SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________
SCHEDULE 13E-3/A No. 2
RULE 13E-3 TRANSACTION STATEMENT
(Pursuant to Section 13(e) of the
Securities Exchange Act of 1934
and Rule 13e-3 (Sec. 240.13e-3) thereunder)
________________
Eagle Point Software Corporation
___________________________________________________________
(Name of the Issuer)
Eagle Point Software Corporation
JB Acquisitions LLC
Talon Acquisition Corp.
John F. Biver
Digital Canal Corporation
Rodney L. Blum
Edward T. Graham
___________________________________________________________
(Name of Person(s) Filing Statement)
Common Stock, par value $.01 per share
___________________________________________________________
(Title of Class of Securities)
269824108
____________________________________________________________
(CUSIP Number of Class of Securities)
Dennis J. George
Vice President, Chief Financial Officer, Secretary and Treasurer
Eagle Point Software Corporation
4131 Westmark Drive
Dubuque, Iowa 52002-2627
(563) 556-8392
___________________________________________________________
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications
on Behalf of Person(s) Filing Statement.)
WITH COPY TO:
Larry A. Barden, Esq. Steven J. Dickinson, Esq.
Sidley Austin Brown & Wood Dorsey & Whitney LLP
Bank One Plaza 801 Grand, Suite 3900
Chicago, Illinois 60603 Des Moines, IA 50309
(312) 853-7785 (515) 283-1000
This statement is filed in connection with (check the appropriate box):
a. /X/ The filing of solicitation materials or an information
statement subject to Regulation 14A, Regulation 14C, or Rule 13e-3(c) under the
Securities Exchange Act of 1934.
b. / / The filing of a registration statement under the Securities
Act of 1933.
c. / / A tender offer.
d. / / None of the above.
Check the following box if the soliciting materials or information statement
referred to in checking box (a) are preliminary copies: /X/
CALCULATION OF FILING FEE
TRANSACTION VALUATION AMOUNT OF FILING FEE
$22,795,298* $4,560
* Note: The Transaction Valuation is calculated by adding (x) the product of
$6.40, the per share merger consideration, and 3,392,513, the aggregate number
of shares of Common Stock outstanding (other than shares owned by JB
Acquisitions and its affiliates), and (y) $1,083,215, the aggregate amount
anticipated to be paid to certain persons holding options to purchase shares of
Common Stock in consideration of the cancellation of such options. The amount of
the filing fee was calculated pursuant to Rule 0-11(c) of the Securities
Exchange Act of 1934, as amended by multiplying l/50th of one percent by the
Transaction Valuation.
/X/ Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the form or
schedule and the date of its filing.
Amount Previously Paid: $4,560
Form or Registration No.: Schedule 14A
Filing Party: Eagle Point Software Corporation
Date Filed: August 17, 2001
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INTRODUCTION
This Rule 13e-3 Transaction Statement on Schedule 13E-3 (this "Transaction
Statement") is being jointly filed by each of (i) Eagle Point Software
Corporation, a Delaware corporation ("Eagle Point"), (ii) JB Acquisitions LLC, a
Delaware limited liability company ("JB Acquisitions"), (iii) Talon Acquisition
Corp., a Delaware corporation and a wholly-owned subsidiary of JB Acquisitions
("Talon"), (iv) John F. Biver ("Biver"), (v) Digital Canal Corporation, an Iowa
corporation ("Digital Canal"), (vi) Rodney L. Blum ("Blum"), and (vii) Edward T.
Graham ("Graham"), pursuant to Section 13(e) of the Securities Exchange Act of
1934, as amended, and Rule 13e-3 thereunder. Eagle Point, JB Acquisitions and
Talon are parties to an Agreement and Plan of Merger, dated as of July 12, 2001
(the "Merger Agreement"), pursuant to which Talon will be merged with and into
Eagle Point, under the terms and subject to the conditions set forth in the
Merger Agreement. Biver, a founder, director and former executive officer of
Eagle Point, is founder and sole member of JB Acquisitions. A copy of the Merger
Agreement has been filed by Eagle Point as Annex A to the preliminary proxy
statement of Eagle Point (the "Proxy Statement"), which is filed as Exhibit (a)
to this Transaction Statement. JB Acquisitions, Talon and Digital Canal are
parties to an Asset Purchase Agreement, dated as of July 12, 2001 (the "Asset
Purchase Agreement"), pursuant to which, concurrent with or immediately
following the merger, Digital Canal will purchase from JB Acquisitions the
operating assets of Eagle Point's Building Design and Construction Division and
Structural Division for a cash purchase price of approximately $1.1 million.
