UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
______________
FORM 8-K
______________
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported) May 6, 2009 (May 5,
2009)
______________
POOL CORPORATION
(Exact name of registrant as
specified in its charter)
______________
Delaware
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0-26640
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36-3943363
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(State
or other jurisdiction of incorporation)
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(Commission
File Number)
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(I.R.S.
Employer Identification No.)
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109 Northpark Boulevard,
Covington, Louisiana
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70433-5001
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(Address
of principal executive offices)
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(Zip
Code)
|
|
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985-892-5521
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(Registrant's
telephone number, including area
code)
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Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligations of the registrant under any of the following
provisions:
o
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
(e) At
the Annual Meeting of Shareholders of Pool Corporation held on May 5, 2009, the
shareholders approved an amendment to the Company’s 2007 Long-Term Incentive
Plan to increase: (1) the maximum total number of shares of the Company’s Common
Stock authorized for issuance from 1,515,000 to 5,415,000 shares; (2) within
that total maximum, the maximum number of shares that may be issued as
restricted stock from 100,000 to 1,300,000; and (3) the maximum number of shares
of Common Stock that may be granted to one individual during a calendar year
from 200,000 to 400,000 shares. The principal features of the 2007
Long-Term Incentive Plan are summarized under proposal two of the Company’s
definitive Proxy Statement for the 2009 Annual Meeting, filed with the
Securities and Exchange Commission on March 27, 2009. Such summary is
qualified in its entirety by reference to the Amended and Restated 2007
Long-Term Incentive Plan, a copy of which is filed herewith as Exhibit
10.1.
Following the
Annual Meeting of Shareholders, the Compensation Committee of the Board of
Directors approved the following: (1) a form of Stock Option Agreement; (2) a
form of Restricted Stock Agreement; (3) a form of Director Stock Option
Agreement; and (4) a form of Director Restri
cted Stock Agreement.
Copies of the forms of agreements are attached hereto as Exhibits 10.2, 10.3,
10.4 and 10.5 respectively and incorporated herein by
reference.
Item 7.01 Regulation FD Disclosure.
On May 6,
2009, Pool Corporation issued the press release included herein as Exhibit
99.1.
Item 9.01 Financial Statements
and Exhibits.
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Press
release issued by Pool Corporation on May 6, 2009, announcing the voting
results of its annual meeting and the declaration of its regular quarterly
cash dividend.
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|
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Amended
and Restated 2007 Long-Term Incentive
Plan
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Form
of Stock Option Agreement
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Form
of Restricted Stock Agreement
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Form
of Director Stock Option Agreement
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Form
of Director Restricted Stock
Agreement
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SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
POOL CORPORATION
By:
/s/ Mark W.
Joslin
Mark W. Joslin
Vice President and Chief Financial
Officer
Dated:
May 6, 2009
Exhibit
99.1
FOR IMMEDIATE
RELEASE
POOL
CORPORATION
DECLARES REGULAR
QUARTERLY CASH DIVIDEND
HOLDS
2009 ANNUAL MEETING OF SHAREHOLDERS
______________________
COVINGTON, LA.
(May 6, 2009)
– Pool Corporation (the “Company” or “POOL”)
(NASDAQ/GSM:POOL) announced that its Board of Directors declared its regular
quarterly cash dividend of $0.13 per share. The dividend is payable
on June 3, 2009 to stockholders of record on
May 18, 2009. On May 4, 2009 there were
48,366,879 shares of common stock outstanding.
Speaking
at POOL’s annual meeting of shareholders,
Wilson B. (Rusty) Sexton, Chairman of the Board, said that the
shareholders elected Andrew W. Code, James J. Gaffney,
George T.
Haymaker, Manuel J. Perez de la Mesa,
Harlan F. Seymour, Robert C. Sledd,
John E. Stokely and himself to serve as directors for the ensuing
year. Shareholders also approved a proposal to increase the number of
shares available under the Pool Corporation 2007 Long-Term Incentive Plan by
3.9 million shares and ratified the appointment of
Ernst & Young LLP as the Company’s independent auditors for
fiscal 2009. Mr. Sexton stated, “We are pleased with the shareholders’
election of the Board. Given the very difficult external environment,
the confidence our shareholders have shown in our Board is very
gratifying. Our Board is looking forward to the opportunities in the
year ahead and is dedicated to fulfilling its responsibilities.”
Pool
Corporation is the largest wholesale distributor of swimming pool and related
backyard products. Currently, POOL operates 287 sales centers in
North America and Europe, through which it distributes more than 100,000
national brand and private label products to roughly 70,000 wholesale
customers. For more information about POOL, please visit
www.poolcorp.com
.
This news
release includes “forward-looking” statements that involve risk and
uncertainties that are generally identifiable through the use of words such as
“believe,” “expect,” “intend,” “plan,” “estimate,” “project” and similar
expressions and include projections of earnings. The forward-looking
statements in this release are made pursuant to the safe harbor provisions of
the Private Securities Litigation Reform Act of 1995. Forward-looking
statements speak only as of the date of this release, and we undertake no
obligation to update or revise such statements to reflect new circumstances or
unanticipated events as they occur. Actual results may differ
materially due to a variety of factors, including the sensitivity of our
business to weather conditions, changes in the economy and the housing market,
our ability to maintain favorable relationships with suppliers and
manufacturers, competition from other leisure product alternatives and mass
merchants and other risks detailed in POOL’s 2008 Annual Report on
Form 10-K and Form 10-Q for the quarter ended March 31, 2009 filed with the
Securities and Exchange Commission.
CONTACT:
Craig K.
Hubbard
985.801.5117
craig.hubbard@poolcorp.com
EXHIBIT
10.1
POOL CORPORATION
THE
AMENDED AND RESTATED
2007
LONG-TERM INCENTIVE PLAN
1.
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Establishment
of the Plan.
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1.1
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Plan
Name. As of the Effective Date, the name of this plan shall be
the 2007 Long-Term Incentive Plan (the
“Plan”).
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1.2
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Effective
Date. This plan document shall become effective on May 8, 2007,
subject to its approval by the holders of a majority of the voting power
of the shares deemed present and entitled to vote at the Pool Corporation
(“POOL”) Annual Meeting of Shareholders to be held on that date and any
necessary approval from any department, board or agency of the United
States or states having
jurisdiction.
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1.3
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Purpose.
The purpose of the Plan is to increase shareholder value and to advance
the interests of POOL and its subsidiaries (collectively, the “Company”)
by furnishing stock-based economic incentives (the “Incentives”) designed
to attract, retain, reward and motivate key employees, officers,
directors, consultants and advisors to the Company and to strengthen the
mutuality of interests between such persons and POOL’s shareholders.
Incentives consist of opportunities to purchase or receive shares of
common stock, $.001 par value per share, of POOL (the “Common
Stock”), on terms determined under the Plan. As used in the Plan, the term
“subsidiary” means any corporation, limited liability company or other
entity, of which POOL owns (directly or indirectly) within the meaning of
Section 424(f) of the Internal Revenue Code of 1986, as amended, and the
rules and regulations thereunder, as now in force or as hereafter amended
(the “Code”), 50% or more of the total combined voting power of all
classes of stock, membership interests or other equity interests issued
thereby.
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2.1.
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Composition.
The Plan shall be administered by the Compensation Committee of the Board
of Directors of POOL or by a subcommittee thereof (the “Committee”). The
Committee shall consist of not fewer than two members of the Board of
Directors, each of whom shall (a) qualify as a “non-employee director”
under Rule 16b-3 under the Securities Exchange Act of 1934 (the “1934
Act”) or any successor rule, and (b) qualify as an “outside director”
under Section 162(m) of the Code (“Section
162(m)”).
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2.2.
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Authority.
The Committee shall have plenary authority to award Incentives under the
Plan, to interpret the Plan, to establish any rules or regulations
relating to the Plan that it determines to be appropriate, to enter into
agreements with or provide notices to participants as to the terms of the
Incentives (the “Incentive Agreements”) and to make any other
determination that it believes necessary or advisable for the proper
administration of the Plan. Its decisions in matters relating to the Plan
shall be final and conclusive on the Company and participants. The
Committee may delegate its authority hereunder to the extent provided in
Section 3 hereof.
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3.
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Eligible
Participants. Key employees, officers, directors and persons providing
services as consultants or advisors to the Company shall become eligible
to receive Incentives under the Plan when designated by the Committee.
Employees may be designated individually or by groups or categories, as
the Committee deems appropriate. In accordance with applicable
law, the Committee may delegate to appropriate officers of the Company its
authority to designate participants, to determine the size and type of
Incentives to be received by those participants and to set and modify the
terms of the Incentives.
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4.
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Types
of Incentives. Incentives may be granted under the Plan to eligible
participants in the forms of (a) non-qualified stock options; and (b)
restricted stock.
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5.
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Shares
Subject to the Plan.
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5.1.
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Number of Shares.
Subject to adjustment as provided in Sections 5.2 and 9.5, the maximum
number of shares of Common Stock that may be delivered to participants and
their permitted transferees under the Plan shall be
5,415,000. No additional awards will be made under the
Company’s predecessor stock option plans (The SCP Pool Corporation 1995
Stock Option Plan, The SCP Pool Corporation 1998 Stock Option Plan, The
SCP Pool Corporation 2002 Long-Term Incentive Plan, and The SCP Pool
Corporation Non-Employee Directors Equity Incentive
Plan).
