UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): August 1, 2015

 

 

 

Lumber Liquidators Holdings, Inc.

(Exact name of registrant as specified in its charter)

 

Delaware

(State or other jurisdiction of
incorporation)

 

001-33767

(Commission File Number)

 

27-1310817

(I.R.S. Employer Identification No.)

         

3000 John Deere Road, Toano, Virginia

(Address of principal executive offices)

     

23168

(Zip Code)

 

Registrant’s telephone number, including area code: (757) 259-4280

 

Not Applicable

(Former name or former address, if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 
 

  

Item 2.02 Results of Operation and Financial Condition.

 

On August 5, 2015, Lumber Liquidators, Inc. (the “Company”) issued a press release announcing certain financial and operating results for the quarter ended June 30, 2015. A copy of the press release is being furnished as Exhibit 99.1 to this report and is incorporated by reference into this Item 2.02.

 

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

Acting Chief Executive Officer Compensation

 

On August 3, 2015, the Compensation Committee of the Board of Directors (the “Board”) of the Company approved an arrangement whereby the Company will award options to purchase the Company’s common stock (the “Options”) pursuant to the 2011 Equity Compensation Plan (the “Plan”) to Thomas D. Sullivan, the Company’s founder and acting chief executive officer, as compensation for his service to the Company while acting as chief executive officer. The Option grants are in addition to Mr. Sullivan’s existing compensation arrangements with the Company, and no other element of his compensation has been revised.

 

Specifically, Mr. Sullivan will earn Options valued at the time of grant in the amount of $100,000 per month while serving as chief executive officer of the Company, beginning June 1, 2015. The Options are to be granted quarterly for each full month during the quarter in which Mr. Sullivan acts as chief executive officer. The Company expects that the grants will be made approximately three business days after the public announcement of earnings each quarter. Of this monthly Option amount, one half of these Options will vest ratably over a three-year period if Mr. Sullivan is employed by the Company or serves on the Board on each anniversary of the grant (the “Service Options”). Notwithstanding the foregoing, if both Mr. Sullivan’s employment with the Company terminates and his service on the Board terminates due to his resignation, refusal to stand for election, death or disability, any rights he may have with respect to unvested Service Options will be null and void. If Mr. Sullivan’s service on the Board terminates other than due to his resignation, refusal to stand for election, death or disability and his employment with the Company terminates, or upon a change of control of the Company, any unvested Service Options will 100% vest.

 

The remainder of the monthly Option amount will have vesting terms consistent with the Service Options but will also have performance conditions that must be met (the “Performance Options”). The performance condition for one-half of the Performance Options is that the Company’s available merchandise inventory per store must be less than $650,000 on December 31, 2015. The performance condition for the other one-half of the Performance Options is that the comparable store sales rate in the fourth quarter of 2015 must be above zero percent. Upon a change of control of the Company, any unvested Performance Options will 100% vest, except those that have expired because certain performance conditions are not met.

 

If Mr. Sullivan continues to act as chief executive officer after December 31, 2015, the Company plans to review this arrangement.

 

The Options will be issued pursuant to the Form of Service Option Award Agreement and Form of Performance Option Award Agreement, which are attached hereto as Exhibits 10.1 and 10.2, respectively, and are incorporated by reference into this Item 5.02.

 

 
 

  

Charles A. Schwartz Retention Equity

 

Also on August 3, 2015, the Company authorized an award of restricted stock with a value of $100,000 to Charles A. Schwartz, the Company’s chief information officer and senior vice president, business development, which grant will be made on August 10, 2015 and will vest ratably over a three-year period. This award was authorized along with other retention and severance arrangements for certain executive officers discussed under Item 8.01 below. The Company intends to enter into retention and severance arrangements with Mr. Schwarz in the near future.

 

Separation and Release Agreement for William K. Schlegel

 

Effective August 1, 2015, Lumber Liquidators Services, LLC, a wholly owned subsidiary of the Company, and William K. Schlegel, entered into a Separation and Release Agreement (the “Separation Agreement”) in connection with the previously-announced termination of Mr. Schlegel’s employment as the Company’s Chief Merchandising Officer. Under the Separation Agreement, Mr. Schlegel is entitled to receive separation pay equal to fifty-two weeks of pay at this regular base rate of pay of $7,447.77 per week, payable over that period, certain contributions to his health benefits, and unused paid time off. In certain circumstances, including certain felony convictions under state or federal law in connection with his employment, the Company’s determination of his willful dishonesty, fraud or gross negligence, the Company’s issuance of a restatement due to Mr. Schlegel’s misconduct in connection with financial reporting requirements or breach of the Separation Agreement, Mr. Schlegel must repay such amounts in full. Also pursuant to the Separation Agreement, Mr. Schlegel agreed to a complete release of claims and to certain non-competition, non-solicitation, non-interference and confidentiality provisions.

 

A copy of the Separation Agreement is attached as Exhibit 10.3 to this report and is incorporated by reference into this Item 5.02.

 

Item 8.01 Other Events.

 

Also on August 3, 2015, the Board approved the Company’s entrance into retention agreements (the “Retention Agreements”) with certain executive officers of the Company. Pursuant to the Retention Agreements, these officers will be entitled to receive a bonus, payable in cash, if the officer remains employed by the Company through December 31, 2016. In connection with the foregoing, the Company also authorized an award of restricted stock to these officers, which grant will be made on August 10, 2015 and will vest ratably over a three-year period.

 

Additionally, the Board approved the Company’s entrance into severance benefit agreements (the “Severance Benefit Agreements”) with these executive officers of the Company. The Severance Benefit Agreements will provide these officers, in the event that their employment is terminated by the Company without cause, with severance incentives that are commensurate with those already in place for others on the executive management team. Under the Severance Benefit Agreements, each officer will be entitled, subject to certain conditions, to 12 months of pay at his or her regular base rate, payable in weekly installments, and continuing health benefits for the same period in the event that the officer is terminated without cause (as defined in the Severance Benefit Agreement). The officer’s entitlement to these benefits also will be subject to his or her agreeing to the release of claims and certain non-competition, non-solicitation, non-interference and confidentiality provisions contained in the form of release agreement included in the Severance Benefit Agreement.

 

The Form of Severance Benefit Agreement and Form of Retention Agreement are attached hereto as Exhibits 99.2 and 99.3, respectively, and are incorporated by reference into this Item 8.01.

 

Item 9.01 Financial Statements and Exhibits.

 

(d) Exhibits.

 

Exhibit No.   Description
     
10.1   Form of Service Option Award Agreement.
     
10.2   Form of Performance Option Award Agreement.
     
10.3   Separation and Release Agreement between Lumber Liquidators Services, LLC and William K. Schlegel, effective as of August 1, 2015.
     
99.1   Press release, dated August 5, 2015, regarding financial results for the quarter ended June 30, 2015.
     
99.2   Form of Severance Benefit Agreement.
     
99.3   Form of Retention Agreement.

 

 
 

  

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

 

LUMBER LIQUIDATORS HOLDINGS, INC.

      (Registrant) 

   
Date: August 5, 2015 By:   /s/ E. Livingston B. Haskell  
    E. Livingston B. Haskell 
    Secretary and General Corporate Counsel

 

 
 

 

EXHIBIT INDEX

 

Exhibit No.   Description
     
10.1   Form of Service Option Award Agreement.
     
10.2   Form of Performance Option Award Agreement.
     
10.3   Separation and Release Agreement between Lumber Liquidators Services, LLC and William K. Schlegel, effective as of August 1, 2015.
     
99.1   Press release, dated August 5, 2015, regarding financial results for the quarter ended June 30, 2015.
     
99.2   Form of Severance Benefit Agreement.
     
99.3   Form of Retention Agreement.

 

 

 

Exhibit 10.1

 

 

3000 John Deere Road, Toano, VA 23168

Phone: (757) 259-4280 .● Fax (757) 259-7293

www.lumberliquidators.com

 

                       ,             

 

Thomas D. Sullivan

[Street]

[City, State]

 

Dear Tom:

 

Lumber Liquidators Holdings, Inc. (the “Company”) has designated you to be a recipient of a non-statutory stock option to purchase shares of the common stock of the Company, par value $.001 per share (“Stock”), subject to the service-based vesting restrictions and other terms set forth in this Award Agreement and in the Lumber Liquidators Holdings, Inc. 2011 Equity Compensation Plan (the “Plan”).

 

The grant of this stock option is made pursuant to the Plan. The Plan is administered by the Compensation Committee (the “Committee”) of the Company’s Board of Directors (the “Board”). The terms of the Plan are incorporated into this Award Agreement and in the case of any conflict between the Plan and this Award Agreement, the terms of the Plan shall control. A copy of the Plan will be provided to you upon request.

 

1. Grant . In consideration of your agreements contained in this Award Agreement, the Company hereby grants to you a non-statutory option (“NSO”) to purchase from the Company              shares of common stock of the Company (the “Company Stock”) at $          per share. The exercise price of the NSO is equal to the closing price of the Company Stock on the New York Stock Exchange on [                      ] (the “Grant Date”).

 

2. Vesting . The grant of the NSO is subject to the following terms and conditions:

 

(a) The shares covered by the NSO shall vest, and shall be exercisable, on the following Vesting Dates, if the service conditions described in Section 2(c) are met on the applicable Vesting Date:

 

Vesting Date  

Number of Shares That May Be Exercised

(Vested Portion of NSO)

     
     

 

1
 

  

(b) The shares covered by the NSO shall also 100% vest upon a Change in Control of the Company (as defined in the Plan) to the extent not already exercisable.

 

(c) Notwithstanding the foregoing, you must be employed by the Company (or any Related Company) or serving on the Board on the relevant date for any shares to vest. If both (i) your employment with the Company (or any Related Company) terminates for any reason and (ii) your Board service terminates due to your resignation from the Board or your refusal to stand for election to the Board or your death or becoming Disabled, any rights you may have under the NSO and this Award Agreement with regard to unvested shares shall expire and be null and void.

 

(d) If your employment with the Company (or any Related Company) terminates for any reason and your Board service terminates due to a reason other than your resignation from the Board or your refusal to stand for election to the Board or your death or your becoming Disabled, the shares covered by the NSO shall 100% vest to the extent not otherwise exercisable; provided, however, your NSO will remain subject to all other provisions of this Agreement.

 

3. Exercise .

 

(a) Except as otherwise stated in this Award Agreement and in the Plan, the NSO may be exercised, in whole or in part, from the Vesting Date described above until the earliest of (i) ten years and one day following the Grant Date, or (ii) the end of the applicable period set forth in subsection (b) below. Any portion of the NSO that is not exercised prior to its expiration shall be forfeited.

 

(b) Except as otherwise stated in this section, the NSO may be exercised only while you are employed by the Company (or any Related Company) or serving on the Board. The exercisability of the NSO after you have ceased to be employed by the Company (or any Related Company) and ceased to serve on the Board is subject to the following terms and conditions:

 

(i) If your employment by the Company (or any Related Company) is terminated by you or the Company (or any Related Company) for any reason, and your service on the Board terminates for any reason, in either case other than your death or Disability, you may exercise any or all of the NSO that is then fully vested and exercisable within three months after the later of the date (x) your employment by the Company (or any Related Company) terminates and (y) your Board service terminates.

 

(ii) If you become Disabled while employed by the Company (or any Related Company) or while serving on the Board, you may exercise any or all of the NSO that is then fully vested and exercisable within one year after the later of the date (x) your employment by the Company (or any Related Company) terminates due to Disability or (y) your Board service terminates due to Disability.

 

(iii) If you die while you are employed by the Company (or any Related Company) or while serving on the Board, the person to whom your rights under the NSO shall have passed by will or by the laws of distribution may exercise any or all of the NSO that is then fully vested and exercisable within one year after your death.

 

2
 

  

4. Payment Under NSO . You may exercise the NSO in whole or in part, but only with respect to whole shares of Company Stock. You may make payment of the NSO price in cash, in shares of Company Stock that you already own, or in any combination thereof. If you deliver shares of Company Stock to make any such payment, the shares shall be valued at the Fair Market Value (as defined in the Plan) thereof on the date you exercise the NSO.

 

5. Transferability of NSO . The NSO is not transferable by you (other than by will or by the laws of descent and distribution) and, except as otherwise stated in this Award Agreement, may be exercised during your lifetime only by you.

 

6. Fractional Shares . A fractional share of Company Stock will not be issued and any fractional shares may be disregarded by the Company.

