EXHIBIT 10.24
LESLIE'S POOLMART, INC. STOCK REPURCHASE AGREEMENT
This LESLIE'S POOLMART, INC. STOCK REPURCHASE AGREEMENT (this
"Agreement") is entered into as of March 23, 2001, by and between Leslie's
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Poolmart, Inc., a Delaware corporation (the "Company"), The ▇▇▇▇▇▇▇▇▇ Family
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Trust UA March 15, 1990 (the "Seller") and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, as an individual
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("▇▇▇▇▇▇▇▇▇").
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RECITALS
WHEREAS, the Seller owns 166,552 shares (the "Shares") of the Common
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Stock of the Company in the aggregate;
WHEREAS, ▇▇▇▇▇▇▇▇▇ desires to cause Seller to sell to the Company, and
the Company desires to repurchase from the Seller, 55,555 of such shares (the
"Purchased Shares") on the terms and conditions set forth below.
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AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants, representations and warranties set forth below, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Transactions.
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(a) Sale and Purchase of the Purchased Shares. The Seller hereby
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sells to the Company, and the Company hereby purchases from the Seller, the
Purchased Shares, for an aggregate purchase price of $499,995.00 (the "Purchase
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Price"). Concurrently with the execution and delivery of this Agreement, the
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Seller hereby delivers to the Company, and the Company hereby accepts from the
Seller, the certificate(s) evidencing the Purchased Shares held by the Seller
duly endorsed for transfer pursuant to the Assignment Separate From Stock
Certificate attached hereto as Exhibit A, and the Company hereby delivers to the
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Seller by wire transfer in immediately available funds, and the Seller hereby
acknowledges receipt from the Company of, the Purchase Price delivered by the
Company. Seller and ▇▇▇▇▇▇▇▇▇ acknowledge and agree that such amount represents
payment in full of the Purchase Price.
(b) Cancellation of Outstanding Options. Concurrently with the
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execution and delivery of this Agreement, all outstanding options (whether or
not presently exercisable and regardless of the specific option plan of the
Company such options were issued under) to purchase the Company's Common Stock
issued to ▇▇▇▇▇▇▇▇▇ (the "Options") shall be cancelled and of no further effect.
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(c) Board Resignation. Concurrently with the execution and delivery
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of this Agreement, ▇▇▇▇▇▇▇▇▇ hereby resigns from his position as a director on
the Board of Directors of the Company and ▇▇▇▇▇▇▇▇▇ shall not thereafter have
any entitlement to be a director, officer or other agent of the Company.
Stock Purchase Agreement
2. Waiver of Shareholders Agreement. For the purposes of the
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transactions contemplated by this Agreement, the parties hereby waive any and
all restrictions on transfer, rights of first refusal and any other rights or
obligations pursuant to that certain Shareholders Agreement among the Company,
the Seller, ▇▇▇▇▇▇▇▇▇ and the other parties thereto dated as of June 11, 1997.
Such waiver shall be effective only as to this Agreement and the transactions
contemplated herein and shall have no effect on the rights of the Company except
as to this Agreement and the transactions contemplated herein.
3. Representations and Warranties of Seller and ▇▇▇▇▇▇▇▇▇. The
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Seller and ▇▇▇▇▇▇▇▇▇ hereby jointly and severally represent, warrant, covenant
and agree that: (i) each of Seller and ▇▇▇▇▇▇▇▇▇ has full legal capacity, power
and authority to enter into this Agreement and carry out the terms and
provisions hereof; (ii) this Agreement has been duly executed and delivered by
each of the Seller and ▇▇▇▇▇▇▇▇▇ and is the valid and binding agreement of each
of the Seller and ▇▇▇▇▇▇▇▇▇ enforceable against each of the Seller and ▇▇▇▇▇▇▇▇▇
in accordance with its terms; (iii) Seller is legal, record and beneficial
holder of the Shares free and clear of all liens, claims, encumbrances or
adverse interests of any kind; and (iv) following payment of the Purchase Price,
Seller will have delivered legal, record and beneficial title to the Purchased
Shares to the Company free and clear of any and all liens, claims, encumbrances
or adverse interests of any kind. Seller and ▇▇▇▇▇▇▇▇▇ are familiar with the
business and financial condition of the Company and are satisfied by reason of
their own knowledge and investigation, and not in reliance on any express or
implied representation of the Company or any of its directors, officers, agents
or affiliates, as to the sale of the Purchased Shares at the Purchase Price
specified herein. Seller and ▇▇▇▇▇▇▇▇▇ have had access to documents pertaining
to valuation of the Purchased Shares, or have requested and received such
documents.
