<PAGE>
As filed with the Securities and Exchange Commission on March 17, 2000
Registration No. 333-
-----
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
Registration Statement
Under The
Securities Act of 1933
Eagle Point Software Corporation
(Exact name of Registrant as Specified in Its Charter)
Delaware 42-1204819
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
4131 Westmark Drive 52002-8392
Dubuque, Iowa (Zip Code)
(Address of Principal Executive Offices)
Amended and Restated Eagle Point Software Corporation 1995 Employee Stock
Purchase Plan
(Full Title of the Plan)
Dennis J. George
Vice President, Chief Financial Officer, Secretary and Treasurer
Eagle Point Software Corporation
4131 Westmark Drive
Dubuque, Iowa 52002-2627
(319) 556-8392
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
Calculation of Registration Fee
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
Title of Each Class of Amount to be Proposed Maximum Proposed Maximum Amount of Registration
Securities to be Registered Offering Price Per Unit Aggregate Offering Fee
Registered Price
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 50,000 shares $6.625(1) $331,250(1) $87.45
par value
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee and,
pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933, based upon
the average of the high and low prices of the Common Stock as reported in the
consolidated reporting system on March 14, 2000.
<PAGE>
Part II
Information Required in the
Registration Statement
Item 3. Incorporation of Certain Documents by Reference
-----------------------------------------------
The following documents heretofore filed (File Number 0-26170) with the
Securities and Exchange Commission (the "Commission") by Eagle Point Software
Corporation (the "Company") are incorporated herein by reference:
(a) Annual Report on Form 10-K for the fiscal year ended June 30, 1999 and
the amendment thereto on Form 10-K/A;
(b) Quarterly Reports on Form 10-Q for the fiscal quarters ended September
30 and December 31, 1999;
(c) Current Report on Form 8-K filed with the Commission on December 13,
1999; and
(d) The description of the Common Stock, $.01 par value, of the Company
(the "Common Stock") contained in the Registration Statement on Form
8-A filed by the Company with the Commission on June 2, 1995,
including any amendments or reports filed for the purpose of updating
such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
after 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, are deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the respective dates of filing of such documents (such documents,
and the documents enumerated above, being hereinafter referred to as
"Incorporated Documents").
Any statement contained in an Incorporated Document 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
Incorporated Document modifies or supersedes 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
-----------------------------------------
Reference is made to Section 145 ("Section 145") of the General Corporation
Law of the State of Delaware (the "Delaware GCL") which provides for
indemnification of directors and officers in certain circumstances.
The Company's Certificate of Incorporation provides that a director of the
Company will not be personally liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the Company 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 GCL
II-1
<PAGE>
(unlawful payment of dividends) or (iv) for any transaction from which the
director derived an improper personal benefit. It further provides that if the
Delaware GCL is amended to authorize corporate action further eliminating or
limiting the personal liability of directors, then the liability of a director
of the Company will be eliminated or limited to the fullest extent permitted by
the Delaware GCL as so amended.
The Company's Certificate of Incorporation provides indemnification for
directors or officers to the fullest extent permitted by the Delaware GCL. The
Company's By-laws provide for the advancement to indemnified persons of
litigation expenses. The Company's Certificate of Incorporation further
provides that such indemnification is not exclusive. The Company's By-laws
permit the Company to insure its directors, officers or employees against
certain liabilities without regard to whether they may be indemnified under
Delaware law.
Pursuant to Section 145 and the Company's Certificate of Incorporation, the
Company maintains directors' and officers' liability insurance coverage which
insures the Company and the elected officers and directors of the Company
against damages, judgments, settlements and costs incurred by reason of certain
acts committed by such persons in their capacities as officers and directors.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
II-2
<PAGE>
Item 8. Exhibits
--------
Exhibit
Number Description of Exhibit
- ------- ----------------------
4.1 Certificate of Incorporation of the Company, as amended, incorporated
by reference from the Company's Registration Statement on Form S-1
(File No. 33-91950).