 

7. Adjustments . If the number of outstanding shares of Company Stock is increased or decreased as a result of a stock dividend, stock split or combination of shares, recapitalization, merger in which the Company is the surviving corporation, or other change in the Company’s capitalization without the receipt of consideration by the Company, the number and kind of shares with respect to which you have an unexercised NSO and the exercise price shall be proportionately adjusted by the Committee, whose determination shall be binding.

 

8. Exercise . To exercise the NSO, you must deliver to the Corporate Secretary of the Company written notice stating the number of shares you have elected to purchase and arrange for payment to the Company as described in Section 4 above. Notwithstanding the provisions of Section 9, such notice may be sent to the Corporate Secretary via e-mail.

 

9. Notice . Any notice to be given to the Company under the terms of this Award Agreement shall be addressed to the Corporate Secretary at Lumber Liquidators Holdings, Inc., 3000 John Deere Road, Toano, Virginia 23168. Any notice to be given to you shall be addressed to you at the address set forth above or your last known address at the time notice is sent. Notices shall be deemed to have been duly given if mailed first class, postage prepaid, addressed as above.

 

10. Forfeiture and Repayment Provision . If the Committee determines, in its sole discretion, that you have, at any time, willfully engaged in conduct that is harmful to the Company (or any Related Company), the Committee may declare that all or a portion of the NSO is immediately forfeited. If the Committee determines, in its sole discretion, that you have willfully engaged in conduct that is harmful to the Company (or any Related Company), you shall repay to the Company all or any shares of Common Stock acquired through the exercise of the NSO or all or any of the amount realized as a result of the sale of Common Stock acquired through the exercise of the NSO, to the extent required by the Committee. Repayment or forfeiture required under this Section shall be enforced by the Board or its delegate, in the manner the Board or its delegate determines to be appropriate. Your acceptance of the award reflected in this Award Agreement constitutes acceptance of the forfeiture and repayment provisions of this Section.

 

11. Applicable Withholding Taxes . By your acceptance of this Award Agreement, you agree to pay to the Company the amount that must be withheld under federal, state and local income and employment tax laws or to make arrangements satisfactory to the Company for the payment of such taxes.

 

3
 

  

12. Applicable Securities Laws . You may be required to execute a customary written indication of your investment intent and such other agreements the Company deems necessary or appropriate to comply with applicable securities laws. The Company may delay delivery of the shares purchased pursuant to the exercise of the NSO until you have executed such indication or agreements.

 

13. Acceptance of NSO . This Award Agreement deals only with the NSO you have been granted and not its exercise. Your acceptance of the NSO, which shall be deemed to take place when you sign this Award Agreement, places no obligation or commitment on you to exercise the NSO. By signing this Award Agreement, you indicate your acceptance of the NSO and your agreement to the terms and conditions set forth in this Award Agreement, which, together with the terms of the Plan, shall become the Company’s Stock Option Agreement with you. You also hereby acknowledge that a copy of the Plan has been made available and agree to all of the terms and conditions of the Plan, as it may be amended from time to time. Unless the Company otherwise agrees in writing, the NSO reflected in this Award Agreement will not be exercisable as a Stock Option Agreement if you do not accept this Award Agreement within thirty days of the Grant Date.

 

14. Clawback. If, as a result of material non-compliance with any financial information required to be reported under securities laws, the Company is required to prepare a restatement of its financial statements, then you will, with the approval of the Committee, forfeit or repay the proceeds of all or a portion of the Award under this Agreement if it was awarded within the three fiscal year-period preceding the date of such restatement. The forfeited or repayment amount shall equal the difference between the Award reflected in this Agreement and the amount, if any, that would have been granted based on the restated financial statements. The Committee shall determine and approve the amount of such forfeited or repayment amount. Repayment required under this Section shall be enforced by the Board or its delegate, in the manner the Board or its delegate determines to be appropriate. Your acceptance of the Award reflected in this Award Agreement constitutes acceptance of the repayment provisions described in this Section.

 

This Section 14 is intended to comply with Section 954 of Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and all regulations and rulemaking thereunder and should be interpreted accordingly.

 

[SIGNATURE PAGE FOLLOWS]

 

4
 

  

IN WITNESS WHEREOF, the Company has caused this Stock Option Agreement to be signed, as of this          date of                     ,             .

 

  LUMBER LIQUIDATORS HOLDINGS, INC.
   
  By:               
  Name:   
  Its:  

 

Agreed and Accepted:

 

   
Thomas D. Sullivan  
   
   
[Date]  

 

5

 

Exhibit 10.2

 

 

3000 John Deere Road, Toano, VA 23168

Phone: (757) 259-4280 .● Fax (757) 259-7293

www.lumberliquidators.com

 

                       ,             

 

Thomas D. Sullivan

[Street]

[City, State]

 

Dear Tom:

 

Lumber Liquidators Holdings, Inc. (the “Company”) has designated you to be a recipient of a non-statutory stock option to purchase shares of the common stock of the Company, par value $.001 per share (“Stock”), subject to the performance and service-based vesting restrictions and other terms set forth in this Award Agreement and in the Lumber Liquidators Holdings, Inc. 2011 Equity Compensation Plan (the “Plan”).

 

The grant of this stock option is made pursuant to the Plan. The Plan is administered by the Compensation Committee (the “Committee”) of the Company’s Board of Directors (the “Board”). The terms of the Plan are incorporated into this Award Agreement and in the case of any conflict between the Plan and this Award Agreement, the terms of the Plan shall control. A copy of the Plan will be provided to you upon request.

 

1. Grant . In consideration of your agreements contained in this Award Agreement, the Company hereby grants to you a non-statutory option (“NSO”) to purchase from the Company              shares of common stock of the Company (the “Company Stock”) at $          per share. The exercise price of the NSO is equal to the closing price of the Company Stock on the New York Stock Exchange on [                      ] (the “Grant Date”).

 

2. Vesting . The grant of the NSO is subject to the following terms and conditions:

 

(a) The shares covered by the NSO shall vest, and shall be exercisable, on the following Vesting Dates, if the performance conditions and service conditions described in this Section 2 have been or are met on the applicable Vesting Date:

 

Vesting Date  

Number of Shares That May Be Exercised

(Vested Portion of NSO)

     
     
     

 

1
 

  

(b) The shares covered by the NSO shall also 100% vest upon a Change in Control of the Company (as defined in the Plan) to the extent not already exercisable; provided that no such vesting will occur with respect to any portion of the NSO that expired prior to such Change in Control due to failure to satisfy the performance conditions set forth in Section 2(c).

 

(c) Except as otherwise provided in Section 2(b), the performance conditions set forth in this Section 2(c) must be met in order for any shares to vest. If such performance conditions are not satisfied with respect to the applicable one-half of the shares, any rights you may have under this NSO and this Award Agreement with regard to such shares shall expire and be null and void. In order for one-half of the shares to vest on the applicable vesting date, [          ]. In order for the other one-half of the shares to vest on the applicable vesting date, [          ].

 

(d) In addition to satisfaction of the performance conditions described above, you must also be employed by the Company (or any Related Company) or serving on the Board on the relevant vesting date for any shares to vest. If both (i) your employment with the Company (or any Related Company) terminates for any reason and (ii) your Board service terminates due to your resignation from the Board or your refusal to stand for election to the Board or your death or becoming Disabled, any rights you may have under the NSO and this Award Agreement with regard to unvested shares shall expire and be null and void.

 

(e) Notwithstanding the foregoing, if your employment with the Company (or any Related Company) terminates for any reason, and your Board service terminates due to a reason other than your resignation from the Board or your refusal to stand for election to the Board or your death or becoming Disabled, the shares covered by the NSO shall vest and become exercisable solely based on satisfaction of the performance conditions set forth in Section 2(c) without regard to the termination of your employment or Board service; provided, however, your NSO will remain subject to all other provisions of this Agreement.

 

3. Exercise .

 

(a) Except as otherwise stated in this Award Agreement and in the Plan, the NSO may be exercised, in whole or in part, from the applicable vesting described above until the earliest of (i) ten years and one day following the Grant Date, or (ii) the end of the applicable period set forth in subsection (b) below. Any portion of the NSO that is not exercised prior to its expiration shall be forfeited.

 

(b) Except as otherwise stated in this section, the NSO may be exercised only while you are employed by the Company (or any Related Company) or serving on the Board. The exercisability of the NSO after you have ceased to be employed by the Company (or any Related Company) and ceased to serve on the Board is subject to the following terms and conditions:

 

(i) If your employment by the Company (or any Related Company) is terminated by you or the Company (or any Related Company) for any reason, and your service on the Board terminates for any reason other than your resignation from the Board, your refusal to stand for election to the Board, your death, or your becoming Disabled, you may exercise any or all of the NSO that is then fully vested (or that subsequently becomes vested under Section 2(e) based on performance conditions) within three months after the latest of the date (x) your employment by the Company (or any Related Company) terminates, (y) your Board service terminates, and (z) the date vesting occurs based on satisfaction of performance conditions.

 

2
 

  

(ii) If your employment by the Company (or any Related Company) is terminated by you or the Company (or any Related Company) for any reason, and your service on the Board terminates due to your resignation from the Board or your refusal to stand for election to the Board, you may exercise any or all of the NSO that is then fully vested within three months after the later of the date (x) your employment by the Company (or any Related Company) terminates and (y) your Board service terminates.

 

(iii) If you become Disabled while employed by the Company (or any Related Company) or while serving on the Board, you may exercise any or all of the NSO that is then fully vested and exercisable within one year after the later of the date (x) your employment by the Company (or any Related Company) terminates due to Disability or (y) your Board service terminates due to Disability.

 

(iv) If you die while you are employed by the Company (or any Related Company) or while serving on the Board, the person to whom your rights under the NSO shall have passed by will or by the laws of distribution may exercise any or all of the NSO that is then fully vested and exercisable within one year after your death.

 

4. Payment Under NSO . You may exercise the NSO in whole or in part, but only with respect to whole shares of Company Stock. You may make payment of the NSO price in cash, in shares of Company Stock that you already own, or in any combination thereof. If you deliver shares of Company Stock to make any such payment, the shares shall be valued at the Fair Market Value (as defined in the Plan) thereof on the date you exercise the NSO.

 

5. Transferability of NSO . The NSO is not transferable by you (other than by will or by the laws of descent and distribution) and, except as otherwise stated in this Award Agreement, may be exercised during your lifetime only by you.

 

6. Fractional Shares . A fractional share of Company Stock will not be issued and any fractional shares may be disregarded by the Company.

 

7. Adjustments . If the number of outstanding shares of Company Stock is increased or decreased as a result of a stock dividend, stock split or combination of shares, recapitalization, merger in which the Company is the surviving corporation, or other change in the Company’s capitalization without the receipt of consideration by the Company, the number and kind of shares with respect to which you have an unexercised NSO and the exercise price shall be proportionately adjusted by the Committee, whose determination shall be binding.

 

8. Exercise . To exercise the NSO, you must deliver to the Corporate Secretary of the Company written notice stating the number of shares you have elected to purchase and arrange for payment to the Company as described in Section 4 above. Notwithstanding the provisions of Section 9, such notice may be sent to the Corporate Secretary via e-mail.

 

9. Notice . Any notice to be given to the Company under the terms of this Award Agreement shall be addressed to the Corporate Secretary at Lumber Liquidators Holdings, Inc., 3000 John Deere Road, Toano, Virginia 23168. Any notice to be given to you shall be addressed to you at the address set forth above or your last known address at the time notice is sent. Notices shall be deemed to have been duly given if mailed first class, postage prepaid, addressed as above.

 

3
 

  

10. Forfeiture and Repayment Provision . If the Committee determines, in its sole discretion, that you have, at any time, willfully engaged in conduct that is harmful to the Company (or any Related Company), the Committee may declare that all or a portion of the NSO is immediately forfeited. If the Committee determines, in its sole discretion, that you have willfully engaged in conduct that is harmful to the Company (or any Related Company), you shall repay to the Company all or any shares of Common Stock acquired through the exercise of the NSO or all or any of the amount realized as a result of the sale of Common Stock acquired through the exercise of the NSO, to the extent required by the Committee. Repayment or forfeiture required under this Section shall be enforced by the Board or its delegate, in the manner the Board or its delegate determines to be appropriate. Your acceptance of the award reflected in this Award Agreement constitutes acceptance of the forfeiture and repayment provisions of this Section.

 

11. Applicable Withholding Taxes . By your acceptance of this Award Agreement, you agree to pay to the Company the amount that must be withheld under federal, state and local income and employment tax laws or to make arrangements satisfactory to the Company for the payment of such taxes.

