Exhibit 10.07
Non-Qualified Stock Option
Agreement
under the Lumber Liquidators,
Inc.
2004 Stock Option and Grant
Plan
As Amended and Restated Effective
July 13, 2006
and As Further Amended Effective
October 18, 2006
|
|
|
|
|
|
|
|
Name of Optionee:
|
|
(the “Optionee”)
|
|
|
|
|
No. of Option Shares:
|
|
Shares of Common Stock
|
|
|
|
|
Grant Date:
|
|
(the “Grant Date”)
|
|
|
|
|
Expiration Date:
|
|
(the “Expiration Date”)
|
|
|
|
|
Option Exercise Price/Share:
|
|
*
(the “Option Exercise Price”)
|
Pursuant to the Lumber Liquidators,
Inc. 2004 Stock Option and Grant Plan as amended and restated
effective July 13, 2006, and as further amended effective
October 18, 2006 (the “Plan”), Lumber Liquidators,
Inc., a Massachusetts corporation (together with all successors
thereto, the “Company”), hereby grants to the Optionee,
who is an officer, employee, director, consultant or other key
person of the Company or any of its Subsidiaries, an option (the
“Stock Option”) to purchase on or prior to the
Expiration Date, or such earlier date as is specified herein, all
or any part of the number of shares of Common Stock, no par value
(“Common Stock”), of the Company indicated above (the
“Option Shares,” and such shares once issued shall be
referred to as the “Issued Shares”), at the Option
Exercise Price per share, subject to the terms and conditions set
forth in this Non-Qualified Stock Option Agreement (this
“Agreement”) and in the Plan. This Stock Option is
not intended to qualify as an “incentive stock
option” as defined in Section 422(b) of the Internal
Revenue Code of 1986, as amended from time to time (the
“Code”).
1. Definitions
. For the purposes of
this Agreement, the following terms shall have the following
respective meanings. All capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in
the Plan.
An “ Affiliate ”
of any Person means a Person that directly or indirectly, through
one or more intermediaries, controls, is controlled by or is under
common control with the first mentioned Person. A Person shall be
deemed to control another Person if such first Person possesses
directly or indirectly the power to direct, or cause the direction
of, the management and policies of the second Person, whether
through the ownership of voting securities, by contract or
otherwise.
“ Bankruptcy ”
shall mean (i) the filing of a voluntary petition under any
bankruptcy or insolvency law, or a petition for the appointment of
a receiver or the making of an assignment for the benefit of
creditors, with respect to the Optionee or any Permitted
Transferee, or (ii) the Optionee or any Permitted Transferee
being subjected involuntarily to such a petition
|
*
|
“Option
Exercise Price” is the Fair Market Value of a share of Common
Stock on the Grant Date, determined in accordance with the
valuation report prepared by Management Planning, Inc. and approved
by the Board of Directors.
|
or assignment or to an attachment or other legal
or equitable interest with respect to the Optionee’s or such
Permitted Transferee’s assets, which involuntary petition or
assignment or attachment is not discharged within 60 days after its
date, and (iii) the Optionee or any Permitted Transferee being
subject to a transfer of the Stock Option or the Issued Shares by
operation of law (including by divorce, even if not insolvent),
except by reason of death.
“ Cause ” shall
mean a vote of the Board resolving that the Optionee should be
dismissed as a result of (i) the commission of any act by the
Optionee constituting financial dishonesty against the Company
(which act would be chargeable as a crime under applicable law);
(ii) the Optionee’s engaging in any other act of
dishonesty, fraud, intentional misrepresentation, moral turpitude,
illegality or harassment which, as determined in good faith by the
Board, would: (A) materially adversely affect the business or
the reputation of the Company with its current or prospective
customers, suppliers, lenders and/or other third parties with whom
it does or might do business; or (B) expose the Company to a
risk of civil or criminal legal damages, liabilities or penalties;
(iii) the repeated failure by the Optionee to follow the
directives of the Company’s chief executive officer or Board
or (iv) any material misconduct, violation of the
Company’s policies, or willful and deliberate non-performance
of duty by the Optionee in connection with the business affairs of
the Company.
“ Competition ”
means participating, directly or indirectly, in a Prohibited
Capacity, as a director, officer, employee, principal, agent,
consultant, adviser, stockholder, owner, member or partner of any
business, organization, entity, or enterprise engaged, within the
Restricted Area, in the sale of (i) flooring products,
including but not limited to hardwood and laminate flooring; and
(ii) any other products or services substantially similar to
those sold or provided by the Company and which constituted more
than five percent (5%) of the Company’s gross sales
during the most recent twenty-four (24) months of
Optionee’s employment with the Company.
“ Good Reason ”
shall mean the occurrence of any of the following events:
(i) a substantial adverse change in the nature or scope of the
Optionee’ s responsibilities, authorities, powers, functions
or duties; (ii) a reduction in the Optionee’s annual
base salary except for across-the-board salary reductions similarly
affecting all or substantially all management employees; or
(iii) the relocation of the offices at which the Optionee is
principally employed to a location more than 50 miles from such
offices.
“ Initial Public
Offering ” shall mean the consummation of the first fully
underwritten, firm commitment public offering pursuant to an
effective registration statement under the Act (as defined herein)
covering the offer and sale by the Company of its equity
securities, as a result of or following which the Stock shall be
publicly held.
“ Permitted Transferees
” shall mean any of the following to whom the Optionee may
transfer Issued Shares hereunder (as set forth in Section 8):
the Optionee’s spouse, children (natural or adopted),
stepchildren or a trust for their sole benefit of which the
Optionee is the settlor; provided , however , that
any such trust does not require or permit distribution of any
Issued Shares during the term of this Agreement unless subject to
its terms. Upon the death of the Optionee (or a Permitted
Transferee to whom shares have been transferred hereunder),
the
2
term Permitted Transferees shall also include
such deceased Optionee’s (or such deceased Permitted
Transferee’s) estate, executions, administrations, personal
representations, heirs, legatees and distributees, as the case may
be.
“ Person ” shall
mean any individual, corporation, partnership (limited or general),
limited liability company, limited liability partnership,
association, trust, joint venture, unincorporated organization or
any similar entity.
“ Prohibited Capacity
” means (i) any capacity which involves the performance
of tasks or activities substantially similar to those performed by
the Optionee in his or her capacity as an employee of the Company
at any time within the twelve (12) months immediately prior to
the cessation of his or her employment with the Company; or
(ii) any capacity which involves the management or supervision
of any function for which the Optionee was responsible in his or
her capacity as an employee of the Company at any time within the
twelve (12) months immediately prior to the cessation of his
or her employment with the Company.
“ Proprietary
Information ” means any information: applicable to the
business of the Company or of any client, customer, or supplier of
the Company, in each case which may be made known to the Optionee
by the Company or by any client, customer, or supplier of the
Company; or learned by the Optionee in such context during the
period of Optionee’s employment with the Company, but
excluding any records, data or information which are in the public
domain, provided the same are not in the public domain as a
consequence of unauthorized disclosure by the Optionee in violation
of this Agreement. By way of illustration, but not limitation,
Proprietary Information may include: (i) corporate
information , including plans, strategies, product suppliers or
importers, retail and store strategies, methods, policies, dispute
resolutions, negotiations or litigation; (ii) marketing
information , including strategies, methods, customer
identities or other information about customers, prospect
identities or other information about prospects, or market analyses
or projections; (iii) financial information ,
including cost and performance data, debt arrangements, equity
structure, investors and holdings, purchasing and sales data and
price lists; (iv) operational and technological
information , including plans, specifications, wood finishing
procedures, new products, finishes or other chemicals or treatments
used, types of wood imported, used or resold by the Company,
manuals, forms, templates, software, designs, methods, procedures,
formulas, discoveries, inventions, improvements, concepts and
ideas; and (v) personnel information , including
personnel lists, reporting or organizational structure, resumes,
personnel data, compensation structure, performance evaluations and
termination arrangements or documents. The Company derives economic
value from Proprietary Information that would be diminished if such
Proprietary Information were disclosed to Persons in competition
with the Company or to the general public.
“ Restricted Area
” means any county, city, town, or municipality where the
Company conducts business and in which (i) the Optionee
operates on behalf of the Company; or (ii) the Optionee
exercises responsibility for or control over an aspect of the
Company’s business, in each case in his capacity as Vice
President, Operations of the Company.
3
“ Restricted Period
” means the period during which the Optionee is employed by
the Company and a period of twelve (12) months following the
cessation of the Optionee’s employment with the Company for
any reason whatsoever.