4.2 Amended and Restated Bylaws of the Company, incorporated by reference
from the Company's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1999.
*4.3 Amended and Restated Eagle Point Software Corporation 1995 Employee
Stock Purchase Plan.
*5 Opinion of Sidley & Austin as to the legality of the securities being
registered.
*23.1 Consent of Sidley & Austin (included in its opinion filed as Exhibit
5).
*23.2 Consent of Deloitte & Touche LLP.
*24 Powers of Attorney
_____________________
* Filed herewith.
II-3
<PAGE>
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, as amended (the "Securities Act");
(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; and 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 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 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-3, Form S-8 or Form F-3, and 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 Commission by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the 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 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 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 (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.
(c) 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.
II-4
<PAGE>
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 Dubuque, State of Iowa, on this 17th day of March,
2000.
Eagle Point Software Corporation
By: /s/ Rodney L. Blum
-------------------------------
Rodney L. Blum
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 indicated on this 17th day of March, 2000.
Name Capacity
- ---- --------
/s/ Rodney L. Blum Chairman of the Board, President, Chief
- ------------------------- Executive Officer and Director
Rodney L. Blum (principal executive officer)
/s/ Dennis J. George Vice President, Chief Financial Officer,
- ------------------------- Secretary, Treasurer and Director
Dennis J. George (principal financial and accounting officer)
* Vice President and Director
- -------------------------
John F. Biver
* Director
- -------------------------
James Hickey
* Director
- -------------------------
Thomas Miller
/s/ Dennis J. George
- -------------------------
* Dennis J. George
Attorney-in-Fact
II-5
<PAGE>
Index to Exhibits to Registration Statement on Form S-8
Exhibit
Number Description of Exhibit
- ------- ----------------------
4.1 Certificate of Incorporation of the Company, as amended,
incorporated by reference from the Company's Registration Statement
on Form S-1 (File No. 33-91950).
4.2 Amended and Restated Bylaws of the Company, incorporated by
reference from the Company's Quarterly Report on Form 10-Q for the
quarter ended December 31, 1999.
*4.3 Amended and Restated Eagle Point Software Corporation 1995 Employee
Stock Purchase Plan.
*5 Opinion of Sidley & Austin as to the legality of the securities
being registered.
*23.1 Consent of Sidley & Austin (included in its opinion filed as
Exhibit 5).
*23.2 Consent of Deloitte & Touche LLP.
*24 Powers of Attorney
_____________________
* Filed herewith.
<PAGE>
Exhibit 4.3
Amended and Restated
Eagle Point Software Corporation 1995 Employee Stock Purchase Plan
1. Purpose. The purpose of the Amended and Restated Eagle Point Software
Corporation 1995 Employee Stock Purchase Plan (the "Plan") is to provide
employees of Eagle Point Software Corporation, a Delaware corporation (the
"Company"), and its Subsidiary Companies (as defined in Section 13) added
incentive to remain employed by such companies and to encourage increased
efforts to promote the best interests of such companies by permitting eligible
employees to purchase shares of the common stock, par value $.01, of the Company
("Common Stock") at below-market prices. The Plan is intended to qualify as an
"employee stock purchase plan" under section 423 of the Internal Revenue Code of
1986, as amended (the "Code"). The Company and its Subsidiary Companies are
sometimes hereinafter called collectively the "Participating Companies."
2. Eligibility. Participation in the Plan shall be open to each employee
of the Participating Companies (a) who has been continuously employed by the
Participating Companies for at least twelve months, (b) whose customary
employment by the Participating Companies is greater than 20 hours per week; and
(c) whose customary employment by the Participating Companies is more than 5
months in any calendar year (each an "Eligible Employee"). In determining
whether an employee has been continuously employed for at least twelve months,
employment with the following entities shall be included: (i) any corporation a
majority of whose stock is acquired by one or more Participating Companies; (ii)
any trade or business that is acquired by one or more Participating Companies;
and (iii) any trade or business substantially all of whose assets are acquired
by one or more Participating Companies.
