As filed with the Securities and Exchange Commission on August 22, 2019
Registration No. 333-
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UNITED STATES
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SECURITIES AND EXCHANGE COMMISSION
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Washington, D.C. 20549
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FORM S-8
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REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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DXP Enterprises, Inc.
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(Exact name of registrant as specified in its charter)
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Texas
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76-0509661
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S Employer
Identification No.)
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5301 Hollister
Houston, Texas 77040
(713) 996-4700
(Address, including zip code and telephone number, including area code, of registrant’s principal executive offices)
DXP ENTERPRISES, INC. 2016 OMNIBUS INCENTIVE PLAN, as amended
(Full title of the plan)
Kent Yee
Senior Vice President and Chief Financial Officer
5301 Hollister
Houston, Texas 77040
(713) 996-4700
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Brian P. Fenske
Norton Rose Fulbright US LLP
Fulbright Tower
1301 McKinney, Suite 5100
Houston, Texas 77010
Telephone: (713) 651-5557
Facsimile: (713) 651-5246
(Name, address, and telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See definition of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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¬
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Accelerated filer
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x
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Non-accelerated filer
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¬
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Smaller reporting company
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¬
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Emerging growth company
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¬
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¬
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CALCULATION OF REGISTRATION FEE
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Title of securities
to be registered
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Amount
to be
registered (1)
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Proposed
maximum
offering price
per share
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Proposed
maximum
aggregate
offering price
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Amount of
registration fee
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Common Stock, $0.01 par value per share
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500,000 shares (2)
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$33.20 (3)
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$16,600,000
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$2,011.92
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(1)
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This Registration Statement also includes such additional number of shares of DXP Enterprises Inc. common stock, par value $0.01 (“Common Stock”), issuable under the DXP Enterprises Inc. 2016 Omnibus Incentive Plan, as amended (the “2016 Plan”), as may be required in the event of a stock split, stock dividend or similar transaction in accordance with Rule 416 of the Securities Act of 1933, as amended (the “Securities Act”).
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(2)
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Represents 500,000 additional shares of Common Stock reserved for future issuances under the 2016 Plan.
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(3)
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Estimated solely for purposes of calculating the registration fee in accordance with Rules 457(c) and 457(h) of the Securities Act, based upon the average of the high and low prices of Common Stock on August 19, 2019, as reported on the NASDAQ Global Select Market, of $33.20.
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EXPLANATORY NOTE
On June 19, 2019, at the 2019 Annual Meeting of Shareholders of DXP Enterprises Inc. (the “Company”), the Company’s shareholders approved an amendment (the “Amendment”) to the DXP Enterprises Inc. 2016 Omnibus Incentive Plan, as amended (the “Plan”). The Amendment provides that an additional 500,000 shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”) may be issued under the Plan (the “Additional Shares”).
This Registration Statement on Form S-8 (this “Registration Statement”) is being filed by the Company to register the Additional Shares. These shares are in addition to the 500,000 shares of Common Stock, that may be issued under the Plan pursuant to the Company’s Registration Statement on Form S-8 (File No. 333-213226) filed with the Securities and Exchange Commission (the “SEC”) on August 19, 2016, (the “Prior Registration Statement”). Pursuant to General Instruction E to Form S-8 under the Securities Act of 1933, as amended (the “Securities Act”), the contents of the Prior Registration Statement are incorporated by reference into this Registration Statement, except to the extent supplemented, amended and superseded by the information set forth herein.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Exhibit
No.
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Exhibit Description
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4.1
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4.2
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4.3
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5.1*
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23.1*
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23.2*
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23.3*
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24.1*
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99.1
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99.2*
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 August 22, 2019.
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DXP ENTERPRISES INC.
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By:
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/s/ David R. Little
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David R. Little
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President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below, the undersigned officers and directors of DXP Enterprises Inc., hereby severally constitute and appoint David R. Little and Kent Yee, and each of them singly (with full power to each of them to act alone), his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them for him and in his name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or 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 attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
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Name
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Title
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Date
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/s/ David R. Little
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Chairman of the Board, President, Chief Executive
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August 22, 2019
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David R. Little
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Officer and Director (Principal Executive Officer)
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/s/ Kent Yee
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Senior Vice President, Chief Financial Officer
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August 22, 2019
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Kent Yee
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and Secretary (Principal Financial Officer)
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/s/ Gene Padgett
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Senior Vice President and Chief Accounting
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August 22, 2019
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Gene Padgett
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Officer (Principal Accounting Officer)
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/s/ Cletus Davis
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Director
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August 22, 2019
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Cletus Davis
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/s/ Timothy P. Halter
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Director
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August 22, 2019
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Timothy P. Halter
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/s/ David Patton
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Director
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August 22, 2019
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David Patton
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Exhibit 5.1
Norton Rose Fulbright US LLP
1301 McKinney, Suite 5100
Houston, Texas 77010-3095
United States
Tel +1 713 651 5151
Fax +1 713 651 5246
nortonrosefulbright.com
August 22, 2019
DXP Enterprises, Inc.
