<PAGE>
As filed with the Securities and Exchange Commission on July 9, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
FORM S-8
REGISTRATION STATEMENT
under
The Securities Act of 1933
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SCP Pool Corporation
(Exact name of registrant as specified in its charter)
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Delaware 36-3943363
(State or other jurisdiction of (I.R.S. Employer
incorporation or orgaanization) Identification Number)
109 Northpark Boulevard
Covington, Louisiana 70433-5001
(Address, including zip code of registrant's principal executive offices)
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SCP Pool Corporation
Employee Stock Purchase Plan
(Full title of the plan)
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Craig K. Hubbard
SCP Pool Corporation
109 Northpark Boulevard
Covington, Louisiana 70433-5001
Telephone: (504) 892-5521
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Copy to:
Stephen L. Ritchie
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
Telephone: (312) 861-2000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================
Proposed Proposed Maximum
Title of Securities Amount to be Maximum Offering Aggregate Amount of
to be Registered Registered(1) Price Per Share(2) Offering Price(2) Registration Fee
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par
value $.001 per share 600,000 shares $24.1875 $14,512,500 $4,281.19
===========================================================================================================
</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 July 6,
1998, 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, 1997.
(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. 333-40245, 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.
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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, where applicable, each filing of an
employee
3
<PAGE>
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 indemnification 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 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 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 9th day of July,
1998.
SCP POOL CORPORATION
By: /s/ Wilson B. Sexton
---------------------------------
Wilson B. Sexton
Chairman
POWER OF ATTORNEY
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KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Wilson B. Sexton and Craig K. Hubbard 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 July 9, 1998.
<TABLE>
<CAPTION>
Signature Title
<S> <C>
/s/ Frank J. St. Romain President, Chief Executive Officer
--------------------------------------- and Director
Frank J. St. Romain
/s/ Wilson B. Sexton Chairman and Director
---------------------------------------
Wilson B. Sexton
/s/ Craig K. Hubbard Secretary, Treasurer and Chief Financial
--------------------------------------- Officer
Craig K. Hubbard
/s/ Andrew W. Code 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
</TABLE>
<PAGE>
INDEX TO EXHIBITS
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<TABLE>
<CAPTION>
Sequential
Exhibit Page
Number Description Number
- ------ ----------- ------
<C> <S> <C>
4.1 SCP Pool Corporation Employee Stock Purchase Plan, incorporated by
reference to the Company's Proxy Statement filed on April 8, 1998 for
the 1998 annual meeting of stockholders.
4.2 Amendment No. 1 to SCP Pool Corporation Employee Stock Purchase Plan.
4.3 Restated Certificate of Incorporation of the Company, incorporated by
reference to the Company's Proxy Statement filed on April 8, 1998 for
the 1998 annual meeting of stockholders.
4.4 Restated Bylaws of the Company, incorporated by reference to the
respective exhibit to the Registration Statement on Form S-1
(No. 33-92738).
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).
</TABLE>
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EXHIBIT 4.2
AMENDMENT NO. 1 TO
SCP POOL CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
The Board of Directors of SCP Pool Corporation has amended Sections
6.3 and 8.1 of the SCP Pool Employee Stock Purchase Plan ("Plan") pursuant to
Section 9.2 of the Plan. Sections 6.3 and 8.1 of the Plan have been replaced to
read as follows:
6.3 Purchase of Stock. On a Purchase Date, the Contribution Account
of each Participant shall be used to purchase shares of Stock which shall be
allocated to each Participant's Stock Account. The maximum number of whole
shares of Stock purchased shall be determined by one of the following methods:
(a) by dividing the Purchase Price into the balance of each of the
Participant's Contribution Account and purchasing the nearest whole-share
amount of Stock. Any money remaining in a Participant's Contribution
Account representing a fractional share shall remain in such Participant's
Contribution Account to be used in the next Plan Period along with new
contributions in the next Plan Period; provided, however, that if the
Participant does not enroll for the next Plan Period, the balance remaining
shall be returned to the Participant in cash; or
(b) by dividing the Purchase Price into the balance of all of the
Participants' Contribution Accounts and allocating the purchased shares
among the Participants' Share Accounts according to the amount contributed
(including fractional share amounts, if any).
Shares of Stock allocated to each Participant's Share Account shall remain
uncertificated until such Participant requests the issuance of stock
certificates through the procedure set forth under Section 8.1 hereto.
Fractional share amounts in a Participant's Share Account shall not be
certificated but will remain in a Participant's Stock Account or be exchanged
for cash under the circumstances set forth in Section 8.1 hereto. The Plan
Administrator shall determined in its discretion whether method (a) or (b) above
is applied, and the method chosen shall be applied to all Participants for a
given Purchase Date.
8.1 Issuance of Stock Certificates. Stock certificates for the
number of whole shares of Stock in each Participant's Stock Account may be
issued to Participants only upon the receipt by the Plan Administrator (or its
agent) of a Participant's written request indicating the number of shares of
Stock (to a maximum of the number of whole shares of Stock in the Participant's
Stock Account) for which the Participant wishes to receive certificates. Such
request shall be made on a form at the time prescribed by the Plan Administrator
and filed with the Plan Administrator (or its agent). Share certificates may be
issued, at the request of the Participant, in the name of the Participant,
jointly in the name of the Participant and a member of the Participant's family,
or to the Participant as custodian for the Participant's child under the Gift to
Minors Act. Share certificates shall be issued to the Participant as soon as
practicable after receipt of Participant's request. In addition to any
restrictions on transfer set forth in Section 8.3, no person shall have any
right to sell, assign, mortgage, pledge, hypothecate or otherwise encumber any
uncertificated shares of Stock allocated to a Participant's Stock Account.
Fractional share amounts shall not be certificated and shall remain in a
Participant's Stock Account or, if the Participant is withdrawing from the Plan,
be exchanged for cash upon the request of the Participant (or legal
representative) at a rate determined by the Closing Market Price on the trading
day immediately preceding such request.
<PAGE>
EXHIBIT 5.1
KIRKLAND & ELLIS
Partnerships Including Professional Corporations
200 East Randolph Drive
Chicago, Illinois 60601
(312) 861-2000
Facsimile: (312) 861-2200
July 9, 1998
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
600,000 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
Employee Stock Purchase 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 amending Sections 6.3 and
8.1 of the Plan, (v) resolutions of the Board of Directors of the Company
approving the filing of this Registration Statement, and (vi) minutes of the
annual meeting of stockholders of the Company held on May 13, 1998.
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
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.
<PAGE>
SCP Pool Corporation
July 9, 1998
Page 2
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
<PAGE>
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 Employee Stock Purchase Plan
for the registration of 600,000 shares of Common Stock of SCP Pool Corporation
(the "Company") of our report dated February 16, 1998, with respect to the
consolidated financial statements of the Company included in its Annual Report
(Form 10-K) for the year ended December 31, 1997, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
---------------------
Ernst & Young LLP
New Orleans, Louisiana
July 6, 1998
