-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, T1X3DOOUvISz1AduJ8Bk6jez6OJ8nqCnOVaHnsx+97+X6ORGdKlDMkBXBQ61W1z9 1ycb5kRTipqB2CfcnlSiOQ== 0000950131-96-006058.txt : 19961125 0000950131-96-006058.hdr.sgml : 19961125 ACCESSION NUMBER: 0000950131-96-006058 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19961122 EFFECTIVENESS DATE: 19961122 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: SCP POOL CORP CENTRAL INDEX KEY: 0000945841 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-MISC DURABLE GOODS [5090] IRS NUMBER: 363926337 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-16641 FILM NUMBER: 96671085 BUSINESS ADDRESS: STREET 1: 128 NORTHPARK BLVD CITY: COVINGTON STATE: LA ZIP: 70433 BUSINESS PHONE: 5048925521 MAIL ADDRESS: STREET 1: 128 NORTHPARK BLVD CITY: COVINGTON STATE: LA ZIP: 70433 S-8 1 FORM S-8 [LETTERHEAD OF KIRKLAND & ELLIS] November 22, 1996 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20549 Re: SCP Pool Corporation Registration Statement on Form S-8 Ladies and Gentlemen: On behalf of SCP Pool Corporation ("SCP"), I transmit for filing under the Securities Act of 1933 and Regulation S-T a Registration Statement on Form S-8 with respect to 200,000 shares of SCP's Common Stock, $.001 par value, issuable under the SCP Pool Corporation Non-Employee Directors Equity Incentive Plan. The filing fee in the amount of $ 1,152.00 has been wired to the Commission in compliance with Regulation S-T. If you have any questions or require additional information, please contact me at (312) 861-2236 or Stephen L. Ritchie at (312) 861-2210. Sincerely, /s/ Amy Fisher Chase -------------------- Amy Fisher Chase As filed with the Securities and Exchange Commission on November 22, 1996 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 of (I.R.S. Employer incorporation or organization) Identification Number) 109 Northpark Boulevard Covington, Louisiana 70433-5001 (Address of Principal Executive Offices)(Zip Code) -------------------------- SCP Pool Corporation Non-Employee Directors Equity Incentive Plan (Full title of the plan) -------------------------- Maurice D. Van Dyke SCP Pool Corporation 109 Northpark Boulevard Covington, Louisiana 70433-5001 (Name and address of agent for service) (504) 892-5521 (Telephone number, including area code, of agent for service) Copy to: Stephen L. Ritchie, Esquire Kirkland & Ellis 200 East Randolph Street Chicago, Illinois 60601 Calculation of Registration Fee
- --------------------------------------------------------------------------------------------------------------------------- Proposed Maximum Proposed Maximum Title of Securities to be Amount to be Offering Price Aggregate Amount of Registered Registered(1) Per Share(2) Offering Price(2) Registration Fee - --------------------------------------------------------------------------------------------------------------------------- Common Stock, par value $.001 per share............ 200,000 shares $ 19.00 $3,800,000 $1,152 - ---------------------------------------------------------------------------------------------------------------------------
(1) Pursuant to Rule 416 under the Securities Act of 1933, this Registration Statement shall be deemed to cover an indeterminate number of additional shares of Common Stock issuable in the event the number of outstanding shares of the registrant is increased by split-up, reclassification, stock dividend or the like. (2) Estimated solely for the purpose of computing the registration fee pursuant to Securities and Exchange Commission Rule 457(h); based on the average of the high and low price per share of Common Stock of SCP Pool Corporation on November 20, 1996, as reported on The Nasdaq National Market. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act of 1933 (the "Securities Act") and the Note to Part I of Form S-8. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents filed with the Commission by SCP Pool Corporation (the "Company") are incorporated herein by reference: (a) The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1995. (b) All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, since the end of the fiscal year covered by the registrant document referred to in (a) above. (c) The description of the Company's Common Stock contained in the Company's Registration Statement on Form S-1, File No. 33-92738, as amended. (d) All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the date hereof and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such document. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. The validity of the shares of the Company's Common Stock, par value $.001 per share (the "Common Stock"), offered hereby will be passed upon for the Company by Kirkland & Ellis, Chicago, Illinois. Kevin R. Evanich, a partner of Kirkland & Ellis, beneficially owns shares of the Company's Common Stock. 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 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 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. 2 Item 8. Exhibits. See "Index to Exhibits." Item 9. Undertakings. (a) Rule 415 Offering. 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: (i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) 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; Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post- effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference 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) Filings Incorporating Subsequent Exchange Act Documents By Reference. 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, 3 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) Request for Acceleration of Effective Date or Filing of Registration Statement on Form S-8. Insofar as idemnification for liabilities arising under the Securities Act of 1933 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 idemnification is against public policy as expressed in the Act and is, therefore, enforceable. In the event that a claim for idemnification 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 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. 4 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 the 22nd day of November, 1996. SCP POOL CORPORATION By:/s/ Wilson B. Sexton ----------------------- Wilson B. Sexton Chairman POWER OF ATTORNEY ----------------- KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Wilson B. Sexton and Maurice D. Van Dyke and each of them, as true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or 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 attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or their 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 indicated on November 22, 1996. Signature Title - --------- ----- /s/ Frank J. St. Romain President, Chief Executive - ----------------------- Officer (Principal Executive Frank J. St. Romain Officer) and Director /s/ Wilson B. Sexton Chairman and Director - ----------------------- Wilson B. Sexton /s/ Maurice D. Van Dyke Secretary, Treasurer and - ----------------------- Chief Financial Officer Maurice D. Van Dyke (Principal Financial Officer) Director - ---------------------- Andrew W. Code /s/ Dominick DeMichele Director - ---------------------- Dominick DeMichele /s/ Peter M. Gotsch Director - ---------------------- Peter M. Gotsch /s/ Robert C. Sledd Director - ---------------------- Robert C. Sledd INDEX TO EXHIBITS ----------------- Sequentially Exhibit Numbered Number Description Page - ------ ----------- ---- 4.1 SCP Pool Corporation Non-Employee Directors Equity Incentive Plan, incorporated by reference to the Company's Proxy Statement filed on April 8, 1996 for the 1996 annual meeting of stockholders. 4.2 Restated Certificate of Incorporation of the Company, incorporated by reference to the respective exhibit to the Registrant's Registration Statement on Form S-1 (No. 33-92738) (the "S-1 Registration Statement"). 4.3 Restated Bylaws of the Company, incorporated by reference to the respective exhibit to the S-1 Registration Statement. 5.1 Opinion of Kirkland & Ellis as to the legality of the securities being registered. 23.1 Consent of Ernst & Young LLP. 23.2 Consent of Kirkland & Ellis (included in Exhibit 5.1). 24.1 Power of Attorney (included on signature page). EX-5.1 2 OPINION OF KIRKLAND EXHIBIT 5.1 KIRKLAND & ELLIS Partnerships Including Professional Corporations 200 East Randolph Drive Chicago, Illinois 60601 312 861-2000 Facsimile: 312 861-2200 November 22, 1996 SCP Pool Corporation 109 Northpark Boulevard Covington, Louisiana 70433-5001 Ladies and Gentlemen: We have acted as special counsel to you, SCP Pool Corporation (the "Company"), in connection with the preparation of a Registration Statement on Form S-8 (the "Registration Statement") pertaining to the registration of 200,000 shares of the Company's Common Stock, par value $0.001 per share (the "Common Shares"), to be offered and sold pursuant to the SCP Pool Corporation Non-Employee Directors Equity Incentive Plan (the "Plan"). In this connection, we have examined originals, or copies certified or otherwise identified to our satisfaction, of such documents, corporate and public records and other instruments as we have deemed necessary for the purposes of this opinion, including (i) the Restated Certificate of Incorporation of the Company, (ii) the Restated Bylaws of the Company, (iii) resolutions of the Board of Directors of the Company adopting the Plan, (iv) resolutions of the Board of Directors of the Company approving the filing of this Registration Statement, and (v) minutes of the annual meeting of stockholders of the Company held on May 8, 1996. For the purposes of this opinion, we have assumed the authenticity of all documents submitted to us as originals and the authenticity and conformity to the originals of all documents submitted to us as copies. We have also assumed the genuineness of the signatures of persons signing all documents in connection with which this opinion is rendered, the authority of such persons signing on behalf of the parties thereto other than the Company, and the due authorization, execution and delivery of all documents by the parties thereto other than the Company. Based on the foregoing and subject to the further qualifications set forth below, we are of the opinion that each Common Share registered under the Registration Statement will be validly issued, fully paid and non-assessable if and when the following conditions are satisfied: (i) such share is issued in acordance with the terms of the Plan, (ii) the purchaser pays the full SCP Pool Corporation November 22, 1996 Page 2 consideration, if any, for such share in accordance with the terms of the Plan, and (iii) the Company takes the actions necessary to cause delivery of a valid certificate representing such share. We do not find it necessary for the purposes of this opinion, and accordingly we do not purport to cover herein, the application of the securities or "Blue Sky" laws of the various states to the sale of Common Shares. We are qualified to practice law in the State of Illinois, and we express no opinions as to matters under or involving any laws other than the laws of the State of Illinois, the federal laws of the United States of America and the General Corporation Law of the State of Delaware. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. This opinion is furnished to you in connection with the filing of the Registration Statement, is solely for your benefit, and is not to be used, circulated, quoted or otherwise relied upon by any other person, or by you for any other purposes, without our prior written consent. Very truly yours, /s/ Kirkland & Ellis -------------------- KIRKLAND & ELLIS EX-23.1 3 CONSENT OF INDEPENDENT AUDITORS EXHIBIT 23.1 Consent of Independent Auditors We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the SCP Pool Corporation Non-Employee Directors Equity Incentive Plan for the registration of 200,000 shares of Common Stock of SCP Pool Corporation (the "Company") of our report dated February 28, 1996, with respect to the consolidated financial statements of the Company included in its Annual Report (Form 10-K) for the year ended December 31, 1995, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP --------------------- Ernst & Young LLP New Orleans, Louisiana November 18, 1996 -----END PRIVACY-ENHANCED MESSAGE-----