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EXHIBIT 10.19
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into as of December 31,
1999 by Brian P. McDermott ("Executive") and Leslie's Poolmart, Inc. (the
"Company"). It is entered into to resolve amicably all matters between
Executive and Company, including, without limitation, all matters concerning
Executive's employment and the termination of his employment as a result of his
resignation.
1. Resignation of Employment. Executive resigns his employment with the
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Company, and resigns as an officer in all capacities of the Company, and the
Company accepts his resignation effective December 31, 1999. Executive
understands that his resignation is final and that the Company is relying on the
resignation in employment and business planning. The Company and Executive
acknowledge that Executive is not resigning from the Company's Board of
Directors, and will be nominated to serve as the Chairman of the Board. For so
long as and if Executive remains Chairman of the Board after October 1, 2001 (or
commencing immediately after the payments described in Paragraph 4 cease, if
such cessation occurs prior to October 1, 2001), Executive shall be compensated
at the rate of $125,000.00 per annum, payable monthly, for his services as
Chairman of the Board. Nothing in this Agreement, including, without
limitation, Paragraphs 4, 5, 13 and 14, shall limit Executive's responsibilities
and fiduciary obligations as a member of the Board of Directors.
2. Final Wages and Vacation Pay. Executive hereby acknowledges that he
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has received all earned wages and vacation pay accrued through and including
Executive's last day of employment. Additionally, the Company agrees to
reimburse Executive for reasonable business expenses incurred prior to the
resignation date in accordance with the Company's reimbursement policy.
Executive is entitled to these sums upon termination of employment, whether or
not Executive enters into this Agreement.
3. Health Continuation Coverage and Other Benefits. The Company
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acknowledges that Executive is eligible to elect continuation of medical and
dental insurance coverage under the Consolidated Omnibus Budget Reconciliation
Act, as amended ("COBRA"), in accordance with its terms. With regard to all
other benefit plans, Executive's rights and responsibilities are as provided by
applicable law and plan provisions and administration.
For a period of 12 months following the date of resignation, the Company
shall pay the cost of COBRA coverage, provided that Executive remains eligible
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for such coverage. However, if Executive becomes covered under another plan,
the Company's obligations to pay COBRA will cease. If no other coverage is
obtained by the time the 12-month period ends, Executive must pay the full cost
of such coverage should Executive wish to keep the coverage in place for any
remaining period of eligibility.
4. Separation Pay.
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(a) In consideration of the covenants and releases herein, the Company
agrees to pay Executive an amount equal to his annual base salary (i.e., the sum
of $428,500.00), less
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payroll tax withholdings, as described in this Paragraph. Initially, for a
period of six (6) months ending on June 30, 2000, Executive shall receive
payments on an installment basis in the same amount and at the same time as
payroll checks would have been distributed to Executive had he remained an
employee. Thereafter, Executive will receive the remaining $214,250.00 in
fifteen (15) equal installments of $14,283.33 each, less payroll tax
withholding, payable on the last day of the month, commencing July 31, 2000 and
terminating on September 30, 2001. These payments will be made whether or not
Executive obtains another job during the time period in question.
(b) During the period of time that Executive is receiving separation
payments, Executive agrees to make himself available at reasonable times upon
reasonable notice to consult with the Company. This Agreement to consult will
not result in an employment relationship.
(c) Separation payments will cease and the Company will not be
obligated to make any further payments in the event of either of the following:
(1) Executive commences employment for a competitor of the
Company; or
(2) Executive engages in any conduct prohibited by Paragraph 14
entitled "Proprietary Information and Non-Solicitation."
A business will be deemed a competitor under this Agreement if a major portion
of its business is the sale of swimming pool supplies and products which are
sold by the Company. Competitors include, but are not limited to, Paddock
Pools, Pinch-A-Penny, In the Swim, South Central Pools and Hughes.
