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)
Eagle Point Software Corporation 1999 Stock Option 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
- -------------------------------------------------------------------------------------------------------------------
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
- ---------------------------------------------------------------------------------------------------------------------
Common Stock, $.01 1,000,000 shares $6.60278(1) $6,602,781.25(1) $1,743.13
par value
- ---------------------------------------------------------------------------------------------------------------------
(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 weighted average option price of shares subject to outstanding options, and,
as to shares not currently subject to outstanding options, the average of the
high and low prices of the Common Stock as reported in the consolidated
reporting system on March 14, 2000.
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
-----------------------------------------
No member of the Board of Directors or the committee ("Committee") who
administers the Eagle Point Software Corporation Stock Option Plan (the "Plan"),
and neither the Chief Executive Officer nor other executive officer to whom the
Committee delegates any of its power and authority hereunder, shall be liable
for any act, omission, interpretation, construction or determination made in
connection with the Plan in good faith, and the members of the Board of
Directors and the Committee and the Chief Executive Officer or other executive
officer shall be entitled to indemnification and reimbursement by the Company in
respect of any claim, loss, damage or expense (including attorney's fees)
arising
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therefrom to the full extent permitted by law and under any directors' and
officers' liability insurance that may be in effect from time to time.
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 (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.
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Item 8. Exhibits
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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 Eagle Point Software Corporation 1999 Stock Option 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.
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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.
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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
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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 Eagle Point Software Corporation 1999 Stock Option 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.