form8a.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-A
FOR
REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT
TO SECTION 12(b) OR (g) OF THE
SECURITIES
EXCHANGE ACT OF 1934
ePlus
inc.
___________________________________________________
(Exact
name of registrant as specified in its charter)
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Delaware
(State
of Incorporation or Organization)
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54-1817218
(I.R.S.
Employer Identification No.)
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13595
Dulles Technology Drive
Herndon,
Virginia
(Address
of Principal Executive Offices)
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20171-3413
(Zip
Code)
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Securities
to be registered pursuant to Section 12(b) of the Act:
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Title
of each class
to
be so registered
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Name
of each exchange on which
each
class is to be
registered
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Common
Stock, par value $.01 per share
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The
NASDAQ Stock Market LLC
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If
this form relates to the registration of a class of securities pursuant
to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. ý
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If
this form relates to the registration of a class of securities pursuant
to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. ¨
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Securities
Act registration statement file number to which this form relates:
N/A (if
applicable)
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Securities
to be registered pursuant to Section 12(g) of the Act: None
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INFORMATION
REQUIRED IN REGISTRATION STATEMENT
ePlus
inc. (the “Company”) is
filing this Form 8-A in connection with the transfer of the quotation of its
common stock from the National Quotation Bureau “pink sheet” service to the
listing of its common stock on the NASDAQ Stock Market LLC, which is expected
to
become effective on September 3, 2008.
Item
1.
Description of Registrant’s Securities to be Registered
The
authorized capital stock of the
Company consists of 27,000,000 shares, consisting of 25,000,000 shares of common
stock having a par value of $.01 per share (the “Common Stock”) and 2,000,000
shares of preferred stock having a par value of $.01 per share (the “Preferred
Stock”). The following description of our Common Stock and Preferred
Stock and certain provisions of the Company’s Certificate of Incorporation, as
amended (the “Certificate”) and Amended and Restated Bylaws (the “Bylaws”) is a
summary and is qualified in its entirety by the provisions of the Certificate
and Bylaws.
Common
Stock
Holders
of Common Stock are entitled to
receive dividends if and when declared by the Company’s Board of Directors out
of funds legally available. Except as otherwise required by law, the
Certificate or the Bylaws, each holder of Common Stock has one vote in respect
of each share of Company stock that has been held by such stockholder and
registered in such stockholder’s name on the books of the
Company. There is no cumulative voting and all matters, except as
otherwise provided by law, the Certificate or the Bylaws, is decided by the
vote
of a majority in voting interest of the stockholders present at a meeting,
in
person or by proxy, and entitled to vote. The Company’s outstanding
shares of Common Stock are validly issued, fully paid, and
nonassessable.
In
the event of the Company’s
liquidation or dissolution, holders of the Company’s Common Stock are entitled
to receive proportionately the Company’s net assets available for distribution
to stockholders after the payment of all debts and other liabilities and subject
to the prior rights of any outstanding preferred stock that the Company’s Board
of Directors may designate and issue in the future. Holders of Common
Stock have no preemptive, subscription, redemption or conversion
rights. The rights, preferences, and privileges of holders of Common
Stock are subject to and may be adversely affected by the rights of the holders
of shares of any series of Preferred Stock that the Company’s Board of Directors
may designate and issue in the future.
Preferred
Stock
The
Board
of Directors of the Company is authorized, subject to limitations prescribed
by
law, to provide by resolution or resolutions for the issuance of shares of
Preferred Stock as a class or in series, and, by filing a certificate of
designations, pursuant to the Delaware General Corporation Law (“DGCL”), setting
forth a copy of such resolution or resolutions to establish from time to time
the number of shares to be included in each such series and to fix the
designation, powers, preferences and rights of the shares of the class or of
each such series and the qualifications, limitations, and restrictions
thereof.
The
authority of the Board of Directors with respect to the class or each series
includes, but is not limited to, determination of the following: (a) the
number of shares constituting any series and the distinctive designation of
that
series; (b) the dividend rate of the shares of the class or of any series,
whether dividends will be cumulative, and if so, from which date or dates,
and
the relative rights of priority, if any of payment of dividends on shares of
the
class or of that series; (c) whether the class or any series will have voting
rights, in addition to the voting rights provided by law, and if so, the terms
of such voting rights; (d) whether the class or any series will have conversion
privileges and, if so, the terms and conditions of conversion, including
provision for adjustment of the conversion rate in such events as the Board
of
Directors determines; (e) whether or not the shares of the class or of any
series will be redeemable, and, if so, the terms and conditions of such
redemption, including the date or date upon or after which they will be
redeemable and the amount per share payable in case of redemption, which amount
may vary under different conditions and at different redemption rates; (f)
whether the class or any series will have a sinking fund for the redemption
or
purchase of shares of the class or of that series, and if so, the terms and
amount of such sinking fund; (g) the rights of the shares of the class or of
any
series in the event of voluntary or involuntary dissolution or winding up of
the
Company, and the relative rights of priority, if any, of payment of shares
of
the class or of that series; and (h) any other powers, preferences, rights,
qualifications, limitations and restrictions of the class or of that
series.
