<PAGE> 1
As filed with the Securities and Exchange Commission on December 28, 1999
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
DXP ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
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<S> <C>
TEXAS 76-0509661
(State or other jurisdiction of incorporation or (I.R.S Employer Identification No.)
organization)
7272 PINEMONT
HOUSTON, TEXAS 77040
(Address of Principal Executive Offices) (Zip Code)
</TABLE>
DXP ENTERPRISES, INC. 1999 EMPLOYEE STOCK BONUS PLAN
(Full title of the plan)
DAVID R. LITTLE
CHAIRMAN OF THE BOARD, PRESIDENT AND CHIEF EXECUTIVE OFFICER
DXP ENTERPRISES, INC.
7272 PINEMONT
HOUSTON, TEXAS 77040
(Name and address of agent for service)
713/996-4700
(Telephone number, including area code, of agent for service)
Copy to:
FULBRIGHT & JAWORSKI L.L.P.
1301 MCKINNEY, SUITE 5100
HOUSTON, TEXAS 77010
(713) 651-5658
ATTENTION: LAURA J. MCMAHON
------------------------------------
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box.|X|
CALCULATION OF REGISTRATION FEE
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=================================================================================================================================
PROPOSED MAXIMUM
TITLE OF SECURITIES TO AMOUNT TO BE PROPOSED MAXIMUM AGGREGATE OFFERING AMOUNT OF
BE REGISTERED REGISTERED OFFERING PRICE PER SHARE(1) PRICE(1) REGISTRATION FEE
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Common Stock, $.01 60,000 Shares(2) $2.375 $142,500 $37.62
par value
=================================================================================================================================
</TABLE>
(1) Estimated in accordance with Rule 457(c) and (h) solely for the purpose
of calculating the registration fee on the basis of the average of the
high and low prices of the Common Stock as reported by the Nasdaq Stock
Market on December 20, 1999.
(2) Includes an indeterminable number of shares of Common Stock issuable as
a result of the anti-dilution provisions of the DXP Enterprises, Inc.
1999 Employee Stock Bonus Plan.
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<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
a. The following documents are hereby incorporated by reference
in this Registration Statement:
1. The Annual Report on Form 10-K for the year
ended December 31, 1998 of DXP Enterprises, Inc., a Texas corporation (the
"Registrant"), filed March 31, 1999 with the Securities and Exchange Commission
(the "Commission").
2. The Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 1999
of the Registrant, filed May 14, 1999 with the Commission.
3. The Quarterly Report on Form 10-Q for the quarterly
period ended June 30, 1999 of
the Registrant, filed August 16, 1999 with the Commission.
4. The Quarterly Report on Form 10-Q for the quarterly
period ended September 30, 1999
of the Registrant, filed November 12, 1999 with the Commission.
5. The description of the Registrant's common stock,
$.01 par value (the "Common
Stock"), contained in a registration statement on Form 8-A filed with the
Commission on October 9, 1996, including any amendment or report filed for the
purpose of updating such description.
b. All documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
subsequent to the date of the filing hereof and prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 2.01-1 of the Texas Business Corporation Act ("TBCA")
provides that a corporation may indemnify any director or officer who was, is or
is threatened to be named a defendant or respondent in a proceeding because he
is or was a director or officer, provided that the director or officer (i)
conducted himself in good faith, (ii) reasonably believed (a) in the case of
conduct in his official capacity, that his conduct was in the corporation's best
interests or (b) in all other cases, that his conduct was at least not opposed
to the corporation's best interests and (iii) in the case of any criminal
proceeding, had no reasonable cause to believe his conduct was unlawful. Subject
to certain exceptions, a director or officer may not be indemnified if the
person is found liable to the corporation or if the person is found liable on
the basis that he improperly received a personal benefit. Under Texas law,
reasonable expenses incurred by a director or officer may be paid or reimbursed
by the corporation in advance of a final disposition of the proceeding after the
corporation receives a written affirmation by the director or officer of his
good faith belief that he has met the standard of conduct necessary for
indemnification and a written undertaking by or on behalf of the director or
officer to repay the amount if it is ultimately determined that the director or
officer is not entitled to indemnification by the corporation. Texas law
requires a corporation to indemnify an officer or director against
II-1
<PAGE> 3
reasonable expenses incurred in connection with a proceeding in which he is
named a defendant or respondent because he is or was a director or officer if he
is wholly successful in defense of the proceeding.
Texas law also permits a corporation to purchase and maintain
insurance or another arrangement on behalf of any person who is or was a
director or officer against any liability asserted against him and incurred by
him in such a capacity or arising out of his status as such a person, whether or
not the corporation would have the power to indemnify him against that liability
under Article 2.02-1 of the TBCA.
The Company's Restated Articles of Incorporation, as amended,
and Bylaws provide for indemnification of its officers and directors, and the
advancement to them of expenses in connection with proceedings and claims, to
the fullest extent permitted under the TBCA. Such indemnification may be made
even though directors and officers would not otherwise be entitled to
indemnification under other provisions of the Company's Bylaws.
The above discussion of the TBCA and the Company's Restated
Articles of Incorporation, as amended and Bylaws is not intended to be
exhaustive and is qualified in its entirety by such statute, the Restated
Articles of Incorporation and Bylaws, respectively.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
the Registrant pursuant to the foregoing provisions, the Registrant has been
informed that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and therefore is unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 -- Restated Articles of Incorporation, as amended
(incorporated by reference to Exhibit 4.1 to
the Registrant's Registration Statement on
Form S-8 (Reg. No. 333-61953), filed with the
Commission on August 20, 1998).
4.2 -- Bylaws (incorporated by reference to Exhibit
3.2 to the Registrant's Registration Statement
on Form S-4 (Reg. No. 333-10021), filed with
the Commission on August 12, 1996).
4.3 -- Form of Common Stock Certificate (incorporated
by reference to Exhibit 4.3 to the
Registrant's Registration Statement on Form
S-8 (Reg. No. 333-61953), filed with the
Commission on August 20, 1998).
*4.4 -- DXP Enterprises, Inc. 1999 Employee Stock
Bonus Plan
*5.1 -- Opinion of Fulbright & Jaworski L.L.P.
*23.1 -- Consent of Arthur Andersen LLP.
*23.2 -- Consent of Fulbright & Jaworski L.L.P.
(included in Exhibit 5.1).
*24.1 -- Powers of Attorney (contained on page II-4).
----------------
*Filed herewith
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<PAGE> 4
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended
(the "Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration
Statement (or the most recent post-effective amendment
hereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the registration statement. Notwithstanding
the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end
of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement; and
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in
this Registration Statement or any material change to
such information in this Registration Statement;
Provided, however, that paragraphs (i) and (ii) do not apply if
the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on the 27th day of December,
1999.
DXP ENTERPRISES, INC.
By:/s/ DAVID R. LITTLE
--------------------------------------------
David R. Little
Chairman of the Board, President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints David R. Little and Gary A. Allcorn, and
each of them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same and all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission, granting said attorney-in-fact and agent, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or either of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
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Signature Title Date
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<S> <C> <C>
/s/ DAVID R. LITTLE Chairman of the Board, President and Chief December 27, 1999
- ----------------------------------------------- Executive Officer
David R. Little (Principal Executive Officer)
/s/ GARY A. ALLCORN Senior Vice President / Finance, Chief Financial December 27, 1999
- ----------------------------------------------- Officer and Director
Gary A. Allcorn (Principal Financial and
Accounting Officer)
/s/ JERRY J. JONES Director December 27, 1999
- -----------------------------------------------
Jerry J. Jones
/s/ CLETUS DAVIS Director December 27, 1999
- -----------------------------------------------
Cletus Davis
/s/ KENNETH H. MILLER Director December 27, 1999
- -----------------------------------------------
Kenneth H. Miller
/s/ THOMAS V. ORR Director December 27, 1999
- -----------------------------------------------
Thomas V. Orr
</TABLE>
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EXHIBIT INDEX
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EXHIBIT NUMBER DESCRIPTION
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4.1 Restated Articles of Incorporation, as amended (incorporated by reference to Exhibit 4.1 to the
Registrant's Registration Statement on Form S-8 (Reg. No. 333-61953), filed with the Commission
on August 20, 1998).
