As filed with the Securities and Exchange Commission on August 9, 2002.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
_________________
SCP POOL CORPORATION
(Exact name of registrant as specified in its
charter)
| Delaware | 36-3943363 | ||||
| (State or other jurisdiction | (I.R.S. Employer | ||||
| of incorporation or organization) | 109 Northpark Boulevard | Identification No.) | |||
| Covington, Louisiana 70433-5001 | |||||
| (address, including zip code, | |||||
| of Registrant’s principal executive offices) | |||||
SCP POOL CORPORATION 2002 LONG-TERM INCENTIVE PLAN
(Full title of the
plan)
_________________
Craig K. Hubbard
SCP Pool Corporation
109 Northpark Boulevard
Covington, Louisiana 70433-5001
(985) 892-5521
(Name, address, including zip code, and
telephone number,
including area code, of agent for service)
Copy to:
Margaret F. Murphy
Jones, Walker, Waechter, Poitevent, Carrère
& Denègre, L.L.P.
201 St. Charles Avenue
New Orleans, Louisiana 70170-5100
CALCULATION OF
REGISTRATION FEE
| Title of securities | Amount to be | Proposed maximum | Proposed maximum | Amount of | |||||
| to be registered | Registered(1) | offering price per unit | aggregate offering price | registration fee | |||||
| Common Stock ($.001 par value per share) | 700,000 shares | $ 24.21 (2) | $ 16,947,000 (2) | $ 1,559.12 (2) | |||||
| (1) | Upon a stock split, stock dividend or similar transaction in the future and during the effectiveness of this Registration Statement involving Common Stock of the Company, the number of shares registered shall be automatically increased to cover the additional shares in accordance with Rule 416(a) under the Securities Act of 1933. |
| (2) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) under the Securities Act of 1933, based on the average of the high and low price per share of the Common Stock on The Nasdaq National Market on August 5, 2002. |
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The following documents, which have been filed by SCP Pool Corporation (the “Company”) with the Securities and Exchange Commission (the “Commission”), are incorporated herein by reference:
| (a) | The Company’s latest annual report on Form 10-K; |
(b) |
All other reports filed by the Company with the Commission pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 since the end of the fiscal year covered by the annual report referred to in (a); and |
| (c) | The description of the Company’s Common Stock included in the Company’s Registration Statement on Form S–1, File No. 333-40245, as amended. |
All documents filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold shall, except to the extent otherwise provided by Regulation S-K or any other rule promulgated by the Commission, be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents.
| Item 4. | Description of Securities. |
Not applicable. |
| Item 5. | Interests of Named Experts and Counsel. |
Not applicable. |
| Item 6. | Indemnification of Directors and Officers. |
The Company is incorporated under the laws of the State of Delaware. Section 145 of the General Corporation Law of the State of Delaware (“Section 145”) provides that a Delaware corporation may indemnify any persons who are, or are threatened to be made, parties to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person was an officer, director, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his conduct was illegal. A Delaware corporation may indemnify any persons who are, or are threatened to be made, a party to any threatened, pending or completed action or suit by or in the right of the corporation by reason of the fact that such person was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s best interests except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against the expenses which such officer or director has actually and reasonably incurred.
The Company’s Restated Certificate of Incorporation, as amended, provides for the indemnification of directors and officers of the Company to the fullest extent permitted by Section 145.
In that regard, the Restated Certificate of Incorporation, as amended, provides that the Company shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (including any action by or in the right of the corporation) by reason of the fact that he is or was a director or officer or employee of the Company, or is or was serving at the request of the Company as a director, officer or employee of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines, ERISA excise taxes, penalties and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding.
The Company has insurance policies in effect covering all of the Company’s directors and officers in certain instances where by law they may not be indemnified by the Company.
| Item 7. | Exemption From Registration Claimed. |
Not applicable. |
| Item 8. | Exhibits. |
| 5 | Opinion of Jones, Walker, Waechter, Poitevent, Carrère & Denègre, L.L.P. |
| 23.1 | Consent of Ernst &Young LLP |
| 23.2 | Consent of Jones, Walker, Waechter, Poitevent, Carrère & Denègre, L.L.P. (included in Exhibit 5). |
| Item 9. | Undertakings. |
| (a) | The undersigned registrant hereby undertakes: |
| (1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. |
| (2) | That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
| (b) | The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (c) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 (the “Act”) may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Covington, State of Louisiana, on August 9, 2002.
SCP POOL CORPORATION |
By: /s/Manuel J.
Perez de la Mesa |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears immediately below constitutes and appoints each of Craig K. Hubbard and Manuel J. Perez de la Mesa, or any one of them, his true and lawful attorney-in-fact and agent, with full power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature | Title | Date | |||
| /s/ Wilson B. Sexton | Chairman of the Board | August 8, 2002 | |||
| Wilson B. Sexton | |||||
| /s/ Manuel J. Perez de la Mesa | President, Chief Executive | August 7, 2002 | |||
| Manuel J. Perez de la Mesa | Officer and Director | ||||
| (Principal Executive Officer) | |||||
| /s/ Craig K. Hubbard | Chief Financial Officer | August 8, 2002 | |||
| Craig K. Hubbard | (Principal Accounting Officer) | ||||
| /s/ Andrew W. Code | Director | August 8, 2002 | |||
| Andrew W. Code | |||||
| Director | |||||
| James J. Gaffney | |||||
| /s/ Frank J. St. Romain | Director | August 7, 2002 | |||
| Frank J. St. Romain | |||||
| Director | |||||
| Robert C. Sledd | |||||
| Director | |||||
| John E. Stokely | |||||