 

12. Applicable Securities Laws . You may be required to execute a customary written indication of your investment intent and such other agreements the Company deems necessary or appropriate to comply with applicable securities laws. The Company may delay delivery of the shares purchased pursuant to the exercise of the NSO until you have executed such indication or agreements.

 

13. Acceptance of NSO . This Award Agreement deals only with the NSO you have been granted and not its exercise. Your acceptance of the NSO, which shall be deemed to take place when you sign this Award Agreement, places no obligation or commitment on you to exercise the NSO. By signing this Award Agreement, you indicate your acceptance of the NSO and your agreement to the terms and conditions set forth in this Award Agreement, which, together with the terms of the Plan, shall become the Company’s Stock Option Agreement with you. You also hereby acknowledge that a copy of the Plan has been made available and agree to all of the terms and conditions of the Plan, as it may be amended from time to time. Unless the Company otherwise agrees in writing, the NSO reflected in this Award Agreement will not be exercisable as a Stock Option Agreement if you do not accept this Award Agreement within thirty days of the Grant Date.

 

14. Clawback. If, as a result of material non-compliance with any financial information required to be reported under securities laws, the Company is required to prepare a restatement of its financial statements, then you will, with the approval of the Committee, forfeit or repay the proceeds of all or a portion of the Award under this Agreement if it was awarded within the three fiscal year-period preceding the date of such restatement. The forfeited or repayment amount shall equal the difference between the Award reflected in this Agreement and the amount, if any, that would have been granted based on the restated financial statements. The Committee shall determine and approve the amount of such forfeited or repayment amount. Repayment required under this Section shall be enforced by the Board or its delegate, in the manner the Board or its delegate determines to be appropriate. Your acceptance of the Award reflected in this Award Agreement constitutes acceptance of the repayment provisions described in this Section.

 

4
 

  

This Section 14 is intended to comply with Section 954 of Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and all regulations and rulemaking thereunder and should be interpreted accordingly.

 

[SIGNATURE PAGE FOLLOWS]

 

5
 

  

IN WITNESS WHEREOF, the Company has caused this Stock Option Agreement to be signed, as of this          date of                     ,             .

 

  LUMBER LIQUIDATORS HOLDINGS, INC.
   
  By:           
  Name:   
  Its:  

 

Agreed and Accepted:

 

   
Thomas D. Sullivan  
   
   
[Date]  

 

6

 

Exhibit 10.3

 

SEPARATION AND RELEASE AGREEMENT

 

This Separation and Release Agreement (“Agreement”), dated July 21, 2015, by and between Lumber Liquidators Services, LLC (“LL”) and William K. Schlegel (“Employee”), states as follows:

 

RECITALS :

 

WHEREAS, Employee has been employed by the Company;

 

WHEREAS, Employee’s employment with the Company has concluded; and

 

WHEREAS, Employee and Company desire to settle any and all matters arising out of Employee’s employment with the Company, and the cessation of Employee’s employment with the Company, in a mutually satisfactory and confidential manner;

 

NOW, THEREFORE, in consideration of the promises and of the mutual covenants contained in the herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties do hereby covenant and agree as follows:

 

AGREEMENT:

 

1.          Termination of Employment. Employee acknowledges that his employment by LL and/or its affiliated entity(ies) (collectively, the “Company”) ended on June 19, 2015 (the “Separation Date”).

 

2.          Separation Pay. In consideration of Employee’s acceptance of this Agreement, and expressly subject to Employee's ongoing compliance with the Agreement, including but not limited to Sections 4, 6, 8-10 and 13 herein, the Company shall:

 

i.            pay to Employee fifty-two (52) weeks of pay (the “Separation Pay”) at Employee’s regular base rate of pay of $7,447.77 per week. The Separation Pay shall be paid in fifty-two (52) equal weekly installments pursuant to the Company’s normal payroll procedures. The first of the Separation Pay installments shall be made on the first regular pay period following the Effective Date of this Agreement;

 

ii.           if Employee is enrolled the Company’s health, dental and vision insurance plans as of the Separation Date and elects to continue health, dental and vision insurance through COBRA continuation coverage, pay on behalf of Employee, for a period of up to fifty-two (52) weeks, the employer portion of the premium provided, however, that Employee shall be responsible for and pay Employee’s share of such premiums;

 

iii.         pay to Employee a lump sum payment on or before the first regular pay period following the Effective Date of this Agreement in an amount equal to the sum to which Employee is entitled for unused paid time off, if any, that Employee accrued in 2015 pursuant to the Company’s policies prior to the Separation Date; and

 

 
 

 

iv.         Employee agrees that, in the event that (a) Employee is convicted of, or pleads “guilty” or “no contest” to, a felony under the laws of the United States or any state thereof, or any crime of moral turpitude, in each case connected with, or in any way related to, his employment with the Company, (b) LL’s Board of Directors determines in good faith that Employee has engaged in willful dishonesty, fraud or gross negligence with respect to the business or affairs of the Company or Employee is otherwise found ineligible for indemnification pursuant to Article IX of LL’s Bylaws , (c) the Company issues a restatement because of Employee’s material noncompliance, due to misconduct, with financial reporting requirements under federal securities laws, or (d) Employee breaches this Agreement, expressly including but not limited to Sections 4, 6, 8-10 and 13 herein; then , in each such instance, in addition to compensation for any damages incurred by the Company, and/or any injunctive relief provided for herein or otherwise, Employee shall be liable for the repayment of all amounts paid to Employee pursuant to this Section 2, and he agrees to repay all such amounts in full. Employee shall have no duty to mitigate damages with respect to the termination of his employment under this Agreement by seeking other employment and no amounts received from such other employment shall offset the amounts due hereunder.

 

v.           Employee agrees that the Company will deduct from the payments under this Section 2 all withholding taxes and other payroll deductions that the Company is required by law to make from wage payments to employees.

 

3.           Consideration/Complete Payment. Employee hereby agrees and acknowledges that the benefits set forth in Section 2 of this Agreement are more than Company is required to do under its normal policies and procedures and that they are in addition to anything of value to which Employee already is entitled. Employee further agrees that the payments and performances described in this Agreement are all that Employee shall be entitled to receive from the Company except for vested qualified retirement benefits, if any, to which Employee may be entitled under the Company's ERISA plans. The equity granted to Employee by the Company, if any, pursuant to the Lumber Liquidators Holdings, Inc. Equity Compensation Plan (or its predecessor plan) shall vest, if at all, and otherwise continue to be governed according to the terms of that plan and the applicable grant agreements, if any, until the Separation Date; provided, however, that Employee acknowledges that the Separation Date was his final date of employment, and that any non-qualified stock options or shares of common stock, if any, whether provided for under the Lumber Liquidators Holdings, Inc. Equity Compensation Plan or otherwise, which did not vest as of the Separation Date are forever forfeited. Except as expressly provided herein or required by law, the Company shall not be required to make any payments of any kind to Employee upon termination or expiration the Agreement. Employee further agrees and acknowledges that he shall have no right or claim to any bonus payment from the Company including, but not limited to, any bonus under the Lumber Liquidators Holdings, Inc. Annual Bonus Plan for Executive Management. Notwithstanding the termination, expiration or nonrenewal of this Agreement, the parties shall be required to carry out any provisions of this Agreement which contemplate performance by them after such termination, expiration or nonrenewal, expressly including Sections 4, 6, 8-10 and 13.

 

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4.          Return of Company Property. Employee will promptly deliver to the Company all Company property, including but not limited to, all computers, phones, correspondence, manuals, letters, notes, notebooks, reports, flow charts, programs, proposals, third party equipment that Company is authorized to represent, and any documents concerning the Company’s customers, operations, products or processes (actual or prospective) or concerning any other aspect of the Company’s business (actual or prospective) and, without limiting the foregoing, will promptly deliver to the Company any and all other documents or materials containing or constituting Confidential Information as defined in Section 8, except that

Employee may retain personal papers relating to his employment, compensation and benefits.

 

5.          Complete Release. Employee hereby knowingly and voluntarily releases and forever discharges the Company, any related companies, and the former and current employees, officers, agents, directors, shareholders, investors, attorneys, affiliates, successors and assigns of any of them (the “Released Parties”) from all liabilities, claims, demands, rights of action or causes of action Employee had, has or may have against any of the Released Parties, including but not limited to, any claims or demands based upon or relating to Employee’s employment with the Company or the termination of that employment. This includes, but is not limited to, a release of any rights or claims Employee may have under the Age Discrimination in Employment Act of 1967, Title VII of the Civil Rights Act of 1964, the Equal Pay Act, the Americans with Disabilities Act, the Family and Medical Leave Act, or any other federal, state or local laws or regulations prohibiting employment discrimination or retaliation. This also includes, but is not limited to, a release by Employee of any claims for wrongful discharge, breach of contract, or any other statutory, common law, tort, contract, or negligence claim that Employee had, has or may have against any of the Released Parties. This release covers both claims that Employee knows about and those claims Employee may not know about. Employee further acknowledges that Employee has received compensation for all hours worked in accordance with applicable state and federal laws.

 

This release does not include, however, (i) a release of Employee’s right, if any, to payment of vested qualified retirement benefits under the Company’s ERISA plans; (ii) Employee’s right, if any, to benefits under the Company’s health, dental and vision insurance plans that arose or vested on or before the Separation Date; (iii) the right, if any, to continuation in the Company’s medical plans as provided by COBRA; (iv) Employee’s eligibility, if any, for indemnification and/or advancement of expenses in accordance with any applicable Company Bylaws; (v) Employee’s rights, if any, to coverage under directors’ and officers’ liability insurance policy or policies of the Company and its subsidiaries and affiliates; (vi) Employee’s rights, if any, under the Equity Documents consistent with Section 3 herein; (vii) Employee’s rights, if any, as a stockholder of the Company consistent with Section 3 herein or (viii) Employee’s rights under this Agreement. Nothing in this Section 5, nor any other provision of this Agreement, waives or affects Employee’s right to file a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) or to provide information to, or participate as a witness in, an investigation undertaken or a proceeding initiated by the EEOC. However, Employee waives Employee’s right to monetary or other recovery, including attorney’s fees, should Employee or any federal, state or local administrative agency pursue any claims on Employee’s behalf arising out of Employee’s employment or the conclusion of his employment with the Company.

 

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Notwithstanding the foregoing, the parties agree that nothing in this Agreement shall be construed to prohibit the exercise of any rights by either party that such party may not waive as a matter of law.

 

6.          No Future Lawsuits. To the fullest extent allowed by law, Employee promises never to file a lawsuit asserting any claims that are released in Section 5. In the event Employee breaches this Section 6, Employee shall pay to the Company all of its expenses incurred as a result of such breach, including but not limited to, reasonable attorney’s fees and expenses. Notwithstanding the foregoing, this Agreement does not waive or release any rights or claims that Employee may have under the Age Discrimination in Employment Act which may arise after the date that Employee signs this Agreement. Further notwithstanding the foregoing, the parties acknowledge and agree that this Agreement and this Section 6 shall not be construed to prohibit the exercise of any rights by Employee that Employee may not waive or forego as a matter of law.

 

7.          Disclaimer of Liability. This Agreement and the payments and performances hereunder are made solely to assist Employee in making the transition from employment with Company, and are not and shall not be construed to be an admission of liability, an admission of the truth of any fact, or a declaration against interest on the part of Company.

 

8.          Confidentiality. Employee shall not disclose or use at any time for a period of five (5) years after the Separation Date, or as otherwise protected by applicable law including the Virginia Uniform Trade Secrets Act, whichever is longer, any Confidential Information (as defined below) of which Employee is aware, whether or not such information was developed by him, except to the extent that such disclosure or use is directly related to and required by this Agreement or is required to be disclosed by law, court order, or similar compulsion; provided, however, that such disclosure shall be limited to the extent so required or compelled; and provided, further, that Employee shall give the Company notice of such disclosure and cooperate with the Company in seeking suitable protection. Employee shall take reasonable and appropriate steps to safeguard Confidential Information and to protect it against disclosure, misuse, espionage, loss and theft. Employee acknowledges and agrees that all Confidential Information, which Employee had access to, received or generated in the course of providing, directly or indirectly, services to the Company, is the sole property of the Company. Employee shall deliver to the Company all memoranda, notes, plans, records, reports, computer tapes and software and other documents and data (and copies thereof regardless of the form thereof, including electronic and tangible copies) containing Confidential Information (as defined below) of the Company which Employee possesses or has under his control. Notwithstanding anything herein to the contrary, Employee may retain personal papers relating to his employment, compensation and benefits.