(d) In the event the Company intends to exercise the right to cease
making the separation payments called for under Paragraph 4(a), Executive will
be given written notice by the Company that it is ceasing payments pursuant to
this Paragraph 4. Thereafter, if Executive disputes the Company's right to
cease making payments, he shall notify the Company in writing and may demand
that the issue of "competition" and/or breach of Paragraph 14 submitted to
mediation pursuant to Paragraph 18 of this Agreement.
(e) In light of Executive's right of revocation in Paragraph 24, no
payments will be made under the Agreement until the eighth day following the
execution and delivery of this Agreement (or the next business day, if the
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eighth day is a weekend day or a holiday).
5. Stock Options.
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(a) The Company acknowledges that Executive's stock options, if any,
under the Company's 1997 Nonstatutory Stock Option Plan are fully vested and may
be exercised by him at any time prior to the expiration of such options. As to
Executive's options under the Company's 1997 Incentive Stock Option Plan, the
Company and Executive agree that as to Executive's 57,000 "tenure" stock
options, and notwithstanding the terms of the options, Executive is fully vested
and such options will remain outstanding, exercisable and otherwise unaffected
by Executive's separation. Executive and the Company further agree that
Executive is fully vested in 13,333.2 of the 20,000 "performance" stock options
previously granted to him and
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may exercise said options anytime until the options expire. The parties further
acknowledge that no further vesting of said options will occur in the future.
Executive acknowledges that such extension of the exercise period may result in
the options not being "incentive stock options" within the meaning of the
Internal Revenue Code of 1986, as amended.
(b) Notwithstanding anything to the contrary in Paragraph 5(a), in the
event of either of the following:
(1) Executive commences employment for a competitor of the
Company as defined in Paragraph 4(c); or
(2) Executive engages in any conduct prohibited by Paragraph 14
entitled "Proprietary Information and Non-Solicitation;"
the Company may revoke the extension of time to exercise the Incentive Stock
Options by giving written notice to Executive of the revocation. The revocation
of the right to exercise the Incentive Stock Options shall be effective 90 days
from the effective date of the written notice.
(c) The written notice referenced in this Paragraph 5 and any other
notice required or permitted to be given under this Agreement, shall be deemed
effective (1) on the date personally delivered to the individuals at the
addresses set forth below; or (2) if sent by overnight delivery, on the day
following the deposit with an overnight mail service addressed to the
individuals at the addresses set forth below; or (3) if sent by certified mail,
return receipt requested, on the third business day following mailing or the
date of actual receipt, whichever is earlier.
If to Executive, the Notice shall be addressed as follows:
Brian P. McDermott
218 Anderson Street
Manhattan Beach, CA 90266
and to
Barry B. Kaufman
Law Offices of Barry B. Kaufman
16133 Ventura Boulevard, Suite 700
Encino, CA 91436
If to the Company, the Notice shall be addressed as follows:
Lawrence Hayward
President and CEO
Leslie's Poolmart, Inc.
20630 Plummer Street
Chatsworth, CA 91311
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Any changes in the above addresses must be communicated in writing to the other
party to this Agreement in accordance with this Paragraph 5(c).
6. Acknowledgment of Consideration. Executive acknowledges that Executive
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has no entitlement to separation pay as provided in Paragraph 4, no entitlement
to any payment toward COBRA health insurance coverage as specified in Paragraph
3 and no entitlement to the agreement extending the period for the exercise of
his incentive stock options as specified in Paragraph 5, except in return for
entering into this Agreement.
7. Sole Entitlement. Executive acknowledges and agrees that no other
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monies or benefits are owing to Executive except as set forth above.
Executive's entitlements under any and all group insurance and benefit plans are
as provided by plan provisions and applicable law.
8. Return of Property and Documents. Executive states that Executive has
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returned or will immediately return to the Company all property and documents of
the Company which were or are in Executive's possession in his capacity as an
employee or officer.
9. Release of the Company. Executive (for himself, his agents, heirs,
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successors, assigns, executors and/or administrators) does hereby and forever
release and discharge the Company and its past and present parent, subsidiary,
sister and affiliated corporations, divisions or other related entities,
including, without limitation, Green Equity Investors II, L.P., Leonard Green &
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 Executive 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 employment of
Executive, 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, excepting only those obligations expressly recited to be
performed hereunder.