Corporate
Governance Matters
Certain
provisions of Delaware law and the Company's Certificate and Bylaws could make
more difficult (a) the acquisition of the Company by means of a tender offer,
proxy contest or otherwise, and (b) the removal of incumbent
directors. The following discussion is a general summary of material
provisions of the Company's Certificate and Bylaws, as currently in effect,
and
certain other regulatory provisions, which may be deemed to have an
"anti-takeover" effect. The following description of certain of these
provisions is necessarily general and, with respect to provisions contained
in
the Company's Certificate and Bylaws, as currently in effect, is qualified
in
its entirety by the Certificate and Bylaws and reference should be made in
each
case to the document in question.
Directors
Currently,
certain provisions of the Certificate impede changes in majority control of
the
Board of Directors. The Company's Certificate provides that the Board
of Directors of the Company are divided into three classes, with directors
in
each class elected for three-year staggered terms. This classification of the
Board of Directors makes it more difficult for a third party to acquire control
of the Company, because it would require more than one annual meeting of
stockholders to elect a majority of the directors. The Company's
Bylaws provide that any vacancy occurring in the Board of Directors, including
a
vacancy created by an increase in the number of directors, will be filled for
the remainder of the unexpired term by a majority vote of the directors then
in
office. The number of directors constituting the board is currently
eight members.
At
the
Company’s Annual Meeting of Shareholders to be held on September 15, 2008, the
Company’s shareholders will vote on a proposal to amend and restate the
certificate of incorporation and to terminate the Board classification provision
described above. If the proposed amendment to the Certificate is
approved, directors will be elected to one-year terms of office starting at
the
2009 Annual Meeting of Shareholders.
Amendment
to Certificate and
Bylaws
Amendments
to the Certificate requires the approval by a majority vote of the Company's
Board of Directors and also by a majority vote of the outstanding shares of
the
Company's stock entitled to vote thereon. The Bylaws may be amended,
repealed or rescinded and any new Bylaws may be adopted, except as otherwise
provided in the Bylaws or the Certificate, by affirmative vote of a majority
of
the Board or by affirmative vote of a majority of the outstanding shares of
the
Company’s voting stock at any annual or special meeting of stockholders,
provided that notice of such proposed alteration, amendment, repeal, recession
or adoption is given in the notice of such meeting.
Delaware
Anti-Takeover
Statute
Generally,
Section 203 of the DGCL prevents an "interested stockholder" (defined generally
as a person owning 15% or more of the outstanding voting stock of a Delaware
corporation, such as the Company) from engaging in a "business combination"
with
a corporation for three years following the date that the person became an
interested stockholder in such corporation. The business combination
can be completed, however, if (i) prior to such time the target corporation’s
board of directors approved either the business combination or the transaction
which resulted in the stockholder becoming an interested stockholder, (ii)
the
buyer acquires at least 85% of the Company's outstanding stock (the 85%
requirement excludes shares held by directors who are also officers and certain
shares held under employee stock plans), or (iii) the business combination
is
approved by the target corporation's board of directors and two-thirds of the
shares of outstanding stock of the Company (excluding shares held by the
interested stockholder). Section 203 could make it more difficult for
a third party to acquire control of the Company. The Company may
exempt itself from the requirements of the statute by adopting an amendment
to
its Certificate or Bylaws electing not to be governed by this
provision. At the present time, the Board of Directors does not
intend to propose any such amendment.
Item
2.
Exhibits
None.
SIGNATURE
Pursuant
to the requirements of Section
12 of the Securities Exchange Act of 1934, the Registrant has duly caused this
Registration Statement on Form 8-A to be signed on its behalf by the
undersigned, thereto duly authorized.
ePlus
inc.
Dated:
August 29,
2008 By: /s/
Steven J.
Mencarini
Steven
J.
Mencarini
Chief
Financial
Officer