 

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As used in this Agreement, the term “Confidential Information” means any data or information related to the Company’s business operations and is not generally known by the public, and that was made known to Employee or acquired by Employee in the course of his employment with the Company or directly or indirectly providing services to the Company, including business and trade secrets and the following: (i) reports, pricing, sales manuals and training manuals, selling, purchasing, and pricing procedures, and financing methods of the Company, together with any proprietary techniques utilized by the Company in designing, developing, testing or marketing its products, product mix and supplier information or in performing services for clients, customers and accounts of the Company; (ii) the business plans and financial statements, reports and projections of the Company; (iii) research or development projects or results; (iv) identities and addresses of consultants, customers or clients and prospective clients, or any other Confidential Information relating to or dealing with the business operations or activities of the Company; (v) trade secrets and other intellectual property of the Company; and (vi) existing or contemplated software, products, databases, services, technology, designs, processes and research or product developments of the Company. Notwithstanding the foregoing or any other provision herein, Confidential Information shall not include any information that (A) is generally known to the public at the time of disclosure or becomes generally known through no wrongful act on the part of Employee, (B) becomes known to Employee through disclosure by independent third-party sources having a legal right to disclose such information, or (C) is independently developed by Employee without reference to Confidential Information.

 

Nothing in this Section 8, or in Section 13, or in any other provision of this Agreement, prohibits Employee or the Company from reporting possible violations of federal law or regulation to any governmental agency or entity, including but not limited to the Department of Justice, the Securities and Exchange Commission, the Congress, and any agency Inspector General, or making other disclosures that are protected under the whistleblower provisions of federal or state law or regulation. Employee does not need the prior authorization of the Company to make any such reports or disclosures and Employee is not required to notify the Company that he has made such reports or disclosures.

 

9.          Restrictive Covenants.

 

A.          Definitions .

 

   i. “Business” means the sale and provision of hardwood, engineered, bamboo, cork, laminate, resilient or tile flooring and related products and services.

 

  ii. “Competing Business” means Home Depot, Lowe’s, Floor & Décor, The Tile Shop, Menards and/or any Person that earns more than 50% of its gross revenues from, individually or in combination, the sale or installation of hardwood, engineered, bamboo, cork, laminate, resilient or tile flooring or related flooring products and services.

 

iii. “Competing Position” means a position held by Employee with a Competing Business that involves duties within the Restricted Territory that are the same as or substantially similar to the duties Employee performed for the Company within the twelve (12) months prior to the Separation Date.

 

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 iv. “Customer” means any Person to whom or which Employee has provided, or is providing, any products or services related to the Business during the twelve (12)-month period preceding the Separation Date.

 

  v. “Material Contact” means: (a) for purposes of the Customer non-solicitation provision below, contact between Employee and any Customer within twelve (12) months prior to the Separation Date; provided, however, that: (i) Employee communicated directly with such Customer on behalf of the Company during that twelve (12) month period; or (ii) Employee obtained confidential information about such Customer in the ordinary course of business as a result of Employee’s association with the Company; and (b) for purposes of the employee, Contractor and Vendor non-recruit and non-solicitation provisions below, contact in person, by telephone, or by paper or electronic correspondence, in furtherance of the Business, within the twelve (12) month period preceding the Separation Date.

 

 vi. “Person” means a governmental body or any individual, partnership, firm, corporation, limited liability company, association, trust, unincorporated organization or other entity.

 

vii. “Restricted Period” means the twelve (12) months following the Separation Date. Nothing herein is intended to relieve Employee of Employee’s fiduciary duties under applicable law.

 

viii. “Restricted Territory” means the continental United States and Ontario, Canada.

 

 ix. “Vendor” or “Contractor” means any Person who or which has provided products or services to the Company in exchange for compensation of over $10,000 within twelve (12) months prior to the Separation Date.

 

B.            Non-Competition . Employee acknowledges that, in the course of his employment with the Company, he has become familiar with the Company’s trade secrets and other Confidential Information and that his services have been of special, unique and extraordinary value to the Company. Therefore, Employee agrees that he shall not, during the Restricted Period, directly or indirectly work in a Competing Position or supervise, manage or control a Competing Business, where Employee’s primary duty is to provide the same or substantially similar products or services as the Company within the Restricted Territory. For the avoidance of doubt, nothing herein shall prohibit Employee from being a passive owner of not more than three percent (3%) of the outstanding stock of any Competing Business which is publicly traded, so long as Employee has no active participation in the business of such company.

 

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C.            Non-Piracy of Employees . During the Restricted Period, Employee shall not directly or indirectly through another Person, whether on Employee’s own behalf or on behalf of another Person: (i) induce or attempt to induce any employee of the Company with whom Employee had Material Contact to terminate or lessen such employment with the Company for the purpose of performing services or selling products for a Competing Business; or (ii) hire or cause to be hired by a Competing Business any person who was employed by the Company within the twelve (12) month period preceding the Separation Date.

 

D.            Non-Solicitation of Customers . During the Restricted Period, Employee shall not directly or indirectly through another Person, whether on Employee’s own behalf or on behalf of another Person: (i) induce or attempt to induce any Customer with whom Employee had Material Contact for the purpose of selling to the Customer any products or services for a Competing Business; or (ii) sell or offer to sell products or services on behalf of a Competing Business to any Customer of the Company with whom Employee had Material Contact.

 

E.            Non-Interference With Contracts . During the Restricted Period, Employee shall not directly or indirectly through another Person, whether on Employee’s own behalf or on behalf of another Person, induce or attempt to induce any Contractor to or Vendor of the Company with whom Employee had Material Contact to terminate, diminish or lessen their relationship with the Company.

 

F.           Employee understands that the foregoing restrictions will not limit his ability to earn a livelihood and that he has received and will receive sufficient consideration and other benefits as an employee of the Company and as otherwise provided hereunder to clearly justify such restrictions (given his education, skills and ability). Employee further understands that (i) the Company would not have consummated this Agreement but for the covenants contained in this Section 9 and (ii) the provisions of Sections 8 and 9 are reasonable and necessary to preserve the business of the Company.

 

G.           Employee shall inform any prospective employer that engages in any business similar to the Business of any and all restrictions contained in this Section 9 of the Agreement during any period when such restrictions remain effective and provide such employer with a copy of such restrictions prior to the commencement of that employment.

 

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10.         Cooperation.  Employee agrees that for a period of seven (7) years following the Separation Date (the “Cooperation Period”), Employee shall have a continuing duty to fully and promptly cooperate with the Company and its legal counsel by providing any and all requested information and assistance concerning any legal or business matters that in any way relate to Employee’s actions or responsibilities as an employee of the Company, or to the period during Employee’s employment with the Company.  Such cooperation shall include but not be limited to truthfully and in a timely manner participating and consulting concerning facts, responding to questions, providing pertinent information, providing affidavits and statements, preparing for and attending depositions, and preparing for and attending trials, hearings and other proceedings.  Such cooperation shall include meeting with representatives of the Company upon reasonable notice at reasonable times and locations. The Company shall not require Employee to attend or participate in meetings or consultations, pursuant to this Section 10, in excess of a total of two-thousand (2000) hours over the course of the Cooperation Period; provided, however, that this Paragraph notwithstanding, Employee may be required by subpoena or other legal process to testify or otherwise participate in litigation or other proceedings involving the Company to the fullest extent permitted by law, and such testimony or participation shall not count towards or against that two-thousand hour total. The Company shall use its reasonable efforts to coordinate with Employee the time and place at which Employee's reasonable cooperation shall be provided with the goal of minimizing the impact of such reasonable cooperation on any other material pre-scheduled business or professional commitments that Employee may have. The coordination and communication from the Company to Employee regarding Employee’s cooperation shall come through the Company’s General Corporate Counsel. The Company shall reimburse Employee for reasonable out-of-pocket expenses incurred by Employee in compliance with this Section, including any reasonable travel expenses incurred by Employee in providing such assistance. As part of the consideration provided to Employee under this Agreement, Employee shall provide cooperation to the Company at no additional cost to the Company.  At no time subsequent to the Separation Date shall Employee be deemed to be a contractor or employee of the Company.

 

11.         Enforcement. Employee agrees that the Company has a legitimate business interest to protect justifying the covenants set forth in Sections 8, 9 and 10. Such legitimate business interests include: (i) trade secrets, (ii) valuable Confidential Information that does not otherwise qualify as a trade secret, (iii) substantial relationships with prospective or existing Customers, (iv) Customer goodwill, and (v) preservation of the brands with which Employee has operated. For purposes of the Company obtaining specific performance and/or injunctive relief, Employee acknowledges that irreparable injuries shall be presumed in the event that Employee violates his covenants herein contained. Because Employee’s services are unique and because Employee has access to Confidential Information, the parties hereto agree that money damages would be an inadequate remedy for any breach of this Agreement. Therefore, in the event of a breach or threatened breach of Sections 8, 9 or 10 of this Agreement, the Company and its successors or assigns may, in addition to other rights and remedies existing in their favor at law or in equity, apply to any court of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce, or prevent any violations of, the provisions in Sections 8, 9 or 10 hereof. In addition to the foregoing, if any action should have to be brought by the Company against Employee to enforce the provisions of this Agreement, Employee recognizes, acknowledges and agrees that the Company may be entitled (without limitation) to (a) preliminary and permanent injunctive relief restraining Employee from unauthorized disclosure or use of any trade secret or Confidential Information, in whole or in part, or otherwise violating any of the restrictive covenants set forth herein, and (b) actual damages. Nothing in this Agreement shall be construed as prohibiting the Company from pursuing any other legal or equity remedies available for breach or threatened breach to the provisions of this Agreement, which may otherwise be available. In the event of an alleged breach or violation by Employee of Sections 8, 9 or 10 of this Agreement, the parties agree that the court, in its discretion, may toll the Restricted Period during the period of the breach.

 

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12.         Claim for Reinstatement. Employee agrees to waive and abandon any claim to reinstatement with Company.

 

13.         Statements Regarding Company and/or Employment.

 

A.          For a period of seven (7) years following the Separation Date, Employee agrees not to do or say anything, directly or indirectly, that reasonably may be expected to have the effect of criticizing or disparaging Company, any director of Company, any of Company’s employees, officers or agents, or diminishing or impairing the goodwill and reputation of Company or the products and services it provides. Employee further agrees not to assert that any current or former employee, agent, director or officer of Company has acted improperly or unlawfully with respect to Employee or any other person regarding employment.

 

B.          For a period of seven (7) years following the Separation Date, the Company agrees not to issue, approve or authorize any oral or written public statement by its directors and/or officers that reasonably may be expected to have the effect of criticizing or disparaging Employee.

 

C.          Notwithstanding the foregoing provisions of this Section 13, the Parties agree that nothing in this Agreement shall be construed to prohibit the exercise of any rights by either party that such party may not waive as a matter of law nor does this Agreement prohibit Employee, Company or Company's officers, employees and/or directors from testifying truthfully in response to a subpoena, inquiry or order by a court or governmental body with appropriate jurisdiction or as otherwise required by law.

 

14.         Period for Review and Consideration of Agreement. Employee understands that Employee has been given a period of twenty one (21) days to review and consider this Agreement before signing it. Employee further understands that Employee may use as much of this 21-day period as Employee wishes prior to signing.

 

15.         Employee’s Right to Revoke Agreement. Employee may revoke this Agreement within seven (7) days of Employee’s signing it. Revocation can be made by delivering a written notice of revocation to Sandra Whitehouse, Senior Vice President, Human Resources, 3000 John Deere Road, Toano, Virginia 23168. For this revocation to be effective, written notice must be received by Ms. Whitehouse no later than the close of business on the seventh day after Employee signs this Agreement. If Employee has not revoked the Agreement, the eighth (8th) day after Employee signs this Agreement shall be the Effective Date for purposes of this Agreement.

 

16.         Encouragement to Consult with Attorney. Employee is encouraged to consult with an attorney before signing this Agreement.

 

17.         Execution of Documents. Each of the parties hereto shall execute any and all further documents and perform any and all further acts reasonably necessary or useful in carrying out the provisions of this Agreement.

 

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18.         Invalid Provisions. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the validity or enforceability of any other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted.

 

19.         Acknowledgment. Employee acknowledges that Employee has signed this Agreement freely and voluntarily without duress of any kind. Employee has conferred with an attorney or has knowingly and voluntarily chosen not to confer with an attorney about the Agreement.

 

20.         Entire Agreement. This Agreement contains the entire understanding of the parties concerning the separation benefits being provided to Employee herein. This Agreement may not be modified or supplemented except by a subsequent written agreement signed by all parties.

