bluelinx_-xretirementxan






RETIREMENT AND TRANSITION SERVICES AGREEMENT    THIS RETIREMENT AND TRANSITION SERVICES AGREEMENT (this  “Agreement”) is made and entered into this 15th day of April 2021, by and between MITCHELL  B. LEWIS (“Executive”) and BLUELINX CORPORATION, a Georgia corporation  (“Company”).  The term “Company,” when used in this Agreement, includes its parent,  subsidiaries or affiliates (including specifically BlueLinx Holdings Inc.) and their respective  predecessors, successors, and assigns.  Executive and Company are sometimes hereinafter referred  to together as the “Parties” and individually as a “Party.”  BACKGROUND:     A. Executive is employed as the President and Chief Executive Officer of Company.  The terms of Executive’s employment are governed by that certain Employment Agreement dated  January 15, 2014 by and among Company, Executive and, with respect to Sections 3(a), 3(b) and  3(e) therein, BlueLinx Holdings Inc., as amended by that certain First Amendment to Employment  Agreement dated June 8, 2018 by and between Company and Executive (the “Employment  Agreement”).     B. Executive’s employment will terminate in certain capacities as of the Retirement  Date (as defined below) and all remaining employment capacities as of the Termination Date (as  defined below).       NOW, THEREFORE, FOR AND IN CONSIDERATION of the premises, the mutual  promises, covenants and agreements contained herein, and other good and valuable consideration,  the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:    1.  Retirement. Executive will retire as President and Chief Executive Officer of  Company effective on the date that a new Chief Executive Officer and President takes office (the  “Retirement Date”); provided however, that Executive shall remain an employee of Company  through December 31, 2021 (the “Termination Date”) in order to continue providing transition  services as contemplated in Section 2 below.  Until the Retirement Date and except as otherwise  stated herein, Executive’s employment will continue to be governed by this Agreement and his  Employment Agreement; thereafter and through the Termination Date and except as otherwise  stated herein, Executive’s employment will be governed by this Agreement. Though Executive  shall remain employed at Company through the Termination Date, Executive agrees to resign from  any corporate office or official position of any kind that he holds with Company, in each case,  effective as of the Retirement Date; provided, however, that Executive shall remain a director of  the Board until the next annual meeting of the stockholders of BlueLinx Holdings Inc. as further  described in Section 3 below.   DocuSign Envelope ID: 64FD2F5B-9B7A-4B97-8625-78EDBBD0A716 





 






2.  Transition Services. Executive will remain President and Chief Executive Officer  of Company until the Retirement Date and will perform such duties and functions in his normal  capacity as the President and Chief Executive Officer.  Thereafter and through the Termination  Date, Executive shall remain an employee of Company and perform such additional services as  the successor President and Chief Executive Officer and/or Board shall reasonably request from  time to time.       3. Continuance as Director.  Executive shall remain a director of BlueLinx Holdings  Inc.’s Board of Directors (“Board”) until the next annual meeting of stockholders of BlueLinx  Holdings Inc. for no additional compensation.  After the Termination Date and for so long as  Executive is a non-employee director of the Board, Executive will be paid as a non-employee  director of the Board under the Board compensation program.  4. Future Cooperation.  Executive agrees that for the period beginning on the  Termination Date and ending on December 31, 2023, upon reasonable advance notice by  Company, Executive will make himself reasonably available to Company for the purposes of: (a)  providing information regarding the projects and files on which Executive worked for the purpose  of transitioning such projects; (b) providing information regarding any other matter, file, project,  customer and/or client with whom or with respect to which Executive was directly involved or  otherwise had knowledge about while employed by, or providing services to, Company; and (c)  cooperating in the investigation, negotiations and/or defense of any claims of which he may have  knowledge, including, but not limited to providing truthful testimony.  In the event Executive is  subpoenaed by any person or entity to give testimony which in any way relates to Executive’s  employment by Company, Executive agrees to provide prompt notice of such request to Company  and will use his reasonable best efforts to make no disclosures until Company has a reasonable  opportunity to contest the right of the requesting person or entity to such disclosure. However, no  notice shall be required if Executive is prohibited by law from providing such notice.  Company  shall promptly reimburse Executive for any reasonable expense that he incurs in connection with  providing the cooperation called for under this Section 4.  5. Compensation.    (a) In exchange for Executive’s transition services contemplated in this  Agreement, Executive’s confirmation of the continued effect of his restrictive covenants, full  release of Company in a form of Release reasonably agreed to between the Company and  Executive (the “Release”) to be executed by Executive, and Executive’s agreement to perform the  other duties and obligations of Executive contained herein, Company will provide the additional  consideration set forth below, subject to ordinary and lawful deductions and Sections 5(b) and (c)  below.     (i) Company shall pay Executive his annual base salary through June  30, 2021 in accordance with Company’s normal bi-weekly payroll practices;  (ii) Company shall pay Executive $20,000 per month and provide such  benefits as other salaried employees of Company receive from July 1, 2021 through  December 31, 2021 for the transition services described in Section 2 above in accordance  with Company’s normal bi-weekly payroll practices;   DocuSign Envelope ID: 64FD2F5B-9B7A-4B97-8625-78EDBBD0A716 