5301 Hollister
Houston, TX 77040
Ladies and Gentlemen:
We have acted as counsel to DXP Enterprises, Inc., a Texas corporation (the “Company”), in connection with the registration under the Securities Act of 1933, as amended (the “Securities Act”), of an additional 500,000 shares (the “Shares”) of the Company’s common stock, par value $0.01 per share, that are reserved for issuance under the DXP Enterprises, Inc. 2016 Omnibus Incentive Plan, as amended (the “Plan”), as described in the Company’s Registration Statement on Form S-8 (as may subsequently be amended, the “Registration Statement”), which was filed with the Securities and Exchange Commission (the “SEC”) on August 22, 2019.
In connection with the foregoing, we have examined the Plan and originals or copies of certain corporate records of the Company, certificates and other communications of public officials, certificates of officers of the Company and such other documents as we have deemed relevant or necessary for the purpose of rendering the opinions expressed herein. As to questions of fact material to those opinions, we have, to the extent we deemed appropriate, relied on certificates of officers of the Company and on certificates and other communications of public officials. We have assumed that the persons identified to us as officers of the Company are actually serving as such and that any certificates representing the Shares will be properly executed by one or more such persons. We have assumed the effectiveness of the Registration Statement pursuant to the Securities Act. We have assumed the genuineness of all signatures on, and the authenticity of, all documents submitted to us as originals, the conformity to authentic original documents of all documents submitted to us as copies thereof, the due authorization, execution and delivery by the parties thereto other than the Company of all documents examined by us, that the Company will receive any required consideration for such Shares and the legal capacity of each individual who signed any of those documents.
Based upon the foregoing, we are of the opinion that the Shares, when issued and sold in the manner referred to in the Plan and pursuant to the agreements that accompany the Plan, will be validly issued, fully paid and nonassessable.
The opinions expressed herein are limited exclusively to applicable laws of the State of Texas and the federal laws of the United States of America, and reported judicial interpretations of such law, in each case as currently in effect, and we are expressing no opinion as to the effect of the laws of any other jurisdiction.
Norton Rose Fulbright US LLP is a limited liability partnership registered under the laws of Texas.
Norton Rose Fulbright US LLP, Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz, Inc.), each of which is a separate legal entity, are members of Norton Rose Fulbright Verein, a Swiss Verein. Details of each entity, with certain regulatory information, are at nortonrosefulbright.com. Norton Rose Fulbright Verein helps coordinate the activities of the members but does not itself provide legal services to clients.
Exhibit 5.1
DXP Enterprises, Inc.
August 22 2019
Page 2
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and the reference to this firm wherever it appears in the Registration Statement. This consent is not to be construed as an admission that we are a party whose consent is required to be filed with the Registration Statement under the provisions of the Securities Act or the rules and regulations of the SEC promulgated thereunder.
Very truly yours,
/s/ Norton Rose Fulbright US LLP
Norton Rose Fulbright US LLP
Norton Rose Fulbright US LLP is a limited liability partnership registered under the laws of Texas.
Norton Rose Fulbright US LLP, Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz, Inc.), each of which is a separate legal entity, are members of Norton Rose Fulbright Verein, a Swiss Verein. Details of each entity, with certain regulatory information, are at nortonrosefulbright.com. Norton Rose Fulbright Verein helps coordinate the activities of the members but does not itself provide legal services to clients.
Exhibit 99.2
First AMENDMENT TO THE
DXP Enterprises, Inc. 2016 Omnibus Incentive Plan
THIS FIRST AMENDMENT is made by DXP Enterprises, Inc. (the “Company”).
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company (the “Board of Directors”) previously adopted the DXP Enterprises, Inc. 2016 Omnibus Incentive Plan (the “Plan”);
WHEREAS, the Board of Directors reserved the right in Section 16.1 of the Plan to amend the Plan; and
WHEREAS, the Board of Directors has determined that it is advisable and in the best interests of the Company to amend the Plan to increase the number of shares of the Company’s common stock available for issuance under the Plan by 500,000 shares from 500,000 shares to 1,000,000 shares;
NOW, THEREFORE, the Board of Directors agrees that, subject to and effective upon the approval of the amendment set forth below by the Company’s stockholders, Sections 4.1(a) of the Plan is completely amended and restated to provide as follows (and Section 4.1(b) of the Plan is restated to confirm that the existing limit on the aggregate number of shares of the Company's common stock with respect to which incentive stock option may be granted under the Plan remains at the original 500,000 shares previously approved by the stockholders of the Company) (capitalized terms used but not otherwise defined herein shall have the meanings assigned to such terms in the Plan):
(a)The aggregate number of shares of Stock with respect to which Awards may be granted under the Plan is 1,000,000 (the “Authorized Shares”).
(b)The aggregate number of shares of Stock with respect to which ISOs may be granted under the Plan is equal to 500,000 Shares.
Approved by the shareholders of the Company
on June 19, 2019