4.2 By-laws (incorporated by reference to Exhibit 3.2 to the Registrant's Registration Statement on
Form S-4 (Reg. No. 333-10021), filed with the Commission on August 12, 1996).
4.3 Form of Common Stock Certificate (incorporated by reference to Exhibit 4.3 to the Registrant's
Registration Statement on Form S-8 (Reg. No. 333-61953), filed with the Commission on August
20, 1998).
*4.4 DXP Enterprises, Inc. 1999 Employee Stock Bonus Plan
*5.1 Opinion of Fulbright & Jaworski L.L.P.
*23.1 Consent of Arthur Andersen LLP.
*23.2 Consent of Fulbright & Jaworski L.L.P. (included in Exhibit 5.1).
*24.1 Powers of Attorney (contained on page II-4).
</TABLE>
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*Filed herewith
II-5
<PAGE> 1
EXHIBIT 4.4
DXP ENTERPRISES, INC.
1999 EMPLOYEE STOCK BONUS PLAN
<PAGE> 2
DXP ENTERPRISES, INC.
1999 EMPLOYEE STOCK BONUS PLAN
This DXP Enterprises, Inc. 1999 Employee Stock Bonus Plan (the "Plan")
is adopted for the benefit of the employees of DXP Enterprises, Inc., a Texas
corporation (the "Company") and its Affiliates. The Plan is intended to advance
the interest of the Company by providing such employees with an additional
incentive to serve the Company by increasing their proprietary interest in the
success of the Company.
<PAGE> 3
DXP ENTERPRISES, INC.
1999 EMPLOYEE STOCK BONUS PLAN
TABLE OF CONTENTS
<TABLE>
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Section
ARTICLE I - PLAN -------
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Purpose...............................................................................................1.1
Effective Date of Plan................................................................................1.2
ARTICLE II - DEFINITIONS
Affiliate.............................................................................................2.1
Board of Directors....................................................................................2.2
Committee.............................................................................................2.3
Company...............................................................................................2.4
Employee..............................................................................................2.5
Fair Market Value.....................................................................................2.6
Outside Directors.....................................................................................2.7
Plan..................................................................................................2.8
Stock Agreement.......................................................................................2.9
Stock Purchase Price..................................................................................2.10
Stock.................................................................................................2.11
Stock Award...........................................................................................2.12
Voting Stock..........................................................................................2.13
ARTICLE III - ELIGIBILITY
ARTICLE IV - GENERAL PROVISIONS RELATING TO STOCK AWARDS
Authority to Grant Stock Awards.......................................................................4.1
Dedicated Shares......................................................................................4.2
Requirements of Law...................................................................................4.3
Changes in the Company's Capital Structure............................................................4.4
ARTICLE V - STOCK AWARDS
Stock Awards..........................................................................................5.1
Stock Certificate.....................................................................................5.2
Rights as Stockholder.................................................................................5.3
Taxes.................................................................................................5.4
ARTICLE VI - ADMINISTRATION
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<PAGE> 4
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ARTICLE VII - AMENDMENT OR TERMINATION OF PLAN
ARTICLE VIII - MISCELLANEOUS
No Establishment of a Trust Fund......................................................................8.1
No Employment Obligation..............................................................................8.2
Forfeiture and Disgorgement of Profits ...............................................................8.3
Tax Withholding.......................................................................................8.4
Written Agreement.....................................................................................8.5
Indemnification of the Committee and the
Board of Directors...........................................................................8.6
Gender................................................................................................8.7
Headings..............................................................................................8.8
Other Compensation Plans..............................................................................8.9
Other Stock Awards....................................................................................8.10
Governing Law.........................................................................................8.11
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<PAGE> 5
ARTICLE I
PLAN
1.1 PURPOSE. The Plan is for employees (excluding executive officers) of
the Company and its Affiliates and is intended to advance the best interests of
the Company, its Affiliates, and its stockholders by providing those employees
with additional incentives and an opportunity to obtain or increase their
proprietary interest in the Company, thereby encouraging them to continue in the
employ of the Company or any of its Affiliates.
1.2 EFFECTIVE DATE OF PLAN. The Plan is effective December 22, 1999.
ARTICLE II
DEFINITIONS
The words and phrases defined in this Article shall have the meaning
set out in these definitions throughout the Plan.
2.1 "AFFILIATE" means any parent corporation and any subsidiary
corporation of the Company. The term "parent corporation" means any corporation
(other than the Company) in an unbroken chain of corporations ending with the
Company if, at the time of the action or transaction, each of the corporations
other than the Company owns stock possessing more than 50 percent of the total
combined voting power of all classes of stock in one of the other corporations
in the chain. The term "subsidiary corporation" means any corporation (other
than the Company) in an unbroken chain of corporations beginning with the
Company if, at the time of the action or transaction, each of the corporations
other than the last corporation in the unbroken chain owns stock possessing more
than 50 percent of the total combined voting power of all classes of stock in
one of the other corporations in the chain.
2.2 "BOARD OF DIRECTORS" means the board of directors of the Company.
2.3 "COMMITTEE" means the Compensation Committee of the Board of
Directors or such other committee of two or more individuals, as designated by
the Board of Directors. The Committee shall comprise (a) solely at least two
members who are Outside Directors or (b) the entire Board of Directors.
2.4 "COMPANY" means DXP Enterprises, Inc., a Texas corporation.
2.5 "EMPLOYEE" means a person employed or retained by the Company or any
Affiliate to whom a Stock Award is granted.
2.6 "FAIR MARKET VALUE" of the Stock as of any date means (a) the
closing price of the Stock on that date on the principal securities exchange on
which the Stock is listed; or (b) if the Stock is not listed on a securities
exchange, the average of the high and low sale prices of the Stock on that date
as reported on the National Association of Securities Dealers
<PAGE> 6
Automated Quotation National Market System (or successor system); or (c) if the
Stock is not listed on the National Association of Securities Dealers Automated
Quotation National Market System (or successor system), the average of the high
and low bid quotations for the Stock on that date as reported by the National
Quotation Bureau Incorporated; or (d) if none of the foregoing is applicable, an
amount at the election of the Committee equal to (x) the average between the
closing bid and ask prices per share of stock on the last preceding date on
which those prices were reported or (y) that amount as determined by the
Committee.
2.7 "OUTSIDE DIRECTOR" means a member of the Board of Directors serving
on the Committee who satisfied the criteria of section 162(m) of the Internal
Revenue Code of 1986, as amended.
2.8 "PLAN" means the DXP Enterprises, Inc. 1999 Employee Stock Bonus
Plan, as set out in this document and as it may be amended from time to time.
2.9 "STOCK AGREEMENT" means an agreement between the Company or any
Affiliate and the Employee pursuant to which the Employee receives a Stock Award
subject to Article V.
2.10 "STOCK PURCHASE PRICE" means the purchase price, if any, per share
of Stock subject to an Award. The Stock Purchase Price shall be the Fair Market
Value of the Stock on the date of the Stock Award.
2.11 "STOCK" means the common stock of the Company, $.01 par value or,
in the event that the outstanding shares of common stock are later changed into
or exchanged for a different class of stock or securities of the Company or
another corporation, that other stock or security.
2.12 "STOCK AWARD" means an award of Stock.
2.13 "VOTING STOCK" means shares of capital stock of the Company the
holders of which are entitled to vote for the election of directors of the
Company, but excluding shares entitled to so vote only upon the occurrence of a
contingency unless that contingency shall have occurred.
ARTICLE III
ELIGIBILITY
The individuals who shall be eligible to receive Stock Awards shall be
those Employees, other than executive officers, of the Company or any of its
Affiliates as the Committee shall determine from time to time. The Board of
Directors may designate one or more individuals who shall not be eligible to
receive any Stock Award under the Plan.
<PAGE> 7
ARTICLE IV
GENERAL PROVISIONS RELATING TO STOCK AWARDS
4.1 AUTHORITY TO GRANT OPTIONS AND STOCK AWARDS. The Committee may
grant to those Employees, other than Employees who are executive officers of the
Company, as it shall from time to time determine, Stock Awards under the terms
and conditions of the Plan. Subject only to any applicable limitations set out
in the Plan, the number of shares of Stock to be covered by any Stock Award to
be granted to an Employee shall be as determined by the Committee.
4.2 DEDICATED SHARES. The total number of shares of Stock with respect
to which Stock Awards may be granted under the Plan shall be 60,000. The shares
may be treasury shares or authorized but unissued shares.
4.3 REQUIREMENTS OF LAW. The Company shall not be required to issue any
Stock under any Stock Award if issuing that Stock would constitute or result in
a violation by the Employee or the Company of any provision of any law, statute,
or regulation of any governmental authority. Specifically, in connection with
any applicable statute or regulation relating to the registration of securities,
pursuant to any Stock Award, the Company shall not be required to issue any
Stock unless the Committee has received evidence satisfactory to it to the
effect that the holder of that Stock Award will not transfer the Stock except in
accordance with applicable law, including receipt of an opinion of counsel
satisfactory to the Company to the effect that any proposed transfer complies
with applicable law. The determination by the Committee on this matter shall be
final, binding and conclusive. The Company may, but shall in no event be
obligated to, register any Stock covered by the Plan pursuant to applicable
securities laws of any country or any political subdivision. In the event the
Stock issuable pursuant to a Stock Award is not registered, the Company may
imprint on the certificate evidencing the Stock any legend that counsel for the
Company considers necessary or advisable to comply with applicable law.
4.4 CHANGES IN THE COMPANY'S CAPITAL STRUCTURE. The existence of
outstanding Stock Awards shall not affect in any way the right or power of the
Company or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's capital
structure or its business, or any merger or consolidation of the Company, or any
issue of bonds, debentures, preferred or prior preference stock ahead of or
affecting the Stock or its rights, or the dissolution or liquidation of the
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.
ARTICLE V
STOCK AWARDS
5.1 STOCK AWARDS. The Committee may issue shares of Stock to an eligible
Employee, subject to the terms of a Stock Agreement. The Stock may be issued for
no payment by the Employee or for a payment below the Fair Market Value on the
date of grant. Stock will be subject to immediate vesting upon grant of the
Stock Award. The Committee shall determine the number of shares, the price, if
any, of Stock included in a Stock Award, and the other terms and provisions
which are included in a Stock Agreement.
<PAGE> 8
5.2 STOCK CERTIFICATE. Shares of Stock shall be registered in the name
of the Employee receiving the Stock Award.
5.3 RIGHTS AS STOCKHOLDER. Subject to the terms and conditions of the
Plan, each Employee receiving a certificate for Stock shall have all the rights
of a stockholder with respect to the shares of Stock included in the Stock
Award, including without limitation, the right to vote such shares. Dividends
paid with respect to shares of Stock in cash or property other than stock in the
Company or rights to acquire stock in the Company shall be paid to the Employee
currently. Dividends paid in stock in the Company or rights to acquire stock in
the Company shall be added to and become a part of the Stock.
5.4 TAXES. By accepting a Stock Award and executing a Stock Agreement,
the Employee agrees to remit when due any federal and state income and
employment taxes required to be withheld or to satisfy this obligation in a
manner acceptable to the Committee.
ARTICLE VI
ADMINISTRATION
The Plan shall be administered by the Committee. All questions of
interpretation and application of the Plan or Stock Awards shall be subject to
the determination of the Committee. A majority of the members of the Committee
shall constitute a quorum. All determinations of the Committee shall be made by
a majority of its members. Any decision or determination reduced to writing and
signed and dated by all of the members shall be as effective as if it had been
made by a majority vote at a meeting properly called and held. In carrying out
its authority under the Plan, the Committee shall have full and final authority
and discretion, including but not limited to the following rights, powers and
authorities, to:
(a) determine the Employees to whom and the time or times at
which Stock Awards will be made,
(b) determine the number of shares and the purchase price of
Stock covered in each Stock Award, subject to the terms of the Plan,
(c) determine the terms, provisions and conditions of each
Stock Award, which need not be identical,
(d) prescribe, amend and rescind rules and regulations
relating to administration of the Plan, and
(e) make all other determinations and take all other actions
deemed necessary, appropriate, or advisable for the proper
administration of the Plan.
The actions of the Committee in exercising all of the rights, powers, and
authorities set out in this Article and all other Articles of the Plan, when
performed in good faith and in its sole judgment, shall be final, conclusive and
binding on all parties.
<PAGE> 9
ARTICLE VII
AMENDMENT OR TERMINATION OF PLAN
The Board of Directors of the Company may amend, terminate or suspend
the Plan at any time, in its sole and absolute discretion.
ARTICLE VIII
MISCELLANEOUS
8.1 NO ESTABLISHMENT OF A TRUST FUND. No property shall be set aside nor
shall a trust fund of any kind be established to secure the rights of any
Employee under the Plan. All Employees shall at all times rely solely upon the
general credit of the Company for the payment of any benefit which becomes
payable under the Plan.
8.2 NO EMPLOYMENT OBLIGATION. The granting of any Stock Award shall not
constitute an employment contract, express or implied, nor impose upon the
Company or any Affiliate any obligation to employ or continue to employ any
Employee. The right of the Company or any Affiliate to terminate the employment
of any person shall not be diminished or affected by reason of the fact that a
Stock Award has been granted to him.
8.3 FORFEITURE AND DISGORGEMENT OF PROFITS. Notwithstanding any other
provisions of the Plan, if the Committee finds by a majority vote after full
consideration of the facts that the Employee, before or after termination of his
employment with the Company or an Affiliate for any reason (a) committed or
engaged in fraud, embezzlement, theft, commission of a felony, or proven
dishonesty in the course of his employment by the Company or an Affiliate, which
conduct damaged the Company or Affiliate, or disclosed trade secrets of the
Company or an Affiliate, or (b) participated, engaged in or had a material,
financial or other interest, whether as an employee, consultant, contractor,
stockholder, owner, or otherwise, in any commercial endeavor in the United
States which is competitive with the business of the Company or an Affiliate
without the written consent of the Company or Affiliate, the Employee shall
forfeit all outstanding Stock Awards pursuant to which the Company has not yet
delivered a stock certificate. Clause (b) shall not be deemed to have been
violated solely by reason of the Employee's ownership of stock or securities of
any publicly traded corporation, if that ownership does not result in effective
control of the corporation.
The decision of the Committee as to the cause of the Employee's
discharge, the damage done to the Company or an Affiliate, and the extent of the
Employee's competitive activity shall be final. No decision of the Committee,
however, shall affect the finality of the discharge of the Employee by the
Company or an Affiliate in any manner.
8.4 TAX WITHHOLDING. The Company or any Affiliate shall be entitled to
deduct from other compensation payable to each Employee any sums required by
federal, state, or local tax law to be withheld with respect to the grant of a
Stock Award. In the alternative, the Company may require the Employee to
<PAGE> 10
pay the sum directly to the employer corporation. If the Employee is required to
pay the sum directly, payment in cash or by check of such sums for taxes shall
be delivered within ten days of the grant of the Stock Award. The Company and
its Affiliates shall not be obligated to advise an Employee of the existence of
the tax or the amount which the employer corporation will be required to
withhold.
8.5 WRITTEN AGREEMENT. Each Stock Award shall be embodied in a written
Stock Agreement which shall be subject to the terms and conditions of the Plan
and shall be signed (i) by the Employee and (ii) by a member of the Committee on
behalf of the Committee and the Company, or by an executive officer of the
Company. The Stock Agreement may contain any other provisions that the Committee
in its discretion shall deem advisable which are not inconsistent with the terms
of the Plan.