No right to purchase Common Stock hereunder shall accrue under the Plan in
favor of any person who is not an Eligible Employee as of the first day of a
Purchase Period (as defined in Section 3). Notwithstanding anything contained
in the Plan to the contrary, no Eligible Employee shall acquire a right to
purchase Common Stock hereunder (i) if, immediately after receiving such right,
such employee would own 5% or more of the total combined voting power or value
of all classes of stock of the Company or any Subsidiary Company (including any
stock attributable to such employee under section 424(d) of the Code), or (ii)
if for a given calendar year such right would permit such employee's aggregate
rights to purchase stock under all employee stock purchase plans of the Company
and its Subsidiary Companies exercisable during such calendar year to accrue at
a rate which exceeds $25,000 of fair market value of such stock for such
calendar year, all determined in the manner provided by section 423(b)(8) of the
Code and the rules and regulations thereunder. In addition, the number of
shares of Common Stock which may be purchased by any Eligible Employee during
any Purchase Period shall not exceed 1500.
3. Effective Date of Plan; Purchase Periods. The Plan shall become
effective on July 1, 1995 or on such later date (the "Effective Date") as may be
specified by the Board of Directors (the "Board") of the Company or the
Committee (as defined in Section 11). The Plan shall cease to be effective
unless, within 12 months before or after the date of its adoption by the Board,
it has been approved by the stockholders of the Company in accordance with the
General Corporation Law of the State of Delaware.
The first "Purchase Period" shall begin on the first business day on or
after the later of July 1, 1995 or the Effective Date and shall end on June 28,
1996. Thereafter, a Purchase Period shall begin on the first business day on or
after July 1 of each calendar year and shall end on the last business day in
June of the next succeeding calendar year.
4. Basis of Participation. (a) Payroll Deduction. Each Eligible
Employee shall be entitled to enroll in the Plan as of the first day of any
Purchase Period which begins on or after such employee becomes an Eligible
Employee.
To enroll in the Plan, an Eligible Employee shall execute and deliver a
payroll deduction authorization (the "Authorization") to the Company or its
designated agent in the time and manner specified by the Committee. The
1
<PAGE>
Authorization shall become effective on the first day of the Purchase Period
commencing after the execution and delivery of such Authorization provided, that
an Authorization which is executed and delivered during the six-month period
commencing with the Effective Date shall become effective on the first day of
the payroll period commencing after the execution and delivery of such
Authorization. Each Authorization shall direct that payroll deductions be made
by the employee's employer for each payroll period during which the employee is
a participant in the Plan. The amount of each payroll deduction specified in an
Authorization for each such payroll period shall be a whole percentage amount or
a whole dollar amount, as determined by the Committee, in either case not to
exceed 15%, or such lesser percentage as may be determined by the Committee, of
the participant's current regular wage or salary (before withholding or other
deductions) paid to him by any of the Participating Companies.
Payroll deductions (and any other amount paid under the Plan) shall be made
for each participant in accordance with his Authorization until his
participation in the Plan terminates or the Plan terminates, all as hereinafter
provided.
A participant may change the amount of his payroll deduction by filing a
new Authorization with the Company or its designated agent, such Authorization
shall become effective on the first day of the Purchase Period commencing after
the execution and delivery of such Authorization. No other changes shall be
permitted, except that a participant may elect to terminate his participation in
the Plan as provided in Section 7.
Payroll deductions shall be credited to a purchase account established on
the books of the Company on behalf of each participant (a "Purchase Account").
At the end of each Purchase Period, the amount in each participant's Purchase
Account will be applied to the purchase from the Company of the number of shares
of Common Stock determined by dividing such amount by the Purchase Price (as
defined in Section 5) for such Purchase Period.
(b) Other Methods of Participation. The Committee may, in its discretion,
establish additional procedures whereby Eligible Employees may participate in
the Plan by means other than payroll deduction, including, but not limited to,
delivery of funds by participants in a lump sum or automatic charges to
participants' bank accounts. Such other methods of participating shall be
subject to such rules and conditions as the Committee may establish. The
Committee may at any time amend, suspend to terminate any participation
procedures established pursuant to this paragraph without prior notice to any
participant or Eligible Employee.
