Registration of Securities to be Offered to Employees Pursuant to an Employee Benefit Plan — Form S-8
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-8 Dxp Enterprises, Inc. 6 38K
2: EX-4.1 Restated Articles of Incorporation 17 59K
3: EX-4.3 Form of Common Stock Certificate 2 11K
4: EX-4.4 Dxp Enterprises, Inc. Long Term Incentive Plan 16 60K
5: EX-5.1 Opinion of Fulbright & Jaworski L.L.P. 2± 8K
6: EX-23.1 Consent of Arthur Andersen LLP 1 5K
As filed with the Securities and Exchange Commission on August 20, 1998
Registration No. 333-_______
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UNITED STATES
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)
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TEXAS 76-0509661
(State or other jurisdiction of (I.R.S Employer Identification No.)
incorporation or organization)
580 WESTLAKE PARK BOULEVARD, SUITE
1100 77079
HOUSTON, TEXAS
(Address of Principal Executive Offices) (Zip Code)
DXP ENTERPRISES, INC. LONG-TERM INCENTIVE PLAN, AS AMENDED
(Full title of the plan)
DAVID R. LITTLE
CHAIRMAN OF THE BOARD, PRESIDENT AND CHIEF EXECUTIVE OFFICER
DXP ENTERPRISES, INC.
580 WESTLAKE PARK BOULEVARD, SUITE 1100
HOUSTON, TEXAS 77079
(Name and address of agent for service)
281/531-4214
(Telephone number, including area code, of agent for service)
Copy to:
Fulbright & Jaworski L.L.P.
1301 McKinney, Suite 5100
Houston, Texas 77010
(713) 651-5151
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]
CALCULATION OF REGISTRATION FEE
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Title of securities to be Amount to be Proposed maximum Proposed maximum Amount of
registered registered offering price per share(1) aggregate offering price(1) registration fee
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Common Stock, $.01 par
value 330,000 $8.75 $2,887,500 $852
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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 August 17, 1998.
(2) Includes an indeterminable number of shares of Common Stock issuable
as a result of the anti-dilution provisions of the DXP Enterprises,
Inc. Long-Term Incentive Plan, as amended.
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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, 1997 of DXP Enterprises, Inc., a Texas corporation (the
"Registrant"), filed February 26, 1998 with the Securities and Exchange
Commission (the "Commission").
2. The Quarterly Report on Form 10-Q for the
quarter ended March 31, 1998 of the Registrant, filed May 14, 1998 with the
Commission, as amended by Amendment No. 1 to Form 10-Q on Form 10-Q/A, filed
May 22, 1998 with the Commission.
3. The Quarterly Report on Form 10-Q for the
quarter ended June 30, 1998 of the Registrant, filed August 10, 1998 with the
Commission.
4. 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 made a named 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 corporations'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
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.
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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.
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.
4.4 -- DXP Enterprises, Inc. Long Term Incentive Plan,
as amended.
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).
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
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information set forth in this 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 with or furnished to the Securities and
Exchange Commission 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, 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 20th day of
August, 1998.
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
--------- ----- ----
/s/ DAVID R. LITTLE Chairman of the Board, President, Chief August 20, 1998
-------------------------------------------- Executive Officer and Director (Principal
David R. Little Executive Officer)
/s/ JERRY J. JONES Director August 20, 1998
--------------------------------------------
Jerry J. Jones
/s/ GARY A. ALLCORN Senior Vice President/Finance and Chief August 20, 1998
-------------------------------------------- Financial Officer (Principal Financial and
Gary A. Allcorn Accounting Officer)
/s/ CLETUS DAVIS Director August 20, 1998
--------------------------------------------
Cletus Davis
Director August , 1998
--------------------------------------------
Kenneth H. Miller
/s/ THOMAS V. ORR Director August 20, 1998
--------------------------------------------
Thomas V. Orr
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EXHIBIT INDEX
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EXHIBIT NUMBER DESCRIPTION
*4.1 Restated Articles of Incorporation, as amended.
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.
*4.4 DXP Enterprises, Inc. Long Term Incentive Plan, as amended.
*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
Dates Referenced Herein and Documents Incorporated by Reference
17 Subsequent Filings that Reference this Filing
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