EXHIBIT 10.1

 

POOL CORPORATION

 

THE AMENDED AND RESTATED

 

2007 LONG-TERM INCENTIVE PLAN

 

1.	Establishment of the Plan.

 

1.1	Plan Name.  As of the Effective Date, the name of this plan shall be the 2007 Long-Term Incentive Plan (the “Plan”).

 

1.2

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.

 

1.3

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.

 

2.	Administration.

 

2.1.

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)”).

 

2.2.

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.

 

3.

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.

 

4.	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.

 

5.	Shares Subject to the Plan.

 

5.1.

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).

 

 

5.2.

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.

 

5.3.	Limitations on Awards. Subject to Sections 5.2 and 9.5, the following additional limitations are imposed under the Plan:

 

A.	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.

 

B.	The maximum number of shares of Common Stock that may be issued as restricted stock shall be 1,300,000 shares.

 

5.4.	Type of Common Stock. Common Stock issued under the Plan may be authorized and unissued shares or issued shares held as treasury shares.

 

6.	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:

 

6.1.	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.

 

6.2.	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.

 

6.3.	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.

 

6.4.

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.

 

6.5.

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.

 

6.6.

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.

 

 

7.	Restricted Stock.

 

7.1.

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).

 

7.2.

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.

 

7.3.

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.

 

7.4.

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.

 

7.5.

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.

 

7.6.

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.

 

7.7.

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.

 

8.

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.

 

 

9.

General.

 

9.1.

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.

 

9.2.

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.

 

9.3.

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.

 

9.4.

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.

 

9.5.

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.

 

9.6.	Withholding.

 

A.

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”).

 

 

B.	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.

 

9.7.	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.

 

9.8.	Deferral Permitted. Payment of an Incentive may be deferred at the option of the participant if permitted in the Incentive Agreement.

 

9.9.	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:

 

A.

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

 

B.	materially impair, without the consent of the recipient, an Incentive previously granted.

 

9.10.

Change of Control.

 

A.	A Change of Control shall mean:

 

i.

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:

 

a.	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,

 

b.	any acquisition of Common Stock by the Company,

 

c.	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

 

d.	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

 

ii.	a majority of the directors of the Company shall be persons other than persons

 

a.	for whose election proxies shall have been solicited by the Board, or

 

b.	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

 

 

iii.

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.

 

 

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.

 

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:

 

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.

 

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.

 

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.

 

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.

 

 

 

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.

 

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

 

 

 

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: