As filed with the Securities and Exchange Commission
on June 18, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
EIS INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
Delaware 06-1017599
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
555 Herndon Parkway
Herndon, Virginia 20170
(Address and zip code of Principal Executive Offices)
1998 STOCK INCENTIVE PLAN
(Full title of the Plan)
Mr. James E. McGowan
President and Chief Executive Officer
555 Herndon Parkway
Herndon, Virginia 20170
(Name, address and of agent for service)
(703) 478-9808
(Telephone number, including area code, of agent for service)
with a copy to
S. Donald Gonson, Esq.
Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================================
Title of Securities to be Amount to Proposed Maximum Proposed Maximum Amount of Registration
Registered be Registered Offering Price Per Share Aggregate Offering Price Fee
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 500,000 shares $2.69(1) $1,345,000 (1) $373.91
$0.01 par value per share
================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee and
based upon the average of the high and low trading prices of the
Registrant's Common Stock, as reported on the Nasdaq National Market on
June 18, 1999, in accordance with Rules 457(c) and 457(h) of the
Securities Act of 1933, as amended.
================================================================================
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or given
to participants in the 1998 Stock Incentive Plan of EIS International, Inc., a
Delaware corporation (the "Registrant"), pursuant to Rule 428(b)(1) of the
Securities Act of 1933, as amended (the "Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
-----------------------------------------------
The Registrant is subject to the informational and reporting requirements
of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange Commission.
The following documents, which are filed with the Securities and Exchange
Commission, are incorporated in this Registration Statement by reference:
(1) The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998;
(2) The Company's Quarterly Reports on Form 10-Q, for the
fiscal periods ended March 31, 1998, June 30, 1998 and September 30, 1998;
and
(3) The description of the Common Stock, $.01 par value per
share ("Common Stock"), contained in the Company's Registration Statement
on Form 8-A as filed with the Commission on June 22, 1992.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing
of a post-effective amendment which indicates that all shares of Common
Stock offered hereby have been sold, or which deregisters all shares of
Common Stock then remaining unsold, shall be deemed to be incorporated by
reference herein and to be part hereof from the date of the filing of such
documents.
Item 4. Description of Securities.
--------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
---------------------------------------
Not applicable.
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<PAGE>
Item 6. Indemnification of Directors and Officers.
------------------------------------------
The Registrant's Certificate of Incorporation contains certain provisions
permitted under the General Corporation Law of Delaware relating to the
liability of directors. These provisions eliminate a director's liability for
monetary damages for a breach of fiduciary duty, except in certain circumstances
involving wrongful acts, such as the breach of a director's duty of loyalty or
acts or omissions which involve intentional misconduct or a knowing violation of
the law. The Registrant's Certificate of Incorporation, as amended, also
contains provisions obligating the Registrant to indemnify its directors and
officers to the fullest extent permitted by the General Corporation Law of
Delaware.
The Registrant has purchased and maintains insurance coverage under a
policy insuring directors and officers of the Registrant against certain
liabilities which they may incur as directors or officers of the Registrant,
which may include coverage for liabilities arising under the Securities Act.
Item 7. Exemption From Registration Claimed.
------------------------------------
Not applicable.
Item 8. Exhibits.
---------
The Exhibit Index immediately preceding the exhibits is incorporated herein
by reference.
Item 9. Undertakings.
------------
1. The Registrant hereby undertakes:
(a) 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;
(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
-3-
<PAGE>
(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 (i) and (ii) do not apply if the registration
statement is on Form S-3 or Form S-8, and the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in the registration
statement.
(b) 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.
(c) 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.
2. The 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 in the initial bona fide offering thereof.
3. 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 Securities and Exchange 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 of 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.
-4-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Herndon,
Commonwealth of Virginia on the 18th day of June, 1999.
EIS INTERNATIONAL, INC.
By: /s/ James E. McGowan
-------------------------------------
James E. McGowan
President and Chief Executive Officer
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of EIS International, Inc.,
hereby severally constitute and appoint James E. McGowan, Frederick C. Foley and
S. Donald Gonson, and each of them singly, are true and lawful attorneys with
full power to them, and each of them singly, to sign for us and in our names in
the capacities indicated below, and generally to do all such things in our names
and behalf in our capacities as officers and directors to enable EIS
International, Inc. to comply with the provisions of the Securities Act of 1933,
as amended, and all requirements of the Securities and Exchange Commission,
hereby ratifying and confirming our signatures as they may be signed by our said
attorneys, or any of them, to said Registration Statement and any and all
amendments thereto.