5. Purchase Price. The purchase price (the "Purchase Price") per share
of Common Stock hereunder for any Purchase Period shall be 85% of the lesser of
(i) the fair market value of a share of Common Stock on the first day of such
Purchase Period and (ii) the fair market value of a share of Common Stock on the
last day of such Purchase Period, unless, prior to the beginning of such
Purchase Period, the Committee shall determine otherwise (subject to the
limitations contained in clause (c) of the third paragraph of Section 8). If
such determination results in a fraction of one cent, the Purchase Price shall
be increased to the next higher full cent. The fair market value of a share of
Common Stock on a given day shall be the average of the high and low transaction
prices of a share of Common Stock as reported on The Nasdaq Stock Market on the
date as of which such value is being determined or, if there shall be no
reported transactions on such date, on the next preceding date for which
transactions were reported. In no event, however, shall the Purchase Price be
less than the par value of the Common Stock.
6. Issuance of Shares. The Common Stock purchased by each participant
shall be considered to be issued and outstanding to his credit as of the close
of business on the last day of each Purchase Period. The total number of shares
of Common Stock purchased by all participants during each Purchase Period shall
be issued, as of the last day in such Purchase Period, to a nominee or agent for
the benefit of the participants. A participant will be issued a certificate for
his shares when his participation in the Plan is terminated, the Plan is
terminated or upon request, but in the last case only in denominations of at
least 25 shares.
No interest shall accrue at any time for any amount credited to a Purchase
Account of a participant. After the close of each Purchase Period, a report
will be sent to each participant stating the entries made to his Purchase
Account, the number of shares of Common Stock purchased and the applicable
Purchase Price.
7. Termination of Participation. A participant may elect at any time to
terminate his participation in the Plan, provided such termination is received
by the participant's employer in writing prior to the last business day of
2
<PAGE>
the Purchase Period for which such termination is to be effective. Upon any such
termination, the participant's employer shall promptly deliver to such
participant cash in an amount equal to the balance to his credit in his Purchase
Account on the date of such termination, one or more certificates for the number
of whole shares of Common Stock held for his benefit, and the cash equivalent
for any fractional share so held. Such cash equivalent shall be determined by
multiplying the fractional share by the fair market value of a share of Common
Stock on the last day of the Purchase Period immediately preceding such
termination, determined as provided in Section 5.
If the participant dies, terminates his employment with the Participating
Companies for any reason, or otherwise ceases to be an Eligible Employee, his
participation in the Plan shall immediately terminate. Upon such terminating
event, the participant's employer shall promptly deliver to such participant or
his legal representative, as the case may be, cash in an amount equal to the
balance to his credit in his Purchase Account on the date of such termination,
one or more certificates for the number of whole shares of Common Stock held for
his benefit, and the cash equivalent of any fractional share so held, determined
as provided above in this Section 7.
8. Termination or Amendment of the Plan. The Company, by action of the
Board or the Committee, may terminate the Plan at any time. Notice of
termination shall be given to all participants, but any failure to give such
notice shall not impair the effectiveness of the termination.
Without any action being required, the Plan will terminate in any event
when the maximum number of shares of Common Stock to be sold under the Plan (as
provided in Section 12) has been purchased. Such termination shall not impair
any rights which under the Plan shall have vested on or prior to the date of
such termination. If at any time the number of shares remaining available for
purchase under the Plan are not sufficient to satisfy all then-outstanding
purchase rights, the Board may determine an equitable basis of apportioning
available shares among all participants consistent with Section 423 of the Code.