“ Sale Event ”
shall mean, regardless of form thereof and except in the case of
the Initial Public Offering, consummation of (i) the
dissolution or liquidation of the Company, (ii) the sale of
all or substantially all of the assets of the Company on a
consolidated basis to an unrelated person or entity, (iii) a
merger, reorganization or consolidation in which the outstanding
shares of Stock are converted into or exchanged for securities of
the successor entity and the holders of the Company’s
outstanding voting power immediately prior to such transaction do
not own a majority of the outstanding voting power of the successor
entity immediately upon completion of such transaction,
(iv) the sale of all or a majority of the outstanding capital
stock of the Company to an unrelated person or entity or
(v) any other transaction in which, the owners of the
Company’s outstanding voting power prior to such transaction
do not own, collectively, at least a majority of the outstanding
voting power of the successor entity immediately upon completion of
the transaction. Notwithstanding the foregoing, a transfer by
Thomas Sullivan (the “Founder”) to any beneficiary of
the Founder or to a trust for the benefit of any relative or
beneficiary of the Founder, whether by testamentary transfer or
otherwise, shall not constitute a Sale Event.
“ Subsidiary ”
shall mean any corporation (other than the Company) in any unbroken
chain of corporations or other entities beginning with the Company
if each of the corporations (other than the last corporation in the
unbroken chain) owns stock or other interests possessing 50 percent
or more of the total combined voting power of all classes of stock
or in one of the other corporations in the chain.
2. Vesting, Exercisability and
Termination .
(a) In connection with the Plan, the
Optionee agrees to take all reasonable action requested by the
Company in order to give full effect to the terms hereof, including
entering into a stockholders agreement in a form reasonably
acceptable to the Company.
(b) No portion of this Stock Option
may be exercised until such portion shall have vested.
(c) Except as set forth below and in
Section 6, and subject to the determination of the Committee
in its sole discretion to accelerate the vesting schedule
hereunder, this Stock Option shall vest in accordance with the
following schedule:
|
|
|
|
|
Percentage
of Option Shares
Exercisable
|
|
|
|
25%
|
|
|
|
25%
|
|
|
|
25%
|
|
|
|
25%
|
|
|
4
In any event, all of the Option Shares shall be
deemed fully vested and exercisable on
if Optionee is employed on such date.
Notwithstanding anything herein to
the contrary, but without limitation of Section 6, in the
event that this Stock Option is assumed or continued by the Company
or its successor entity in the sole discretion of the parties to a
Sale Event and thereafter remains in effect following such Sale
Event as contemplated by Section 6, then this Stock Option
shall be deemed vested and exercisable in full upon the date on
which the Optionee’s employment with the Company and its
Subsidiaries or successor entity terminates if (i) such
termination occurs within 18 months of such Sale Event and
(ii) such termination is either by the Company without Cause
or by the Optionee for Good Reason.
(d) Termination . Except as
may otherwise be provided by the Committee, if the Optionee’s
employment with the Company or a Subsidiary is terminated, the
period within which to exercise this Stock Option may be subject to
earlier termination as set forth below:
(i) Termination Due to Death or
Disability . If the Optionee’s employment terminates by
reason of such Optionee’s death or disability (as defined in
Section 422(c) of the Code), this Stock Option may be
exercised, to the extent exercisable on the date of such
termination, by the Optionee, the Optionee’s legal
representative or legatee for a period of 12 months from the date
of death or disability or until the Expiration Date, if earlier,
subject in any event to Section 6.
(ii) Other Termination . If
the Optionee’s employment terminates for any reason other
than death or disability, and unless otherwise determined by the
Committee, this Stock Option may be exercised, to the extent
exercisable on the date of termination, for a period of 90 days
from the date of termination or until the Expiration Date, if
earlier, provided however , if the Optionee’s
employment is terminated for Cause, this Stock Option shall
terminate immediately upon the date of such termination.
For purposes hereof, the
Committee’s determination of the reason for termination of
the Optionee’s employment shall be conclusive and binding on
the Optionee and his or her representatives or legatees. Any
portion of the Stock Option that is not exercisable on the date of
termination of the employment shall terminate immediately and be
null and void.
3. Exercise of Stock
Option .
(a) The Optionee may exercise this
Stock Option only in the following manner: Prior to the Expiration
Date (subject to Section 6), the Optionee may deliver a Stock
Option exercise notice (an “Exercise Notice”) in the
form of Appendix A hereto indicating his or her election to
purchase some or all of the Option Shares with respect to which
this Stock Option is exercisable at the time of such notice. Such
notice shall specify the number of Option Shares to be purchased.