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5.2.
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Share
Counting. To the extent any shares of Common Stock covered by a stock
option are not delivered to a participant or permitted transferee because
the Option is forfeited or canceled or shares of Common Stock are not
delivered because an Incentive is paid or settled in cash, such shares
shall not be deemed to have been delivered for purposes of determining the
maximum number of shares of Common Stock available for delivery under this
Plan. In the event that shares of Common Stock are issued as an Incentive
and thereafter are forfeited or reacquired by the Company pursuant to
rights reserved upon issuance thereof, such forfeited and reacquired
Shares may again be issued under the Plan. With respect to the Net Share
Exercise of Options, as defined in Section 6.5 hereof, all shares to which
the Option relates are counted against the plan limits, rather than the
net number of shares delivered upon
exercise.
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5.3.
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Limitations
on Awards. Subject to Sections 5.2 and 9.5, the following additional
limitations are imposed under the
Plan:
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A.
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The
maximum number of shares of Common Stock that may be covered by Incentives
granted under the Plan to any one individual during any one calendar-year
period shall be 400,000.
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B.
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The
maximum number of shares of Common Stock that may be issued as restricted
stock shall be 1,300,000 shares.
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5.4.
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Type
of Common Stock. Common Stock issued under the Plan may be authorized and
unissued shares or issued shares held as treasury
shares.
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6.
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Stock
Options. A stock option is a right to purchase shares of Common Stock from
POOL. Each stock option granted by the Committee under this Plan shall be
subject to the following terms and
conditions:
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6.1.
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Price.
The exercise price per share shall be determined by the Committee, subject
to adjustment under Section 9.5; provided that in no event shall the
exercise price be less than the Fair Market Value of a share of Common
Stock on the date of grant.
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6.2.
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Number.
The number of shares of Common Stock subject to the option shall be
determined by the Committee, subject to Section 5 and subject to
adjustment as provided in Section
9.5.
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6.3.
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Duration
and Time for Exercise. The term of each stock option shall be determined
by the Committee but shall not exceed 10 years from date of grant. Each
stock option shall become exercisable at such time or times during its
term as shall be determined by the
Committee.
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6.4.
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Repurchase.
Upon approval of the Committee, the Company may repurchase a previously
granted stock option from a participant by mutual agreement before such
option has been exercised by payment to the participant of the amount per
share by which: (i) the Fair Market Value (as defined in Section 9.11) of
the Common Stock subject to the option on the business day immediately
preceding the date of purchase exceeds (ii) the exercise
price.
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6.5.
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Manner
of Exercise. A stock option may be exercised, in whole or in part, by
giving written notice to the Company, specifying the number of shares of
Common Stock to be purchased. The exercise notice shall be accompanied by
the full purchase price for such shares. The option price shall be payable
in United States dollars and may be paid (a) in cash; (b) by check; (c) by
delivery or attestation of ownership of shares of Common Stock which,
unless otherwise determined by the Committee, shall have been held by the
optionee for at least six months, and which shares shall be valued for
this purpose at the Fair Market Value on the business day of the date such
option is exercised; (d) by delivery of irrevocable written instructions
to a broker approved by the Company (with a copy to the Company) to
immediately sell a portion of the shares issuable under the option and to
deliver promptly to the Company the amount of sale proceeds (or loan
proceeds if the broker lends funds to the participant for delivery to the
Company) to pay the exercise price; (e) by authorizing the Company to
withhold from the exercise that number of shares of Common Stock which,
when multiplied by the Fair Market Value of a share of Common Stock on the
date of exercise, is equal to the aggregate exercise price payable with
respect to the options being exercised (a “Net Share Exercise”) or (f) in
such other manner as may be authorized from time to time by the
Committee.
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6.6.
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Repricing.
Except for adjustments pursuant to Section 9.5 or actions permitted to be
taken by the Committee under Section 9.10C. in the event of a Change of
Control, unless approved by the stockholders of the Company, (a) the
exercise price for any outstanding option granted under this Plan may not
be decreased after the date of grant; and (b) an outstanding option that
has been granted under this Plan may not, as of any date that such option
has a per share exercise price that is greater than the then current Fair
Market Value of a share of Common Stock, be surrendered to the Company as
consideration for the grant of a new option with a lower exercise price,
shares of Common Stock or a cash
payment.
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7.1.
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Grant
of Restricted Stock. The Committee may award shares of restricted stock to
such eligible participants as the Committee determines pursuant to the
terms of Section 3. An award of restricted stock shall be subject to such
restrictions on transfer and forfeitability provisions and such other
terms and conditions, including the attainment of specified performance
goals, as the Committee may determine, subject to the provisions of the
Plan. To the extent restricted stock is intended to qualify as
“performance-based compensation” under Section 162(m), it must be granted
subject to the attainment of performance goals as described in Section 8
below and meet the additional requirements imposed by Section
162(m).
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7.2.
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The
Restricted Period. At the time an award of restricted stock is made, the
Committee shall establish a period of time during which the transfer of
the shares of restricted stock shall be restricted and after which the
shares of restricted stock shall be vested (the “Restricted Period”).
Except for shares of restricted stock that vest based on the attainment of
performance goals and except for shares of restricted stock granted to
directors, the Restricted Period shall be a minimum of three years, with
incremental vesting of portions of the award over the three-year period
permitted. If the vesting of the shares of restricted stock is based upon
the attainment of performance goals or if shares of restricted stock are
granted to directors, a minimum Restricted Period of one year is allowed,
with incremental vesting of portions of the award over the one-year period
permitted. Each award of restricted stock may have a different Restricted
Period. The expiration of the Restricted Period shall also occur as
provided under Section 9.3 and under the conditions described in Section
9.10 hereof.
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7.3.
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Incentive
Agreement and Registration of Shares. The participant receiving restricted
stock shall enter into an Incentive Agreement with the Company setting
forth the conditions of the grant. The shares of restricted stock awarded
shall be registered in the name of the participant in book entry form
reflecting the restrictions on
transfer.
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7.4.
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Dividends
on Restricted Stock. Any and all cash and stock dividends paid with
respect to the shares of restricted stock shall be subject to any
restrictions on transfer, forfeitability provisions or reinvestment
requirements as the Committee may, in its discretion, prescribe in the
Incentive Agreement.
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7.5.
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Forfeiture.
In the event of the forfeiture of any shares of restricted stock under the
terms provided in the Incentive Agreement (including any additional shares
of restricted stock that may result from the reinvestment of cash and
stock dividends, if so provided in the Incentive Agreement), such
forfeited shares shall be cancelled. The participants shall have the same
rights and privileges, and be subject to the same forfeiture provisions,
with respect to any additional shares received pursuant to Section 9.5 due
to a recapitalization, merger or other change in
capitalization.
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7.6.
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Expiration
of Restricted Period. Upon the expiration or termination of the Restricted
Period and the satisfaction of any other conditions prescribed by the
Committee, the restrictions applicable to the restricted stock shall lapse
and a stock certificate for the number of shares of restricted stock with
respect to which the restrictions have lapsed shall be delivered, free of
all such restrictions and legends, except any that may be imposed by law,
to the participant or the participant’s estate, as the case may
be.
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7.7.
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Rights
as a Shareholder. Subject to the terms and conditions of the Plan and
subject to any restrictions on the receipt of dividends that may be
imposed in the Incentive Agreement, each participant receiving restricted
stock shall have all the rights of a shareholder with respect to shares of
stock during the Restricted Period, including without limitation, the
right to vote any shares of Common Stock and the right to receive any
dividends.
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8.
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Performance
Goals for Section 162(m) Awards. To the extent that shares of
restricted stock granted under the Plan are intended to qualify as
“performance-based compensation” under Section 162(m), the vesting or
grant of such awards shall be conditioned on the achievement of one or
more performance goals and must satisfy the other requirements of Section
162(m). The performance goals pursuant to which such shares of restricted
stock shall vest or be granted shall be any or a combination of the
following performance measures applied to the Company, POOL, a division or
a subsidiary: earnings per share, return on assets, an economic value
added measure, shareholder return, earnings, stock price, return on
equity, return on total capital, reduction of expenses, increase in cash
flow, increase in revenues or customer growth. The performance goals may
be subject to such adjustments as are specified in advance by the
Committee. For any performance period, such performance objectives may be
measured on an absolute basis or relative to a group of peer companies
selected by the Committee, relative to internal goals or relative to
levels attained in prior years. For grants intended to qualify as
performance-based compensation under Section 162(m), the Committee may not
waive any of the pre-established performance goal objectives, except for
an automatic waiver under Section 9.10 hereof, or as may be provided by
the Committee in the event of death or
disability.
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9.1.
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Duration.
Subject to Section 9.9, the Plan shall remain in effect until all
Incentives granted under the Plan have either been satisfied by the
issuance of shares of Common Stock or otherwise been terminated under the
terms of the Plan and all restrictions imposed on shares of Common Stock
in connection with their issuance under the Plan have
lapsed.
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9.2.
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Transferability.