The Board or the Committee may amend the Plan from time to time in any
respect for any reason; provided, however, no such amendment shall (a)
materially adversely affect any purchase rights outstanding under the Plan
during the Purchase Period in which such amendment is to be effected, (b) unless
approved by the stockholders of the Company, increase the maximum number of
shares of Common Stock which may be purchased under the Plan, (c) decrease the
Purchase Price of the shares of Common Stock for any Purchase Period below the
lesser of 85% of the fair market value thereof on the first day of such Purchase
Period and 85% of the fair market value thereof on the last day of such Purchase
Period, (d) unless approved by the stockholders of the Company, change the class
of employees eligible to participate in the Plan or (e) adversely affect the
qualification of the Plan under section 423 of the Code.
Upon termination of the Plan, the respective cash balance, if any, to the
credit of each participant in his Purchase Account, one or more certificates for
the number of whole shares of Common Stock held for his benefit, and the cash
equivalent of any fractional share so held, determined as provided in Section 7,
shall be promptly distributed to such participant.
9. Non-Transferability. Rights acquired under the Plan are not
transferable and may be exercised only by a participant.
10. Stockholder's Rights. No Eligible Employee or participant shall by
reason of the Plan have any rights of a stockholder of the Company until and to
the extent he shall acquire shares of Common Stock as herein provided.
11. Administration of the Plan. The Plan shall be administered by the
Compensation Committee of the Board (the "Committee"), provided that the Board
may otherwise appoint (A) the Board or (B) a committee consisting of two or more
members of the Board, to act as the Committee. In addition to the power to
amend or terminate the Plan pursuant to Section 8, the Committee shall have full
power and authority to: (i) interpret and administer the Plan and any
instrument or agreement entered into under the Plan; (ii) establish such rules
and regulations and appoint such agents as it shall deem appropriate for the
proper administration of the Plan; and (iii) make any other determination and
take any other action that the Committee deems necessary or desirable for
administration of the Plan. Decisions of the Committee shall be final,
conclusive and binding upon all persons, including the Company, any participant
and any other employee of the Company. A majority of the members of the
Committee may determine its actions and fix the time and place of its meetings.
3
<PAGE>
The Plan shall be administered so as to ensure all participants have the
same rights and privileges as required by section 423(b)(5) of the Code.
12. Maximum Number of Shares. The maximum number of shares of Common
Stock which may be purchased under the Plan is 150,000 subject, however, to
adjustment as hereinafter set forth. Shares of Common Stock sold hereunder may
be treasury shares, authorized and unissued shares, shares purchased in the open
market (on an exchange or in negotiated transactions), or any combination of
treasury shares, authorized and unissued shares or shares purchased in the open
market. If the Company shall, at any time after the Effective Date, change its
issued Common Stock into an increased number of shares, through a stock dividend
or a split-up of shares, or into a decreased number of shares, through a
combination of shares, then, effective with the record date for such change, the
maximum number of shares of Common Stock which thereafter may be purchased under
the Plan shall be the maximum number of shares which, immediately prior to such
record date, remained available for purchase under the Plan proportionately
increased, in case of such stock dividend or split-up, or proportionately
decreased in case of such combination of shares.
13. Miscellaneous. (a) Except as otherwise expressly provided herein, any
Authorization, election, notice or document under the Plan from an Eligible
Employee or participant shall be delivered to his employer corporation or its
designated agent and, subject to any limitations specified in the Plan, shall be
effective when so delivered.
(b) The term "business day" shall mean any day other than Saturday, Sunday
or a legal holiday in Iowa.
(c) The term "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(d) The term "Subsidiary Companies" shall mean all corporations which are,
or become after the Effective Date, subsidiary corporations (within the meaning
of Section 424(f) of the Code) and of which the Company is the common parent.
(e) The Plan, and the Company's obligation to sell and deliver Common
Stock hereunder, shall be subject to all applicable federal, state and foreign
laws, rules and regulations, and to such approval by any regulatory or
governmental agency as may, in the opinion of counsel for the Company, be
required.
14. Change in Control. (a) In order to maintain the participants' rights
in the event of any Change in Control of the Company, as hereinafter defined,
upon such Change in Control the then current Purchase Period shall thereupon
end, and all participants' Purchase Accounts shall be applied to purchase shares
pursuant to Section 5, and the Plan shall immediately thereafter terminate.