10. Limited Release of McDermott.
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(a) Excepting only those obligations expressly recited to be performed
hereunder and as provided below in Paragraph 10(b), the Company hereby releases
and discharges Executive from and with respect to any and all claims,
agreements, obligations,
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losses, damages, injuries, demands and causes of action, known or unknown,
suspected or unsuspected, arising out of or in any way connected with
Executive's employment relationship with or separation from the Company, or any
other occurrences, actions, omissions or claims whatever, known or unknown,
suspected or unsuspected, which the Company now owns or holds or has at any time
heretofore owned or held as against Executive.
(b) Anything contained in this Agreement to the contrary
notwithstanding, the Company is not releasing any claims of the following nature
which it may have against Executive: claims for intentional wrongdoing,
including, without limitation, for conversion, breach of fiduciary duty and
fraud, for gross misconduct, intentional or not, and for damage arising out of
violation of any criminal law.
11. Waiver of Unknown Claims. Except for those obligations created by or
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arising out of this Agreement and except as limited in this Agreement, it is the
intention of Executive and the Company in executing this Agreement that the same
shall be effective as a bar to each and every claim, demand and cause of action
hereinabove specified. In furtherance of this intention, the parties hereby
expressly waive any and all rights and benefits conferred upon them by the
provisions of Section 1542 of the California Civil Code and expressly consent
that this Agreement shall be given full force and effect according to each and
all of its express terms and provisions, including those related to unknown and
unsuspected claims, demands and causes of action, if any, as well as those
relating to any other claims, demands and causes of action hereinabove
specified. Section 1542 provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOWN 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.
Executive and the Company each acknowledge that each may hereafter discover
claims or facts in addition to or different from those which each now knows or
believes to exist with respect to the subject matter of this Agreement and
which, if known or suspected at the time of executing this Agreement, may have
materially affected this settlement. Each hereby waives any right, claim or
cause of action that might arise as a result of such different or additional
claims or facts. Executive and the Company each acknowledge that each
understands the significance and consequence of such release and such specific
waiver of Section 1542, which have been explained to them by their respective
counsel.
12. Confidentiality. Executive agrees to hold confidential and not to
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make public or to communicate orally or in writing to any person or entity,
except his wife, attorneys, accountants and personal advisors, directly or
indirectly, the contents of this Agreement, the amount of payments under this
Agreement, nor the existence or contents of the discussions leading to this
Agreement, except only as may be lawfully compelled, as necessary to enforce the
terms of this Agreement, or as reasonably necessary to obtain confidential tax,
financial or legal advice.
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13. Non-Disparagement. Executive covenants and agrees that he will in no
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way disparage the Company or its services, executives, agents or business
reputation to any person or entity (whether or not said person or entity is a
current or prospective supplier, customer or executive of the Company).
Executive further covenants and agrees that he will not otherwise engage in
conduct which is not in good faith which disrupts, damages, impairs or
interferes with the business, reputation of employees of the Company. The
officers and directors of the Company agree not to make or publish, either
orally or in writing, any disparaging statement concerning Executive, including
his termination by the Company, his services with the Company and matters
relating to his employment.
14. Proprietary Information and Non-Solicitation. As an executive officer
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of the Company, Executive has occupied a position of trust with respect to
business information of a secret or confidential nature. Executive agrees not
to misappropriate, disclose or make available to anyone outside of the Company's
organization at any time any confidential information or trade secret,
including, without limitation, all of the following materials and information
(whether or not reduced to writing and whether or not patentable or protected by
copyright): trade secrets, inventions, processes, formulae, programs, technical
data, financial information, identities or lists of customers, prospects,
suppliers or vendors, and any other confidential or proprietary information
relating to the Company (collectively, "Proprietary Information") without the
prior written consent of the Company, except as may be required by law. The
Company's consent may be withheld for any reason or no reason at all. When
Proprietary Information becomes generally available to the public other than by
Executive's acts or omissions, it is no longer subject to the restrictions of
this Paragraph. However, Proprietary Information shall not be deemed to come
under this exception merely because it is embraced by more general information
which is or becomes generally available to the public. The undertakings set
forth in this Paragraph shall survive the termination of this Agreement or other
arrangements contained in this Agreement.