Blum, a director and former executive officer of Eagle Point, is founder and
sole owner of Digital Canal. Graham, an executive officer of Eagle Point, will
become an executive officer of Digital Canal immediately following consummation
of the merger and, within thirty days thereafter, will become a director and
equity holder of Digital Canal.
The information contained in this Transaction Statement concerning Eagle Point,
JB Acquisitions, Talon, Biver, Digital Canal, Blum and Graham was supplied by
Eagle Point, JB Acquisitions, Talon, Biver, Digital Canal, Blum and Graham,
respectively. No party to this Transaction Statement takes responsibility for
the accuracy of the information provided by any other party to this Transaction
Statement.
The answers set forth below also constitute the cross reference sheet being
supplied pursuant to General Instruction F to Schedule 13E-3 and show the
location in the Proxy Statement of the information required to be included in
this Schedule 13E-3. Unless otherwise indicated, all cross references below are
to captions and subcaptions in the text of, or annexes to, the Proxy Statement
without reference to the form of Proxy Card, Letter to Stockholders or Notice of
Meeting. The information in the Proxy Statement, including all annexes thereto,
is hereby expressly incorporated herein by reference as set forth in the cross
reference sheet below and the responses in this Schedule 13E-3, and such
responses are qualified in their entirety by reference to the information
contained in the Proxy Statement and such annexes. Capitalized terms used herein
and not otherwise defined shall have the meanings given to such terms in the
Proxy Statement.
CROSS REFERENCE SHEET
Item 1. Summary Term Sheet.
The information set forth in the section of the Proxy Statement entitled
"Summary" is incorporated herein by reference.
Item 2. Subject Company Information.
(a) Name and Address.
The information set forth in the section of the Proxy Statement entitled "The
Parties" is incorporated herein by reference.
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(b) Securities.
The class of equity securities that is the subject of the Rule 13e-3 transaction
to which this Transaction Statement relates is common stock, $.01 par value, of
Eagle Point ("Common Stock"). The information set forth in the section of the
Proxy Statement entitled "Information Concerning the Special Meeting -- Vote of
Eagle Point stockholders required for adoption of the merger agreement" is
incorporated herein by reference.
(c) Trading Market and Price.
The information set forth in the section of the Proxy Statement entitled "Market
for the Common Stock -- Eagle Point common stock market price and dividend
information" is incorporated herein by reference.
(d) Dividends.
The information set forth in the section of the Proxy Statement entitled "Market
for the Common Stock -- Eagle Point common stock market price and dividend
information" is incorporated herein by reference.
(e) Prior Public Offerings.
Eagle Point has made no underwritten public offering of the Common Stock for
cash during the past three years that was registered under the Securities Act of
1933, as amended, or exempt from registration pursuant to Regulation A
thereunder.
(f) Prior Stock Purchases.
The information set forth in the section of the Proxy Statement entitled
"Securities Ownership" is incorporated herein by reference.
Item 3. Identity and Background of Filing Persons.
(a) Name and Address.
This Transaction Statement is being filed by Eagle Point, which is the subject
company, and JB Acquisitions LLC, Talon Acquisition Corp., John F. Biver,
Digital Canal Corporation, Rodney L. Blum, and Edward T. Graham, the acquiring
entities. The information set forth in the sections of the Proxy Statement
entitled "The Parties" and "Controlling Persons, Directors and Executive
Officers of Eagle Point, JB Acquisitions, Talon and Digital Canal--Background
of named persons" is incorporated herein by reference.
(b) Business and Background of Entities.
The information set forth in the sections of the Proxy Statement entitled "The
Parties" and "Controlling Persons, Directors and Executive Officers of Eagle
Point, JB Acquisitions, Talon and Digital Canal -- Background of named persons"
is incorporated herein by reference.
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(c) Business and Background of Natural Persons.
The information set forth in the section of the Proxy Statement entitled
"Controlling Persons, Directors and Executive Officers of Eagle Point, JB
Acquisitions, Talon and Digital Canal -- Background of named persons" is
incorporated herein by reference.
Item 4. Terms of the Transaction.
(a) Material Terms.
The information set forth in the sections of the Proxy Statement entitled
"Summary," "Information Concerning the Special Meeting -- Vote of Eagle Point
stockholders required for adoption of the merger agreement," "Special Factors --
Background of the merger," "-- Factors considered by the board of directors and
the special committee of the board of directors," "--Opinion of Eagle Point's
financial advisor," "-- Plans for Eagle Point following the merger and certain
effects of the merger," "-- Accounting treatment" and "-- U.S. federal income
tax consequences of the merger" is incorporated herein by reference.