No Incentives granted hereunder may be transferred, pledged, assigned or
otherwise encumbered by a participant except: (a) by will; (b) by the laws
of descent and distribution; (c) pursuant to a domestic relations order,
as defined in the Code; or (d) as to options, (i) to Family Members, (ii)
to a partnership in which the participant and/or Family Members, or
entities in which the participant and/or Family Members are the sole
owners, members or beneficiaries, as appropriate, are the sole partners,
(iii) to a limited liability company in which the participant and/or
Family Members, or entities in which the participant and/or Family Members
are the sole owners, members or beneficiaries, as appropriate, are the
sole members, (iv) to a trust for the sole benefit of the participant
and/or Family Members or (v) to a charitable organization. “Family
Members” shall be defined as the participant’s child, stepchild,
grandchild, parent, step-parent, grandparent, spouse, former spouse,
sibling, niece, nephew, mother-in-law, father-in-law, son-in-law,
daughter-in-law, brother-in-law, or sister-in-law, including adoptive
relationships, and any person sharing the employee’s household (other than
a tenant or employee). Any attempted assignment, transfer, pledge,
hypothecation or other disposition of Incentives, or levy of attachment or
similar process upon Incentives not specifically permitted herein, shall
be null and void and without
effect.
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9.3.
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Effect
of Termination of Employment or Death. In the event that a participant
ceases to be an employee of the Company or to provide services to the
Company for any reason, including death, disability, early retirement or
normal retirement, any Incentives may be exercised, shall vest or shall
expire at such times as may be determined by the Committee and provided in
the Incentive Agreement.
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9.4.
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Additional
Conditions. Anything in this Plan to the contrary notwithstanding: (a) the
Company may, if it shall determine it necessary or desirable for any
reason, at the time of award of any Incentive or the issuance of any
shares of Common Stock pursuant to any Incentive, require the recipient of
the Incentive, as a condition to the receipt thereof or to the receipt of
shares of Common Stock issued pursuant thereto, to deliver to the Company
a written representation of present intention to acquire the Incentive or
the shares of Common Stock issued pursuant thereto for his own account for
investment and not for distribution; and (b) if at any time the Company
further determines, in its sole discretion, that the listing, registration
or qualification (or any updating of any such document) of any Incentive
or the shares of Common Stock issuable pursuant thereto is necessary on
any securities exchange or under any federal or state securities or blue
sky law, or that the consent or approval of any governmental regulatory
body is necessary or desirable as a condition of, or in connection with
the award of any Incentive, the issuance of shares of Common Stock
pursuant thereto, or the removal of any restrictions imposed on such
shares, such Incentive shall not be awarded or such shares of Common Stock
shall not be issued or such restrictions shall not be removed, as the case
may be, in whole or in part, unless such listing, registration,
qualification, consent or approval shall have been effected or obtained
free of any conditions not acceptable to the
Company.
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9.5.
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Adjustment.
In the event of any recapitalization, stock dividend, stock split,
combination of shares or other similar change in the Common Stock, the
number of shares of Common Stock then subject to the Plan, including
shares subject to outstanding Incentives, and all limitations on the
number of shares that may be issued hereunder shall be adjusted in
proportion to the change in outstanding shares of Common Stock. In the
event of any such adjustments, the purchase price of any option and the
performance objectives of any Incentive, shall also be adjusted as and to
the extent appropriate, in the reasonable discretion of the Committee, to
provide participants with the same relative rights before and after such
adjustment. No substitution or adjustment shall require the Company to
issue a fractional share under the Plan and the substitution or adjustment
shall be limited by deleting any fractional
share.
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A.
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The
Company shall have the right to withhold from any stock issued under the
Plan or to collect as a condition of issuance or vesting, any taxes
required by law to be withheld. At any time that a participant is required
to pay to the Company an amount required to be withheld under applicable
income tax laws in connection with the lapse of restrictions on Common
Stock or the exercise of an option, the participant has the right to
satisfy this obligation in whole or in part by electing (the “Election”)
to deliver currently owned shares of Common Stock or to have the Company
withhold shares of Common Stock, in each case having a value equal to the
minimum statutory amount required to be withheld under federal, state and
local law. The value of the shares to be delivered or withheld shall be
based on the Fair Market Value of the Common Stock on the date as of which
the amount of tax to be withheld shall be determined (“Tax
Date”).
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B.
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Each
Election must be made prior to the Tax Date. If a participant makes an
election under Section 83(b) of the Code with respect to shares of
restricted stock, an Election to have shares withheld to satisfy
withholding taxes is not permitted to be
made.
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9.7.
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No
Continued Employment. No participant under the Plan shall have any right,
because of his or her participation, to continue in the employ of the
Company for any period of time or to any right to continue his or her
present or any other rate of
compensation.
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9.8.
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Deferral
Permitted. Payment of an Incentive may be deferred at the option of the
participant if permitted in the Incentive
Agreement.
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9.9.
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Amendments
to or Termination of the Plan. The Board may amend or discontinue this
Plan at any time; provided, however, that no such amendment
may:
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A.
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without
the approval of the shareholders, (i) except for adjustments permitted
herein, increase the maximum number of shares of Common Stock that may be
issued through the Plan, (ii) amend Section 6.6 to permit repricing of
options. or (iii) make any other change for which shareholder approval is
required by law or under the applicable rules of the NASDAQ;
or
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B.
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materially
impair, without the consent of the recipient, an Incentive previously
granted.
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A.
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A
Change of Control shall mean:
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i.
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the
acquisition by any person of beneficial ownership of 50% or more of the
outstanding shares of the Common Stock or 50% or more of the combined
voting power of POOL’s then outstanding securities entitled to vote
generally in the election of directors; provided, however, that for
purposes of this subsection (i), the following acquisitions shall not
constitute a Change of Control:
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a.
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any
acquisition (other than a Business Combination (as defined below) which
constitutes a Change of Control under Section 9.10(A)(iii) hereof) of
Common Stock directly from the
Company,
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b.
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any
acquisition of Common Stock by the
Company,
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c.
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any
acquisition of Common Stock by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any corporation
controlled by the Company, or
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d.
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any
acquisition of Common Stock by any corporation pursuant to a Business
Combination that does not constitute a Change of Control under Section
9.10(A)(iii) hereof; or
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ii.
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a
majority of the directors of the Company shall be persons other than
persons
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a.
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for
whose election proxies shall have been solicited by the Board,
or
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b.
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who
are then serving as directors appointed by the Board to fill vacancies on
the Board caused by death or resignation (but not by removal) or to fill
newly-created directorships; or
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iii.
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consummation
of a reorganization, share exchange, merger or consolidation (including
any such transaction involving any direct or indirect subsidiary of POOL)
or sale or other disposition of all or substantially all of the assets of
the Company (a “Business Combination”); provided, however, that in no such
case shall any such transaction constitute a Change of Control if
immediately following such Business
Combination:
|
a.
|
the
individuals and entities who were the beneficial owners of POOL’s
outstanding Common Stock and POOL’s voting securities entitled to vote
generally in the election of directors immediately prior to such Business
Combination have direct or indirect beneficial ownership, respectively, of
more than 50% of the then outstanding shares of common stock, and more
than 50% of the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors of the
surviving or successor corporation, or, if applicable, the ultimate parent
company thereof (the “Post-Transaction Corporation”),
and
|
b.
|
except
to the extent that such ownership existed prior to the Business
Combination, no person (excluding the Post-Transaction Corporation and any
employee benefit plan or related trust of either POOL, the
Post-Transaction Corporation or any subsidiary of either corporation)
beneficially owns, directly or indirectly, 50% or more of the then
outstanding shares of common stock of the corporation resulting from such
Business Combination or 50% or more of the combined voting power of the
then outstanding voting securities of such corporation,
and
|
c.
|
at
least a majority of the members of the board of directors of the
Post-Transaction Corporation were members of the Board at the time of the
execution of the initial agreement, or of the action of the Board of
Directors, providing for such Business Combination;
or
|
iv.
|
approval
by the shareholders of POOL of a complete liquidation or dissolution of
POOL.
|
|
For purposes
of this Section 9.10, the term “person” shall mean a natural person or
entity, and shall also mean the group or syndicate created when two or
more persons act as a syndicate or other group (including, without
limitation, a partnership or limited partnership) for the purpose of
acquiring, holding, or disposing of a security, except that “person” shall
not include an underwriter temporarily holding a security pursuant to an
offering of the security.
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B.
|
Upon
a Change of Control of the type described in clause (A)(i) or (A)(ii) of
this Section 9.10 or immediately prior to any Change of Control of the
type described in clause (A)(iii) or (A)(iv) of this Section 9.10, all
outstanding Incentives granted pursuant to this Plan shall automatically
become fully vested and exercisable, all restrictions or limitations on
any Incentives shall automatically lapse and, unless otherwise provided in
the applicable Incentive Agreement, all performance criteria and other
conditions relating to the payment of Incentives shall be deemed to be
achieved or waived by POOL without the necessity of action by any person.
