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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-K
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CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
DECEMBER 17, 1999
Date of Report
EIS INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 000-20329 06-1017599
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(State or other jurisdiction (Commission File No.) I.R.S. Employer
of incorporation) (Identification No.)
555 HERNDON PARKWAY
HERNDON, VIRGINIA 20170
(Address of principal executive offices)
(703) 478-9808
(Registrant's telephone number, including area code)
N/A
(former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS
On December 17, 1999, EIS International, Inc., a Delaware corporation
(the "Company"), SER Systeme AG, a German corporation ("Parent") and SERSYS
Aquisition Corporation ("Sub"), a Delaware corporation that is a wholly-owned
subsidiary of SER (USA), Inc. ("SER USA"), a Delaware corporation that is a
wholly-owned subsidiary of Parent, entered into an Agreement and Plan of Merger
(the "Merger Agreement"), which is incorporated herein by reference as Exhibit
2.1. The following summary of the Merger Agreement is qualified in its entirety
by reference to the Merger Agreement. The Merger Agreement provides, subject to
certain conditions as described therein, for the commencement of a cash tender
offer (the "Offer") to purchase all of the outstanding shares of the Company's
common stock, without par value, including the associated preferred stock
purchase rights ("Shares"), at a price of $6.25 per Share, net to the seller in
cash, upon the terms and subject to the conditions set forth in the Offer to
Purchase and the related Letter of Transmittal filed by Parent and Sub with the
Securities and Exchange Commission on December 23, 1999 (collectively, the
"Offer Documents") and, together with the Company's recommendation of the tender
offer, mailed to the Company's shareholders on the same date. The obligation of
Sub to accept for payment and pay for Shares tendered pursuant to the Offer is
subject to at least 50% of the outstanding Shares being validly tendered and
certain other conditions, including clearance under the Hart-Scott-Rodino
Antitrust Improvements Act, that are described in the Merger Agreement and the
Offer Documents.
The Merger Agreement provides that, among other things, as soon as
practicable after the consummation of the Offer and the satisfaction or waiver
of the other conditions set forth in the Merger Agreement and in accordance with
the applicable provisions of the Delaware General Corporation Law (the "DGCL"),
Sub will be merged with and into the Company (the "Merger"), whereupon the
separate existence of Sub will cease and the Company will continue as the
surviving corporation. Upon consummation of the Merger, each outstanding Share
(other than (i) each Share held by the Company as treasury stock or each Share
held by Parent or any subsidiary of Parent, and (ii) any Shares held by any
holder who has not voted in favor of the Merger or consented thereto in writing
and who has demanded appraisal for such Shares in accordance with Section 262 of
the DGCL) will be converted into and represent the right to receive $6.25 in
cash or any higher price per Share that may be paid in the Offer, without
interest.
On December 20, 1999, Parent and the Company issued a joint press release
announcing the execution of the Merger Agreement. A copy of the press release is
incorporated herein by reference as Exhibit 99.1.
In connection with the approval of the Merger Agreement and the
transactions contemplated therein, including the Offer and Merger, the Company's
Board of Directors also amended that certain Rights Agreement (the "Rights
Agreement"), dated as of May 16, 1997, between the Company and BankBoston, N.A.
as Rights Agent, to provide that Parent's or Sub's acquisition of the Shares
pursuant to the Offer or the Merger, if in either case conducted pursuant to the
terms of the Merger Agreement, shall not cause the Rights (as such term is
defined in the Rights Agreement) to separate from the Shares. A copy of the Form
of the First Amendment to the Rights Agreement is incorporated herein by
reference as Exhibit 99.2.
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) Financial Statements of Business Acquired. No financial statements are
required to be filed in connection with this transaction pursuant to Rule
3-05 of Regulation S-X.
(b) Pro Forma Financial Information. No pro forma financial statements are
required to be filed in connection with this transaction pursuant to Rule
11-01 of Regulation S-X.
(c) Exhibits. The following exhibits are required by Item 601 of Regulation
S-K and are listed below:
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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<S> <C>
2.1 Agreement and Plan of Merger, dated as of December
17, 1999, among EIS International, Inc., a Delaware
corporation, SER Systeme AG, a German corporation
and SERSYS Acquisition Corporation (incorporated by
reference to Exhibit (c)(i) to the Company's
Schedule 14D-9 filed on December 23, 1999).
