<PAGE>
[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 400,000 shares of SCP's Common Stock, $.001 par value, issuable
under the SCP Pool Corporation 1995 Stock Option Plan, as amended.
The filing fee in the amount of $2,303.00 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
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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
1995 Stock Option 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
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------
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
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.001 per share............ 400,000 shares $19.00 $7,600,000 $2,303
- ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
(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.
<PAGE>
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.
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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
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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
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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, 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 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
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SIGNATURES
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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)
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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
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INDEX TO EXHIBITS
-----------------
Sequentially
Exhibit Numbered
Number Description Page
- ------ ----------- ----
4.1 SCP Pool Corporation 1995 Stock Option Plan, as amended,
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).
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EXHIBIT 5.1
KIRKLAND & ELLIS
Partnerships Including Professional Corporations
200 East Randolph Drive
Chicago, Illinois 60601
Facsimile:
312 861-2000 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
400,000 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
1995 Stock Option Plan, as amended (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,(v) written consent forms signed by the stockholders
of the Company approving the Plan on February 28, 1995 and (vi) 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)
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SCP Pool Corporation
November 22, 1996
Page 2
such share is issued in accordance with the terms of the Plan, (ii) the
purchaser pays the full 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
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KIRKLAND & ELLIS
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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 1995 Stock Option Plan for the
registration of 400,000 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
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Ernst & Young LLP
New Orleans, Louisiana
November 18, 1996