As used in the immediately preceding sentence, ‘immediately prior’ to the
Change of Control shall mean sufficiently in advance of the Change of
Control to permit the grantee to take all steps reasonably necessary (i)
if an optionee, to exercise any such option fully and (ii) to deal with
the shares purchased or acquired under any such option and any formerly
restricted shares on which restrictions have lapsed so that all types of
shares may be treated in the same manner in connection with the Change of
Control as the shares of Common Stock of other
shareholders.
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C.
|
No
later than 30 days after a Change of Control of the type described in
subsections (A)(i) or (A)(ii) of this Section 9.10 and no later than 30
days after the approval by the Board of a Change of Control of the type
described in subsections (A)(iii) or (A)(iv) of this Section 9.10, the
Committee, acting in its sole discretion without the consent or approval
of any participant (and notwithstanding any removal or attempted removal
of some or all of the members thereof as directors or Committee members),
may act to effect one or more of the alternatives listed below, which may
vary among individual participants and which may vary among Incentives
held by any individual participant:
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i.
|
require
that all outstanding options be exercised on or before a specified date
(before or after such Change of Control) fixed by the Committee, after
which specified date all unexercised options and all rights of
participants thereunder shall
terminate,
|
ii.
|
make
such equitable adjustments to Incentives then outstanding as the Committee
deems appropriate to reflect such Change of Control (provided, however,
that the Committee may determine in its sole discretion that no adjustment
is necessary),
|
iii.
|
provide
for mandatory conversion of some or all of the outstanding options held by
some or all participants as of a date, before or after such Change of
Control, specified by the Committee, in which event such options shall be
deemed automatically cancelled and the Company shall pay, or cause to be
paid, to each such participant an amount of cash per share equal to the
excess, if any, of the Change of Control Value of the shares subject to
such option, as defined and calculated below, over the exercise price of
such options or, in lieu of such cash payment, the issuance of Common
Stock or securities of an acquiring entity having a Fair Market Value
equal to such excess, or
|
iv.
|
provide
that thereafter, upon any exercise of an option, the holder shall be
entitled to purchase or receive under such option, in lieu of the number
of shares of Common Stock then covered by such option, the number and
class of shares of stock or other securities or property (including,
without limitation, cash) to which the holder would have been entitled
pursuant to the terms of the agreement providing for the reorganization,
share exchange, merger, consolidation or asset sale, if, immediately prior
to such Change of Control, the holder had been the record owner of the
number of shares of Common Stock then covered by such
option.
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D.
|
For
the purposes of paragraph (iii) of Section 9.10(C), the "Change of Control
Value" shall equal the amount determined by whichever of the following
items is applicable:
|
i.
|
the
per share price to be paid to holders of Common Stock in any such merger,
consolidation or other
reorganization,
|
ii.
|
the
price per share offered to holders of Common Stock in any tender offer or
exchange offer whereby a Change of Control takes
place,
|
iii.
|
in
all other events, the fair market value per share of Common Stock into
which such options being converted are exercisable, as determined by the
Committee as of the date determined by the Committee to be the date of
conversion of such options, or
|
iv.
|
in
the event that the consideration offered to holders of Common Stock in any
transaction described in this Section 9.10 consists of anything other than
cash, the Committee shall determine the fair cash equivalent of the
portion of the consideration offered that is other than
cash.
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9.11.
|
Definition
of Fair Market Value. Whenever “Fair Market Value” of Common Stock shall
be determined for purposes of this Plan, it shall be determined as
follows: (i) if the Common Stock is listed on an established stock
exchange or any automated quotation system that provides sale quotations,
the closing sale price for a share of the Common Stock on such exchange or
quotation system on the applicable date, or if no sale of the Common Stock
shall have been made on that day, on the next preceding day on which there
was a sale of the Common Stock; (ii) if the Common Stock is not listed on
any exchange or quotation system, but bid and asked prices are quoted and
published, the mean between the quoted bid and asked prices on the
applicable date, and if bid and asked prices are not available on such
day, on the next preceding day on which such prices were available; and
(iii) if the Common Stock is not regularly quoted, the fair market value
of a share of Common Stock on the applicable date as established by the
Committee in good faith.
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9.12.
|
Incentive
Agreements. Each award of an Incentive hereunder shall be evidenced by an
agreement or notice delivered to the participant, by paper copy or
electronic copy, that shall specify the terms and conditions thereof and
any rules applicable thereto, including but not limited to the effect on
such Incentive of the participant’s ceasing to be employed by or to
provide services to the Company. The Incentive Agreement may also provide
for the forfeiture of an Incentive in the event that the participant
competes with the Company or engages in other activities that are harmful
to or against the interests of the Company.
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EXHIBIT
10.2
STOCK
OPTION AGREEMENT
FOR
THE GRANT OF
NON-QUALIFIED
STOCK OPTIONS UNDER THE
POOL
CORPORATION AMENDED AND RESTATED
2007
LONG-TERM INCENTIVE PLAN
THIS AGREEMENT
is entered into
and effective as of
DATE
by and between Pool
Corporation, a Delaware corporation (the “Company”), and
First
Name Last Name
(the “Optionee”).
WHEREAS
Optionee is a key
employee of the Company and the Company considers it desirable and in its best
interest that Optionee be given an inducement to acquire a proprietary interest
in the Company and an incentive to advance the interests of the Company by
possessing an option to purchase shares of the common stock of the Company,
$.001 par value per share (the “Common Stock”) in accordance with the Pool
Corporation Amended and Restated 2007 Long-Term Incentive Plan (the
“Plan”).
NOW, THEREFORE,
in
consideration of the premises, it is agreed by and between the parties as
follows:
I
Grant of
Option
In consideration of future services, the Company hereby grants to Optionee
effective as of the date hereof (the “Date of Grant”) the right, privilege and
option to purchase
#
shares of Common Stock
(the “Option”) at an exercise price of
$$$$
per share (the “Exercise
Price”). The Option shall be exercisable at the time specified in
Section II below. The Option is a non-qualified stock option and
shall not be treated as an incentive stock option under Section 422 of the
Code. Any capitalized term used herein, but not defined herein, shall
have the meaning provided in the Plan.
II
Time of
Exercise
2.1
Subject
to the provisions of the Plan and the other provisions of this Section II, the
Option shall become vested and exercisable beginning on the dates set forth
below, provided Optionee continues to be an employee or to perform services for
the Company on such dates:
[50% of
the Option will vest on Vesting Date 1 and the other 50% of the Option will vest
on Vesting Date 2]
[the
Option will vest on Vesting Date1]
2.2
During
Optionee's lifetime, the Option may be exercised only by him, his guardian if he
has been declared incompetent or by a permitted transferee under Article VI
hereof. In the event of death, the Option may be exercised as
provided herein by the Optionee’s estate or by the person to whom such right
devolves as a result of the Optionee’s death.
2.3
If the
Optionee ceases to be an employee of, or to perform other services for, the
Company or a Subsidiary of the Company:
(a)
due to
death or Disability, the Option shall become fully vested and exercisable and
shall remain exercisable for, and shall otherwise terminate on the original
expiration date of such Option;
(b)
as a
result of termination by the Company or a Subsidiary for Cause, the Option shall
be forfeited immediately upon such cessation, whether or not then
exercisable;
(c)
due to
Retirement, provided that the Optionee does not engage in Competition directly
or indirectly against the Company, as determined by the Committee or the
President of the Company (i) the Option, to the extent vested and exercisable on
the date of Retirement, shall remain exercisable for, and shall otherwise
terminate on the original expiration date of such Option; and (ii) the portion
of the Option that was not vested and exercisable on the date of Retirement
shall continue to vest in accordance with the original vesting schedule and
shall remain exercisable for, and shall otherwise terminate on the original
expiration date of such Option; and
(d)
for any
reason other than death, Disability, Retirement or Cause, provided that the
Optionee does not engage in Competition directly or indirectly against the
Company, as determined by the Committee or the President of the Company (i) the
portion of the Option that was vested and exercisable on the date of such
cessation shall remain exercisable for, and shall otherwise terminate (x) 90
days from the date of such cessation of employment or if earlier, the original
expiration date of such Option or (y) if so determined by the Committee upon the
recommendation of the President of the Company, for a period not to exceed the
original expiration date of such Option and (ii) the portion of the Option that
was not vested and exercisable on the date of such cessation shall immediately
terminate, except that such unvested portion of the Option may continue to vest
in accordance with the original vesting schedule and remain exercisable for, and
otherwise terminate on the original expiration date of such Option, if so
determined by the Committee upon the recommendation of the President of the
Company.
provided,
however,
that under no circumstances may the Option be exercised later
than ten years after the Date of Grant.
2.4
For
purposes of this Agreement:
(a)
“Cause”
shall mean (i) conviction of a felony or any crime or offense lesser than a
felony involving the property of the Company or a Subsidiary; (ii) conduct that
has caused demonstrable and serious injury to the Company or a Subsidiary,
monetary or otherwise; (iii) willful refusal to perform or substantial disregard
of duties properly assigned, as determined by the Board; or (iv) breach of duty
of loyalty to the Company or a Subsidiary or other act of fraud or dishonesty
with respect to the Company or a Subsidiary. The determination as to
whether the Optionee was terminated for Cause shall be made by the President
and/or the Board in its sole discretion.
(b)
“Competition”
is deemed to occur if an Optionee, who ceases to be employed by the Company or
its Subsidiaries or who ceases to provide services to the Company or its
Subsidiaries, obtains a position as a full-time or part-time employee of, as a
member of the board of directors of, or as a consultant or advisor with or to,
or acquires an ownership interest in excess of 5% of, a corporation,
partnership, firm or other entity that engages in any of the businesses of the
Company or any Subsidiary.
(c)
“Disability”
shall mean a disability that would entitle Optionee to payment of disability
payments under the Company’s or a Subsidiary’s long-term disability plan or as
otherwise determined by the Committee.
(d)
“Retirement”
shall mean termination of the Optionee’s employment if the Optionee has been
employed by the Company or a Subsidiary on a continuous basis for a period of at
least ten years, the Optionee has attained the age of 55 years and the Optionee
has provided the Company with a minimum of one year advance written notice of
Optionee’s intention to retire.
(e)
“Subsidiary”
shall mean any corporation or other entity of which the Company owns securities
having a majority of the ordinary voting power in electing the board of
directors or similar governing body, either directly or through one or more
Subsidiaries.
2.5
The
Option shall expire and may not be exercised later than ten years following the
Date of Grant.
III
Method of
Exercise of Option
3.1
(a) Optionee
may exercise all or a portion of the Option by delivering to the Company a
signed written notice of his intention to exercise the Option, specifying
therein the number of shares to be purchased. Upon receiving such
notice, and after the Company has received full payment of the Exercise Price,
the appropriate officer of the Company shall cause the transfer of title of the
shares purchased to Optionee on the Company's stock records and cause to be
issued to Optionee a stock certificate for the number of shares being
acquired. Optionee shall not have any rights as a shareholder until
the stock certificate is issued to him.
(b)
Optionee acknowledges and understands that the Company prohibits the exercise of
any options on or within five (5) business days of any record date set by the
Company and Optionee agrees that it will not exercise all or a portion of the
Option on or within five (5) business days of any record date set by the
Company. If the Option shall expire within such period, Optionee
further understands and agrees that the Option must be exercised prior to such
period.
3.2
The
Option may be exercised, as provided in the Plan, by the payment of the Exercise
Price in cash, in shares of Common Stock held for six months or in a combination
of cash and shares of Common Stock held for six months. The Optionee
may also pay the Exercise Price by delivering a properly executed exercise
notice together with irrevocable instructions to a broker approved by the
Company (with a copy to the Company) to promptly deliver to the Company the
amount of sale or loan proceeds to pay the Exercise Price or by a Net Share
Exercise.
IV
No
Contract of Employment Intended
Nothing in this Agreement shall confer upon Optionee any right to continue in
the employment of the Company or any of its subsidiaries, or to interfere in any
way with the right of the Company or any of its subsidiaries to terminate
Optionee's employment relationship with the Company or any of its subsidiaries
at any time.
V
Binding
Effect
This Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective heirs, executors, administrators and
successors.
VI
Non-Transferability
The Option granted hereby may not be transferred, assigned, pledged or
hypothecated in any manner, by operation of law or otherwise, other than by
will, by the laws of descent and distribution or pursuant to a domestic
relations order, as defined in the Code, or (i) to Family Members, (ii) to a
partnership in which the participant and/or Family Members, or entities in which
the participant and/or Family Members are the sole owners, members or
beneficiaries, as appropriate, are the sole partners, (iii) to a limited
liability company in which the participant and/or Family Members, or entities in
which the participant and/or Family Members are the sole owners, members or
beneficiaries, as appropriate, are the sole members, (iv) to a trust for the
sole benefit of the participant and/or Family Members or (v) to a charitable
organization. Any attempted assignment, transfer, pledge,
hypothecation or other disposition of Incentives, or levy of attachment or
similar process upon Incentives not specifically permitted herein, shall be null
and void and without effect.
VII
Electronic
Delivery and Signatures
Optionee hereby consents and agrees to electronic delivery of any Plan
documents, proxy materials, annual reports and other related
documents. If the Company establishes procedures for an electronic
signatures system for delivery and acceptance of Plan documents (including
documents relating to any programs adopted under the plan), Optionee hereby
consents to such procedures and agrees that his or her electronic signatures is
the same as, and shall have the same force and effect as, his or her manual
signature. Optionee consents and agrees that any such procedures and
delivery may be effected by a third party engaged by the Company to provide
administrative services related to the Plan, including any program adopted under
the Plan.
VIII
Inconsistent
Provisions
The Option granted hereby is subject to the provisions of the Plan as in effect
on the date hereof and as it may be amended. In the event any
provision of this Agreement conflicts with such a provision of the Plan, the
Plan provision shall control.
IX
Governing
Law
This Agreement shall be construed in accordance with the laws of the State of
Delaware to the extent federal law does not supersede and preempt Delaware
law.
IN WITNESS WHEREOF
the parties
hereto have caused this Agreement to be executed on the day and year first above
written.
POOL
CORPORATION
By: _______________________________
Name:
T
itle:
_______________________________
Optionee
EXHIBIT 10.3
THIS
DOCUMENT CONSTITUTES PART OF A PROSPECTUS COVERING SECURITIES THAT HAVE
BEEN
REGISTERED
UNDER THE SECURITIES ACT OF 1933.
RESTRICTED
STOCK AGREEMENT
(PURSUANT
TO THE TERMS OF THE
POOL
CORPORATION
AMENDED
AND RESTATED 2007 LONG-TERM INCENTIVE PLAN)
This
RESTRICTED STOCK AGREEMENT (this "Restricted Stock Agreement") is between Pool
Corporation, a Delaware corporation ("Company"), and _____________("Recipient"),
and is dated as of the date set forth immediately above the signatures
below.
1.
Grant of
Restricted Stock
. The Company hereby grants to Recipient all rights,
title and interest in the record and beneficial ownership of ________ shares
(the "Restricted Stock" or the “Incentive”) of common stock, $.001 par value per
share, of Company ("Common Stock") subject to the conditions described in
Paragraphs 4 and 5 as well as the other provisions of this Restricted Stock
Agreement. The Restricted Stock is granted pursuant to and to implement in part
Pool Corporation’s Amended and Restated 2007 Long-Term Incentive Plan (as
amended and in effect from time to time, the "Plan") and is subject to the
provisions of the Plan, which is hereby incorporated herein and is made a part
hereof, as well as the provisions of this Restricted Stock Agreement. Recipient
agrees to be bound by all of the terms, provisions, conditions and limitations
of the Plan and this Restricted Stock Agreement and in the event of any
inconsistency, the provisions of the Plan shall control. All capitalized terms
have the meanings set forth in the Plan unless otherwise specifically provided.
All references to specified paragraphs pertain to paragraphs of this Restricted
Stock Agreement unless otherwise specifically provided.
2.
Custody
of Restricted Stock
. Upon satisfaction of the vesting conditions set
forth in Paragraph 4 or the occurrence of any of the events contemplated by
Paragraph 5(b) or 5(c), Company shall issue and deliver to Recipient a
certificate or certificates for such number of shares of Restricted Stock as are
required to be issued and delivered under this Restricted Stock Agreement. Prior
to the satisfaction of such vesting conditions or the occurrence of such events,
the Restricted Stock is not transferable and shall be held in trust until such
time as the applicable restrictions on the transfer thereof have expired or
otherwise lapsed.
3.
Risk of
Forfeiture
. Subject to Paragraph 5, should Recipient's employment
(defined below) with Company and each subsidiary (as the term "subsidiary" is
defined in the Plan) terminate prior to the vesting date set forth in Paragraph
4, Recipient shall forfeit the Restricted Stock that would otherwise have vested
on such dates.
4.
Vesting
Dates
. Subject to Paragraph 5, the shares of Restricted Stock subject to
this Restricted Stock Agreement shall vest in full on
[ ].
5.
Termination
of Employment; Change in Control
. Voluntary or involuntary termination of
employment, retirement, death or Disability of Recipient, or occurrence of a
Change in Control, shall affect Recipient's rights under this Restricted Stock
Agreement as follows:
a.
Voluntary or Involuntary
Termination
. If, other than as specified below or as otherwise determined
by the Committee, Recipient voluntarily terminates employment (defined below) or
if Recipient's employment is terminated involuntarily, then Recipient shall
forfeit the right to receive all shares of Restricted Stock that have not
theretofore vested pursuant to Paragraph 4;
b.
Change in Control
. If
a Change in Control shall occur, then immediately all nonvested Restricted Stock
shall fully vest, all restrictions (other than those described in Paragraph 9)
applicable to such Restricted Stock shall terminate and Company shall release
from escrow or trust and shall issue and deliver to Recipient a certificate or
certificates for all shares of Restricted Stock.
c.
Death or Disability
.
If Recipient's employment is terminated by death or Disability, then immediately
all nonvested Restricted Stock shall fully vest, all restrictions (other than
described in Paragraph 9) applicable to Restricted Stock shall terminate and
Company shall release from escrow or trust and shall issue and deliver to
Recipient, or in the case of death, to the person or persons to whom Recipient's
rights under this Restricted Stock Agreement shall pass by will or by the
applicable laws of descent and distribution, or in the case of Disability, to
Recipient's personal representative, a certificate or certificates for all
Restricted Stock.
d.
Retirement.