 






(iii) Company shall pay to Executive a pro rata bonus, which equals the  bonus that would be payable to Executive under the terms of Company’s annual bonus plan  for fiscal year 2021 had Executive remained employed at Company as President and CEO  through the end of fiscal year 2021 (if any), multiplied by 50%.  The pro rata bonus amount,  if any, shall be based on Executive’s base salary and bonus percentage as of March 31,  2021 and be paid at the time that 2021 annual bonuses are paid to other participants in such  bonus plan;  (iv) (a) Company shall (a) ensure that all performance-based restricted  stock units granted to Executive in 2018 and 2019 continue to vest in accordance with their  terms and, if Executive is no longer employed by Company at the time such restricted stock  units vest, then such restricted stock units shall continue to vest in accordance with their  terms and become non-forfeitable in the same manner and at the same time as if Executive  had remained employed by Company, and (b) ensure that all time-based restricted stock  units granted to Executive in 2018, 2019 and 2020 that are scheduled to vest in (1) 2021  vest in accordance with their terms and become non-forfeitable on their scheduled vesting  date, and (2) 2022 vest and become non-forfeitable on the same scheduled vesting date as  the time-based restricted stock units described in Section 5(a)(iv)(b)(1) above, and  (c) ensure that all other time-based and/or performance-based restricted stock units granted  to Executive as of the date of this Agreement and scheduled to vest after 2022 will be  forfeited on the Termination Date. For purposes of clarity, all restricted stock units held by  Executive as of the date hereof that are scheduled to vest in June 2021 shall not be  considered additional consideration; and  (v) If, after the Termination Date, Executive timely elects to continue  health (medical and dental) plan coverage for himself and/or any qualified beneficiary  under the federal Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA),  Company will pay a portion of the monthly COBRA premiums equal to Company’s portion  of the health insurance premium Company is paying on Executive’s behalf while an active  employee as of the Termination Date for eighteen (18) months following the date  Executive’s participation in Company’s health plans as an active employee ends (or, if  earlier, until Executive becomes eligible for health insurance coverage through a new  employer), along with any monthly administrative charges (up to 2% of the entire monthly  premium), to the extent permitted by law without adverse tax consequences to Company.   During this eighteen (18) month period, Executive will be required to pay the employee  portion of the COBRA premium each month. The portion of the premium Company pays  on Executive’s behalf will be included in Executive’s taxable income.    (b) Notwithstanding anything else contained herein to the contrary, no  payments shall be made or benefits delivered under this Agreement (other than payments required  to be made by Company pursuant to Section 6 below) unless: (i) within twenty-one (21) days of  Executive’s receipt of this Agreement, Executive has signed and delivered to Company this  Agreement and the Release, and Executive does not revoke such Release during the applicable  revocation period, and; (ii) with respect to any payments made or benefits delivered after June 30,  2021, on the Termination Date, Executive re-executes and delivers to Company the Release (the  “Updated Release”).  Executive agrees and acknowledges that he would not be entitled to the  consideration described herein absent execution of this Agreement, the Release, and expiration of  DocuSign Envelope ID: 64FD2F5B-9B7A-4B97-8625-78EDBBD0A716 