Further, Executive agrees that for the 21-month period commencing January
1, 2000, he will not, directly or indirectly, either on his own behalf or on
behalf of any other person or entity, attempt to persuade or solicit any
customer of the Company to cease to do business or to reduce the amount of
business which any customer of the Company has customarily done or contemplates
doing with the Company or to do business with another company which is a
competitor of the Company. For the same 21-month period commencing January 1,
2000, Executive further agrees he will not, directly or indirectly, either on
his own behalf or on behalf of any other person or entity, attempt to persuade
or solicit any person who is an employee of the Company to terminate such
employment. For a period of 12 months commencing January 1, 2000, Executive
will not participate in any way in the hiring of any executive, officer,
regional manager, district manager or equivalent employee of the Company by
Executive's then-employer and, if contacted by such person, will discourage and
will not assist him/her in becoming employed by Executive's then-employer. It
shall not violate the non-solicitation provisions of this Paragraph if
Executive's then-employer should hire an employee of the Company, if Executive
has not participated in any way in the hiring process.
15. Arbitration. Executive and the Company agree that any and all
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disputes, controversies or claims arising out of or concerning this Agreement or
concerning any matter resolved and settled by this Agreement shall be determined
exclusively through a final and
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binding arbitration to be held in Los Angeles, California, administered and
conducted pursuant to the National Rules for Resolution of Employment Disputes
of the American Arbitration Association. The claims subject to arbitration
include, without limitation, all matters concerning, relating to or arising out
of Executive's employment or its termination. Judgment upon the award of the
arbitrator may be rendered in any court of competent jurisdiction. The
arbitrator shall be a former jurist or an attorney with substantial experience
in employment matters. This agreement to arbitrate does not include claims for
unemployment insurance and workers' compensation. The arbitrator's authority and
jurisdiction shall be limited to determining the dispute in arbitration in
conformity with law to the same extent as if such dispute were determined as to
liability and remedy by a court without a jury. The arbitrator shall render an
award which shall include a written statement of opinion setting forth the
arbitrator's findings of fact and conclusions of law. EXECUTIVE AND THE COMPANY
EXPRESSLY WAIVE ALL RIGHTS TO A JURY TRIAL IN COURT ON ALL STATUTORY OR OTHER
CLAIMS.
16. Non-Waiver of Vested Benefits. Nothing herein is intended to alter
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Executive's entitlement to his vested benefits under the Company's 401(k) Plan.
The Company reserves the right to change or modify its benefit plans at any time
and agrees that any such changes will be applied to Executive in a
nondiscriminatory manner.
17. Indemnification re: Third Party Claims. Executive shall be entitled
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to indemnification and defense of actions brought by third parties in accordance
with the Company's policy and existing law to the same extent as other
terminated executives and other Board members.
18. Mediation Precondition to Formal Assertion of Claims. The parties
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hereto, and each of them, agree that, in the event a dispute arises out of or
concerning this Agreement, he/it will not commence any demand for arbitration
without first submitting the dispute to mediation in accordance with the
mediation rules of JAMS/Enddispute, LLC. The parties shall share equally the
costs of the mediation proceeding. Said proceeding shall be held in Los
Angeles, California. The mediator shall be mutually selected by the parties or
their attorneys or, if no agreement can be reached on the mediator, the mediator
will be selected by JAMS/Enddispute. The parties agree that their dispute shall
be mediated no later than forty-five (45) days after a demand for mediation is
made.
19. No Admissions. Nothing in this Agreement is nor shall be construed as
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being an admission of wrongdoing or liability by either Executive or the
Company.
20. Costs and Attorneys' Fees. It is agreed that the Company and
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Executive will bear its and his own costs and attorneys' fees, if any, which may
have been incurred with respect to any matter released in this Agreement.