If
Recipient’s employment is terminated by Retirement, provided that the Recipient
does not engage in Competition directly or indirectly against the Company, as
determined by the Compensation Committee or the President of the Company, the
Restricted Stock not vested on the date of Retirement shall continue to vest in
accordance with the original vesting schedule and once vested, all restrictions
(other than described in Paragraph 9) applicable to Restricted Stock shall
terminate and Company shall release from escrow or trust and shall issue and
deliver to Recipient, a certificate or certificates for all Restricted
Stock.
e.
Definition of
Employment
. For purposes of this Restricted Stock Agreement, "employment"
means employment by Company or a subsidiary. In this regard, neither the
transfer of Recipient from employment by Company to employment by a Subsidiary
nor the transfer of Recipient from employment by a subsidiary to employment by
Company shall be deemed to be a termination of employment of Recipient.
Moreover, the employment of Recipient shall not be deemed to have been
terminated because of absence from active employment on account of temporary
illness or during authorized vacation or during temporary leaves of absence from
active employment granted by Company or a subsidiary for reasons of professional
advancement, education, health, or government service, or during military leave
for any period if Recipient returns to active employment within 90 days after
the termination of military leave, or during any period required to be treated
as a leave of absence by virtue of any valid law or agreement. The Compensation
Committee’s determination in good faith regarding whether a termination of
employment of any type or Disability has occurred shall be conclusive and
determinative.
f.
Definition of
Competition
. For purposes of this Restricted Stock Agreement,
"Competition" is deemed to occur if a Recipient, who ceases to be employed by
the Company or its subsidiaries or who ceases to provide services to the Company
or its Subsidiaries, obtains a position as a full-time or part-time employee of,
as a member of the board of directors of, or as a consultant or advisor with or
to, or acquires an ownership interest in excess of 5% of, a corporation,
partnership, firm or other entity that engages in any of the
businesses of the Company or any Subsidiary.
g.
Definition of
Retirement.
For purposes of this Restricted Stock Agreement,
“Retirement” shall mean termination of the Recipient’s employment if the
Recipient has been employed by the Company or a Subsidiary on a continuous basis
for a period of at least ten years, the Recipient has attained the age of 55
years, and the Recipient has provided the Company with a minimum of one year
advance written notice of Recipient’s intention to retire.
h.
Definition of
Disability
. For purposes of this Restricted Stock Agreement,
“Disability” shall mean a disability that would entitle the Recipient to the
payment of disability payments under the Company’s or Subsidiary’s long-term
disability plan or as otherwise determined by the Committee.
i.
Definition of
Subsidiary
. For purposes of this Restricted Stock Agreement,
“Subsidiary” shall mean any corporation or other entity of which the Company
owns securities having a majority of the ordinary voting power in electing the
board of directors or similar governing body, either directly or through one or
more Subsidiaries.
6.
Ownership
Rights
. Subject to the restrictions set forth herein and subject to
Paragraph 9, Recipient is entitled to all voting and ownership rights applicable
to the Restricted Stock, including the right to receive any dividends that may
be paid on Restricted Stock, whether or not vested.
7.
Reorganization
of Company and Subsidiaries
. The existence of this Restricted Stock
Agreement shall not affect in any way the right or power of Company or its
stockholders to make or authorize any or all adjustments, recapitalizations,
reorganizations or other changes in Company's capital structure or its business,
or any merger or consolidation of Company or any issue of bonds, debentures,
preferred or prior preference stock ahead of or affecting the Restricted Stock
or the rights thereof, or the dissolution or liquidation of Company, or any sale
or transfer of all or any part of its assets or business, or any other corporate
act or proceeding, whether of a similar character or otherwise.
8.
Adjustment
of Shares
. Except in the case of a Change in Control as otherwise
provided in the Plan or herein, in the event of stock dividends, spin-offs of
assets or other extraordinary dividends, stock splits, combinations of shares,
recapitalizations, mergers, consolidations, reorganizations, liquidations,
issuances of rights or warrants and similar transactions or events involving
Company ("Recapitalization Events"), then for all purposes references herein to
Common Stock or to Restricted Stock shall mean and include all securities or
other property that holders of Common Stock of Company are entitled to receive
in respect of Common Stock by reason of each successive Recapitalization Event,
which securities or other property shall be treated in the same manner and shall
be subject to the same restrictions as the underlying Restricted
Stock.
9.
Certain
Restrictions
. By accepting the Restricted Stock, Recipient agrees that if
at the time of delivery of certificates for shares of Restricted Stock issued
hereunder any sale of such shares is not covered by an effective registration
statement filed under the Securities Act of 1933 (the "Act"), Recipient will
acquire the Restricted Stock for Recipient's own account and without a view to
resale or distribution in violation of the Act or any other securities law, and
upon any such acquisition Recipient will enter into such written
representations, warranties and agreements as Company may reasonably request in
order to comply with the Act or any other securities law or with this Restricted
Stock Agreement.
10.
Nontransferability
of Incentive.
This Incentive is not
transferable other than by will, the laws of descent and distribution or by
domestic relations order, as defined in the Code. No right or benefit hereunder
shall in any manner be liable for or subject to any debts, contracts,
liabilities, or torts of Recipient.
11.
Amendment
and Termination
. No amendment or termination of this Restricted Stock
Agreement which would impair the rights of Recipient shall be made by the
Compensation Committee at any time without the written consent of Recipient. No
amendment or termination of the Plan will adversely affect the right, title and
interest of Recipient under this Restricted Stock Agreement or to Restricted
Stock granted hereunder without the written consent of Recipient.
12.
No
Guarantee of Employment
. This Restricted Stock Agreement shall not confer
upon Recipient any right with respect to continuance of employment or other
service with Company or any subsidiary, nor shall it interfere in any way with
any right Company or any subsidiary would otherwise have to terminate such
Recipient's employment or other service at any time.
13.
Withholding
of Taxes.
Company shall have the right to (i) make deductions from the
number of shares of Restricted Stock otherwise deliverable upon satisfaction of
the conditions precedent under this Restricted Stock Agreement (and other
amounts payable under this Restricted Stock Agreement) in an amount sufficient
to satisfy withholding of any federal, state or local taxes required by law, or
(ii) take such other action as may be necessary or appropriate to satisfy any
such tax withholding obligations.
14.
No
Guarantee of Tax Consequences
. Neither Company nor any subsidiary nor the
Compensation Committee makes any commitment or guarantee that any federal or
state tax treatment will apply or be available to any person eligible for
benefits under this Restricted Stock Agreement.
15.
Severability
.
In the event that any provision of this Restricted Stock Agreement shall be held
illegal, invalid, or unenforceable for any reason, such provision shall be fully
severable, but shall not affect the remaining provisions of this Restricted
Stock Agreement and this Restricted Stock Agreement shall be construed and
enforced as if the illegal, invalid, or unenforceable provision had never been
included herein.
16.
Governing
Law
. The Restricted Stock Agreement shall be construed in accordance with
the laws of the State of Delaware to the extent federal law does not supersede
and preempt Delaware law.
17.
Section
83(b) Election.
The Recipient has reviewed with the
Recipient’s own tax advisors the federal, state, local and foreign tax
consequences of this investment and the transactions contemplated by this
Restricted Stock Agreement. The Recipient is relying solely on such
advisors and not on any statements or representations of the Company or any of
its agents. The Recipient understands that the Recipient (and not the
Company) shall be responsible for the Recipient’s own tax liability that may
arise as a result of the transactions contemplated by this
Agreement. The Recipient understands that the Recipient may elect to
be taxed at the time the shares are granted by filing an election under Section
83(b) of the Code with the IRS within thirty days from the date of
grant. The Recipient acknowledges that it is the Recipient’s sole
responsibility and not the Company’s to file timely the election under Section
83(b), even if the Recipient requests the Company or its representatives, to
make this filing on the Recipient’s behalf.
18.
Miscellaneous
Provisions.
(a)
Not a Contract of
Employment; No Acquired Rights
. The adoption and maintenance of the Plan
shall not be deemed to be a contract of employment between the Company or any of
its subsidiaries and any person. Receipt of an Incentive under the Plan at any
given time shall not be deemed to create the right to receive in the future an
Incentive under the Plan, or any other incentive awards granted to an employee
of the Company or any of its subsidiaries, and shall not constitute an acquired
labor right for purposes of any foreign law. The Plan shall not afford any
recipient of an Incentive any additional right to severance payments or other
termination awards or compensation under any foreign law as a result of the
termination of such recipient's employment for any reason
whatsoever.
(b)
Not a Part of Salary.
The value of the Restricted Stock granted pursuant to this Restricted Stock
Agreement shall not be included as compensation, earnings, salaries or other
similar terms used when calculating Recipient’s benefits under any employee
benefit plan sponsored by the Company except as such plan otherwise expressly
provides.
(c)
Electronic Delivery and
Signatures.
Recipient hereby consents and agrees to electronic delivery
of any Plan documents, proxy materials, annual reports and other related
documents. If the Company establishes procedures for an electronic signature
system for delivery and acceptance of Plan documents (including documents
relating to any programs adopted under the Plan), Recipient hereby consents to
such procedures and agrees that his or her electronic signature is the same as,
and shall have the same force and effect as, his or her manual signature.