 

21.         Successorship. It is the intention of the parties that the provisions hereof are binding upon, and inure to the benefit of, the parties, their employees, affiliates, agents, heirs, estates, successors and assigns forever.

 

22.         Governing Law. This Agreement shall be governed by the laws of the Commonwealth of Virginia, without regard to its conflict of laws principles.

 

23.         Arbitration of Disputes. Except as to a request for an injunction or similar equitable relief as provided in Section 11, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be fully and finally settled by arbitration administered by the American Arbitration Association in accordance with its National Rules for the Arbitration of Employment Disputes then in effect (“AAA Rules”), and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration shall be conducted by one arbitrator either mutually agreed upon by the Company and Employee or chosen in accordance with the AAA Rules. The place of arbitration shall be the City of Richmond, Virginia. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.

 

EMPLOYEE ACKNOWLEDGES THAT EMPLOYEE HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND IS VOLUNTARILY ENTERING INTO IT. PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.

 

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, the parties have freely and voluntarily executed this Agreement in a manner so as to be binding on the dates stated below.

 

    EMPLOYEE
     
July 24, 2015   /s/ William K. Schlegel
Date   William K. Schlegel
     
   

LUMBER LIQUIDATORS SERVICES,

LLC

       
July 21, 2015   By: /s/ E. Livingston B. Haskell
Date      
    Its:   General Corporate Counsel

 

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Exhibit 99.1

 

             

 

FOR IMMEDIATE RELEASE

 

LUMBER LIQUIDATORS ANNOUNCES SECOND QUARTER 2015 FINANCIAL RESULTS

 

TOANO, Va., August 5, 2015 – Lumber Liquidators (NYSE: LL), the largest specialty retailer of hardwood flooring in North America, today announced financial results for the second quarter and six months ended June 30, 2015.

 

Second Quarter Results

 

Net sales in the second quarter of 2015 were $247.9 million, a decrease of 5.8% from the second quarter of 2014, including a comparable store net sales decline of 10.0% due to a 7.6% decrease in the number of customers invoiced and a 2.4% decrease in the average sale. The Company believes net sales were negatively impacted by unfavorable allegations surrounding the product quality of its laminates sourced from China as well as its decision to suspend sales of such products, although a specific quantification of the impact was impracticable. The Company implemented aggressive promotional pricing during the quarter, which it believes partially offset the decrease in the number of customers invoiced. Non-comparable store net sales increased $11.1 million over the prior year. The Company opened seven new stores during the second quarter of 2015.

 

Gross margin was 25.1% in the second quarter of 2015. Gross margin was impacted by certain planned reductions in retail prices, further promotional pricing during the quarter to drive consumer traffic and changes in sales mix. Gross margin was also affected by a $4.9 million (200 basis points) accrual for a probable loss for countervailing and antidumping duties owed on certain shipments of engineered hardwood imported from China, approximately $4.9 million (200 basis points) in costs related to the Company’s indoor air quality testing program, including an increase of $1.9 million in the reserve, costs of $3.7 million (150 basis points) related to the Company’s decision to phase out a significant portion of tile flooring and related accessories and a $1.5 million (59 basis points) charge related to the Company’s decision to discontinue certain vertical integration initiatives. Gross margin in the second quarter of 2014 was 40.4%.

 

Selling, general and administrative (“SG&A”) expenses in the second quarter of 2015 increased $11.5 million, or 14.5%, from the second quarter of 2014 to $90.6 million primarily due to a $6.3 million increase in legal and professional fees; a $3.4 million increase in payroll due primarily to store base growth, greater commissions earned by store management, severance and a one-time adjustment to a payroll accrual; a $3.2 million non-deductible accrual for a regulatory matter; and a $1.4 million charge related to the Company’s tile flooring stores. These increases were partially offset by $2.0 million reductions in both advertising expenses and stock-based compensation. SG&A expenses were 36.5% of net sales in the second quarter of 2015, compared to 30.1% of net sales in the second quarter of 2014.

 

Net loss was $20.3 million, or a loss of $0.75 per diluted share, in the second quarter of 2015 and net income was $16.6 million, or $0.60 per diluted share, in the second quarter of 2014.

 

Cash and cash equivalents at June 30, 2015 totaled $45.3 million compared with $48.1 million at June 30, 2014 and $20.3 million at December 31, 2014. At June 30, 2015, the Company had $20.0 million outstanding on its revolving credit facility.

 

Thomas D. Sullivan, Founder and Acting Chief Executive Officer, commented, “I founded Lumber Liquidators more than 20 years ago with the simple mission of offering good wood flooring at a good price and putting the customer first. We did this by getting great product, bringing it to the customer at a low cost and providing exceptional customer service. As we now endeavor to get the Company back on track, we are going to return to those principles that made us great. We’re going to simplify the business, take care of our customers and deliver excellence at every level of the organization. Our results this quarter reflect the impact of challenges the Company has faced, particularly over the last several months. Our team is committed to leveraging and investing in our robust infrastructure, our strong brand and our long-term customer relationships. We believe that if we stay focused and do the simple things right, we can grow our business by re-establishing a solid foundation for our loyal customers, employees and shareholders.”

 

 
 

  

First Six Months Results

 

Net sales decreased 0.3% to $507.9 million in the first six months of 2015 from $509.4 million in the first six months of 2014. Comparable store net sales decreased 6.0% for the first half of 2015. Non-comparable store net sales increased $29.2 million over the prior year. The Company opened 11 new stores during the first six months of 2015 and as of June 30, 2015, operated 363 stores in 46 states and Canada.

 

Gross margin decreased to 30.3% for the first six months of 2015 from 40.7% in the same period of 2014. Gross margin in the first half of 2015 included approximately $7.2 million (140 basis points) in costs related to the Company’s indoor air quality testing program, including a $2.4 million reserve; a $4.9 million (100 basis points) accrual for a probable loss for countervailing and antidumping duties owed on certain shipments of engineered hardwood imported from China; costs of $3.7 million (70 basis points) related to the Company’s decision to phase out a significant portion of tile flooring and related accessories; $1.6 million (32 basis points) in incremental transportation expenses incurred in conjunction with the consolidation and transition of the East Coast distribution center; and a $1.5 million (29 basis points) charge related to the Company’s decision to discontinue certain vertical integration initiatives.

 

SG&A expenses were 37.1% of net sales for the first half of 2015, compared to 31.0% of net sales for the first half of 2014. SG&A expenses in the first six months of 2015 included $13.2 million of non-deductible accruals for certain regulatory matters, a $9.5 million increase in legal and professional fees, a $1.4 million charge related to the Company’s tile flooring stores and $1.1 million of incremental expenses to complete the consolidation and transition of the East Coast distribution center.

 

Net loss was $28.1 million, or a loss of $1.04 per diluted share, in the first half of 2015 and net income was $30.3 million, or $1.09 per diluted share, in the first half of the prior year.

 

Company Outlook

 

At this time, the Company cannot estimate a full year outlook, but does expect the following for the full year 2015:

 

· The opening of a total of 20 to 25 new store locations in the expanded showroom format.

 

· The remodeling of a total of 10 to 15 existing stores in the expanded showroom format.

 

· Capital expenditures between $20 million and $25 million.

 

Mr. Sullivan concluded, “As we work as a Company to deliver on our value proposition, I appreciate the support of our hardworking employees and management team. As a team, we are committed to getting back to basics and passionate about strengthening Lumber Liquidators across every area of the organization.”

 

Conference Call and Webcast Information

 

The Company plans to host a conference call and audio webcast today, August 5, 2015, at 8:00 a.m. Eastern Time. The conference may be accessed by dialing (877) 407-9039 or (201) 689-8470. A replay will be available approximately two hours after the call ends through August 12, 2015 and may be accessed by dialing (877) 870-5176 or (858) 384-5517 and entering pin number 13612283 . The live conference call and replay may also be accessed via audio webcast at the Investor Relations section of the Company’s website, www.lumberliquidators.com .

 

 
 

  

About Lumber Liquidators

 

With more than 365 locations, Lumber Liquidators is North America's largest specialty retailer of hardwood flooring. The Company features more than 400 top quality flooring varieties, including solid and engineered hardwood, bamboo, cork, laminate and vinyl plank. Additionally, Lumber Liquidators provides a wide selection of flooring enhancements and accessories to complement, install and maintain your new floor. Every location is staffed with flooring experts who can provide advice and useful information about Lumber Liquidators' low priced product, much of which is in stock and ready for delivery.

 

With premier brands including Bellawood and Morning Star Bamboo, Lumber Liquidators' flooring is often featured on popular television shows such as HGTV's Dream Home and This Old House. For more information, please visit www.LumberLiquidators.com or call 1.800.HARDWOOD. 

 

Lumber Liquidators aims to be the industry leader in sustainability. For more information, please visit www.LumberLiquidators.com/Sustainability . Le arn more about the corporate giving program at LayItForward.LumberLiquidators.com . You can also follow the Company on Facebook and Twitter .

 

Forward-Looking Statements

 

This press release and accompanying financial tables may contain “forward-looking statements” within the meanings of the Private Securities Litigation Reform Act of 1995. These statements, which may be identified by words such as “may,” “will,” “should,” “expects,” “intends,” “plans,” “anticipates,” “believes,” “thinks,” “estimates,” “seeks,” “predicts,” “could,” “projects,” “potential” and other similar terms and phrases, are based on the beliefs of the Company’s management, as well as assumptions made by, and information currently available to, the Company’s management as of the date of such statements. These statements are subject to risks and uncertainties, all of which are difficult to predict and many of which are beyond the Company’s control. Forward-looking statements in this press release may include, without limitation, statements regarding sales growth, comparable store net sales, earnings performance, margins, return on invested capital, strategic direction, capital expenditures, supply chain, the demand for the Company’s products, and store openings and remodels. The Company’s actual results could differ materially from those projected in or contemplated by the forward-looking statements as a result of potential risks, uncertainties and other factors including, but not limited to, changes in general economic and financial conditions, such as the rate of unemployment, consumer access to credit, and interest rates; the volatility in mortgage rates; the legislative/regulatory climate; political unrest in the countries of the Company’s suppliers; the availability of sufficient suitable hardwood; the impact on the Company if it is unable to maintain quality control over its products; the cost and effect on the Company’s reputation of, and consumer’s purchasing decisions in connection with, unfavorable allegations surrounding the product quality of the Company’s laminates sourced from China; the Company’s suppliers’ ability to meet its quality assurance requirements; disruption in the Company’s suppliers’ abilities to supply needed inventory; the impact on the business of the expansion of laminate products sourced from Europe and North America; disruptions or delays in the production, shipment, delivery or processing through ports of entry; the strength of the Company’s competitors and their ability to increase their market share; slower growth in personal income; the number of customers requesting and cost associated with addressing the Company’s indoor air quality testing program; changes in business and consumer spending and the demand for the Company’s products; changes in transportation costs; the rate of growth of residential remodeling and new home construction; the demand for and profitability of installation services; changes in the scope or rates of any antidumping or countervailing duty rates applicable to the Company’s products; the costs and outcome of pending or potential litigation or governmental investigations; and inventory levels. The Company specifically disclaims any obligation to update these statements, which speak only as of the dates on which such statements are made, except as may be required under the federal securities laws. Information regarding these additional risks and uncertainties is contained in the Company’s other reports filed with the Securities and Exchange Commission, including the Item 1A, “Risk Factors,” section of (i) the Form 10-K for the year ended December 31, 2014 and (ii) the Form 10-Q for the quarter ended March 31, 2015.

 

 
 

  

For further information contact:

 

Lumber Liquidators Investor Relations
Ashleigh McDermott
Tel: 757.566.7512

  

(Tables Follow)

 

 
 

   

Lumber Liquidators Holdings, Inc.