(c) Different Terms.
The information set forth in the section of the Proxy Statement entitled
"Special Factors -- Conflicts of interest and other interests of certain persons
in the merger and certain relationships" is incorporated herein by reference.
(d) Appraisal Rights.
The information set forth in the section of the Proxy Statement entitled
"Dissenters' Rights of Appraisal" is incorporated herein by reference.
(e) Provisions for Unaffiliated Security Holders.
None.
(f) Eligibility for Listing or Trading.
Not applicable.
Item 5. Past Contacts, Transactions, Negotiations and Agreements.
(a) Transactions.
The information set forth in the section of the Proxy Statement entitled
"Special Factors -- Certain transactions" is incorporated herein by reference.
(b) Significant Corporate Events.
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The information set forth in the section of the Proxy Statement entitled
"Special Factors -- Background of the merger" is incorporated herein by
reference.
(c) Negotiations or Contacts.
The information set forth in the section of the Proxy Statement entitled
"Special Factors -- Background of the merger" is incorporated herein by
reference.
(e) Agreements Involving the Subject Company's Securities.
Eagle Point makes an annual grant of stock options, on a discretionary basis, to
each of its executive officers, usually at the time of its August board meeting.
Additionally, Eagle Point's outside, non-employee directors are granted 2,000
stock options upon their election to the board of directors and are annually
granted 4,000 additional options at the time of Eagle Point's annual
stockholders' meeting. The information set forth in the sections of the Proxy
Statement entitled "Summary" and "Special Factors -- Conflicts of interest and
other interests of certain persons in the merger and certain relationships" is
incorporated herein by reference.
Item 6. Purposes of the Transaction and Plans or Proposals.
(b) Use of Securities Acquired.
The information set forth in the sections of the Proxy Statement entitled
"Summary -- Purpose, background and effects of the merger and related
transactions" and "Special Factors -- Plans for Eagle Point following the merger
and certain effects of the merger" is incorporated herein by reference.
(c) Plans.
The information set forth in the sections of the Proxy Statement entitled
"Summary -- Purpose, background and effects of the merger and related
transactions," "Special Factors -- Background of the merger" and "-- Plans for
Eagle Point following the merger and certain effects of the merger" is
incorporated herein by reference.
Item 7. Purposes, Alternatives, Reasons and Effects.
(a) Purposes.
The information set forth in the sections of the Proxy Statement entitled
"Special Factors -- Background of the merger," "-- Recommendation of Eagle
Point's board of directors and fairness of the merger" and "-- Opinion of Eagle
Point's financial advisor" is incorporated herein by reference.
(b) Alternatives.
The information set forth in the sections of the Proxy Statement entitled
"Special Factors -- Background of the merger," "-- Recommendation of Eagle
Point's board of directors and fairness of the merger" and "-- Opinion of Eagle
Point's financial advisor" is incorporated herein by reference.
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(c) Reasons.
The information set forth in the sections of the Proxy Statement entitled
"Special Factors -- Background of the merger," "-- Recommendation of Eagle
Point's board of directors and fairness of the merger," "-- Factors considered
by the board of directors and the special committee of the board of directors"
and "-- Opinion of Eagle Point's financial advisor" is incorporated herein by
reference.
(d) Effects.
The information set forth in the sections of the Proxy Statement entitled
"Questions and Answers About Eagle Point's Merger and the Special Meeting of
Stockholders," "Special Factors -- Background of the merger," "-- Recommendation
of Eagle Point's board of directors and fairness of the merger," "-- Opinion of
Eagle Point's financial advisor," "--Plans for Eagle Point following the merger
and certain effects of the merger" and "-- U.S. federal income tax consequences
of the merger" is incorporated herein by reference.
Item 8. Fairness of the Transaction.
(a) Fairness.
The information set forth in the sections of the Proxy Statement entitled
"Special Factors -- Recommendation of Eagle Point's board of directors and
fairness of the merger," "-- Position of Mr. Biver, JB Acquisitions and Talon
regarding the merger" and "-- Position of Messrs. Blum and Graham and Digital
Canal regarding the merger" is incorporated herein by reference.
(b) Factors Considered in Determining Fairness.
The information set forth in the sections of the Proxy Statement entitled
"Special Factors -- Background of the merger," "-- Factors considered by the
board of directors and the special committee of the board of directors," "--
Opinion of Eagle Point's financial advisor," "-- Position of Mr. Biver, JB
Acquisitions and Talon regarding the merger" and "--Position of Messrs. Blum and
Graham and Digital Canal regarding the merger" is incorporated herein by
reference.
(c) Approval of Security Holders.