(b) "Change in Control" for the purposes hereof means the occurrence of
any of the following events:
(1) the acquisition by any individual, entity or group (a "Person"),
including any "person" within the meaning of Section 13(d)(3) or 14(d)(2) of the
Exchange Act, of beneficial ownership within the meaning of Rule 13d-3
promulgated under the Exchange Act, of 35% or more of either (i) the then
outstanding shares of common stock of the Company (the "Outstanding Company
Common Stock") or (ii) the combined voting power of the then outstanding
securities of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities"); excluding, however, the
following: (A) any acquisition directly from the Company (excluding any
acquisition resulting from the exercise of an exercise, conversion or exchange
privilege unless the security being so exercised, converted or exchanged was
acquired directly from the Company), (B) any acquisition by the Company, (C)
any acquisition by an employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company or (D)
any acquisition by any corporation pursuant to a transaction which complies with
clauses (i), (ii) and (iii) of subsection (3) of this Section 14(b); provided
further, that for purposes of clause (B), if any Person (other than the Company
or any employee benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company) shall become the
beneficial owner of 35% or more of the Outstanding Company Common Stock or 35%
or more of the Outstanding Company Voting Securities by reason of an acquisition
by the Company, and such Person shall, after such acquisition by the Company,
become the beneficial owner of any additional shares of the Outstanding Company
Common Stock or any additional Outstanding Company Voting Securities (other than
pursuant to a dividend or distribution paid or made by the Company on the
Outstanding Company Common Stock or the Outstanding
4
<PAGE>
Company Voting Securities or pursuant to a split or subdivision of the
Outstanding Company Common Stock or the Outstanding Company Voting Securities)
and such beneficial ownership is publicly announced, such additional beneficial
ownership shall constitute a Change in Control;
(2) individuals who, as of the date hereof, constitute the Board of
Directors (the "Incumbent Board") cease for any reason to constitute at least a
majority of such Board; provided that any individual who becomes a director of
the Company subsequent to the date hereof whose election, or nomination for
election by the Company's stockholders, was approved by the vote of at least a
majority of the directors then comprising the Incumbent Board shall be deemed a
member of the Incumbent Board; and provided further, that any individual who was
initially elected as a director of the Company as a result of an actual or
threatened election contest, as such terms are used in Rule 14a-11 of Regulation
14A promulgated under the Exchange Act, or any other actual or threatened
solicitation of proxies or consents by or on behalf of any Person other than the
Board shall not be deemed a member of the Incumbent Board;
(3) consummation of a reorganization, merger or consolidation or sale or
other disposition of all or substantially all of the assets of the Company (a
"Corporate Transaction"); excluding, however, a Corporate Transaction pursuant
to which (i) all or substantially all of the individuals or entities who are the
beneficial owners, respectively, of the Outstanding Company Common Stock and the
Outstanding Company Voting Securities immediately prior to such Corporate
Transaction will beneficially own, directly or indirectly, more than 60% of,
respectively, the outstanding shares of common stock, and the combined voting
power of the outstanding securities of such corporation entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Corporate Transaction (including, without limitation, a
corporation which as a result of such transaction owns the Company or all or
substantially all of the Company's assets either directly or indirectly) in
substantially the same proportions relative to each other as their ownership,
immediately prior to such Corporate Transaction, of the Outstanding Company
Common Stock and the Outstanding Company Voting Securities, as the case may be,
(ii) no Person (other than: the Company; any employee benefit plan (or related
trust) sponsored or maintained by the Company or any corporation controlled by
the Company; the corporation resulting from such Corporate Transaction; and any
Person which beneficially owned, immediately prior to such Corporate
Transaction, directly or indirectly, 35% or more of the Outstanding Company
Common Stock or the Outstanding Company Voting Securities, as the case may be)
will beneficially own, directly or indirectly, 35% or more of, respectively, the
outstanding shares of common stock of the corporation resulting from such
Corporate Transaction or the combined voting power of the outstanding securities
of such corporation entitled to vote generally in the election of directors and
(iii) individuals who were members of the Incumbent Board will constitute at
least a majority of the members of the board of directors of the corporation
resulting from such Corporate Transaction; or
(4) consummation of a plan of complete liquidation or dissolution of the
Company.