Recipient consents and agrees that any such procedures and delivery may be
effected by a third party engaged by the Company to provide administrative
services related to the Plan, including any program adopted under the
Plan.
IN
WITNESS WHEREOF, the parties have entered into this Restricted Stock Agreement
as of the [ ] day of
[ ],
2009.
"COMPANY"
POOL
CORPORATION
By:
__________________________________
Name:
Title:
"Recipient"
_____________________________________
Name:
EXHIBIT 10.4
POOL
CORPORATION
109
Northpark Boulevard, 4
th
Floor
Covington,
Louisiana 70433-5001
Telephone:
(985) 892-5521
Facsimile: (985)
892-1657
May [ ],
2009
«Title»
«FirstName» «LastName»
Re:
Pool Corporation Grant of Nonqualified
Stock
Options to
Directors
Dear
«Title» «LastName»:
Pursuant to the Pool Corporation
Amended and Restated 2007 Long-Term Incentive Plan (the “Plan”) you are hereby
granted a stock option (an “Option”), as provided below, under the Plan, a copy
of which is attached hereto.
1.
Definitions
. For
the purposes of this Agreement, the following terms shall have the meanings set
forth below. Other capitalized terms used herein and not otherwise
defined shall have the meaning set forth in the Plan.
“
Code
”
shall mean the Internal
Revenue Code of 1986, as amended, and any successor statute.
“
Grant Date
”
shall mean
May [ ], 2009.
“
Option Shares
”
shall mean (i)
all shares of Common Stock issued or issuable upon the exercise of the Option
and (ii) all shares of Common Stock issued with respect to the Common Stock
referred to in clause (i) above by way of stock dividend or stock split or in
connection with any conversion, merger, consolidation or recapitalization or
other reorganization affecting the Common Stock.
“
Securities Act
” shall
mean the Securities Act of 1933, as amended, and any successor
statute.
2.
Option
.
(a)
Terms
. Your
Option is to purchase _____ shares of Common Stock at an option price per share
of $_____ (the “
Exercise Price
”),
payable upon exercise as set forth in paragraph 2(b) below. Your Option will
expire at the close of business on May [ ], 2019 (the “
Expiration Date
”),
subject to earlier expiration in connection with the termination of your term as
a director as provided in paragraph 4(b) below. Your Option is
not
intended to be an
“incentive stock option” within the meaning of Section 422A of the
Code.
(b)
Payment of Option
Price
. Subject to paragraph 3 below, your Option may be
exercised upon payment of the exercise price as provided in the
Plan.
3.
Exercisability/Vesting.
Your
Option may be exercised only to the extent it has vested. Your Option
will fully vest and become exercisable with respect to all of your Option Shares
on (i) May [ ], 2010, but only if you are still serving as a director of the
Company on such date; (ii) upon a Change of Control, as provided in the Plan,
and (iii) as otherwise provided in paragraph 4(b) below.
4.
Expiration of
Option
.
(a)
Normal Expiration
.
In no event
shall any part of your Option be exercisable after the Expiration Date set forth
in paragraph 2(a) above.
(b)
Early Expiration Upon
Termination of Service as a Director
. Any Option that is
vested or not vested on the date your service as a director of the Company
terminates (for any reason whatsoever) will expire and be forfeited on such
date, provided, however, (i) if you die, any Option that is vested and
exercisable will remain exercisable until the Expiration Date and any Option
that is unvested shall become fully vested and exercisable and shall remain
exercisable until the Expiration Date; (ii) if you are not re-elected as a
director, any Option that is vested and exercisable will expire one year from
the date on which you fail to be reelected as a director, but in no event after
the Expiration Date; and (iii) if you cease to be a director for any reason
other than death or failure to be re-elected, provided that you do not engage in
competition directly or indirectly against the Company, as determined by the
Board, any Options that are vested and exercisable on the date of such cessation
shall remain exercisable and shall terminate on the Expiration
Date.
5.
Procedure for
Exercise
. You may exercise all or any portion of your Option,
to the extent it has vested and is outstanding, at any time and from time to
time prior to its expiration, by delivering written notice to the Company (to
the attention of the Company’s Secretary).
6.
Securities Laws Restrictions
and Other Restrictions on Transfer of Option Shares
. You
represent that when you exercise your Option you will be purchasing Option
Shares for your own account and not on behalf of others. You
understand and acknowledge that federal and state securities laws govern and
restrict your right to offer, sell or otherwise dispose of any Option Shares
unless your offer, sale or other disposition thereof is registered under the
Securities Act and state securities laws, or in the opinion of the Company’s
counsel, such offer, sale or other disposition is exempt from registration or
qualification thereunder. You agree that you will not offer, sell or
otherwise dispose of any Option Shares in any manner which would: (i)
require the Company to file any registration statement with the Securities and
Exchange Commission (or any similar filing under state law) or to amend or
supplement any such filing or (ii) violate or cause the Company to violate the
Securities Act, the rules and regulations promulgated thereunder or any other
state or federal law. You further understand that the certificates
for any Option Shares you purchase will bear such legends as the Company deems
necessary or desirable in connection with the Securities Act or other rules,
regulations or laws.
7.
Non-Transferability of
Option
. Your Option is personal to you and is not transferable
by you other than as provided in the Plan. During your lifetime only
you (or your guardian or legal representative) may exercise your Option. In the
event of your death, your Option may be exercised only by the executor or
administrator of your estate or the person or persons to whom your rights under
the Option shall pass by will or the laws of descent and
distribution.
8.
Conformity with
Plan.
Your Option is intended to conform in all respects with,
and is subject to all applicable provisions of, the Plan, which is incorporated
herein by reference. Inconsistencies between this Agreement and the
Plan shall be resolved in accordance with the terms of the Plan. By
executing and returning the enclosed copy of this Agreement, you acknowledge
your receipt of this Agreement and the Plan and agree to be bound by all of the
terms of this Agreement and the Plan.
9.
Withholding of
Taxes
. The Company shall be entitled, if necessary or
desirable, to withhold from you from any amounts due and payable by the Company
to you (or secure payment from you in lieu of withholding) the amount of any
withholding or other tax due from the Company with respect to any Option Shares
issuable under this Plan, and the Company may defer such issuance unless
indemnified by you to its satisfaction.
10.
Adjustments.
In
the event of a reorganization, recapitalization, stock dividend or stock split,
combination of shares, merger, consolidation or other change in the Common
Stock, appropriate adjustments in the number and type of shares authorized by
the Plan, the number and type of shares covered by your Option and the Exercise
Price specified herein will be made.
11.
Amendment
. Except
as otherwise provided herein, any provision of this Agreement may be amended or
waived only with the prior written consent of you and the Company.
12.
Successors and
Assigns
. Except as otherwise expressly provided herein, all
covenants and agreements contained in this Agreement by or on behalf of any of
the parties hereto will bind and inure to the benefit of the respective
successors and permitted assigns of the parties hereto whether so expressed or
not.
13.
Severability
. Whenever
possible, each provision of this Agreement will be interpreted in such a manner
as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be prohibited by or invalid under applicable law, such
provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of this Agreement.
14.
Counterparts
. This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall constitute an original, but all of which taken together shall
constitute one and the same Agreement.
15.
Descriptive
Headings
. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this
Agreement.
16.
Governing
Law
. The corporate law of Delaware will govern all questions
concerning the relative rights of the Company and its stockholders. All other
questions concerning the construction, validity and interpretation of this
Agreement will be governed by the internal law, and not the law of conflicts, of
Delaware.
17.
Electronic Delivery and
Signatures
.
You hereby
consent and agree to electronic delivery of any Plan documents, proxy materials,
annual reports and other related documents. If the Company
establishes procedures for an electronic signatures system for delivery and
acceptance of Plan documents (including documents relating to any programs
adopted under the plan), you hereby consent to such procedures and agree that
your electronic signatures is the same as, and shall have the same force and
effect as, your manual signature. You consent and agree that any such
procedures and delivery may be effected by a third party engaged by the Company
to provide administrative services related to the Plan, including any program
adopted under the Plan.
18.
Entire
Agreement
. This Agreement constitutes the entire understanding
between you and the Company, and supersedes all other agreements, whether
written or oral, with respect to the subject matter hereof.
*
*
*
*
*
Please
execute the extra copy of this Agreement in the space below and return it to the
Company’s Secretary at its executive offices to confirm your understanding and
acceptance of the agreements contained in this Agreement.
Very truly
yours,
POOL
CORPORATION
By___________________________
Name_________________________
Title__________________________
Enclosures: 1.
Extra copy of this Agreement
2. Copy of the Plan
3. Copy of the Prospectus for the
Plan
The
undersigned hereby acknowledges having read this Agreement and the Plan and
hereby agrees to be bound by all provisions set forth herein and in the
Plan.
PARTICIPANT
Dated as of:
May [ ],
2009
____________________________
«FirstName»
«LastName»
EXHIBIT 10.5
THIS
DOCUMENT CONSTITUTES PART OF A PROSPECTUS COVERING SECURITIES
THAT
HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933.