The transaction is not structured in such a way that approval of at least a
majority of unaffiliated security holders is required. The information set
forth in the section of the Proxy Statement entitled "Information Concerning the
Special Meeting -- Vote of Eagle Point stockholders required for adoption of the
merger agreement" is incorporated herein by reference.
(d) Unaffiliated Representative.
The information set forth in the section of the Proxy Statement entitled
"Special Factors -- Factors considered by the board of directors and the special
committee of the board of directors" is incorporated herein by reference.
(e) Approval of Directors.
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The information set forth in the sections of the Proxy Statement entitled
"Special Factors -- Background of the merger" and "-- Recommendation of Eagle
Point's board of directors and fairness of the merger" is incorporated herein by
reference.
(f) Other Offers.
The information set forth in the section of the Proxy Statement entitled
"Special Factors -- Background of the merger" is incorporated herein by
reference.
Item 9. Reports, Opinions, Appraisals and Negotiations.
(a) Report, Opinion or Appraisal.
The information set forth in the section of the Proxy Statement entitled
"Special Factors -- Opinion of Eagle Point's financial advisor" is incorporated
herein by reference.
(b) Preparer and Summary of the Report, Opinion or Appraisal.
The information set forth in the sections of the Proxy Statement entitled
"Special Factors -- Background of the merger," "-- Opinion of Eagle Point's
financial advisor" and "Annex C -- Opinion of Duff & Phelps, LLC" is
incorporated herein by reference.
(c) Availability of Documents.
The opinion of Duff & Phelps, LLC will be made available for inspection and
copying at the principal executive offices of Eagle Point during its regular
business hours by any interested equity security holder of Eagle Point or
representative who has been so designated in writing.
Item 10. Source and Amount of Funds or Other Consideration.
(a) Source of Funds.
The information set forth in the section of the Proxy Statement entitled
"Special Factors -- Source and amount of funds" is incorporated herein by
reference.
(b) Conditions.
The information set forth in the section of the Proxy Statement entitled
"Special Factors -- Source and amount of funds" is incorporated herein by
reference.
(c) Expenses.
The information set forth in the section of the Proxy Statement entitled
"Special Factors -- Fees and expenses" is incorporated herein by reference.
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(d) Borrowed Funds.
The information set forth in the section of the Proxy Statement entitled
"Special Factors -- Source and amount of funds" is incorporated herein by
reference.
Item 11. Interest in Securities of the Subject Company.
(a) Securities Ownership.
The information set forth in the section of the Proxy Statement entitled
"Securities Ownership" is incorporated herein by reference.
(b) Securities Transactions.
The information set forth in the sections of the Proxy Statement entitled
"Securities Ownership," "Controlling Persons, Directors and Executive Officers
of Eagle Point, JB Acquisitions, Talon and Digital Canal -- Recent transactions
in Eagle Point common stock," "The Merger Agreement -- Conversion of
securities," "--Exchange of securities" and "--Stock options" is incorporated
herein by reference.
Item 12. The Solicitation or Recommendation.
(d) Intent to Tender or Vote in a Going-Private Transaction.
The information set forth in the sections of the Proxy Statement entitled
"Information Concerning the Special Meeting -- Vote of Eagle Point stockholders
required for adoption of the merger agreement," "Special Factors -- Factors
considered by the board of directors and the special committee of the board of
directors," "-- Position of Mr. Biver, JB Acquisitions and Talon regarding the
merger," "-- Position of Messrs. Blum and Graham and Digital Canal regarding the
merger" and "-- Conflicts of interest and other interests of certain persons in
the merger and certain relationships" is incorporated herein by reference.
(e) Recommendations of Others.
The information set forth in the sections of the Proxy Statement entitled
"Special Factors -- Recommendation of Eagle Point's board of directors and
fairness of the merger," "-- Factors considered by the board of directors and
the special committee of the board of directors," "-- Position of Mr. Biver, JB
Acquisitions and Talon regarding the merger" and "-- Position of Messrs. Blum
and Graham and Digital Canal regarding the merger" is incorporated herein by
reference.
Item 13. Financial Statements.
(a) Financial Information.
The information set forth in the sections of the Proxy Statement entitled "Eagle
Point Software Corporation Selected Financial Data" and "Where You Can Find More
Information" is incorporated herein by reference.
(b) Pro Forma Information.
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The information set forth in the section of the Proxy Statement entitled "Pro
Forma Financial Data Related to the Asset Sale" presents pro forma information
related specifically to the sale of assets to Digital Canal and is incorporated
herein by reference.
Item 14. Persons/Assets Retained, Employed, Compensated or Used.