21. Construction and Partial Invalidity. The Company and Executive agree
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that:
(a) The language of this Agreement shall, for any and all purposes, be
construed as a whole, according to its fair meaning, not strictly for or against
Executive or the Company, and without regard to the identity or status of any
person or persons who drafted all or
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any part of this Agreement. The parties intend that this Agreement be construed
in favor of arbitration as the final and binding means for resolving any
disputes between them.
(b) If any provision of this Agreement is declared invalid by any
court or competent jurisdiction or rendered invalid by any other process of
federal or state law, the remaining provisions of this Agreement shall remain in
full force and effect.
22. Entire Agreement. This Agreement constitutes a single integrated
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contract expressing the entire agreement of the parties with respect to the
subject matter hereof and supersedes all prior and contemporaneous oral and
written agreements and discussions with respect to the subject matter hereof.
There are no other agreements, written or oral, express or implied, between the
parties hereto, concerning the subject matter hereof, except as set forth
herein. This Agreement may be amended or modified only by written agreement of
the parties.
23. Choice of Law. This Agreement shall be interpreted in accordance with
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the laws of the State of California.
24. Waiting Period and Right of Revocation. EXECUTIVE ACKNOWLEDGES (SAYS)
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THAT HE IS AWARE THAT AND IS HEREBY ADVISED THAT HE HAS THE RIGHT TO CONSIDER
THIS AGREEMENT FOR TWENTY-ONE (21) DAYS BEFORE SIGNING IT AND THAT IF HE SIGNS
THIS AGREEMENT PRIOR TO THE EXPIRATION OF TWENTY-ONE (21) DAYS, HE IS WAIVING
(GIVING UP) THIS RIGHT FREELY AND VOLUNTARILY. EXECUTIVE ALSO ACKNOWLEDGES
(SAYS) THAT HE IS AWARE OF AND IS HEREBY ADVISED THAT HE HAS THE RIGHT TO REVOKE
(CANCEL) THE PORTION OF THIS AGREEMENT RELEASING AGE DISCRIMINATION CLAIMS UNDER
THE AGE DISCRIMINATION IN EMPLOYMENT ACT FOR A PERIOD OF SEVEN (7) DAYS
FOLLOWING THE SIGNING OF THIS AGREEMENT AND THAT IT SHALL NOT BECOME EFFECTIVE
OR ENFORCEABLE UNTIL THE REVOCATION (CANCELLATION) PERIOD HAS EXPIRED. TO
REVOKE (CANCEL) THIS AGREEMENT, EXECUTIVE MUST NOTIFY THE COMPANY WITHIN SEVEN
(7) DAYS OF SIGNING IT. SHOULD EXECUTIVE REVOKE, THE COMPANY SHALL HAVE THE
RIGHT, IN ITS SOLE DISCRETION, TO TERMINATE OR NOT TERMINATE THE REMAINDER OF
THE AGREEMENT.
25. Attorney Advice. EXECUTIVE ACKNOWLEDGES (SAYS) THAT HE IS AWARE OF
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HIS RIGHT TO CONSULT AN ATTORNEY AND THAT HE IS ADVISED TO CONSULT WITH AN
ATTORNEY PRIOR TO SIGNING THIS AGREEMENT.
26. Understanding of Agreement. Executive states that Executive has
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carefully read this Agreement, that Executive fully understands its final and
binding effect, that the only promises made to Executive to sign this Agreement
are those stated above, and that Executive is signing this Agreement
voluntarily.
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27. Counterparts/Facsimile Execution. This Agreement may be executed in
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counterparts, and each counterpart, when executed, shall have the efficacy of a
signed original. Execution and delivery of this Agreement by facsimile shall be
deemed to be equivalent to the execution and delivery of an original.
EXECUTIVE:
/s/ BRIAN P. MCDERMOTT
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Brian P. McDermott
LESLIE'S POOLMART, INC.
By: /s/ MICHAEL FOURTIQ
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Michael Fourtiq
Chairman of the Board
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