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Exhibit 2.1
AGREEMENT AND PLAN OF
MERGER
TO FORM HOLDING COMPANY
by and among
LESLIE’S POOLMART, INC.,
LESLIE’S HOLDINGS, INC.,
and
LESLIE’S MERGER SUB, INC.
FEBRUARY 7, 2007
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AGREEMENT AND PLAN OF MERGER TO
FORM HOLDING COMPANY
THIS AGREEMENT AND PLAN OF MERGER TO FORM HOLDING COMPANY (this
"Agreement"), dated as of February 7, 2007, by and among
Leslie’s Poolmart, Inc., a Delaware corporation
("Leslie’s"), Leslie’s Holdings, Inc., a Delaware
corporation and a wholly-owned subsidiary of Leslie’s
("Holdings"), and Leslie’s Merger Sub, Inc., a Delaware
corporation and a wholly-owned subsidiary of Holdings ("Merger
Sub").
WHEREAS, as of February 7, 2007, Leslie’s has an
authorized capitalization consisting of (i) 50,000,000 shares
of common stock, par value $0.001 per share ("Leslie’s Common
Stock"), of which 40,045,000 shares are issued and outstanding, and
(ii) 1,000,000 shares of preferred stock, par value $.001 per
share, 41,000 of which have been designated 10% Series A Redeemable
Exchangeable Cumulative Preferred Stock ("Leslie’s Preferred
Stock"), all of which designated Leslie’s Preferred Stock are
issued and outstanding; and
WHEREAS, immediately prior to the Effective Time (as defined
below), Holdings shall have an authorized capitalization consisting
of (i) 50,000,000 shares of common stock, par value $0.001 per
share ("Holdings Common Stock"), of which 100 shares will be issued
and outstanding and owned by Leslie’s, and
(ii) 1,000,000 shares of preferred stock, par value $.001 per
share, 41,000 of which have been designated 10% Series A Redeemable
Exchangeable Cumulative Preferred Stock, none of which will be
issued and outstanding ("Holdings Preferred Stock"); and
WHEREAS, as of the date hereof, Merger Sub has an authorized
capitalization consisting of 100 shares of common stock, par value
$.01 per share ("Merger Sub Common Stock"), all of which are issued
and outstanding and are owned by Holdings; and
WHEREAS, the Board of Directors of Leslie’s has determined
it to be in the best interests of Leslie’s to effect a
formation of a holding company whereby Leslie’s will become
the wholly-owned subsidiary of a new holding company; and
WHEREAS, it is intended that the holding company structure be
effected without a vote of Leslie’s stockholders pursuant to
and in accordance with Section 251(g) of the Delaware General
Corporation Law (the "DGCL") through a merger with a wholly-owned
subsidiary; and
WHEREAS, the designations, rights and preferences , and the
qualifications, limitations and restrictions of Holdings Common
Stock and Holdings Preferred Stock are the same as those of
Leslie’s Common Stock and Leslie’s Preferred Stock, as
applicable; and
WHEREAS, the Certificate of Incorporation of Holdings, as
amended, and the Bylaws of Holdings, in effect immediately after
the Effective Time will contain provisions identical to the
Certificate of Incorporation of Leslie’s, as amended, and the
Bylaws of Leslie’s, as amended, in effect immediately before
the Effective Time (other than as required or permitted by
Section 251(g) of the DGCL); and
WHEREAS, Holdings and Merger Sub have been recently formed
solely for purposes of effecting the formation of a holding company
through the Merger; and
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WHEREAS, for Federal income tax purposes, it is
intended that the Merger shall qualify as a tax-free reorganization
under the provisions of Section 368(a) of the Internal Revenue
Code of 1986, as amended (the "Code"), and the rules and
regulations promulgated thereunder; and
WHEREAS, the respective Boards of Directors of Leslie’s,
Holdings and Merger Sub, and Leslie’s acting as the sole
stockholder of Holdings, have approved the merger of Merger Sub
into Leslie’s (the "Merger").
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements contained in this Agreement,
the parties hereto agree as follows:
ARTICLE I
The Merger
SECTION 1.1. The Merger .
(a) Upon the terms and subject to the conditions set forth in
this Agreement, and in accordance with Section 251(g) and
other applicable provisions of the DGCL, Merger Sub shall be merged
into Leslie’s at the Effective Time. Following the Effective
Time, the separate corporate existence of Merger Sub shall cease
and Leslie’s shall continue as the surviving corporation (the
"Surviving Corporation") as a wholly-owned subsidiary of Holdings
and shall maintain the name Leslie’s Poolmart, Inc. The
Surviving Corporation shall succeed to and assume all the rights
and obligations of Merger Sub in accordance with the DGCL.
(b) At the Effective Time, by virtue of the Merger and without
any action on the part of Leslie’s, Holdings, Merger Sub or
the holders of any securities of Leslie’s, Holdings or Merger
Sub:
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(i) each share of Leslie’s Common Stock (or fraction of a
share of Leslie’s Common Stock, including shares held by
Leslie’s) issued and outstanding immediately prior to the
Effective Time, shall be converted into one share of Holdings
Common Stock, having the same designations, rights, powers,
preferences, qualifications, limitations and restrictions as the
converted share of Leslie’s Common Stock; and
(ii) each share of Leslie’s Preferred Stock (or fraction
of a share of Leslie’s Preferred Stock, including shares held
by Leslie’s) issued and outstanding immediately prior to the
Effective Time, shall be converted into one share of Holdings
Preferred Stock, having the same designations, rights, powers,
preferences, qualifications, limitations and restrictions as the
converted share of Leslie’s Preferred Stock.
(c) Each option to purchase shares of Leslie’s Common
Stock issued and outstanding immediately prior to the Effective
Time (each a "Leslie’s Stock Option") shall become an option
to purchase shares of Holdings Common Stock upon the same terms and
conditions as the Leslie’s Stock Option.
(d) Each share of Holdings Common Stock outstanding immediately
prior to the Effective Time shall, by virtue of the Merger, and
without any action on the part of Leslie’s,
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Holdings, Merger Sub or the holders of any
securities of Leslie’s, Holdings or Merger Sub be cancelled
and shall cease to exist without any consideration being payable in
respect thereof.
(e) Each issued and outstanding share of Merger Sub Common Stock
shall, by virtue of the Merger, and without any action on the part
of Leslie’s, Holdings, Merger Sub or the holders of any
securities of Leslie’s, Holdings or Merger Sub be converted
into one share of the common stock, par value $.01 per share, of
the Surviving Corporation.
SECTION 1.2. Effective Time . The parties shall file a
Certificate of Merger (the "Certificate of Merger") with the
Secretary of State of the State of Delaware (the "Delaware
Secretary of State")
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