(a) Solicitations or Recommendations.
None.
(b) Employees and Corporate Assets.
None.
Item 15. Additional Information.
(b) Other Material Information.
None.
Item 16. Exhibits.
(a) Proxy Statement, dated as of November 27, 2001, together with form of
Proxy, Letter to Stockholders and Notice of Meeting.
(b)(1)* Commitment Letter, dated as of July 12, 2001, between Dubuque Bank and
Trust Company and JB Acquisitions.
(b)(2)* Form of Promissory Note from Eagle Point to Rodney L. Blum and Dennis
J. George.
(b)(3)* Form of Personal Guaranty of Mr. and Mrs. John F. Biver.
(c)(1)* Fairness Opinion of Duff & Phelps, LLC, dated as of July 12, 2001
(set forth as Annex C to the Proxy Statement).
(c)(2)* Presentation of Duff & Phelps, LLC to the special committee of Eagle
Point's board of directors, dated as of April 30, 2001.
(c)(3)* Presentation of Duff & Phelps, LLC to the special committee of Eagle
Point's board of directors, dated as of July 9, 2001.
(d)(1)* Agreement and Plan of Merger, dated as of July 12, 2001, by and among
Eagle Point, JB Acquisitions and Talon (set forth as Annex A to the
Proxy Statement).
(d)(2)* Asset Purchase Agreement, dated as of July 12, 2001, by and among JB
Acquisitions LLC, Talon Acquisition Corp. and Digital Canal Corporation
(set forth as Annex B to the Proxy Statement).
(d)(3)** Letter from JB Acquisitions LLC, dated March 7, 2001.
(f)* Section 262 of the Delaware General Corporation Law (set forth as
Annex D to the Proxy Statement).
- ----------
* Previously filed.
** Incorporated by reference from the Company's report on Form 8-K filed
March 7, 2001.
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After due inquiry and to the best of its knowledge and belief, each of the
undersigned certifies that the information set forth in this statement is true,
complete and correct.
Dated: November 27, 2001 EAGLE POINT SOFTWARE CORPORATION
By: Dennis J. George
-----------------------------------
Name: Dennis J. George
Title: Vice President, Chief
Financial Officer, Treasurer
and Secretary
JB ACQUISITIONS LLC
By: John F. Biver
-----------------------------------
Name: John F. Biver
Title: Manager
TALON ACQUISITION CORP.
By: John F. Biver
-----------------------------------
Name: John F. Biver
Title: President and Chief
Executive Officer
JOHN F. BIVER
John F. Biver
-----------------------------------
DIGITAL CANAL CORPORATION
By: Rodney L. Blum
-----------------------------------
Name: Rodney L. Blum
Title: Chief Executive Officer
RODNEY L. BLUM
Rodney L. Blum
-----------------------------------
EDWARD T. GRAHAM
Edward T. Graham
-----------------------------------
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EXHIBIT INDEX
The following is a list of the exhibits filed herewith:
Exhibit No. Exhibit Description
- ----------- -------------------
(a) Proxy Statement, dated as of November 27, 2001, together with form of
Proxy, Letter to Stockholders and Notice of Meeting.
(b)(1)* Commitment Letter, dated as of July 12, 2001, between Dubuque Bank
and Trust Company and JB Acquisitions.
(b)(2)* Form of Promissory Note from Eagle Point to Rodney L. Blum and
Dennis J. George.
(b)(3)* Form of Personal Guaranty of Mr. and Mrs. John F. Biver.
(c)(1)* Fairness Opinion of Duff & Phelps, LLC, dated as of July 12, 2001
(set forth as Annex C to the Proxy Statement).
(c)(2)* Presentation of Duff & Phelps, LLC to the special committee of
Eagle Point's board of directors, dated as of April 30, 2001.
(c)(3)* Presentation of Duff & Phelps, LLC to the special committee of
Eagle Point's board of directors, dated as of July 9, 2001.
(d)(1)* Agreement and Plan of Merger, dated as of July 12, 2001, by and
among Eagle Point, JB Acquisitions and Talon (set forth as Annex A
to the Proxy Statement).
(d)(2)* Asset Purchase Agreement, dated as of July 12, 2001, by and among
JB Acquisitions LLC, Talon Acquisition Corp. and Digital Canal
Corporation (set forth as Annex B to the Proxy Statement).
(d)(3)** Letter from JB Acquisitions LLC, dated March 7, 2001.
(f)* Section 262 of the Delaware General Corporation Law (set forth as
Annex D to the Proxy Statement).
- ----------
* Previously filed.
** Incorporated by reference from the Company's report on Form 8-K filed
March 7, 2001.
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