Condensed Consolidated Balance Sheets

(in thousands, except share data)

 

    June 30,     December 31,  
    2015     2014  
    (unaudited)        
Assets                
Current Assets:                
Cash and Cash Equivalents   $ 45,266     $ 20,287  
Merchandise Inventories     262,743       314,371  
Prepaid Expenses     7,172       5,575  
Other Current Assets     26,776       17,044  
Total Current Assets     341,957       357,277  
Property and Equipment, net     127,965       124,867  
Goodwill     9,693       9,693  
Other Assets     1,649       1,625  
Total Assets   $ 481,264     $ 493,462  
Liabilities and Stockholders’ Equity                
Current Liabilities:                
Accounts Payable   $ 58,673     $ 80,303  
Customer Deposits and Store Credits     31,138       34,943  
Accrued Compensation     6,201       3,693  
Sales and Income Tax Liabilities     4,277       7,472  
Other Current Liabilities     36,083       17,836  
Total Current Liabilities     136,372       144,247  
                 
Other Long-Term Liabilities     11,630       6,603  
Deferred Tax Liability     9,012       10,558  
Revolving Credit Facility     20,000        
Total Liabilities     177,014       161,408  
                 
Stockholders’ Equity:                
Common Stock ($0.001 par value; 35,000,000 shares authorized; 27,084,841 and 27,069,307 shares outstanding, respectively)     30       30  
Treasury Stock, at cost (2,823,453 and 2,816,780 shares, respectively)     (138,968 )     (138,692 )
Additional Capital     178,260       177,479  
Retained Earnings     265,906       294,033  
Accumulated Other Comprehensive Loss     (978 )     (796 )
Total Stockholders’ Equity     304,250       332,054  
Total Liabilities and Stockholders’ Equity   $ 481,264     $ 493,462  

 

 
 

  

Lumber Liquidators Holdings, Inc.

Condensed Consolidated Statements of Income (Loss)

(in thousands, except share data and per share amounts)  

(unaudited)

 

   

Three Months Ended

June 30,

   

Six Months Ended

June 30,

 
    2015     2014     2015     2014  
                         
Net Sales   $ 247,944     $ 263,085     $ 507,905     $ 509,376  
Cost of Sales     185,660       156,847       354,009       301,851  
Gross Profit     62,284       106,238       153,896       207,525  
                                 
Selling, General and Administrative Expenses     90,551       79,066       188,231       157,932  
Operating (Loss) Income     (28,267 )     27,172       (34,335 )     49,593  
                                 
Other Expense     65       70       81       164  
(Loss) Income Before Income Taxes     (28,332 )     27,102       (34,416 )     49,429  
                                 
Income Tax (Benefit) Expense     (7,985 )     10,495       (6,289 )     19,128  
Net (Loss) Income   $ (20,347 )   $ 16,607     $ (28,127 )   $ 30,301  
Net (Loss) Income per Common Share—Basic   $ (0.75 )   $ 0.61     $ (1.04 )   $ 1.10  
Net (Loss) Income per Common Share—Diluted   $ (0.75 )   $ 0.60     $ (1.04 )   $ 1.09  
Weighted Average Common Shares Outstanding:                                
Basic     27,082,878       27,384,255       27,077,312       27,452,470  
Diluted     27,082,878       27,610,969       27,077,312       27,721,161  

 

 
 

  

Lumber Liquidators Holdings, Inc.

Condensed Consolidated Statements of Cash Flows

(in thousands) 

(unaudited)

 

   

Six Months Ended

June 30,

 
    2015     2014  
             
Cash Flows from Operating Activities:                
Net (Loss) Income   $ (28,127 )   $ 30,301  
Adjustments to Reconcile Net (Loss) Income to Net Cash Provided by Operating Activities:                
Depreciation and Amortization     8,756       7,085  
Stock-Based Compensation Expense     597       2,777  
Non-Cash Impairment Charges     5,351        
Deconsolidation of Variable Interest Entity     1,457        
Changes in Operating Assets and Liabilities:                
Merchandise Inventories     46,872       (20,462 )
Accounts Payable     (20,562 )     3,509  
Customer Deposits and Store Credits     (3,694 )     8,899  
Prepaid Expenses and Other Current Assets     (7,324 )     (2,470 )
Other Assets and Liabilities     15,894       (1,551 )
Net Cash Provided by Operating Activities     19,220       28,088  
                 
Cash Flows from Investing Activities:                
Purchases of Property and Equipment     (14,251 )     (28,269 )
Net Cash Used in Investing Activities     (14,251 )     (28,269 )
                 
Cash Flows from Financing Activities:                
Payments for Stock Repurchases     (276 )     (38,507 )
Proceeds from the Exercise of Stock Options           2,644  
Excess Tax Benefit from Stock-Based Compensation     (169 )     3,236  
Borrowings on Revolving Credit Facility     39,000        
Payments on Revolving Credit Facility     (19,000 )      
Net Cash Provided by (Used in) Financing Activities     19,555       (32,627 )
Effect of Exchange Rates on Cash and Cash Equivalents     455       236  
Net Increase (Decrease) in Cash and Cash Equivalents     24,979       (32,572 )
Cash and Cash Equivalents, Beginning of Period     20,287       80,634  
Cash and Cash Equivalents, End of Period   $ 45,266     $ 48,062  

 

 

 

Exhibit 99.2

 

SEVERANCE BENEFIT AGREEMENT

 

This Severance Benefit Agreement (“Agreement”), dated ______, 2015, by and between Lumber Liquidators, Inc. (“LL”) and/or its affiliated entity(ies) (collectively and, where applicable, individually, the “Company”) and ______________ (“Employee”), states as follows:

 

AGREEMENT:

 

In consideration of the promises and of the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties do hereby covenant and agree as follows:

 

1.          Severance Benefit. In the event Employee is terminated by the Company “Without Cause” as defined in Section 2.2 herein, the Company shall:

 

i.            pay to Employee _________ (___) weeks of pay at Employee’s regular base rate of pay at the time of such termination (the “Separation Pay”). The Separation Pay shall be paid in ___________ (____) equal weekly installments pursuant to the Company’s normal payroll procedures. The first of the Separation Pay installments shall be made on the first regular pay period following Effective Date as defined in Section 15 or other applicable section of the Release referenced herein; and

 

ii.         if, after Employee’s termination pursuant to this Section, Employee elects to continue health and dental insurance through COBRA continuation coverage, the Company agrees to pay, for a period of up to __________ (___) weeks, a portion of the premium cost such that Employee’s premium payment does not exceed what Employee would otherwise have paid if Employee were employed by the Company at the time of each such payment. 

 

Provided, however, notwithstanding anything in this Agreement to the contrary, Employee’s entitlement to the benefits in this Section 1 are expressly subject to and conditioned on Employee’s execution of a release agreement in a form agreeable to the Company and similar to the release agreement attached hereto as Exhibit A (the “Release”).

 

Employee further agrees that, in the event that (a) Employee is convicted of, or pleads “guilty” or “no contest” to, a felony under the laws of the United States or any state thereof, or any crime of moral turpitude, in each case connected with, or in any way related to, Employee’s employment with the Company, (b) the Company files suit against Employee alleging willful dishonesty, fraud, misconduct, or gross negligence by Employee with respect to the business or affairs of the Company, (c) the Company issues a restatement because of Employee’s material noncompliance, due to misconduct, with financial reporting requirements under federal securities laws, or (d) Employee breaches this Agreement or the Release, including but not limited to Sections 4, 6, 8-10 and 13 of the Release; then , in each such instance, in addition to compensation for any damages incurred by the Company, and/or any injunctive relief provided for herein or otherwise, Employee shall be liable for the repayment of all amounts paid to Employee pursuant to this Section 1, and Employee agrees to repay all such amounts in full.

 

 
 

 

2.             Termination.

 

2.1.           Termination by the Company for Cause . Termination for “Cause” shall mean termination of Employee’s employment for Employee’s (a) personal dishonesty, (b) fraud, (c) willful or repeated misconduct, (d) gross negligence, (e) breach of a fiduciary duty to the Company, (f) intentional failure to perform Employee’s duties, (g) material violation of Company policy, (h) unsatisfactory performance of Employee’s job duties; provided, however, that in such instances where the Company, at its sole discretion, deems such unsatisfactory performance curable, the Company shall give such notice and opportunity to cure as the Company deems reasonable, (i) material noncompliance with financial reporting requirements under federal securities laws, (j) conviction of or plea of guilty or “no contest” to a felony or crime of moral turpitude under the laws of the United States or any state thereof, (k) action or inaction that materially diminishes or impairs the goodwill or reputation of the Company and/or (l) any material breach of any provision of this Agreement. The benefits provided for in Section 1 shall not be due or payable to Employee if Employee’s employment is terminated pursuant to this Section 2.1.

 

2.2           Termination by the Company Without Cause . Termination “Without Cause” shall mean termination of Employee’s employment by the Company for any reason other than the reasons identified in Sections 2.1 or 2.4. The benefits provided for in Section 1 shall be payable to Employee only if Employee’s employment is terminated pursuant to this Section 2.2.

 

2.3            Resignation or Termination of Employment by Employee . The benefits provided for in Section 1 shall not be due or payable if Employee resigns or Employee terminates Employee’s employment with the Company at any time for any reason.

 

2.4            Termination by Death or Disability .  The benefits provided for in Section 1 shall not be due or payable if Employee’s employment terminates because of Employee’s death or Disability (as defined herein). For purposes of this Agreement, “Disability” shall mean the Employee is entitled to receive long-term disability benefits under the Company’s long-term disability plan, or if there is no such plan, the Employee’s inability, due to physical or mental incapacity, despite the Company providing whatever reasonable accommodations the law requires, to substantially perform Employee’s duties and responsibilities for one hundred eighty (180) days out of any three hundred sixty-five (365) day period or one hundred twenty (120) consecutive days. Any question as to the existence of the Employee’s Disability as to which the Employee and the Company cannot agree shall be determined in writing by a qualified independent physician mutually acceptable to the Employee and the Company. If the Employee and the Company cannot agree as to a qualified independent physician, each shall appoint such a physician and those two (2) physicians shall select a third (3 rd ) who shall make such determination in writing. Such determination of Disability made in writing to the Company and the Employee shall be final and conclusive for all purposes of this Agreement. Nothing in this Section 2.4 shall be deemed to reduce or expand, or otherwise modify, the parties’ respective rights and obligations under the federal Americans with Disabilities Act or any analogous and applicable state or local law.

 

2
 

 

Nothing in this Section or this Agreement shall alter the at-will status of Employee’s employment and, subject to the terms and conditions herein, Employee’s employment may be terminated, for any lawful reason, with Cause or Without Cause, by either Company or Employee, at any time with or without notice.

 

3.          Withholding Taxes. Employee hereby agrees that the Company will deduct from the payments in Sections 1 all withholding taxes and other payroll deductions that the Company is required by law to make from wage payments to employees. Employee hereby agrees that the payments and performances described in this Agreement are all that Employee shall be entitled to receive from the Company upon the cessation of Employee’s employment except for vested qualified retirement benefits, if any, to which Employee may be entitled under the Company's ERISA plans.

 

4.          Disclaimer of Liability. This Agreement and the payments and performances hereunder are made to assist Employee in making the transition from employment with the Company, and are not and shall not be construed to be an admission of liability, an admission of the truth of any fact, or a declaration against interest on the part of the Company.

 

5.          Execution of Documents. Each of the parties hereto shall execute any and all further documents and perform any and all further acts reasonably necessary or useful in carrying out the provisions of this Agreement.

 

6.          Invalid Provisions. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the validity or enforceability of any other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted.

 

7.          Entire Agreement. This Agreement contains the entire understanding of the parties concerning the separation benefits being provided to Employee herein. This Agreement may not be modified or supplemented except by a subsequent written agreement signed by all parties.

 

8.          Successorship. It is the intention of the parties that the provisions hereof are binding upon, and inure to the benefit of, the parties, their employees, affiliates, agents, heirs, estates, successors and assigns forever.

 

9.          Governing Law. This Agreement shall be governed by the laws of the Commonwealth of Virginia, without regard to its conflict of laws principles.

 

3
 

 

10.         Arbitration of Disputes. Except as to a request for an injunction or similar equitable relief, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be fully and finally settled by arbitration administered by the American Arbitration Association in accordance with its National Rules for the Arbitration of Employment Disputes then in effect (“AAA Rules”), and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration shall be conducted by one arbitrator either mutually agreed upon by the Company and Employee or chosen in accordance with the AAA Rules. The place of arbitration shall be the City of Richmond, Virginia. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.

 

[SIGNATURE PAGE FOLLOWS]

 

4
 

 

IN WITNESS WHEREOF, the parties have freely and voluntarily executed this Agreement in a manner so as to be binding on the dates stated below.

 

    EMPLOYEE
     
     
Date   EMPLOYEE NAME
     
    LUMBER LIQUIDATORS, INC.
       