-5-
<PAGE>
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 the 18th day of June, 1999.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ James E. McGowan President and Chief Executive Officer
- ----------------------------- (Principal Executive Officer)
James E. McGowan
/s/ Frederick C. Foley Chief Financial Officer
- ----------------------------- (Principal Financial and Accounting Officer)
Frederick C. Foley
/s/ Robert Cresci Director
- -----------------------------
Robert Cresci
/s/ Robert Jesurum Director
- -----------------------------
Robert Jesurum
/s/ Kent M. Klineman Director
- -----------------------------
Kent M. Klineman
/s/ Charles McCall Director
- -----------------------------
Charles McCall
</TABLE>
-6-
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
Number Description Page Number
- ------- ----------- -----------
<S> <C> <C>
4.1 Restated Certificate of Incorporation, as
amended.(1) --
4.2 By-Laws, as amended.(2) --
4.3 Specimen Certificate of Common Stock of the
Registrant.(3) --
5.1 Opinion of Hale and Dorr LLP. --
23.1 Consent of Hale and Dorr LLP (included in
Exhibit 5.1). --
23.2 Consent of KPMG LLP. --
24.1 Power of Attorney (included in the signature
pages of this Registration Statement). --
</TABLE>
- -----------------------
(1) Incorporated herein by reference to Exhibit 4.1 to the Registrant's
Registration Statement on Form S-3 (File No. 33-79814) filed with the
Securities and Exchange Commission on June 3, 1994.
(2) Incorporated herein by reference to Exhibit 3.2 to the Registrant's Annual
Report on Form 10-K for the year ended December 31, 1993.
(3) Incorporated herein by reference to Exhibit C to the Registrant's
Registration Statement on Form 8-A dated June 22, 1992.
-7-
Exhibit 5.1
-----------
[Hale and Dorr LLP letterhead]
June 18, 1999
EIS International, Inc.
555 Herndon Parkway
Herndon, Virginia 20170
Re: 1998 Stock Incentive Plan --
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form S-8
(the "Registration Statement") to be filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act") relating to 500,000 shares of Common Stock, $0.01 par value
per share (the "Shares"), of EIS International, Inc., a Delaware corporation
(the "Company"), issuable under the Company's 1998 Stock Incentive Plan (the
"Plan").
We have examined the Restated Certificate of Incorporation and the Amended
and Restated By-Laws of the Company, each as amended to date, the Registration
Statement and originals, or copies certified to our satisfaction, of all
pertinent records of the meetings of the directors and stockholders of the
Company and such other documents relating to the Company as we have deemed
material for the purposes of this opinion.
In our examination of the foregoing documents, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as copies, the authenticity of the originals of such latter documents and the
legal competence of all signatories to such documents.
We assume that the appropriate action will be taken, prior to the offer and
sale of the Shares to register and qualify the Shares for sale under all
applicable state securities or "blue sky" laws. We express no opinion herein as
the laws of any state or jurisdiction other than the state laws of the
Commonwealth of Massachusetts, the Delaware General Corporation Law and the
federal laws of the United States of America.
<PAGE>
Based upon and subject to the foregoing, we are of the opinion that the
Shares covered by the Registration Statement have been duly authorized for
issuance under the Plan and that the Shares, when issued against payment
therefor in accordance with the terms of the Plan and at a price per share in
excess of the nominal value per share for such Shares, will be validly issued,
fully paid and nonassessable.
It is understood that this opinion is to be used only in connection with
the offer and sale of the Shares while the Registration Statement is in effect.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act and to the use of our
name therein. In giving such consent, we do not hereby admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the Commission.
Please note that we are opining only as to the matters expressly set forth
herein, and no opinion should be inferred as to any other matter.
Very truly yours,
/s/ Hale and Dorr LLP
Hale and Dorr LLP
Exhibit 23.2
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We consent to the incorporation by reference in this registration statement
of EIS International, Inc., on Form S-8 of our report dated January 27, 1999
with respect to the consolidated balance sheets of EIS International, Inc., and
subsidiaries as of December 31, 1997 and 1998 and the related consolidated
statements of operations, stockholders' equity, and cash flows for each of the
years in the three-year period ended December 31, 1997, which report appears in
the Annual Report on Form 10-K of EIS International, Inc. for the fiscal year
ended December 31, 1998.
KPMG LLP
McLean, Virginia
June 18, 1999
