forms8.htm
As
filed
with the Securities and Exchange Commission on September 23, 2008
Registration
No.
333-
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
ePlus
inc.
___________________________________________________
(Exact
name of Registrant as specified in its charter)
Delaware
(State
or other jurisdiction
of
incorporation or organization)
|
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)
|
2008
NON-EMPLOYEE DIRECTOR LONG-TERM INCENTIVE PLAN
2008
EMPLOYEE LONG-TERM INCENTIVE PLAN
(Full
title of the Plans)
Phillip
G. Norton
Chairman,
President and Chief Executive Officer
ePlus
inc.
13595
Dulles Technology Drive
Herndon,
Virginia 20171-3413
(703)
984-8400
(Name,
address, including zip code, and telephone
number,
including area code, of agent for service)
Copy
to:
Lloyd
Spencer, Esq.
Nixon
Peabody LLP
401
9th
Street NW, Suite 900
Washington,
D.C. 20004-2128
(202)
585-8000
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act.
Large
accelerated
filer ¨ |
Accelerated
filer
¨ |
Non-accelerated
filer ¨ (Do
not check if
a smaller reporting company) |
Smaller
reporting
company ý |
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CALCULATION
OF REGISTRATION FEE
Title
of
Securities
to be
Registered
|
Amount
to be
Registered(1)(2)
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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 par value $0.01 per share
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1,250,000
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n/a
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n/a
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n/a
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(1)
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Pursuant
to Interpretation No. 89 under Section G of the Manual of Public
Available
Telephone Interpretations (July 1997) of the Division of Corporation
Finance of the Securities and Exchange Commission, and Instruction
E to
the General Instructions to Form S-8, the 1,250,000 shares of ePlus
inc.’s
(the “Registrant”) common stock, par value $0.01 per share (the “Common
Stock”), being registered under this Registration
Statement (the “Carried Forward Shares”) were previously
available for issuance under the Registrant’s Amended and Restated 1998
Long-Term Incentive Plan (the “1998 Plan”), but which have been carried
forward to and included in the shares available for issuance under
the
Registrant’s 2008 Employee Long-Term Incentive Plan (the “2008 Employee
Plan”) and its 2008 Non-Employee Director Long-Term Incentive Plan (the
“2008 Director Plan” and collectively with the 2008 Employee Plan, the
“2008 Plans”). The Registrant previously registered the Carried
Forward Shares under its Registration Statement on Form S-8 (Registration
No. 333-91909) (the “1999 Registration Statement”), which was originally
filed with the Securities and Exchange Commission on December 1,
1999, and
the Registrant paid the required registration fee. The
Registrant has concurrently filed a Post-Effective Amendment to the
1999
Registration Statement to deregister the remaining available shares,
including the Carried Forward Shares, under the 1998 Plan.
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(2)
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Pursuant
to Rule 416(c) under the Securities Act of 1933, this Registration
Statement shall also cover any additional shares of Common Stock
which
become issuable under such Plans by reason of any stock dividend,
stock
split, recapitalization or any other similar transaction effected
without
the receipt of consideration which results in an increase in the
number of
the Registrant’s outstanding shares of Common Stock.
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-3-
Part
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
documents containing the
information specified in Part I of Form S-8 will be sent or given to employees
eligible to participate in the 2008 Plans as specified by Rule 428(b)(1) of
the
Securities Act of 1933, as amended (the “Securities Act”). In
accordance with the instructions of Part I of Form S-8, such documents will
not
be filed with the Securities and Exchange Commission (the “Commission”) either
as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 of the Securities Act. These
documents and the documents incorporated by reference pursuant to Item 3 of
Part
II of this Registration Statement, taken together, constitute a prospectus
that
meets the requirements of Section 10(a) of the Securities Act.
Part
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3.
Incorporation of Documents by Reference
The
following documents which have been filed by the Registrant with the Commission
are incorporated herein by reference:
(a)
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The
Registrant’s Annual Report on Form 10-K for the fiscal year ended March
31, 2008, filed with the Commission on July 3,
2008;
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(b)
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The
Registrant’s Proxy Statement for its 2008 Annual Meeting of Shareholders
(Schedule 14A), filed with the Commission on July 29,
2008;
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(c)
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All
other reports filed by the Registrant pursuant to Sections 13(a)
and 15(d)
of the Securities Exchange Act of 1934 since March 31, 2008, including
specifically, but not limited to the
Registrant’s:
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(i)
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Quarterly
Report on Form 10-Q for the quarter ended June 30, 3008;
and
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(ii)
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Current
Reports on Form 8-K filed with the Commission on June 26, 2008 (Item
4.02), July 1, 2008 (Items 5.03 and 9.01), August 6, 2008 (Items
5.02,
8.01, and 9.01), September 2, 2008 (Items 5.02 and 9.01); and September
19, 2008 (Items 5.02 and 9.01)
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(d)
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The
description of the Common Stock set forth in the Registrant’s registration
statement on Form 8-A (Reg. No.1-34167), filed with the Commission
on
September 2, 2008, including all amendments and reports filed for
the
purpose of updating that
description.
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In
addition, all documents and reports
and any future filings made by the Registrant pursuant to Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended,
subsequent to the date of this Registration Statement and prior to the filing
of
a post-effective amendment which indicates that all securities offered hereby
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 part hereof from the date of filing of such documents or
reports. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes
-4-
such
statement. Any such statement so modified or superseded shall
not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item
4.
Description of Securities.
Not
applicable.
Item
5.
Interests of Named Experts and Counsel.
Not
applicable.
Item
6.
Indemnification of Directors and Officers.
The
Registrant’s officers and directors are and will be indemnified against certain
liabilities under Delaware law, the Amended and Restated Certificate of
Incorporation of the Registrant, (“Certificate of Incorporation”), and the
Amended and Restated By-laws of the Registrant (“By-laws”). The
Certificate of Incorporation requires the Company to indemnify its directors
and
officers in the manner and to the fullest extent permitted from time to time
by
the Delaware General Corporation Law (“DGCL”). The By-laws contain
provisions which implement the indemnification provisions of the Certificate
of
Incorporation.
Article
Seventh of the Registrant’s Certificate of Incorporation provides: “No person
shall be personally liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director; provided, however,
that the
foregoing shall not eliminate or limit the liability of a director (i) for
any
breach of the director’s duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law, or (iv) for any transaction from which the
director derived an improper personal benefit.”
Article
Eighth of the Registrant’s Certificate of Incorporation provides: “The
Corporation shall indemnify, in the manner and to the fullest extent permitted
by the Delaware General Corporation Law (and in the case of any amendment
thereto, to the extent that such amendment permits the Corporation to provide
broader indemnification rights than permitted prior thereto), any person (or
the
estate of any person) who is or was a party to, or is threatened to be made
a
party to, any threatened, pending or completed action, suit or proceeding,
whether or not by or in the right of the Corporation, and whether civil,
criminal, administrative, investigative or otherwise, by reason of the fact
that
such person is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise, including
service with respect to an employee benefit plan. The corporation
may, to the fullest extent permitted by the Delaware General Corporation Law,
purchase and maintain insurance on behalf of any such person against any
liability which may be asserted against such person. To the fullest
extent permitted by the Delaware General Corporation Law, the indemnification
provided herein may include expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement and any such expenses may be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the person seeking
indemnification to repay such amounts if it is ultimately determined that he
or
she is not entitled to be indemnified. The indemnification provided
herein shall not be deemed to limit the right of the Corporation to indemnify
any other person for any such expenses to the fullest extent permitted by the
Delaware General Corporation Law, nor shall it be deemed exclusive of any other
rights to which any person seeking indemnification from the Corporation may
be
entitled under any agreement, the Corporation’s Bylaws, vote of stockholders or
disinterested directors, or otherwise, both as to action in such person’s
official capacity and as to action in another capacity while holding such
office. The Corporation may, but only to the extent that the Board of
-5-
Directors
may (but shall not be obligated to) authorize from time to time, grant rights
to
indemnification and to the advancement of expenses to any employee or agent
of
the Corporation to the fullest extent of the provisions of this Article Eighth
as they apply to the indemnification and advancement of expenses of directors
and officers of the Corporation.”
