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As filed with the Securities and Exchange Commission on December 16, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
DXP ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
TEXAS 76-0509661
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
7272 PINEMONT
HOUSTON, TEXAS 77040
(Address of Principal Executive Offices) (Zip Code)
DXP ENTERPRISES, INC. 1999 NON-EMPLOYEE DIRECTOR STOCK OPTION 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
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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]
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CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AMOUNT OF
REGISTERED AMOUNT TO BE REGISTERED PRICE PER SHARE(1) AGGREGATE OFFERING PRICE(1) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, $.01 par 200,000 Shares(2) $2.750 $550,000.00 $146.00
value
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(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 14, 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
Non-Employee Director Stock Option Plan.
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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
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entitled to indemnification by the corporation. Texas law requires a
corporation to indemnify an officer or director against 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 Non-Employee
Director Stock Option 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).
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* Filed herewith
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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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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 15th day of
December, 1999.
DXP ENTERPRISES, INC.
By: /s/ DAVID R. LITTLE
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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/ DAVID R. LITTLE Chairman of the Board, President and Chief December 15, 1999
- ----------------------------------------------- Executive Officer
David R. Little (Principal Executive Officer)
/s/ GARY A. ALLCORN Senior Vice President/Finance, Chief December 15, 1999
- ----------------------------------------------- Financial Officer and Director
Gary A. Allcorn (Principal Financial and
Accounting Officer)
/s/ JERRY J. JONES Director December 15, 1999
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Jerry J. Jones
/s/ CLETUS DAVIS Director December 15, 1999
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Cletus Davis
/s/ KENNETH H. MILLER Director December 15 ,1999
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Kenneth H. Miller
/s/ THOMAS V. ORR Director December 15, 1999
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Thomas V. Orr
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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 Non-Employee Director Stock Option
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).
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*Filed herewith
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EXHIBIT 5.1
[LETTERHEAD OF FULBRIGHT & JAWORSKI, L.L.P.]
December 15, 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 200,000 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 Non-Employee
Director Stock Option 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, 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.
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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 for the year ended December 31, 1998 and to all references to our
firm included in this registration statement.
ARTHUR ANDERSEN LLP
Houston, Texas
December 15, 1999
