationships and Related Transactions” and “More Information About the Board of Directors” in our Proxy Statement, to be filed within 120 days after the end of our 2022 fiscal year and is incorporated herein by reference.
PRINCIPAL ACCOUNTANT FEES AND SERVICES
−Removed: Information required by this item will be set forth under the heading “Proposal 2 - Ratification of Independent Registered Public Accounting Firm” in the Proxy Statement, to be filed within 120 days after the end of our 2021 fiscal year and is incorporated by reference.
+Added: The information required by this Item is incorporated herein by reference to the applicable disclosure under the caption entitled “Proposal 2 - Ratification of Independent Registered Public Accounting Firm” in the Proxy Statement, to be filed within 120 days after the end of our 2022 fiscal year and is incorporated by reference.
EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
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10.4 BlueLinx Holdings Inc.
−Removed: 2004 Long Term Equity Incentive Plan (A) ±
−Removed: 10.5 Amended and Restated BlueLinx Holdings Inc.
−Removed: 2006 Long-Term Equity Incentive Plan (as amended through May 17, 2012 and restated solely for purposes of filing pursuant to Item 601 of Regulation S-K) (incorporated by reference to Appendix A to the Definitive Proxy Statement for the 2012 Annual Meeting of Stockholders, filed with the Securities and Exchange Commission on April 16, 2012) ±
−Removed: 10.6 BlueLinx Holdings Inc.
−Removed: 2016 Amended and Restated Long-Term Incentive Plan (incorporated by reference to Exhibit 10.1 to the Company’s Form S-8 Registration Statement filed with the Securities and Exchange Commission on June 3, 2016) ±
−Removed: 10.7 First Amendment to BlueLinx Holdings Inc.
−Removed: 2016 Amended and Restated Long-Term Incentive Plan (incorporated by reference to Exhibit 10.1 to the Company’s Form 8-K filed with the Securities and Exchange Commission on May 18, 2018) ±
−Removed: 10.8 BlueLinx Holdings Inc.
−Removed: 2016 Amended and Restated Long-Term Incentive Plan Form of Stock Appreciation Rights Agreement (incorporated by reference to Exhibit 10.2 to the Company’s Form S-8 Registration Statement filed with the Securities and Exchange Commission on June 3, 2016) ±
−Removed: 10.9 Form of Amendment to BlueLinx Holdings Inc.
−Removed: 2016 Amended and Restated Long-Term Incentive Plan Form of Stock Appreciation Rights Agreement (incorporated by reference to Exhibit 10.1 to the Company’s Form 8-K filed with the Securities and Exchange Commission on January 5, 2018) ±
−Removed: 10.10 BlueLinx Holdings Inc.
2016 Amended and Restated Long-Term Equity Incentive Plan Restricted Stock Unit Award Agreement for Non-Employee Directors (incorporated by reference to Exhibit 10.19 to the Company’s Form 10-K filed with the Securities and Exchange Commission on March 2, 2017) ±
−Removed: Exhibit Number Item
−Removed: 10.11 Form of 2018 Time Based Restricted Stock Unit Award Agreement under the BlueLinx Holdings, Inc.
−Removed: 2016 Amended and Restated Long-Term Incentive Plan, as amended (incorporated by reference to Exhibit 10.13 to the Company’s Form 10-Q filed with the Securities and Exchange Commission on August 9, 2018) ±
−Removed: 10.12 Form of 2018 Performance Based Restricted Stock Unit Award Agreement under the BlueLinx Holdings, Inc.
−Removed: 2016 Amended and Restated Long-Term Incentive Plan, as amended (incorporated by reference to Exhibit 10.14 to the Company’s Form 10-Q filed with the Securities and Exchange Commission on August 9, 2018) ±
−Removed: 10.13 Form of Amendment to 2018 Performance Based Restricted Stock Unit Award Agreement under BlueLinx Holdings, Inc.
−Removed: 2016 Amended and Restated Long-Term Incentive Plan, as amended (incorporated by reference to Exhibit 10.13 to the Company’s Form 10-K filed with the Securities and Exchange Commission on March 3, 2021)
10.5 Form of 2019 and 2020 Time Based Restricted Stock Unit Award Agreement under the BlueLinx Holdings, Inc.
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10.9 First Amendment, effective June 8, 2018, to Employment Agreement between BlueLinx Corporation and Mitchell Lewis (incorporated by reference to Exhibit 10.12 to the Company’s Form 10-Q filed with the Securities and Exchange Commission on August 9, 2018) ±
−Removed: 10.19 Employment Agreement between BlueLinx Corporation and Susan C.
−Removed: O’Farrell, dated May 5, 2014 (incorporated by reference to Exhibit 10.2 to the Company’s Form 10-Q filed with the Securities and Exchange Commission on May 8, 2014) ±
−Removed: 10.20 First Amendment, effective June 1, 2018, to Employment Agreement between BlueLinx Corporation and Susan C.
−Removed: O’Farrell (incorporated by reference to Exhibit 10.9 to the Company’s Form 10-Q filed with the Securities and Exchange Commission on August 9, 2018) ±
+Added: Exhibit Number Item
10.10 Employment Agreement between BlueLinx Corporation and Shyam K.
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Janzen, dated March 2, 2020 (incorporated by reference to Exhibit 10.4 to the Company’s Form 10-Q filed with the Securities and Exchange Commission on May 6, 2020) ±
−Removed: 10.26 Separation Agreement between BlueLinx Corporation and Susan C.
−Removed: O’Farrell, dated March 9, 2020 (incorporated by reference to Exhibit 10.5 to the Company’s Form 10-Q filed with the Securities and Exchange Commission on May 6, 2020) ±
10.15 Letter Agreement, dated March 22, 2020, between BlueLinx Holdings Inc.
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Lewis (incorporated by reference to Exhibit 10.9 to the Company’s Form 10-Q filed with the Securities and Exchange Commission on May 6, 2020) ±
−Removed: Exhibit Number Item
10.16 Letter Agreement, dated March 30, 2020, between BlueLinx Corporation and Alexander Averitt (incorporated by reference to Exhibit 10.2 to the Company’s Form 10-Q filed with the Securities and Exchange Commission on August 3, 2020) ±
10.17 BlueLinx Holdings Inc, Amended and Restated Short-Term Incentive Plan (incorporated by reference to Appendix A to the Definitive Proxy Statement for the 2017 Annual Meeting of Stockholders, filed with the Securities and Exchange Commission on April 18, 2017) ±
−Removed: 10.30 BlueLinx Corporation Integration Incentive Plan (incorporated by reference to Exhibit 10.2 to the Company’s Form 8‑K filed with the Securities and Exchange Commission on April 19, 2018) ±
−Removed: 10.31 BlueLinx Corporation Integration Incentive Plan Form of Participation Agreement (incorporated by reference to Exhibit 10.3 to the Company’s Form 8‑K filed with the Securities and Exchange Commission on April 19, 2018) ±