Payment of the purchase price may be made by one or more of the
methods described below. Payment instruments will be received
subject to collection.
5
(i) in cash, by certified or bank
check, or other instrument acceptable to the Committee in U.S.
funds payable to the order of the Company in an amount equal to the
purchase price of such Option Shares; or
(ii) if the Company’s Initial
Public Offering has occurred, then (A) through the delivery
(or attestation to ownership) of shares of Common Stock that have
been purchased by the Optionee on the open market or that have been
held by the Optionee for at least six months and are not subject to
restrictions under any plan of the Company and in any event with an
aggregate Fair Market Value (as of the date of such exercise) equal
to the option purchase price, (B) by the Optionee delivering
to the Company a properly executed Exercise Notice together with
irrevocable instructions to a broker to promptly deliver to the
Company cash or a check payable and acceptable to the Company to
pay the option purchase price, provided that in the event the
Optionee chooses to pay the option purchase price as so provided,
the Optionee and the broker shall comply with such procedures and
enter into such agreements of indemnity and other agreements as the
Committee shall prescribe as a condition of such payment procedure,
or (C) a combination of (i), (ii)(A) and (ii)(B)
above.
(b) Certificates for the Option
Shares so purchased will be issued and delivered to the Optionee
upon compliance to the satisfaction of the Committee with all
requirements under applicable laws or regulations in connection
with such issuance. Until the Optionee shall have complied with the
requirements hereof and of the Plan, the Company shall be under no
obligation to issue the Option Shares subject to this Stock Option,
and the determination of the Committee as to such compliance shall
be final and binding on the Optionee. The Optionee shall not be
deemed to be the holder of, or to have any of the rights of a
holder with respect to, any shares of Common Stock subject to this
Stock Option unless and until this Stock Option shall have been
exercised pursuant to the terms hereof, the Company shall have
issued and delivered the Issued Shares to the Optionee, and the
Optionee’s name shall have been entered as a stockholder of
record on the books of the Company. Thereupon, the Optionee shall
have full dividend and other ownership rights with respect to such
Issued Shares, subject to the terms of this Agreement.
(c) Notwithstanding any other
provision hereof or of the Plan, no portion of this Stock Option
shall be exercisable after the Expiration Date.
4. Incorporation of Plan
. Notwithstanding
anything herein to the contrary, this Stock Option shall be subject
to and governed by all the terms and conditions of the
Plan.
5. Transferability of Stock
Option . This
Agreement is personal to the Optionee and is not transferable by
the Optionee in any manner other than by will or by the laws of
descent and distribution. The Stock Option may be exercised during
the Optionee’s lifetime only by the Optionee (or by the
Optionee’s guardian or personal representative in the event
of the Optionee’s incapacity). The Optionee may elect to
designate a beneficiary by providing written notice of the name of
such beneficiary to the Company, and may revoke or change such
designation at any time by filing written notice of revocation or
change with the Company; such beneficiary may exercise the
Optionee’s Stock Option in the event of the Optionee’s
death to the
6
extent provided herein. If the Optionee does not
designate a beneficiary, or if the designated beneficiary
predeceases the Optionee, the legal representative of the Optionee
may exercise this Stock Option to the extent provided herein in the
event of the Optionee’s death.
6. Effect of Certain
Transactions .
(a) Sale Event . In the case
of a Sale Event, fifty percent (50%) of any Option Shares
under this Stock Option that are not then vested shall become
vested as of the effective time of the Sale Event; provided,
however , that the exercise of any Option Shares not
exercisable prior to the Sale Event shall be subject to the
consummation of the Sale Event.
(b) Initial Public Offering .
Upon completion of the Company’s Initial Public Offering, the
date of exercisability or vesting of all or any portion of any
Option Shares that are not then exercisable shall be accelerated by
one (1) year.
7. Withholding Taxes
. The Optionee shall, not
later than the date as of which the exercise of this Stock Option
becomes a taxable event for federal income tax purposes, pay to the
Company any federal, state and local taxes required by law to be
withheld on account of such taxable event. Subject to approval by
the Committee, the Optionee may elect to have the minimum statutory
tax withholding obligation satisfied, in whole or in part, by
authorizing the Company to withhold from shares of Common Stock to
be issued or transferring to the Co