    By:  
Date      
    Its:  

 

5
 

 

EXHIBIT A

 

GENERAL RELEASE AGREEMENT

 

This General Release (the "Agreement"), dated this ____ day of __________, _______ by and between Lumber Liquidators, Inc. (“LL”) and its affiliated entity(ies) (collectively and, where applicable, individually, the “Company”), and __________ (“Employee”) provides:

 

RECITALS :

 

WHEREAS Employee has been employed by the Company;

 

WHEREAS, Employee and Company entered into a Severance Benefit Agreement (“Severance Agreement”);

 

WHEREAS a release agreement similar to this Agreement was provided to Employee prior to Employee’s execution of the Severance Agreement, and was incorporated into that Severance Agreement;

 

WHEREAS a “Separation Pay” payment and other consideration in the Severance Agreement were and are expressly conditioned on, among other things, the Employee’s execution of an agreement similar to this Agreement; and

 

NOW, THEREFORE, in consideration of the promises and of the mutual covenants contained in the Severance Agreement and herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties do hereby covenant and agree as follows:

 

AGREEMENT:

 

1.          Termination of Employment; Separation Benefits. Employee’s Employment with the Company ceased effective ____________ (the “Separation Date”).

 

2.          Consideration. Employee hereby agrees and acknowledges that the Separation Pay, as defined in the Severance Agreement, and other benefits set forth in Severance Agreement and herein are in addition to, and more than, the Company is required to do under its normal policies and procedures and that they are in addition to anything of value to which Employee already is entitled.

 

3.          Complete Payment. Employee agrees that the payments and performances described in this Agreement and the Severance Agreement are all that Employee shall be entitled to receive from the Company except for vested qualified retirement benefits, if any, to which Employee may be entitled under the Company's ERISA plans. Except as required by law, the Company shall not be required to make any payments of any kind to Employee upon termination or expiration of this Agreement and/or the Severance Agreement. Employee further agrees and acknowledges that Employee shall have no right or claim to any bonus payment from the Company including, but not limited to, any bonus under the Lumber Liquidators Holdings, Inc. Annual Bonus Plan for Executive Management or the Lumber Liquidators Holdings, Inc. Annual Bonus Plan for Non-Executive Management. Notwithstanding the termination, expiration or nonrenewal of this Agreement, the parties shall be required to carry out any provisions of this Agreement which contemplate performance by them after such termination, expiration or nonrenewal, expressly including Sections 4, 6, 8-10 and 13.

 

6
 

 

4.          Return of Company Property. Employee will promptly deliver to the Company all Company property, including but not limited to, all computers, phones, correspondence, manuals, letters, notes, notebooks, reports, flow charts, programs, proposals, third party equipment that Company is authorized to represent, and any documents concerning the Company’s customers, operations, products or processes (actual or prospective) or concerning any other aspect of the Company’s business (actual or prospective) and, without limiting the foregoing, will promptly deliver to the Company any and all other documents or materials containing or constituting Confidential Information as defined in Section 8, except that

Employee may retain personal papers relating to Employee’s employment, compensation and benefits.

 

5.          Complete Release. Employee hereby knowingly and voluntarily releases and forever discharges the Company, any related companies, and the former and current employees, officers, agents, directors, shareholders, investors, attorneys, affiliates, successors and assigns of any of them (the “Released Parties”) from all liabilities, claims, demands, rights of action or causes of action Employee had, has or may have against any of the Released Parties, including but not limited to, any claims or demands based upon or relating to Employee’s employment with the Company or the cessation of that employment. This includes, but is not limited to, a release of any rights or claims Employee may have under the Age Discrimination in Employment Act of 1967 (“ADEA”), Title VII of the Civil Rights Act of 1964, the Equal Pay Act, the Americans with Disabilities Act, the Family and Medical Leave Act, or any other federal, state or local laws or regulations prohibiting employment discrimination or retaliation. This also includes, but is not limited to, a release by Employee of any claims for wrongful discharge, breach of contract, or any other statutory, common law, tort, contract, or negligence claim that Employee had, has or may have against any of the Released Parties. This release covers both claims that Employee knows about and those claims Employee may not know about. Employee further acknowledges that Employee has received compensation for all hours worked in accordance with applicable state and federal laws.

 

Neither this Section, nor any other Section in this Agreement or the Severance Agreement, waives or releases (i) Employee’s right, if any, to payment of vested qualified retirement benefits under the Company’s ERISA plans; (ii) the right, if any, to continuation in the Company’s medical plans as provided by COBRA; (iii) the right to bring any claims under the ADEA which arise after the date that Employee executes this Agreement, provided, however, that Employee acknowledges that the decision to cease Employee’s employment with the Company occurred prior to Employee’s execution of this Agreement; (iv) Employee’s eligibility, if any, for indemnification and/or advancement of expenses in accordance with any applicable Company Bylaws, if any; (v) Employee’s rights, if any, to coverage under directors’ and officers’ liability insurance policy or policies of the Company and its subsidiaries and affiliates; or (vi) Employee’s rights under this Agreement. Nothing in this Section 5, nor any other provision of this Agreement, waives or affects Employee’s right to file a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) or to provide information to, or participate as a witness in, an investigation undertaken or a proceeding initiated by the EEOC. However, Employee waives Employee’s right to monetary or other recovery, including attorney’s fees, should Employee or any federal, state or local administrative agency pursue any claims on Employee’s behalf arising out of Employee’s employment or the conclusion of Employee’s employment with the Company.

 

7
 

 

Notwithstanding the foregoing, the parties agree that nothing in this Agreement shall be construed to prohibit the exercise of any rights by either party that such party may not waive as a matter of law.

 

6.          No Future Lawsuits. To the fullest extent allowed by law, Employee promises never to file a lawsuit asserting any claims that are released in Section 5. In the event Employee breaches this Section 6, Employee shall pay to the Company all of its expenses incurred as a result of such breach, including but not limited to, reasonable attorney’s fees and expenses. Notwithstanding the foregoing, the parties acknowledge and agree that this Agreement and this Section 6 shall not be construed to prohibit the exercise of any rights by Employee that Employee may not waive or forego as a matter of law.

 

7.          Disclaimer of Liability. This Agreement and the payments and performances hereunder and/or the Severance Agreement are made solely to assist Employee in making the transition from employment with Company, and are not and shall not be construed to be an admission of liability, an admission of the truth of any fact, or a declaration against interest on the part of Company.

 

8.          Confidentiality. Employee shall not disclose or use at any time for a period of ten (10) years after the Separation Date, or as otherwise protected by applicable law including the Virginia Uniform Trade Secrets Act, whichever is longer, any Confidential Information (as defined below) of which Employee is aware, whether or not such information was developed by him, except to the extent that such disclosure or use is directly related to and required by this Agreement or is required to be disclosed by law, court order, or similar compulsion; provided, however, that such disclosure shall be limited to the extent so required or compelled; and provided, further, that Employee shall give the Company notice of such disclosure and cooperate with the Company in seeking suitable protection. Employee shall take reasonable and appropriate steps to safeguard Confidential Information and to protect it against disclosure, misuse, espionage, loss and theft. Employee acknowledges and agrees that all Confidential Information, which Employee had access to, received or generated in the course of providing, directly or indirectly, services to the Company, is the sole property of the Company. Employee shall deliver to the Company all memoranda, notes, plans, records, reports, computer tapes and software and other documents and data (and copies thereof regardless of the form thereof, including electronic and tangible copies) containing Confidential Information (as defined below) of the Company which Employee possesses or has under Employee’s control. Notwithstanding anything herein to the contrary, Employee may retain personal papers relating to Employee’s employment, compensation and benefits.

 

8
 

 

As used in this Agreement, the term “Confidential Information” means any data or information related to the Company’s business operations and is not generally known by the public, and that was made known to Employee or acquired by Employee in the course of Employee’s employment with the Company or directly or indirectly providing services to the Company, including business and trade secrets and the following: (i) reports, pricing, sales manuals and training manuals, selling, purchasing, and pricing procedures, and financing methods of the Company, together with any proprietary techniques utilized by the Company in designing, developing, testing or marketing its products, product mix and supplier information or in performing services for clients, customers and accounts of the Company; (ii) the business plans and financial statements, reports and projections of the Company; (iii) research or development projects or results; (iv) identities and addresses of consultants, customers or clients and prospective clients, or any other Confidential Information relating to or dealing with the business operations or activities of the Company; (v) trade secrets and other intellectual property of the Company; and (vi) existing or contemplated software, products, databases, services, technology, designs, processes and research or product developments of the Company. Notwithstanding the foregoing or any other provision herein, Confidential Information shall not include any information that (A) is generally known to the public at the time of disclosure or becomes generally known through no wrongful act on the part of Employee, (B) becomes known to Employee through disclosure by independent third-party sources having a legal right to disclose such information, or (C) is independently developed by Employee without reference to Confidential Information.

 

Nothing in this Section 8, or in Section 13, or in any other provision of this Agreement, prohibits Employee or the Company from reporting possible violations of federal law or regulation to any governmental agency or entity, including but not limited to the Department of Justice, the Securities and Exchange Commission, the Congress, and any agency Inspector General, or making other disclosures that are protected under the whistleblower provisions of federal or state law or regulation. Employee does not need the prior authorization of the Company to make any such reports or disclosures and Employee is not required to notify the Company that Employee has made such reports or disclosures.

 

9.          Restrictive Covenants.

 

A.          Definitions .

 

   i. “Business” means the sale and provision of hardwood, engineered, bamboo, cork, laminate, resilient or tile flooring and related products and services.

 

  ii. “Competing Business” means Home Depot, Lowe’s, Floor & Décor, The Tile Shop, Menards and/or any Person that earns more than 50% of its gross revenues from, individually or in combination, the sale or installation of hardwood, engineered, bamboo, cork, laminate, resilient or tile flooring or related flooring products and services.

 

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 iii. “Competing Position” means a position held by Employee with a Competing Business that involves duties within the Restricted Territory that are the same as or substantially similar to the duties Employee performed for the Company within the twelve (12) months prior to the Separation Date.

 

  iv. “Customer” means any Person to whom or which Employee has provided, or is providing, any products or services related to the Business during the twelve (12)-month period preceding the Separation Date.

 

   v. “Material Contact” means: (a) for purposes of the Customer non-solicitation provision below, contact between Employee and any Customer within twelve (12) months prior to the Separation Date; provided, however, that: (i) Employee communicated directly with such Customer on behalf of the Company during that twelve (12) month period; or (ii) Employee obtained confidential information about such Customer in the ordinary course of business as a result of Employee’s association with the Company; and (b) for purposes of the employee, Contractor and Vendor non-recruit and non-solicitation provisions below, contact in person, by telephone, or by paper or electronic correspondence, in furtherance of the Business, within the twelve (12) month period preceding the Separation Date.

 

  vi. “Person” means a governmental body or any individual, partnership, firm, corporation, limited liability company, association, trust, unincorporated organization or other entity.

 

 vii. “Restricted Period” means the twelve (12) months following the Separation Date. Nothing herein is intended to relieve Employee of Employee’s fiduciary duties under applicable law.

 

viii. “Restricted Territory” means the continental United States and Ontario, Canada.

 

  ix. “Vendor” or “Contractor” means any Person who or which has provided products or services to the Company in exchange for compensation of over $10,000 within twelve (12) months prior to the Separation Date.

 

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B.            Non-Competition . Employee acknowledges that, in the course of Employee’s employment with the Company, Employee has become familiar with the Company’s trade secrets and other Confidential Information and that Employee’s services have been of special, unique and extraordinary value to the Company. Therefore, Employee agrees that Employee shall not, during the Restricted Period, directly or indirectly work in a Competing Position or supervise, manage or control a Competing Business, where Employee’s primary duty is to provide the same or substantially similar products or services as the Company within the Restricted Territory. For the avoidance of doubt, nothing herein shall prohibit Employee from being a passive owner of not more than three percent (3%) of the outstanding stock of any Competing Business which is publicly traded, so long as Employee has no active participation in the business of such company.

 

C.            Non-Piracy of Employees . During the Restricted Period, Employee shall not directly or indirectly through another Person, whether on Employee’s own behalf or on behalf of another Person: (i) induce or attempt to induce any employee of the Company with whom Employee had Material Contact to terminate or lessen such employment with the Company for the purpose of performing services or selling products for a Competing Business; or (ii) hire or cause to be hired by a Competing Business any person who was employed by the Company within the twelve (12) month period preceding the Separation Date.

 

D.            Non-Solicitation of Customers . During the Restricted Period, Employee shall not directly or indirectly through another Person, whether on Employee’s own behalf or on behalf of another Person: (i) induce or attempt to induce any Customer with whom Employee had Material Contact for the purpose of selling to the Customer any products or services for a Competing Business; or (ii) sell or offer to sell products or services on behalf of a Competing Business to any Customer of the Company with whom Employee had Material Contact.