5
<PAGE>
Exhibit 5
March 17, 2000
Eagle Point Software Corporation
4131 Westmark Drive
Dubuque, Iowa 52002-2627
Re: 50,000 shares of Common Stock, $.01 par value
---------------------------------------------
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-8 (the "Registration
Statement") being filed by Eagle Point Software Corporation, a Delaware
corporation (the "Company"), with the Securities and Exchange Commission under
the Securities Act of 1933, as amended (the "Securities Act"), relating to the
registration of an aggregate of 50,000 shares of Common Stock, $.01 par value,
of the Company (the "Registered Common Stock"), to be issued under the Amended
and Restated Eagle Point Software Corporation 1995 Employee Stock Purchase Plan
(the "Plan").
We are familiar with the proceedings to date with respect to the proposed
issuance of the Registered Common Stock under the Plan and have examined such
records, documents and questions of law, and satisfied ourselves as to such
matters of fact, as we have considered relevant and necessary as a basis for
this opinion.
Based on the foregoing, we are of the opinion that:
1. The Company is duly incorporated and validly existing under the laws
of the State of Delaware.
2. Each share of the Registered Common Stock which is newly issued
pursuant to the Plan will constitute a share of Common Stock of the Company
which has been duly authorized and validly issued and is fully paid and non-
assessable when (i) the Registration Statement shall have become effective under
the Securities Act; (ii) the Company's Board of Directors or a duly authorized
committee thereof shall have duly adopted final resolutions authorizing the
issuance and sale of such share as contemplated by the Plan; and (iii) a
certificate representing such share shall have been duly executed, countersigned
and registered and duly delivered upon payment of the agreed consideration
therefor (not less than the par value thereof) determined in accordance with the
terms of the Plan.
This opinion is limited to the General Corporation Law of the State of
Delaware and the federal laws of the United States of America.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement.
Very truly yours,
/s/ Sidley & Austin
<PAGE>
Exhibit 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in this Registration Statement of
Eagle Point Software Corporation on Form S-8 of our report dated July 30, 1999,
appearing in the Annual Report on Form 10-K of Eagle Point Software Corporation
for the year ended June 30, 1999.
/s/ Deloitte & Touche LLP
Des Moines, Iowa
March 16, 2000
<PAGE>
Exhibit 24
Power of Attorney
The undersigned, a Director and/or Officer of Eagle Point Software
Corporation, a Delaware corporation (the "Corporation"), does hereby constitute
and appoint Rodney L. Blum or Dennis J. George his or her true and lawful
attorney-in-fact and agent, with full power and authority to execute in the name
and on behalf of the undersigned as such Director and/or Officer, a Registration
Statement on Form S-8 under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the registration under the Securities Act of
the offer and sale of 1,000,000 shares of the Corporation's Common Stock, par
value $.01, issuable in accordance with the Eagle Point Software Corporation
1999 Stock Option Plan, and to execute any and all amendments to such
Registration Statement, whether filed prior or subsequent to the time such
Registration Statement becomes effective, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission. The undersigned hereby grants unto each such
attorney-in-fact and agent, full power of substitution and revocation in the
premises and hereby ratifies and confirms all that each such attorney-in-fact
and agent, or his substitute or substitutes, may do or cause to be done by
virtue of these presents.
Dated this 17th day of March, 2000.
