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)
EXHIBIT 10.3
THIS
DOCUMENT CONSTITUTES PART OF A PROSPECTUS COVERING SECURITIES THAT HAVE
BEEN
REGISTERED
UNDER THE SECURITIES ACT OF 1933.
(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.
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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.
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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.
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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.
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(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:
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