DIRECTOR
RESTRICTED
STOCK AGREEMENT
(PURSUANT
TO THE TERMS OF THE
POOL
CORPORATION
AMENDED
AND RESTATED 2007 LONG-TERM INCENTIVE PLAN)
This
RESTRICTED STOCK AGREEMENT (this "Restricted Stock Agreement") is between Pool
Corporation, a Delaware corporation ("Company"), and _____________("Recipient"),
and is dated as of the date set forth immediately above the signatures
below.
1.
Grant of
Restricted Stock
. The Company hereby grants to Recipient all rights,
title and interest in the record and beneficial ownership of ________ shares
(the "Restricted Stock" or the “Incentive”) of common stock, $.001 par value per
share, of Company ("Common Stock") subject to the conditions described in
Paragraphs 4 and 5 as well as the other provisions of this Restricted Stock
Agreement. The Restricted Stock is granted pursuant to and to implement in part
Pool Corporation’s Amended and Restated 2007 Long-Term Incentive Plan (as
amended and in effect from time to time, the "Plan") and is subject to the
provisions of the Plan, which is hereby incorporated herein and is made a part
hereof, as well as the provisions of this Restricted Stock Agreement and in the
event of any inconsistency, the provisions of the Plan shall control. Recipient
agrees to be bound by all of the terms, provisions, conditions and limitations
of the Plan and this Restricted Stock Agreement. All capitalized terms have the
meanings set forth in the Plan unless otherwise specifically provided. All
references to specified paragraphs pertain to paragraphs of this Restricted
Stock Agreement unless otherwise specifically provided.
2.
Custody
of Restricted Stock
. Upon satisfaction of the vesting conditions set
forth in Paragraph 4 or the occurrence of any of the events contemplated by
Paragraph 5, Company shall issue and deliver to Recipient a certificate or
certificates for such number of shares of Restricted Stock as are required to be
issued and delivered under this Restricted Stock Agreement. Prior to the
satisfaction of such vesting conditions or the occurrence of such events, the
Restricted Stock is not transferable and shall be held in trust until such time
as the applicable restrictions on the transfer thereof have expired or otherwise
lapsed.
3.
Risk of
Forfeiture
. Subject to Paragraph 5, should Recipient's service as a
member of the Board of Directors of the Company and each Subsidiary terminate
prior to the vesting date set forth in Paragraph 4, Recipient shall forfeit the
Restricted Stock that would otherwise have vested on such dates. For
purposes of this Restricted Stock Agreement, “Subsidiary” shall mean any
corporation or other entity of which the Company owns securities having a
majority of the ordinary voting power in electing the board of directors or
similar governing body, either directly or through one or more
Subsidiaries.
4.
Vesting
Dates
. Subject to Paragraph 5, the shares of Restricted Stock subject to
this Restricted Stock Agreement shall vest in full on May [ ],
2010.
5.
Termination
of Service on the Board of Directors; Change of Control
. Except as
otherwise provided in this Paragraph 5, if Recipient ceases to serve on the
Board of Directors prior to May [ ], 2010, then Recipient shall forfeit the
right to receive all of the shares of Restricted Stock.
a.
Change of Control
. If
a Change of Control shall occur, then immediately all nonvested Restricted Stock
shall fully vest, all restrictions (other than those described in Paragraph 9)
applicable to such Restricted Stock shall terminate and Company shall release
from escrow or trust and shall issue and deliver to Recipient a certificate or
certificates for all shares of Restricted Stock.
b.
Death or Disability
.
If Recipient's service on the Board of Directors is terminated by death or
Disability, then immediately all nonvested Restricted Stock shall fully vest,
all restrictions (other than described in Paragraph 9) applicable to Restricted
Stock shall terminate and Company shall release from escrow or trust and shall
issue and deliver to Recipient, or in the case of death, to the person or
persons to whom Recipient's rights under this Restricted Stock Agreement shall
pass by will or by the applicable laws of descent and distribution, or in the
case of Disability, to Recipient's personal representative, a certificate or
certificates for all Restricted Stock.
c.
Definition of
Disability
. For purposes of this Restricted Stock Agreement,
“Disability” shall mean a disability that would entitle an employee to the
payment of disability payments under the Company’s or Subsidiary’s long-term
disability plan or as otherwise determined by the Committee.
6.
Ownership
Rights
. Subject to the restrictions set forth herein and subject to
Paragraph 9, Recipient is entitled to all voting and ownership rights applicable
to the Restricted Stock, including the right to receive any dividends that may
be paid on Restricted Stock, whether or not vested.
7.
Reorganization
of Company and Subsidiaries
. The existence of this Restricted Stock
Agreement shall not affect in any way the right or power of Company or its
stockholders to make or authorize any or all adjustments, recapitalizations,
reorganizations or other changes in Company's capital structure or its business,
or any merger or consolidation of Company or any issue of bonds, debentures,
preferred or prior preference stock ahead of or affecting the Restricted Stock
or the rights thereof, or the dissolution or liquidation of Company, or any sale
or transfer of all or any part of its assets or business, or any other corporate
act or proceeding, whether of a similar character or otherwise.
8.
Adjustment
of Shares
. In the event of stock dividends, spin-offs of assets or other
extraordinary dividends, stock splits, combinations of shares,
recapitalizations, mergers, consolidations, reorganizations, liquidations,
issuances of rights or warrants and similar transactions or events involving
Company ("Recapitalization Events"), then for all purposes references herein to
Common Stock or to Restricted Stock shall mean and include all securities or
other property that holders of Common Stock of Company are entitled to receive
in respect of Common Stock by reason of each successive Recapitalization Event,
which securities or other property shall be treated in the same manner and shall
be subject to the same restrictions as the underlying Restricted
Stock.
9.
Certain
Restrictions
. By accepting the Restricted Stock, Recipient agrees that if
at the time of delivery of certificates for shares of Restricted Stock issued
hereunder any sale of such shares is not covered by an effective registration
statement filed under the Securities Act of 1933 (the "Act"), Recipient will
acquire the Restricted Stock for Recipient's own account and without a view to
resale or distribution in violation of the Act or any other securities law, and
upon any such acquisition Recipient will enter into such written
representations, warranties and agreements as Company may reasonably request in
order to comply with the Act or any other securities law or with this Restricted
Stock Agreement.
10.
Nontransferability
of Incentive.
This Incentive is not
transferable other than by will, the laws of descent and distribution or by
domestic relations order. No right or benefit hereunder shall in any manner be
liable for or subject to any debts, contracts, liabilities, or torts of
Recipient.
11.
Amendment
and Termination
. No amendment or termination of this Restricted Stock
Agreement which would impair the rights of Recipient shall be made by the
Compensation Committee at any time without the written consent of Recipient. No
amendment or termination of the Plan will adversely affect the right, title and
interest of Recipient under this Restricted Stock Agreement or to Restricted
Stock granted hereunder without the written consent of Recipient.
12.
No
Guarantee of Tax Consequences
. Neither Company nor any Subsidiary nor the
Compensation Committee makes any commitment or guarantee that any federal or
state tax treatment will apply or be available to any person eligible for
benefits under this Restricted Stock Agreement.
13.
Severability
.
In the event that any provision of this Restricted Stock Agreement shall be held
illegal, invalid, or unenforceable for any reason, such provision shall be fully
severable, but shall not affect the remaining provisions of this Restricted
Stock Agreement and this Restricted Stock Agreement shall be construed and
enforced as if the illegal, invalid, or unenforceable provision had never been
included herein.
14.
Governing
Law
. The Restricted Stock Agreement shall be construed in accordance with
the laws of the State of Delaware to the extent federal law does not supersede
and preempt Delaware law.
15.
Section
83(b) Election.
The Recipient has reviewed with the
Recipient’s own tax advisors the federal, state, local and foreign tax
consequences of this investment and the transactions contemplated by this
Restricted Stock Agreement. The Recipient is relying solely on such
advisors and not on any statements or representations of the Company or any of
its agents. The Recipient understands that the Recipient (and not the
Company) shall be responsible for the Recipient’s own tax liability that may
arise as a result of the transactions contemplated by this
Agreement. The Recipient understands that the Recipient may elect to
be taxed at the time the shares are granted by filing an election under Section
83(b) of the Code with the IRS within thirty days from the date of
grant. The Recipient acknowledges that it is the Recipient’s sole
responsibility and not the Company’s to file timely the election under Section
83(b), even if the Recipient requests the Company or its representatives, to
make this filing on the Recipient’s behalf.
16.
Electronic
Delivery and Signatures.
Recipient hereby consents and agrees to
electronic delivery of any Plan documents, proxy materials, annual reports and
other related documents. If the Company establishes procedures for an electronic
signature system for delivery and acceptance of Plan documents (including
documents relating to any programs adopted under the Plan), Recipient hereby
consents to such procedures and agrees that his or her electronic signature is
the same as, and shall have the same force and effect as, his or her manual
signature. Recipient consents and agrees that any such procedures and delivery
may be effected by a third party engaged by the Company to provide
administrative services related to the Plan, including any program adopted under
the Plan.
IN
WITNESS WHEREOF, the parties have entered into this Restricted Stock Agreement
as of the [ ] day of
[ ],
2009.
"COMPANY"
POOL
CORPORATION
By:
__________________________________
Name:
Title:
"Recipient"
_____________________________________
Name: