Delaware
(State or Other Jurisdiction of Incorporation or Organization)
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11-3262067
(I.R.S. Employer Identification Number)
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Large accelerated filer o
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Accelerated filer þ
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Non-accelerated filer o
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Smaller reporting company o
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(Do not check if a smaller reporting company)
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Title of Each Class 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 (par value $0.01 per share) to be issued under the Systemax Inc. 2010 Long-Term Incentive Plan
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7,482,500
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$13.39(2)
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$100,190,675(2)
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$11,632.14
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TOTAL
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7,482,500
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-
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$100,190,675
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$11,632.14
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(1)
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Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of the Registrant’s Common Stock that become issuable under the Systemax Inc. 2010 Long-Term Stock Incentive Plan (the “2010 Plan”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of the Registrant’s outstanding shares of Common Stock.
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(2)
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Estimated in accordance with Rule 457(h) under the Securities Act solely for the purpose of calculating the registration fee on the basis of $13.39, the average of the high and low prices of the Registrant’s Common Stock as reported on the New York Stock Exchange on August 11, 2011.
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(a)
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The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2010, filed with the SEC on March 17, 2011 (the “Annual Report”).
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(b)
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The Company’s Current Reports on Form 8-K filed with the SEC on March 15, 2011, April 20, 2011, May 9, 2011, May 10, 2011, June 14, 2011, June 27, 2011, August 3, 2011 and August 11, 2011.
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(c)
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The Company’s Current Reports on Form 10-Q for the fiscal quarter ended March 31, 2011, filed with the SEC on May 12, 2011 and Form 10-Q for the fiscal quarter ended June 30, 2011, as filed with the SEC on August 11, 2011.
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(d)
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The description of the Company’s Common Stock set forth in the Company’s Registration Statement on Form 8-A, as amended (file no. 00113792) filed on June 1, 1995, including any subsequent amendment or report filed for the purpose of updating that description.
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Exhibit NumberDescription
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4.1
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Certificate of Incorporation of Registrant, as amended (incorporated herein by reference to Exhibit 3.1 to Registrant’s Registration Statement on Form S-1 (Registration No. 33-92052), as amended)
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4.2
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Registrant’s 2010 Long-Term Stock Incentive Plan (incorporated herein by reference to Registrant’s Proxy Statement filed on April 29, 2010)
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5.1
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Opinion of Kramer Levin Naftalis & Frankel LLP
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23.1
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Consent of Counsel to be named in the Registration Statement (reference is made to Exhibit 5.1 to this Registration Statement which contains a copy of this Consent).
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23.2
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Consent of Ernst & Young LLP
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24
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Power of Attorney (see signature page)
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1)
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The undersigned Registrant hereby undertakes:
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a)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
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i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act;
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ii)
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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 thereof) which, individually or in the aggregate, represent a fundamental change in the 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 percent change in the maximum offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and,
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iii)
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To include any material information with respect to the Plan not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
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b)
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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 therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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c)
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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.
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2)
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That, for the purpose of determining liability of a Registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, each undersigned Registrant undertakes that in a primary offering of securities of an undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by
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means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
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(a)
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Any preliminary prospectus or prospectus of an undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;
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(b)
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Any free writing prospectus relating to the offering prepared by or on behalf of an undersigned Registrant or used or referred to by an undersigned Registrant;
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(c)
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The portion of any other free writing prospectus relating to the offering containing material information about an undersigned Registrant or its securities provided by or on behalf of an undersigned Registrant; and
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(d)
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Any other communication that is an offer in the offering made by an undersigned Registrant to the purchaser.
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3)
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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 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement 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.
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4)
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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 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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Signature
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Title
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Date
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/s/ Richard Leeds
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Chairman and Chief Executive Officer
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August 11, 2011
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Richard Leeds
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(Principal Executive Officer)
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/s/ Bruce Leeds
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Vice Chairman and Director
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August 11, 2011
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Bruce Leeds
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/s/ Robert Leeds
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Vice Chairman, Interim Chief Executive of the
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August 11, 2011
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Robert Leeds
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Company’s Technology Products Group
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And Director
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/s/ Lawrence P. Reinhold
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Executive Vice President, Chief Financial Officer
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August 11, 2011
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Lawrence P. Reinhold
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and Director
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(Principal Financial Officer)
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/s/ Thomas Axmacher
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Vice President and Controller
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August 11, 2011
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Thomas Axmacher
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(Principal Accounting Officer)
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/s/ Robert D. Rosenthal
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Director
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August 11, 2011
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Robert D. Rosenthal
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/s/ Stacy Dick
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Director
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August 11, 2011
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Stacy Dick
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/s/ Marie Adler-Kravecas
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Director
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August 11, 2011
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Marie Adler-Kravecas
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Exhibit NumberDescription
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4.1
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Certificate of Incorporation of Registrant, as amended (incorporated herein by reference to Exhibit 3.1 to Registrant’s Registration Statement on Form S-1 (Registration No. 33-92052), as amended)
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4.2
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Registrant’s 2010 Long-Term Stock Incentive Plan (incorporated herein by reference to Registrant’s Proxy Statement filed on April 29, 2010)
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5.1
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Opinion of Kramer Levin Naftalis & Frankel LLP
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23.1
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Consent of Counsel to be named in the Registration Statement (reference is made to Exhibit 5.1 to this Registration Statement which contains a copy of this Consent).
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23.2
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Consent of Ernst & Young LLP
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Re:
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Registration Statement on Form S-8
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