/s/ Rodney L. Blum
------------------
<PAGE>
Power of Attorney
The undersigned, a Director and/or Officer of Eagle Point Software
Corporation, a Delaware corporation (the "Corporation"), does hereby constitute
and appoint Rodney L. Blum or Dennis J. George his or her true and lawful
attorney-in-fact and agent, with full power and authority to execute in the name
and on behalf of the undersigned as such Director and/or Officer, a Registration
Statement on Form S-8 under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the registration under the Securities Act of
the offer and sale of 1,000,000 shares of the Corporation's Common Stock, par
value $.01, issuable in accordance with the Eagle Point Software Corporation
1999 Stock Option Plan, and to execute any and all amendments to such
Registration Statement, whether filed prior or subsequent to the time such
Registration Statement becomes effective, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission. The undersigned hereby grants unto each such
attorney-in-fact and agent, full power of substitution and revocation in the
premises and hereby ratifies and confirms all that each such attorney-in-fact
and agent, or his substitute or substitutes, may do or cause to be done by
virtue of these presents.
Dated this 17th day of March, 2000.
/s/ Dennis J. George
--------------------
<PAGE>
Power of Attorney
The undersigned, a Director and/or Officer of Eagle Point Software
Corporation, a Delaware corporation (the "Corporation"), does hereby constitute
and appoint Rodney L. Blum or Dennis J. George his or her true and lawful
attorney-in-fact and agent, with full power and authority to execute in the name
and on behalf of the undersigned as such Director and/or Officer, a Registration
Statement on Form S-8 under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the registration under the Securities Act of
the offer and sale of 1,000,000 shares of the Corporation's Common Stock, par
value $.01, issuable in accordance with the Eagle Point Software Corporation
1999 Stock Option Plan, and to execute any and all amendments to such
Registration Statement, whether filed prior or subsequent to the time such
Registration Statement becomes effective, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission. The undersigned hereby grants unto each such
attorney-in-fact and agent, full power of substitution and revocation in the
premises and hereby ratifies and confirms all that each such attorney-in-fact
and agent, or his substitute or substitutes, may do or cause to be done by
virtue of these presents.
Dated this 17th day of March, 2000.
/s/ John F. Biver
------------------
<PAGE>
Power of Attorney
The undersigned, a Director and/or Officer of Eagle Point Software
Corporation, a Delaware corporation (the "Corporation"), does hereby constitute
and appoint Rodney L. Blum or Dennis J. George his or her true and lawful
attorney-in-fact and agent, with full power and authority to execute in the name
and on behalf of the undersigned as such Director and/or Officer, a Registration
Statement on Form S-8 under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the registration under the Securities Act of
the offer and sale of 1,000,000 shares of the Corporation's Common Stock, par
value $.01, issuable in accordance with the Eagle Point Software Corporation
1999 Stock Option Plan, and to execute any and all amendments to such
Registration Statement, whether filed prior or subsequent to the time such
Registration Statement becomes effective, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission. The undersigned hereby grants unto each such
attorney-in-fact and agent, full power of substitution and revocation in the
premises and hereby ratifies and confirms all that each such attorney-in-fact
and agent, or his substitute or substitutes, may do or cause to be done by
virtue of these presents.
Dated this 17th day of March, 2000.
/s/ James Hickey
----------------
<PAGE>
Power of Attorney
The undersigned, a Director and/or Officer of Eagle Point Software
Corporation, a Delaware corporation (the "Corporation"), does hereby constitute
and appoint Rodney L. Blum or Dennis J. George his or her true and lawful
attorney-in-fact and agent, with full power and authority to execute in the name
and on behalf of the undersigned as such Director and/or Officer, a Registration
Statement on Form S-8 under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the registration under the Securities Act of
the offer and sale of 1,000,000 shares of the Corporation's Common Stock, par
value $.01, issuable in accordance with the Eagle Point Software Corporation
1999 Stock Option Plan, and to execute any and all amendments to such
Registration Statement, whether filed prior or subsequent to the time such
Registration Statement becomes effective, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission. The undersigned hereby grants unto each such
attorney-in-fact and agent, full power of substitution and revocation in the
premises and hereby ratifies and confirms all that each such attorney-in-fact
and agent, or his substitute or substitutes, may do or cause to be done by
virtue of these presents.
Dated this 17th day of March, 2000.
/s/ Thomas Miller
-----------------