 






the applicable revocation periods without Executive having revoked the Release, and with respect  to any payments made or benefits delivered after June 30, 2021, the Updated Release.  Any  payments obligated to be made, or benefits to be delivered, under this Agreement within the period  after the Termination Date and prior to the Release Effective Date shall be accumulated and paid  in a lump sum, on the first regular payroll date occurring after the Release Effective Date. The  “Release Effective Date” shall be the day following the expiration of the applicable revocation  period without Executive having elected to revoke the Release.    (c) As a further condition to receipt of the payments and benefits in Section  5(a) above, Executive acknowledges that these payments are in lieu of any other amounts that he  may claim to be owed to him upon the termination of his employment relationship with Company,  other than those specifically set forth in this Agreement, including without limitation any  severance, notice rights, payments (including special or annual bonus), and other amounts to which  Executive may be entitled under his Employment Agreement or the laws of Georgia or any other  jurisdiction, and Executive agrees not to pursue or claim any of the payments, benefits or rights  set forth therein.      (d) If Company is required to prepare an accounting restatement due to material  noncompliance by Company, as a result of misconduct, with any financial reporting requirement  under the federal securities laws, Executive, to the extent required by law, will reimburse Company  for (i) any bonus or other incentive-based or equity-based compensation received by Executive  from Company (including such compensation payable in accordance with this Section 5 and  Section 6) during the 12-month period following the first public issuance or filing with the  Securities and Exchange Commission (whichever first occurs) of the financial document  embodying that financial reporting requirement; and (ii) any profits realized by Executive from  the sale of Company securities during that 12-month period.    6. Other Benefits.  (a) Nothing in this Agreement or the Release shall:    (i) alter or reduce any vested, accrued benefits (if any) Executive may  be entitled to receive under any 401(k) plan established by Company; or    (ii) affect Executive’s right (if any) to elect and pay for continuation of  Executive’s health insurance coverage pursuant to COBRA.    (b) Company shall pay Executive:    (i) any base salary that accrues through the Termination Date and is  unpaid as of the Termination Date; and  DocuSign Envelope ID: 64FD2F5B-9B7A-4B97-8625-78EDBBD0A716 





 






(ii) any reimbursable expenses that Executive incurs before the  Termination Date but are unpaid as of the Termination Date (subject to Company’s expense  reimbursement policy).  (c) Company shall continue to provide Executive with customary and  appropriate Directors and Officers Liability Coverage for the six (6) year period which  immediately follows the date that his service as a member of the Board ends.    7. Confidentiality; Non-Solicitation; Continuation of Restrictive Covenants.  (a) Executive acknowledges and agrees that, except as specifically set forth  below, Section 7 of the Employment Agreement (and any related definitions) shall survive the  termination of the Employment Agreement and the termination of his employment and are  incorporated into this Agreement by reference.  Executive hereby agrees to continue to abide by  the obligations in Section 7 of the Employment Agreement, as amended hereby.    (b) Confidential Information and Trade Secrets.  Section 7(a)(i) of the  Employment Agreement is hereby amended and restated as follows:  “(i) Executive shall hold in a fiduciary capacity for the benefit of  Company all Confidential Information and Trade Secrets.  During Executive’s  employment and for a period of two (2) years immediately following his termination of  employment for any reason, Executive shall not, without the prior written consent of  Company or as may otherwise be required by law or legal process, use, communicate or  divulge Confidential Information other than as necessary to perform Executive’s duties for  Company; provided, however, that if the Confidential Information is deemed a trade secret  under Georgia law, then the period for nondisclosure shall continue for the applicable  period under Georgia Trade Secret laws in effect at the time of Executive’s termination.  In  addition, except as necessary to perform Executive’s duties for Company, during  Executive’s employment and thereafter for the applicable period under the Georgia Trade  Secret laws in effect at the time of Executive’s termination, Executive will not, directly or  indirectly, transmit or disclose any Trade Secrets to any person or entity, and will not,  directly or indirectly, make use of any Trade Secrets, for himself or herself or any other  person or entity, without the express written consent of Company.  This provision will  apply for so long as a particular Trade Secret retains its status as a trade secret under  applicable law.  The protection afforded to Trade Secrets and/or Confidential Information  by this Agreement is not intended by the parties hereto to limit, and is intended to be in  addition to, any protection provided to any such information under any applicable federal,  state or local law.  Pursuant to the Defend Trade Secrets Act of 2016, Executive understands  that:  An individual may not be held criminally or civilly liable under any federal  or state trade secret law for the disclosure of a trade secret that: (a) is made (i) in confidence  to a federal, state, or local government official, either directly or indirectly, or to an  DocuSign Envelope ID: 64FD2F5B-9B7A-4B97-8625-78EDBBD0A716 





 






attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation  of law; or (b) is made in a complaint or other document that is filed under seal in a lawsuit  or other proceeding.  Further, an individual who files a lawsuit for retaliation by an employer for  reporting a suspected violation of law may disclose the employer's trade secrets to the  attorney and use the trade secret information in the court proceeding if the individual: (a)  files any document containing the trade secret under seal; and (b) does not disclose the  trade secret, except pursuant to court order.”  (c) Definitions. For purposes of this Agreement (including Section 7(b)  hereof), the following capitalized terms shall have the following meanings.  “Confidential Information” means knowledge or data relating to Company that is  not generally known to persons not employed or otherwise engaged by Company, is not generally  disclosed by Company, and is the subject of reasonable efforts to keep it confidential. Confidential  Information includes, but is not limited to, information regarding product or service cost or pricing,  information regarding personnel allocation or organizational structure, information regarding the  business operations or financial performance of Company, sales and marketing plans, and strategic  initiatives (independent or collaborative), information regarding existing or proposed methods of  operation, current and future development and expansion or contraction plans, sale/acquisition  plans and non-public information concerning the legal or financial affairs of Company.   Confidential Information does not include information that has become generally available to the  public by the act of one who has the right to disclose such information without violating any right  or privilege of Company.  This definition is not intended to limit any definition of confidential  information or any equivalent term under applicable federal, state or local law.    “Person” means:  any individual or any corporation, partnership, joint  venture, limited liability company, association or other entity or enterprise.  “Trade Secrets” means all secret, proprietary or confidential information  regarding Company, BHI or any of their respective subsidiaries and affiliates or that meets the  definition of “trade secrets” within the meaning set forth in O.C.G.A. § 10-1-761.  8. Governing Law.  This Agreement shall be deemed to have been jointly drafted by  the Parties and shall not be construed against either Party. This Agreement shall be governed by  the law of the State of Georgia, and the Parties agree that any actions arising out of or relating to  this Agreement or Executive’s employment with Company must be brought exclusively in either  the United States District Court for the Northern District of Georgia, or the State or Superior Courts  of Cobb County, Georgia. Notwithstanding the pendency of any proceeding, either Party shall be  entitled to injunctive relief in a state or federal court located in Cobb County, Georgia upon a  showing of irreparable injury.  The Parties consent to personal jurisdiction and venue solely within  these forums and solely in Cobb County, Georgia and waive all otherwise possible objections  thereto.  The existence of any claim or cause of action by Executive against Company, including  any dispute relating to the termination of Executive’s employment or under this Agreement, shall  not constitute a defense to enforcement of said covenants by injunction.    DocuSign Envelope ID: 64FD2F5B-9B7A-4B97-8625-78EDBBD0A716 





 






9. Severability.  Whenever possible, each provision of this Agreement is to be  interpreted in such manner as to be effective and valid under applicable law, but if any provision  of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable  law or rule in any jurisdiction, that invalidity, illegality, or unenforceability is not to affect any  other provision or any other jurisdiction, and this Agreement is to be reformed, construed and  enforced in the jurisdiction as if the invalid, illegal or unenforceable provision had never been   contained  therein.  To the extent any provision of the Release is deemed to be illegal, invalid, or  unenforceable and Executive sues the Company, then Company may, at its sole option, void this  Agreement, in which case Executive shall immediately return any payments received under  Section 5 above to Company.  10. Return of all Property and Information of Company.  Executive agrees to return  or destroy all property of Company on or before the Termination Date that is not otherwise utilized  to fulfil Executive’s duties as a member of the Board.  Such property includes, but is not limited  to, the original and any copy (regardless of the manner in which it is recorded) of all non-public  information provided by Company or any subsidiary thereof to Executive or which Executive has  developed or collected in the scope of Executive’s employment related to Company as well as all  Company-issued equipment, supplies, accessories, vehicles, keys, instruments, tools, devices,  computers, cell phones, electronic devices, materials, documents, plans, records, notebooks,  drawings, or papers.  Executive may only retain information relating to Executive’s continued  service as a member of the Board and Executive’s benefit plans and compensation to the extent  needed to prepare Executive’s tax returns.    11. No Reliance Upon Other Statements.  This Agreement is entered into without  reliance upon any statement or representation of any Party hereto or any Party hereby released  other than the statements and representations contained in writing in this Agreement and the  enclosed Release.    12. Entire Agreement.  This Agreement, the Release, and Section 7 of the  Employment Agreement (which are incorporated herein by this reference), contain the entire  agreement and understanding concerning the subject matter hereof between the Parties hereto.  No  waiver, termination or discharge of this Agreement, or any of the terms or provisions hereof, shall  be binding upon either Party hereto unless confirmed in writing.  This Agreement may not be  modified or amended, except by a writing executed by both Parties hereto.  No waiver by either  Party hereto of any term or provision of this Agreement or of any default hereunder shall affect  such Party’s rights thereafter to enforce such term or provision or to exercise any right or remedy  in the event of any other default, whether or not similar.  Notwithstanding the foregoing, the  Employment Agreement will remain in effect until the Retirement Date to the extent the terms of  the Employment Agreement are not inconsistent with the terms of this Agreement and, if  inconsistent, the terms of this Agreement will control.    13. Further Assurance.  Upon the reasonable request of the other Party, each Party  hereto agrees to take any and all actions, including, without limitation, the execution of certificates,  documents or instruments, necessary or appropriate to give effect to the terms and conditions set  forth in this Agreement.  DocuSign Envelope ID: 64FD2F5B-9B7A-4B97-8625-78EDBBD0A716 





 






14. No Pending Claims or Assignments.  Neither Party may assign this Agreement,  in whole or in part, without the prior written consent of the other Party, and any attempted  assignment not in accordance herewith shall be null and void and of no force or effect. Executive  represents and warrants that Executive has no claims or causes of action against Company which  are not released in the Release. Executive also represents and warrants that Executive has not filed  any claims, charges, lawsuits, or similar matters of any kind against Company in any forum, and  that Company’s obligations under this Agreement are conditioned upon this representation.  15. Binding Effect.  This Agreement shall be binding on and inure to the benefit of the  Parties and their respective heirs, representatives, successors and permitted assigns.  16. Indemnification.  Company understands and agrees that any indemnification  obligations under its governing documents or the indemnification agreement between Company  and Executive with respect to Executive’s service as an officer of Company remain in effect and  survive the termination of Executive’s employment under this Agreement as set forth in such  governing documents or indemnification agreement.  17. Nonqualified Deferred Compensation.  (a) Any payment or benefit provided pursuant to or in connection with this  Agreement is intended to comply with the “short term deferral” exception from Section 409A of  the Internal Revenue Code of 1986 (“Section 409A”) specified in Treas. Reg. § 1.409A-1(b)(4)  (or any successor provision) or the “separation pay plan” exception specified in Treas. Reg. §  1.409A-1(b)(9) (or any successor provision), or both of them, and shall be interpreted in a manner  consistent with the applicable exceptions.  If any payment or benefit provided pursuant to or in  connection with this Agreement is considered to be deferred compensation subject to Section  409A, it shall be paid and provided in a manner, and at such time and form, as complies with the  applicable requirements of Section 409A to avoid the unfavorable tax consequences provided  therein for non-compliance. Executive and Company agree that Executive’s termination of  employment is an involuntary separation from service under Section 409A.    (b) Neither Company nor Executive shall take any action to accelerate or delay  the payment of any monies and/or provision of any benefits in any manner which would not be in  compliance with Section 409A (including any transition or grandfather rules thereunder).    (c) Because Executive is a “specified employee” for purposes of Section  409A(a)(2)(B)(i), any payments or benefits provided pursuant to or in connection with Executive’s  “Separation from Service” (as determined for purposes of Section 409A) that constitute deferred  compensation subject to Section 409A (“Covered Payments”) shall not be made until the earlier  of (i) Executive’s death or (ii) six months after Executive’s Separation from Service (the “409A  Deferral Period”) as required by Section 409A.  Covered Payments otherwise due to be made in  installments or periodically during the 409A Deferral Period (“Delayed Payments”) shall be  accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of  the payment shall be made as otherwise scheduled.  Any Delayed Payments in the form of benefits  subject to the rule may be provided under the 409A Deferral Period at Executive’s expense, with  Executive having a right to reimbursement from Company once the 409A Deferral Period ends,  and the balance of the benefits shall be provided as otherwise scheduled.  Any Delayed Payments  DocuSign Envelope ID: 64FD2F5B-9B7A-4B97-8625-78EDBBD0A716 





 






shall bear interest at the United States 5-year Treasury Rate plus 2%, which accumulated interest  shall be paid to Executive as soon as the 409A Deferral Period ends.  (d) For purposes of this Agreement, all rights to payments and benefits  hereunder shall be treated as rights to receive a series of separate payments and benefits to the  fullest extent allowed by Section 409A.  (e) If any payment or benefit under this Agreement is subject to and not exempt  from Section 409A and is contingent on the delivery of a release by Executive and such payment  or benefit could be made in either of two years, the payment will be made or the benefit will be  delivered in the subsequent year to the extent necessary to comply with Section 409A.  (f) Notwithstanding any other provision of this Agreement, Company shall not  be liable to Executive if any payment or benefit which is to be provided pursuant to this Agreement  and which is considered deferred compensation subject to Section 409A otherwise fails to comply  with, or be exempt from, the requirements of Section 409A.  Executive shall be solely responsible  for the tax consequences with respect to any payment or benefit provided pursuant to or in  connection with this Agreement, and in no event shall Company have any responsibility or liability  if this Agreement does not meet any applicable requirements of Section 409A.  18. Counterparts.  This Agreement may be executed in any number of counterparts  and by the Parties hereto in separate counterparts, with the same effect as if the Parties had signed  the same document.  All such counterparts shall be deemed an original, shall be construed together,  and shall constitute one and the same instrument, with original signature, photocopy signature, fax  signature, or electronic signature permitted and accepted.  19. Protected Rights.  Executive understands that nothing contained in this Agreement  limits Executive’s ability to file a charge or complaint with the Equal Employment Opportunity  Commission, the National Labor Relations Board, the Occupational Safety and Health  Administration, the Securities and Exchange Commission or any other federal, state or local  governmental agency or commission (“Government Agencies”).  Executive further understands  that this Agreement does not limit Executive’s ability to communicate with any Government  Agencies or otherwise participate in any investigation or proceeding that may be conducted by any  Government Agencies, including providing documents or other information, without notice to  Company.  This Agreement does not limit Executive’s right to receive an award for information  provided to any Government Agencies.   [Signatures Appear on Following Page]  DocuSign Envelope ID: 64FD2F5B-9B7A-4B97-8625-78EDBBD0A716 





 






IN WITNESS WHEREOF, the Parties have executed, or caused their duly  authorized representatives to execute, this Agreement as of the day and year first above written.      “Executive”              MITCHELL B. LEWIS      “Company”    BLUELINX CORPORATION      By:        Name:         Title:         DocuSign Envelope ID: 64FD2F5B-9B7A-4B97-8625-78EDBBD0A716 Chairman of Board of Directors Kim S. Fennebresque