8.6 INDEMNIFICATION OF THE COMMITTEE AND THE BOARD OF DIRECTORS. With
respect to administration of the Plan, the Company shall indemnify each present
and future member of the Committee and the Board against, and each member of the
Committee and the Board shall be entitled without further act on his part to
indemnity from the Company for, all expenses (including attorney's fees, the
amount of judgments and the amount of approved settlements made with a view to
the curtailment of costs of litigation, other than amounts paid to the Company
itself) reasonably incurred by him in connection with or arising out of any
action, suit, or proceeding in which he may be involved by reason of his being
or having been a member of the Committee or the Board, whether or not he
continues to be a member of the Committee or the Board or both at the time of
incurring the expenses, including, without limitation, matters as to which he
shall be finally adjudged in any action, suit or proceeding to have been found
to have been negligent in the performance of his duty as a member of Committee
or the Board. However, this indemnity shall not include any expenses incurred by
any member of the Committee or the Board in respect of matters as to which he
shall be finally adjudged in any action, suit or proceeding to have been guilty
of gross negligence or willful misconduct in the performance of his duty as a
member of the Committee and the Board. In addition, no right of indemnification
under the Plan shall be available to or enforceable by any member of the
Committee and the Board unless within 60 days after institution of any action,
suit or proceeding, he shall have offered the Company, in writing, the
opportunity to handle and defend same at its own expense. This right of
indemnification shall inure to the benefit of the heirs, executors or
administrators of each member of the Committee and the Board and shall be in
addition to all other rights to which a member of the Committee and the Board
may be entitled as a matter of law, contract, or otherwise.
8.6 GENDER. If the context requires, words of one gender when used in
the Plan shall include the others and words used in the singular or plural shall
include the other.
8.7 HEADINGS. Headings of Articles and Sections are included for
convenience of reference only and do not constitute part of the Plan and shall
not be used in construing the terms of the Plan.
8.8 OTHER COMPENSATION PLANS. The adoption of the Plan shall not affect
any other stock option, incentive or other compensation or benefit plans in
effect for the Company or any Affiliate, nor shall the Plan preclude the Company
from establishing any other forms of incentive or other compensation for
employees, consultants and advisors of the Company or any Affiliate.
8.9 OTHER STOCK AWARDS. The grant of a Stock Award shall not confer upon
the Employee the right to receive any future or other Stock Awards under the
Plan, whether or not Stock Awards may be
<PAGE> 11
granted to similarly situated Employees, or the right to receive future Stock
Awards upon the same terms or conditions as previously granted.
8.10 GOVERNING LAW. The provisions of the Plan shall be construed,
administered, and governed under the laws of the State of Texas.
<PAGE> 1
EXHIBIT 5.1
[LETTERHEAD OF FULBRIGHT & JAWORSKI, L.L.P.]
December 27, 1999
DXP Enterprises, Inc.
7272 Pinemont
Houston, Texas 77040
Ladies and Gentlemen:
We have acted as counsel for DXP Enterprises, Inc., a Texas
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended, of 60,000 shares of the Company's common
stock, $.01 par value (the "Shares"), to be offered upon the terms and subject
to the conditions set forth in the DXP Enterprises, Inc. 1999 Employee Stock
Bonus Plan (the "Plan").
In connection therewith, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the Restated Articles
of Incorporation of the Company, as amended, the By-Laws of the Company, the
Plan, records of relevant corporate proceedings with respect to the offering of
the Shares and such other documents and instruments as we have deemed necessary
or appropriate for the expression of the opinions contained herein. We have also
reviewed the Company's Registration Statement on Form S-8 to be filed with the
Securities and Exchange Commission with respect to the Shares (the "Registration
Statement").
We have assumed the authenticity and completeness of all records,
certificates and other instruments submitted to us as originals, the conformity
to original documents of all records, certificates and other instruments
submitted to us as copies, the authenticity and completeness of the originals of
those records, certificates and other instruments submitted to us as copies and
the correctness of all statements of fact contained in all records, certificates
and other instruments that we have examined.
Based on the foregoing and having regard for such legal
considerations as we have deemed relevant, we are of the opinion that the Shares
have been duly authorized and, when issued in accordance with the terms of the
Plan, will be validly issued, fully paid and non-assessable.
The opinions expressed herein are limited exclusively to laws of
the State of Texas and the federal laws of the United States of America, to the
extent applicable.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement.
Very truly yours,
/s/ FULBRIGHT & JAWORSKI L.L.P.
Fulbright & Jaworski L.L.P.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
March 22,1999 included in the Company's Form 10-K for the fiscal year ended
December 31, 1998 and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSEN LLP
Houston, Texas
December 28, 1999