10.18 BlueLinx Holdings Inc.
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10.19 Form of Executive Restrictive Covenant Agreement (incorporated by reference to Exhibit 10.2 to the Company’s Form 8-K filed with the Securities and Exchange Commission on May 27, 2015) ±
−Removed: 10.34 Revised Form of Executive Restrictive Covenant Agreement ±
−Removed: 10.35 Form of Purchase and Sale Agreement with USIPA-Brennan Ventures II, LLC, dated as of November 6, 2017 (incorporated by reference to Exhibit 10.2 to the Company’s Form 10-Q filed with the Securities and Exchange Commission on May 3, 2018)
−Removed: 10.36 Form of Amendment to Purchase and Sale Agreement with USIPA-Brennan Ventures II, LLC, dated as of December 7, 2017 (incorporated by reference to Exhibit 10.3 to the Company’s Form 10-Q filed with the Securities and Exchange Commission on May 3, 2018)
−Removed: 10.37 Form of Purchase and Sale Agreement for Sale-Leaseback Transactions with Big Acquisitions LLC (incorporated by reference to Exhibit 10.1 to the Company’s Form 10-Q filed with the Securities and Exchange Commission on August 7, 2019)
−Removed: 10.38 Third Amendment to Purchase and Sale Agreement, dated as of May 1, 2019, by and between ABP FL (Yulee) LLC and Big Acquisitions LLC (incorporated by reference to Exhibit 10.2 to the Company’s Form 10-Q filed with the Securities and Exchange Commission on August 7, 2019)
−Removed: 10.39 Third Amendment to Purchase and Sale Agreement, dated as of May 1, 2019, by and between ABP IL (University Park) and Big Acquisitions LLC (incorporated by reference to Exhibit 10.3 to the Company’s Form 10-Q filed with the Securities and Exchange Commission on August 7, 2019)
−Removed: 10.40 Form of Purchase and Sale Agreement with Big Acquisitions LLC, dated as of October 16, 2019 (incorporated by reference to Exhibit 10.6 to the Company’s Form 10-Q filed with the Securities and Exchange Commission on May 6, 2020)
−Removed: 10.41 Form of First Amendment to Purchase and Sale Agreement with Big Acquisitions LLC, dated as of November 20, 2019 (incorporated by reference to Exhibit 10.7 to the Company’s Form 10-Q filed with the Securities and Exchange Commission on May 6, 2020)
−Removed: 10.42 Form of Second Amendment to Purchase and Sale Agreement with Big Acquisitions LLC, dated as of December 13, 2019 (incorporated by reference to Exhibit 10.8 to the Company’s Form 10-Q filed with the Securities and Exchange Commission on May 6, 2020)
−Removed: 10.43 Form of Purchase and Sale Agreement with Big Acquisitions LLC, dated as of June 1, 2020 (incorporated by reference to Exhibit 10.1 to the Company’s Form 10-Q filed with the Securities and Exchange Commission on October 28, 2020)
−Removed: 10.44 First Amendment to Purchase and Sale Agreement with Big Acquisitions LLC, dated as of July 8, 2020 (incorporated by reference to Exhibit 10.2 to the Company’s Form 10-Q filed with the Securities and Exchange Commission on October 28, 2020)
+Added: 10.20 Revised Form of Executive Restrictive Covenant Agreement (incorporated by reference to Exhibit 10.34 to the Company’s Form 10-K filed with the Securities and Exchange Commission on March 11, 2020) ±
10.21 Amended and Restated Credit Agreement, dated April 13, 2018, by and among BlueLinx Holdings Inc., certain subsidiaries of BlueLinx Holdings Inc.