 

E.            Non-Interference With Contracts . During the Restricted Period, Employee shall not directly or indirectly through another Person, whether on Employee’s own behalf or on behalf of another Person, induce or attempt to induce any Contractor to or Vendor of the Company with whom Employee had Material Contact to terminate, diminish or lessen their relationship with the Company.

 

F.           Employee understands that the foregoing restrictions will not limit Employee’s ability to earn a livelihood and that Employee has received and will receive sufficient consideration and other benefits as an employee of the Company and as otherwise provided hereunder to clearly justify such restrictions (given Employee’s education, skills and ability). Employee further understands that (i) the Company would not have consummated this Agreement or the Severance Agreement but for the covenants contained in this Section 9 and (ii) the provisions of Sections 8 and 9 are reasonable and necessary to preserve the business of the Company.

 

G.           Employee shall inform any prospective employer that engages in any business similar to the Business of any and all restrictions contained in this Section 9 of the Agreement during any period when such restrictions remain effective and provide such employer with a copy of such restrictions prior to the commencement of that employment.

 

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10.         Cooperation.  Employee agrees that for a period of ten (10) years following the Separation Date, Employee shall have a continuing duty to fully and promptly cooperate with the Company and its legal counsel by providing any and all requested information and assistance concerning any legal or business matters that in any way relate to Employee’s actions or responsibilities as an employee of the Company, or to the period during Employee’s employment with the Company. Such cooperation shall include but not be limited to truthfully and in a timely manner participating and consulting concerning facts, responding to questions, providing pertinent information, providing affidavits and statements, preparing for and attending depositions, and preparing for and attending trials, hearings and other proceedings. Such cooperation shall include meeting with representatives of the Company upon reasonable notice at reasonable times and locations. The Company shall use its reasonable efforts to coordinate with Employee the time and place at which Employee's reasonable cooperation shall be provided with the goal of minimizing the impact of such reasonable cooperation on any other material pre-scheduled business or professional commitments that Employee may have. The coordination and communication from the Company to Employee regarding Employee’s cooperation shall come through the Company’s General Corporate Counsel. The Company shall reimburse Employee for reasonable out-of-pocket expenses incurred by Employee in compliance with this Section, including any reasonable travel expenses incurred by Employee in providing such assistance. As part of the consideration provided to Employee under this Agreement, Employee shall provide cooperation to the Company at no additional cost to the Company. At no time subsequent to the Separation Date shall Employee be deemed to be a contractor or employee of the Company.

 

11.         Enforcement. Employee agrees that the Company has a legitimate business interest to protect justifying the covenants set forth in Sections 8, 9 and 10. Such legitimate business interests include: (i) trade secrets, (ii) valuable Confidential Information that does not otherwise qualify as a trade secret, (iii) substantial relationships with prospective or existing Customers, (iv) Customer goodwill, and (v) preservation of the brands with which Employee has operated. For purposes of the Company obtaining specific performance and/or injunctive relief, Employee acknowledges that irreparable injuries shall be presumed in the event that Employee violates Employee’s covenants herein contained. Because Employee’s services are unique and because Employee has access to Confidential Information, the parties hereto agree that money damages would be an inadequate remedy for any breach of this Agreement. Therefore, in the event of a breach or threatened breach of Sections 8, 9 or 10 of this Agreement, the Company and its successors or assigns may, in addition to other rights and remedies existing in their favor at law or in equity, apply to any court of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce, or prevent any violations of, the provisions in Sections 8, 9 or 10 hereof. In addition to the foregoing, if any action should have to be brought by the Company against Employee to enforce the provisions of this Agreement, Employee recognizes, acknowledges and agrees that the Company may be entitled (without limitation) to (a) preliminary and permanent injunctive relief restraining Employee from unauthorized disclosure or use of any trade secret or Confidential Information, in whole or in part, or otherwise violating any of the restrictive covenants set forth herein, and (b) actual damages. Nothing in this Agreement shall be construed as prohibiting the Company from pursuing any other legal or equity remedies available for breach or threatened breach to the provisions of this Agreement or the Severance Agreement which may otherwise be available. In the event of an alleged breach or violation by Employee of Sections 8, 9 or 10 of this Agreement, the parties agree that the court, in its discretion, may toll the Restricted Period during the period of the breach.

 

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12.         Claim for Reinstatement. Employee agrees to waive and abandon any claim to reinstatement with Company.

 

13.         Statements Regarding Company and/or Employment.

 

A.           Employee agrees not to do or say anything, directly or indirectly, that reasonably may be expected to have the effect of criticizing or disparaging Company, any director of Company, any of Company’s employees, officers or agents, or diminishing or impairing the goodwill and reputation of Company or the products and services it provides. Employee further agrees not to assert that any current or former employee, agent, director or officer of Company has acted improperly or unlawfully with respect to Employee or any other person regarding employment.

 

B.           Notwithstanding the foregoing provisions of this Section 13, the Parties agree that nothing in this Agreement shall be construed to prohibit the exercise of any rights by either party that such party may not waive as a matter of law nor does this Agreement prohibit Employee, Company or Company's officers, employees and/or directors from testifying truthfully in response to a subpoena, inquiry or order by a court or governmental body with appropriate jurisdiction or as otherwise required by law.

 

14.         Period for Review and Consideration of Agreement. Employee understands that Employee has been given a period of twenty one (21) days to review and consider this Agreement before signing it. Employee further understands that Employee may use as much of this 21-day period as Employee wishes prior to signing.

 

15.         Employee’s Right to Revoke Agreement. Employee may revoke this Agreement within seven (7) days of Employee’s signing it. Revocation can be made by delivering a written notice of revocation to the Senior Vice President, Human Resources, 3000 John Deere Road, Toano, Virginia 23168. For this revocation to be effective, written notice must be received by the Senior Vice President, Human Resources, no later than the close of business on the seventh day after Employee signs this Agreement. If Employee has not revoked the Agreement, the eighth (8th) day after Employee signs this Agreement shall be the Effective Date for purposes of this Agreement.

 

16.         Encouragement to Consult with Attorney. Employee is encouraged to consult with an attorney before signing this Agreement.

 

17.         Execution of Documents. Each of the parties hereto shall execute any and all further documents and perform any and all further acts reasonably necessary or useful in carrying out the provisions of this Agreement.

 

18.         Invalid Provisions. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the validity or enforceability of any other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted.

 

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19.         Acknowledgment. Employee acknowledges that Employee has signed this Agreement freely and voluntarily without duress of any kind. Employee has conferred with an attorney or has knowingly and voluntarily chosen not to confer with an attorney about the Agreement.

 

20.         Entire Agreement. This Agreement and the Severance Agreement contain the entire understanding of the parties concerning the subject matter of those agreements. This Agreement may not be modified or supplemented except by a subsequent written agreement signed by all parties.

 

21.         Successorship. It is the intention of the parties that the provisions hereof are binding upon, and inure to the benefit of, the parties, their employees, affiliates, agents, heirs, estates, successors and assigns forever.

 

22.         Governing Law. This Agreement shall be governed by the laws of the Commonwealth of Virginia, without regard to its conflict of laws principles.

 

23.         Arbitration of Disputes. Except as to a request for an injunction or similar equitable relief as provided in Section 11, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be fully and finally settled by arbitration administered by the American Arbitration Association in accordance with its National Rules for the Arbitration of Employment Disputes then in effect (“AAA Rules”), and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration shall be conducted by one arbitrator either mutually agreed upon by the Company and Employee or chosen in accordance with the AAA Rules. The place of arbitration shall be the City of Richmond, Virginia. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.

 

EMPLOYEE ACKNOWLEDGES THAT EMPLOYEE HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND IS VOLUNTARILY ENTERING INTO IT. PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.

 

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, the parties have freely and voluntarily executed this Agreement in a manner so as to be binding on the dates stated below.

 

    EMPLOYEE
     
     
Date   Employee
     
    LUMBER LIQUIDATORS, INC.
       
    By:  
Date      
    Its:  

 

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Exhibit 99.3

 

RETENTION BENEFIT AGREEMENT

 

This Retention Benefit Agreement (“Agreement”) , dated ______, 2015, by and between Lumber Liquidators, Inc. (“LL”) and/or its affiliated entity(ies) (collectively and, where applicable, individually, the “Company”) and ______________ (“Employee”), states as follows:

 

RECITALS :

 

WHEREAS Employee is employed by the Company on an at-will basis;

 

WHEREAS, Company desires to retain Employee’s at-will employment and incentivize Employee’s future faithful service to, and best efforts in the performance of Employee’s duties on behalf of, the Company; and

 

NOW, THEREFORE, in consideration of the promises and of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties do hereby covenant and agree as follows:

 

AGREEMENT:

 

1.           Retention Bonus. In the event Employee remains an employee in Good Standing for and throughout the duration of the Retention Period, the Company shall pay to Employee a lump sum payment of [AMOUNT] (the “Retention Bonus”). The Retention Bonus shall be paid pursuant to the Company’s normal payroll procedures on the first regular pay period following the conclusion of the Retention Period. Neither the Retention Bonus, nor any portion thereof, shall be due or payable if Employee ceases, for any reason, to be an employee in Good Standing at any time prior to the conclusion of the Retention Period, and Employee shall not have a right to any payment under this Agreement whatsoever.

 

2.           Definitions. For purposes of this Agreement,

 

i.          “Retention Period” shall mean the period of time beginning with the execution of this Agreement and concluding at 11:59 p.m. on [DATE].

 

ii.         “Good Standing” shall mean that Employee has, at all times since the start of the Retention Period, well and faithfully served the Company to the best of Employee’s abilities, used Employee’s best efforts to perform Employee’s duties, and promoted, developed, and extended the interests of the Company. Examples of events that will cause Employee to immediately and permanently cease to be in “Good Standing” include, among other things, (a) Employee’s resignation, the Company’s termination of Employee’s employment, or the cessation of Employee’s employment with the Company at any time and for any reason, (b) the Company’s determination, at its sole discretion, that Employee has: exhibited dishonesty, engaged in fraud, exhibited willful or repeated misconduct or gross negligence, breached a fiduciary duty to the Company, failed or refused to adequately perform Employee’s duties, acted or failed to act so as to materially diminish or impair the goodwill or reputation of the Company, and/or violated a Company policy, (c) Employee’s material noncompliance with financial reporting requirements under federal securities laws, (d) Employee’s conviction of or plea of guilty or “no contest” to a felony or crime of moral turpitude under the laws of the United States or any state thereof, (e) the Company’s placement, at its sole discretion, of Employee on a performance improvement plan, disciplinary warning, or similar plan or notice, and/or (f) any material breach by Employee of this Agreement or any other contract or agreement with the Company.

 

 
 

  

3.          Employment At-Will . Nothing in this Agreement shall alter the at-will status of Employee’s employment and Employee’s employment may be terminated, for any lawful reason, with cause or without cause, by either Company or Employee, at any time with or without notice.

 

4.          Withholding Taxes. Employee hereby agrees that the Company will deduct from the payments in Sections 1 all withholding taxes and other payroll deductions that the Company is required by law to make from wage payments to employees.

 

5.          Execution of Documents. Each of the parties hereto shall execute any and all further documents and perform any and all further acts reasonably necessary or useful in carrying out the provisions of this Agreement.

 

6.          Invalid Provisions. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the validity or enforceability of any other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted.

 

7.          Entire Agreement. This Agreement contains the entire understanding of the parties concerning the subjects herein. This Agreement may not be modified or supplemented except by a subsequent written agreement signed by all parties.

 

8.          Successorship. It is the intention of the parties that the provisions hereof are binding upon, and inure to the benefit of, the parties, their employees, affiliates, agents, heirs, estates, successors and assigns forever.

 

9.          Governing Law. This Agreement shall be governed by the laws of the Commonwealth of Virginia, without regard to its conflict of laws principles.

 

10.        Arbitration of Disputes. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be fully and finally settled by arbitration administered by the American Arbitration Association in accordance with its National Rules for the Arbitration of Employment Disputes then in effect (“AAA Rules”), and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration shall be conducted by one arbitrator either mutually agreed upon by the Company and Employee or chosen in accordance with the AAA Rules. The place of arbitration shall be the City of Richmond, Virginia. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.

 

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, the parties have freely and voluntarily executed this Agreement in a manner so as to be binding on the dates stated below.

 

    EMPLOYEE
     
     
Date   EMPLOYEE NAME
     
    LUMBER LIQUIDATORS, INC.
       
    By:  
Date      
    Its:  

 

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