4. Representations and Warranties of Company. The Company
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represents, warrants, covenants and agrees that: (i) it has full power and
authority to enter into this Agreement and carry out the terms and provisions
hereof; (ii) this Agreement has been duly executed and delivered by the Company
and is the valid and binding agreement of the Company enforceable against the
Company in accordance with its terms; and (iii) the Company has full legal
right, power and authority to purchase the Purchased Shares in the manner
provided in this Agreement. The Company further represents that it has
performed its due diligence review for examination and inspection of all matters
pertaining to its acquisition of the Purchased Shares, including, without
limitation the non-statutory stock option agreement, the Company's 1997
Incentive Stock Option Plan, minutes of the meeting of the Board of Directors,
vesting agreements, all financial and corporate matters and conditions with
respect to the Purchased Shares. By execution of this Agreement, the Company
has concluded its due diligence with respect to questions concerning said shares
or deemed such questions inconsequential; provided, that the Company's
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representations regarding diligence contained herein shall not in any way limit
the accuracy of ▇▇▇▇▇▇▇▇▇'▇ and Seller's representations and warranties
contained in Section 3 hereto.
5. No Representation as to Condition of Company. Neither of the
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Seller, ▇▇▇▇▇▇▇▇▇ or the Company is making any representation or warranty as to
the condition (financial or otherwise) or results of operations, prospects or
any other aspect of the Company's operations.
Stock Purchase Agreement
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6. Mutual Release. Except for their respective obligations,
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representations, warranties and covenants arising under this Agreement, each of
the Seller and ▇▇▇▇▇▇▇▇▇, on the one hand, and the Company, on the other hand
(for himself or itself, his or its agents, heirs, successors, assigns, executors
and/or administrators) does hereby and forever mutually release and discharge
the other, and the other's past and present parent, subsidiary, sister and
affiliated corporations, divisions or other related entities, including, without
limitation, in the case of the Company, Green Equity Investors II, L.P., ▇▇▇▇▇▇▇
▇▇▇▇▇ & Partners, L.P., and the respective partners, employees, agents and
affiliates thereof, employee benefit plans and fiduciaries of the foregoing, as
well as the successors, shareholders, partners, officers, directors, heirs,
predecessors, assigns, agents, employees, attorneys and representatives of each
of them, past or present, from any and all causes of actions, actions,
judgments, liens, debts, contracts, indebtedness, damages, losses, claims,
liabilities, rights, interests and demands of whatsoever kind or character,
known or unknown, suspected to exist or not suspected to exist, anticipated or
not anticipated, whether or not heretofore brought before any state or federal
court or before any state or federal agency or other governmental entity, which
any such party has or may have against any released person or entity by reason
of any and all acts, omissions, events or facts occurring or existing prior to
the date hereof, including, without limitation, all claims attributable to the
ownership of the Shares and the Options or the sale or conveyance of the
Purchased Shares under this Agreement (except for the parties' respective
obligations, representations, warranties and covenants arising under this
Agreement), all claims attributable to the employment of ▇▇▇▇▇▇▇▇▇, all claims
attributable to the termination of that employment and all claims arising under
any federal, state or other governmental statute, regulation or ordinance or
common law, such as, for example and without limitation, Title VII of the Civil
Rights Act of 1964 which prohibits discrimination and harassment on the basis of
sex, race, color, national origin and religion, the Civil Rights Act of 1866,
the Age Discrimination in Employment Act which prohibits discrimination on the
basis of age over 40, the California Fair Employment Act which prohibits
discrimination on the basis of race, religion, creed, color, national origin,
ancestry, disability, medical condition, age over 40 and sex, the California
Labor Code, and wrongful termination claims.
Section 1542 Waiver. It is further understood and agreed by Seller,
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▇▇▇▇▇▇▇▇▇ and the Company that, except for their respective obligations,
representations, warranties and covenants arising under this Agreement, the
foregoing releases extend to all claims, of every nature and kind whatsoever,
known, suspected, or unsuspected, past, present or future, and all rights under
Section 1542 of the California Civil Code, in so far as applicable to this
Agreement, are hereby expressly waived by the Seller, ▇▇▇▇▇▇▇▇▇, the Company and
their respective affiliates. Said section reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH, IF KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
Each of the Seller, ▇▇▇▇▇▇▇▇▇ and the Company hereby acknowledge that
he or it may hereafter discover facts different from, or in addition to, those
which he or it now believes to be true with respect to the released claims, and
agrees that this Agreement and the releases
Stock Purchase Agreement
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contained herein shall be and remain effective in all respects notwithstanding
such different or additional facts or the discovery thereof.
7. Miscellaneous.
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7.1 Further Assurances. Each party hereto shall execute and deliver such
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further instruments and take such further actions as the other party hereto may
reasonably request in order to carry out the intent of this Agreement.
7.2 Successors and Assigns. This Agreement shall not be assignable by any
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of the parties hereto. This Agreement shall inure to the benefit of and be
binding upon, the successors, assigns, heirs, executors and legal
representatives of the parties hereto.
7.3 Governing Law. This Agreement shall be governed by and construed in
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accordance with the internal laws of the State of California without regard to
conflict of laws. The venue of any action instituted under this Agreement shall
be proper in Los Angeles County, California, and each party hereby waives any
objection to venue.
7.4 Entire Agreement. This Agreement constitutes the entire agreement
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between the parties hereto with regard to the subject matter hereof and shall
supersede all previous or contemporaneous oral or written negotiations,
commitments or understandings with regard to the subject matter hereof.
7.5 Modification. The provisions of this Agreement may be modified,
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amended or waived only by a writing executed by both parties hereto.
7.6 Headings. Captions of the Sections of this Agreement are for
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convenience only and shall not be considered or referred to in resolving
questions of interpretation or construction of this Agreement.
7.7 Severability. Any provision of this Agreement that is deemed invalid,
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illegal or unenforceable in any jurisdiction shall, as to that jurisdiction and
subject to this paragraph be ineffective to the extent of such invalidity,
illegality or unenforceability, without affecting in any way the remaining
provisions hereof in such jurisdiction or rendering that or any other provisions
of this Agreement invalid, illegal or unenforceable in any other jurisdiction.
If any covenant should be deemed invalid, illegal or unenforceable because its
scope is considered excessive, such covenant shall be modified so that the scope
of the covenant is reduced only to the minimum extent necessary to render the
modified covenant valid, legal and enforceable.
7.8 Third Party Beneficiaries. Except for rights given to releasees
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specified in Section 6 hereof, no person shall be deemed a third party
beneficiary of this Agreement.
7.9 Consulting Agreement. The parties hereto agree that on the date
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hereof, that certain Consulting Agreement, dated as of December 31, 1999, by and
between ▇▇▇▇▇▇▇▇▇ and the Company (the "Consulting Agreement"), is terminated
and of no further effect.
Stock Purchase Agreement
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7.10 Transfer Costs. The Company shall incur all reasonable transfer
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costs, if any, associated with the repurchase and cancellation of the Purchased
Shares and the Options hereunder, together with any reasonable transfer costs
associated with cancelling and reissuing the purchased shares pursuant to that
certain Stock Purchase Agreement Among Individuals, by and among Seller,
▇▇▇▇▇▇▇▇▇, Green Equity Investors II, L.P., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, dated of even date herewith (the "Stock Purchase Agreement Among
Individuals"); provided, that nothing herein shall obligate the Company to pay
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for any party's legal fees (other than the Company's legal fees) in connection
with this Agreement or in connection with the Stock Purchase Agreement Among
Individuals.
7.11 Counterparts. This Agreement may be executed in counterparts, each
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of which shall be deemed an original and all of which shall be deemed to
constitute one and the same instrument.
7.12 Authority. Each of the signatories hereto warrants and represents
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that he or she is competent and authorized to enter in to this Agreement on
behalf of the party for whom he or she purports to sign.
7.13 Non-Disparagement. Seller and ▇▇▇▇▇▇▇▇▇, on the one hand, and the
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Company, on the other hand, covenant and agree that each will not disparage the
other with respect to the subject of this Agreement and the terms therein,
including but not limited to, disparaging the Company or its services,
executives, agents, or business reputation, nor disparaging ▇▇▇▇▇▇▇▇▇ concerning
his termination by Company, his services with the Company and matters relating
to his employment.
Stock Purchase Agreement
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In witness whereof, the undersigned have executed this Agreement
effective as of March 23, 2001.
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, individually
The ▇▇▇▇▇▇▇▇▇ Family Trust UA March 15, 1990
By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Trustee
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Trustee
LESLIE'S POOLMART, INC.,
a Delaware corporation
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Executive Vice President, Chief Financial
Officer and Secretary
Signature Page to Stock Purchase Agreement
EXHIBIT A
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ASSIGNMENT SEPARATE FROM STOCK CERTIFICATE
STATE OF ARIZONA )
) KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF MARICOPA )
For value received, The ▇▇▇▇▇▇▇▇▇ Family Trust UA March 15, 1990, does
hereby sell, assign and transfer unto Leslie's Poolmart, Inc., a Delaware
corporation (the "Corporation"), 55,555 shares of the Common Stock, par value
$0.001 per share, of the Corporation, standing in its name on the books of the
Corporation represented by Certificate No. __ herewith, and does hereby
irrevocably constitute and appoint the Secretary of the Corporation as its
attorney to transfer the said stock on the books of the Corporation with full
power of substitution in the premises.
Dated: March 23, 2001 The ▇▇▇▇▇▇▇▇▇ Family Trust UA March 15, 1990
By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Trustee
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Trustee
In Presence of:
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