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as borrowers or guarantors thereunder, Wells Fargo Bank, National Association, as administrative agent, and certain other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Company’s Form 10-Q filed with the Securities and Exchange Commission on May 6, 2020)
−Removed: Exhibit Number Item
10.23 Amended and Restated Guaranty and Security Agreement, dated April 13, 2018, by and among BlueLinx Holdings Inc., certain subsidiaries of BlueLinx Holdings Inc., and Wells Fargo Bank, National Association (incorporated by reference to Exhibit 10.2 to the Company’s Form 8-K filed with the Securities and Exchange Commission on April 16, 2018)
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as guarantors thereunder, HPS Investment Partners, LLC, as administrative agent and collateral agent, and certain other financial institutions party thereto (incorporated by reference to Exhibit 10.47 to the Company’s Form 10-K filed with the Securities and Exchange Commission on March 13, 2019)
+Added: Exhibit Number Item
10.27 Second Amendment to Credit and Guaranty Agreement, dated February 28, 2019, by and among BlueLinx Holdings Inc., as borrower, certain subsidiaries of BlueLinx Holdings Inc., as guarantors, HPS Investment Partners, LLC, as administrative agent and collateral agent, and the other financial institutions party thereto, as lenders (incorporated by reference to Exhibit 10.1 to the Company’s Form 8-K filed with the Securities and Exchange Commission on March 4, 2019)
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as borrowers or guarantors thereunder, Wells Fargo Bank, National Association, as administrative agent, and certain other financial institutions party thereto (incorporated by reference to Exhibit 10.1 to the Company’s Form 8-K filed with the Securities and Exchange Commission on August 3, 2021)
−Removed: Exhibit Number Item
10.37 First Amendment to Employment Agreement, by and between BlueLinx Corporation and Dwight Gibson, dated June 24, 2021 (incorporated by reference to Exhibit 10.4 to the Company’s Form 10-Q filed with the Securities and Exchange Commission on August 3, 2021) ±
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10.40 Award Agreement between BlueLinx Holdings Inc., BlueLinx Corporation and Dwight Gibson, dated June 24, 2021 (incorporated by reference to Exhibit 10.7 to the Company’s Form 10-Q filed with the Securities and Exchange Commission on August 3, 2021) ±
+Added: 10.41 Form of 2022 Time-Based Restricted Stock Unit Award Agreement under the BlueLinx Holdings Inc.
+Added: 2021 Amended and Restated Long-Term Incentive Plan (incorporated by reference to Exhibit 10.1 to the Company’s Form 10-Q filed with the Securities and Exchange Commission on August 2, 2022) ±
+Added: 10.42 Form of 2022 Performance-Based Restricted Stock Unit Award Agreement under the BlueLinx Holdings Inc.
+Added: 2021 Amended and Restated Long-Term Incentive Plan (incorporated by reference to Exhibit 10.2 to the Company’s Form 10-Q filed with the Securities and Exchange Commission on August 2, 2022) ±
+Added: Exhibit Number Item
+Added: 10.43 Transition Agreement between BlueLinx Corporation and Shyam K.
+Added: Reddy, dated September 29, 2022 (incorporated by reference to Exhibit 10.1 to the Company’s Form 8-K filed with the Securities and Exchange Commission on September 30, 2022) ±
+Added: 10.44 Stock Purchase Agreement, dated October 3, 2022, by and among BlueLinx Corporation, Vandermeer Forest Products, Inc.
+Added: Staudacher (incorporated by reference to Exhibit 10.1 to the Company’s Form 8-K filed with the Securities and Exchange Commission on October 3, 2022)
+Added: 10.45 Amended Transition Agreement between BlueLinx Corporation and Shyam K.
+Added: Reddy, dated December 23, 2022 (incorporated by reference to Exhibit 10.1 to the Company’s Form 8-K filed with the Securities and Exchange Commission on December 23, 2022) ±
16.1 Letter from BDO USA, LLP to the Securities and Exchange Commission, dated June 14, 2021 (incorporated by reference to Exhibit 16.1 to the Company’s Form 8-K filed with the Securities and Exchange Commission on June 17, 2021)
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Dwight Gibson
−Removed: Janzen Senior Vice President and Chief Financial Officer (Principal Accounting Officer) February 22, 2022
+Added: Janzen Senior Vice President and Chief Financial Officer (Principal Financial Officer) February 21, 2023
+Added: Bowen Vice President and Chief Accounting Officer (Principal Accounting Officer) February 21, 2023
Fennebresque Chairman February 21, 2023
−Removed: Czanderna Director February 22, 2022
/s/ Dominic DiNapoli Director February 21, 2023
Dominic DiNapoli
+Added: Haas Director February 21, 2023
/s/ Mitchell B.
2 unchanged sentences
Yancey Director February 21, 2023
+Added: /s/ Marietta Edmunds Zakas Director February 21, 2023
+Added: Marietta Edmunds Zakas
Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.