The
Registrant has entered into indemnification agreements with each of its
directors and executive officers. The indemnification agreements
provide that the Registrant will indemnify the director or officer against
any
expenses or liabilities incurred in connection with any proceeding in which
the
director or officer may be involved as a party or otherwise, by reason of the
fact that the director or officer is or was a director or officer of the
Registrant or by any reason of any action taken by or omitted to be taken by
the
director or officer while acting as an officer or director of the
Registrant. However, the Registrant is only obligated to provide
indemnification under the indemnification agreements if: (i) the director or
officer was acting in good faith and in a manner the director or officer
reasonably believed to be in the best interests of the Registrant, and, with
respect to any criminal action, the director or officer had no reasonable cause
to believe the director’s or officer’s conduct was unlawful; (ii) the claim was
not made to recover profits by the director or officer in violation of Section
16(b) of the Exchange Act or any successor statute; (iii) the claim was not
initiated by the director or officer; (iv) the claim was not covered by
applicable insurance; or (v) the claim was not for an act or omission of a
director of the Registrant from which a director may not be relieved of
liability under Section 102(b)(7) of the DGCL. Each Director and
officer has undertaken to repay the Registrant for any costs or expenses paid
by
the Registrant if it is ultimately determined that the Director or officer
is
not entitled to indemnification under the indemnification
agreements.
Item
7.
Exemption from Registration Claimed.
Not
applicable.
Item
8.
Exhibits.
See
Exhibit Index.
Item
9.
Undertakings.
(a)
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;
(ii)
To reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective amendment
thereof) 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 value 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 Securities
and
Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes
in
volume and price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee”
table in the effective registration statement;
-6-
(iii)
To include any material information with respect to the plan of distribution
not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-8, and the information required to be
included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the Registrant pursuant
to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2)
That, for the purpose of determining any liability under the Securities Act
of
1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, 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.
(b)
The undersigned Registrant hereby undertakes that, for purposes of determining
liability under the Securities Act of 1933, each filing of the Registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the 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.
(h)
Insofar as indemnification for liabilities arising under the Securities Act
of
1933 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 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 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, as amended, the Registrant
certifies that it has reasonable grounds to believe that it meets all 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 County of Fairfax, Commonwealth of Virginia, on the 22nd
day of September, 2008.
EPLUS
INC. |
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By: |
/s/
Phillip G.
Norton |
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Phillip G. Norton |
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Chairman
of the
Board, President, and |
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Chief
Executive
Officer |
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POWER
OF ATTORNEY
KNOW
ALL
PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby
severally constitutes and appoints Phillip G. Norton, and Elaine D. Marion
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 the 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 attorney-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 fully to all intents and purposes
as
he might or could do in person, hereby ratifying and confirming all that each
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 of 1933, as amended, this Registration
Statement has been signed by the following persons in the capacities and on
the
dates indicated.
/s/
Phillip G. Norton
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Director,
President and CEO
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September
22, 2008
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Philip
G. Norton
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(Principal
Executive Officer)
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/s/
Elaine D. Marion
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Chief
Financial Officer
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September
22, 2008 |
Elaine
D. Marion
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(Principal
Financial
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and
Accounting Officer)
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/s/
Bruce M. Bowen |
Director
and Executive Vice
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September
22, 2008
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Bruce
M. Bowen
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President
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-8-
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/s/
C. Thomas Faulders |
Director
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September
19, 2008
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C.
Thomas Faulders
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/s/
Terrence O’Donnell |
Director
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September
21, 2008
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Terrence
O’Donnell
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/s/
Lawrence S. Herman
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Director
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September
16, 2008
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Lawrence
S. Herman
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/s/
Milton E. Cooper, Jr.
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Director
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September
23, 2008
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Milton
E. Cooper,
Jr.
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/s/
Eric D. Hovde |
Director
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September
23, 2008
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Eric
D. Hovde
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/s/
Irving R. Beimler
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Director
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September
19, 2008
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Irving
R. Beimler
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EXHIBIT
INDEX
4.1
|
Amended
and Restated Certificate of Incorporation of ePlus
inc. (Incorporated by reference to the Form 8-K filed by ePlus inc. on
September 19, 2008)
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4.2
|
Amended
and Restated By-Laws of ePlus inc. (Incorporated by reference
to the Form 8-K filed by ePlus inc. on July
1, 2008)
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5.1
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Opinion
of Nixon Peabody LLP
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10.1
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2008
Non-Employee Director Long-Term Incentive Plan (Incorporated by reference
to the Form 8-K filed by ePlus
inc. on September 19, 2008)
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10.2
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2008
Employee Long-Term Incentive Plan (Incorporated by reference to the
Form
8-K filed by ePlus
inc. on September 19, 2008)
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23.1
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Consent
of Nixon Peabody LLP (Contained in opinion filed as Exhibit 5.1 to
this
Registration Statement)
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23.2
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Consent
of Deloitte & Touche LLP, independent accountants
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24.1
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Power
of Attorney (Included on the signature page to this Registration
Statement)
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