99.1 Joint Press Release, dated December 20, 1999, issued
by EIS International, Inc. and SER Systeme AG
(incorported by reference to Exhibit (a)(10) to the
Company's Schedule 14D 9 filed on December 23,
1999).
99.2 Form of the First Amendment to the Rights Agreement,
dated December 17, 1999.
</TABLE>
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
EIS INTERNATIONAL, INC.
Date: December 30, 1999 By: /s/ James E. McGowan
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James E. McGowan
President and Chief Executive Officer
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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<S> <C>
2.1 Agreement and Plan of Merger, dated as of December
17, 1999, among EIS International, Inc., a Delaware
corporation, SER Systeme AG, a German corporation
and SERSYS Acquisition Corporation (incorporated by
reference to Exhibit (c)(i) to the Company's
Schedule 14D-9 filed on December 23, 1999).
99.1 Joint Press Release, dated December 20, 1999, issued
by EIS International, Inc. and SER Systeme AG
(incorported by reference to Exhibit (a)(10) to the
Company's Schedule 14D 9 filed on December 23,
1999).
99.2 Form of the First Amendment to the Rights Agreement,
dated December 17, 1999.
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EXHIBIT 99.2
FIRST AMENDMENT TO RIGHTS AGREEMENT
This FIRST AMENDMENT to that certain Rights Agreement (the "Rights
Agreement"), dated May 16, 1997 between EIS International, Inc. (the "Company")
and BankBoston, N.A., as Rights Agent (the "Rights Agent") is made as of
December 17, 1999. Terms not defined herein shall have the meanings ascribed to
them in the Rights Agreement.
WHEREAS, the Board of Directors of the Company (the "Board") at a meeting
duly called and held on December 16, 1999, approved an Agreement and Plan of
Merger (the "Merger Agreement"), dated as of December 17, 1999, by and among SER
Systeme AG (the "Parent"), SERSys Acquisition Corporation (the "Sub") and the
Company and the transactions contemplated therein, including the Offer and the
Merger (as such terms are defined in the Merger Agreement); and
WHEREAS, at such meeting on December 16, 1999, the Board resolved that
the officers of the Company may take any other appropriate action to render the
Rights Agreement inapplicable to the Merger Agreement and the transactions
contemplated thereby, including the Offer and Merger, and authorized any officer
of the Company to notify the Rights Agent of such amendment and to take such
other actions as may be necessary (including amending the Rights Agreement or
redeeming the Rights) to assure that no "Stock Acquisition Date" or "Section
11(a)(ii) Trigger Date," as defined in the Rights Agreement, shall occur as a
result of the Merger Agreement, the Offer or the Merger; and
WHEREAS, Section 27 of the Rights Agreement provides that the Company
may, in its sole discretion, and the Rights Agent shall, if the Company so
directs, amend any provision of the Rights Agreement without the approval of the
holders of the Rights, subject to certain limitations described in such Section
which are not applicable to this First Amendment; and
WHEREAS, Section 27 provides that the Rights Agent shall execute an
amendment to the Rights Agreement upon its receipt of a certificate from an
appropriate officer of the Company that the amendment complies with the terms of
Section 27.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth and set forth in the Rights Agreement, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
expressly acknowledged, the parties hereby agree that the Rights Agreement shall
be amended as follows:
1. Stock Acquisition Date. A "Stock Acquisition Date" shall not occur
as a result of Parent's or Sub's acquisition of shares of the Company's Common
Stock in the Offer or the Merger, pursuant to the terms of the Merger Agreement.
2. Section 11(a)(ii) Trigger Date. In no event shall the Parent's or
Sub's acquisition of the Company's Common Stock in the Offer or the Merger,
pursuant to the terms of the Merger Agreement, be deemed to constitute a
"Section 11(a)(ii) Trigger Date" as such term is used in the Rights Agreement.
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The undersigned officer of the Company certifies that this First
Amendment complies with the terms of Section 27 of the Rights Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be duly executed as of the 17th of December, 1999.
EIS INTERNATIONAL, INC.
By:
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Name: James E. McGowan
Title: President and Chief Executive Officer
BANKBOSTON, N.A.
By:
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Name:
Title:
