As filed with the Securities and Exchange Commission on February 13, 2002
REGISTRATION NO. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CONCURRENT COMPUTER CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware 04-2735766
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
4375 RIVER GREEN PARKWAY
DULUTH, GEORGIA 30096
(Address, including zip code, of registrant's principal executive offices)
CONCURRENT COMPUTER CORPORATION
1991 RESTATED STOCK OPTION PLAN;
2001 STOCK OPTION PLAN;
RICHARD P. RIFENBURGH
NON-QUALIFIED STOCK OPTION PLAN AND AGREEMENT
(Full Title of the Plans)
STEVEN R. NORTON
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
CONCURRENT COMPUTER CORPORATION
4375 RIVER GREEN PARKWAY
DULUTH, GEORGIA 30096
(678) 258-4000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPIES TO:
ALAN J. PRINCE, ESQ.
JOHN D. CAPERS, JR., ESQ.
KING & SPALDING
191 PEACHTREE STREET
ATLANTA, GEORGIA 30303-1763
404-572-4600
CALCULATION OF REGISTRATION FEE
---------------------- ----------------------- ------------------ -------------------------- -----------------
Title of Each Class of Proposed Maximum Proposed Maximum
Securities to be Offering Price Aggregate Offering Price Amount of
Registered Amount to be Registered Per Share (1) (1) Registration Fee
---------------------- ----------------------- ------------------ -------------------------- -----------------
Common Stock, par
value $.01 6,824,800 $ 12.72 $ 86,811,456 $ 7,986.65
---------------------- ----------------------- ------------------ -------------------------- -----------------
(1) Estimated solely for purposes of calculating the registration fee in accordance with Rule 457(h), based
upon the average of the high and low reported sales price of the Registrant's Common Stock on the Nasdaq
National Market on February 8, 2002.
This Registration Statement on Form S-8 relates to 6,824,800 shares of
common stock, par value $.01 (the "Common Stock"), of Concurrent Computer
Corporation (the "Company"), reserved for issuance pursuant to the Company's
1991 Restated Stock Option Plan, 2001 Stock Option Plan and Richard P.
Rifenburgh Non-Qualified Stock Option Plan and Agreement.
Additional Shares Approved at the 1999 Annual Shareholders Meeting for the 1991 Plan 3,000,000
Additional Shares Approved at the 2000 Annual Shareholders Meeting for the 1991 Plan 1,500,000
Shares Approved at the 2001 Annual Shareholders Meeting for the 2001 Stock Option Plan 3,000,000
Shares Granted to Richard P. Rifenburgh, former Director, at retirement 10,000
Less: Unissued shares in 1991 Plan as of 10/31/01, transferred to 2001 Plan (685,200)
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Total shares being registered 6,824,800
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
-----------------------------------------------
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. We incorporate by reference the documents
listed below:
1. Our Annual Report on Form 10-K for the fiscal year ended June 30,
2001;
2. Our Quarterly Report on Form 10-Q for the quarter ended September 30,
2001;
3. The description of our common stock, par value $.01, contained in the
registration statement on Form 8-A dated January 23, 1986, including
any amendment or report filed for the purpose of updating such
description; and
4. Our Current Reports on Form 8-K, dated October 22, 2001, October 25,
2001 and January 24, 2002.
All documents that we file subsequent to this Registration Statement
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 securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed incorporated by reference in the registration statement
and to be part thereof from the date of filing of such documents.
Any statement contained in any document incorporated by reference or deemed
to be incorporated by reference into this Registration Statement shall be deemed
to be modified or superseded for purposes thereof to the extent that a statement
contained therein or in any other subsequently filed document that is also
incorporated or deemed to be incorporated therein by reference modifies or
supersedes such statement. Any such statement so modified or so superseded shall
not be deemed to constitute a part of this Registration Statement.
You may request a copy of these filings by writing or telephoning us at:
Concurrent Computer Corporation, 4375 River Green Parkway, Duluth, Georgia
30096, Attn: Secretary; phone: (678) 258-4000.
ITEM 4. DESCRIPTION OF SECURITIES.
-------------------------
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
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The validity of the securities offered by this prospectus will be passed
upon for us by King & Spalding. Bruce N. Hawthorne, a partner of King &
Spalding, is a director of Concurrent.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
-----------------------------------------
Section 145 of the Delaware General Corporation Law generally provides that
a corporation may indemnify directors and officers as well as other employees
and individuals against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement in connection with specified actions, suits or
proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation-a derivative action), if
they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe their conduct
was unlawful. A similar standard is applicable in the case of derivative
actions, except that indemnification only extends to expenses (including
attorneys' fees) incurred in connection with the defense or settlement of such
action, and the statute requires court approval before there can be any
indemnification where the person seeking indemnification has been found liable
to the corporation. The statute also provides that it is not exclusive of other
indemnification that may be granted by a corporation's charter, bylaws,
disinterested director vote, stockholder vote, agreement or otherwise and
permits a corporation to advance expenses to or on behalf of a person entitled
to be indemnified upon receipt of an undertaking to repay the amounts advanced
if it is determined that the person is not entitled to be indemnified.
Article XXIII of our Amended and Restated Bylaws provides for
indemnification of our directors, officers, employees and agents for expenses
(including attorneys' fees), judgments or fines of any threatened, pending or
completed action, suit or proceeding.
Article Eleventh of our Restated Certificate of Incorporation provides that
directors shall not be liable for monetary damages resulting from a breach of
their fiduciary duties, except for liability for any of the following: (1) any
breach of the duty of loyalty to us and our stockholders; (2) acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law; (3) as provided under Section 174 of the Delaware General Corporation
Law (which provides that directors are personally liable for unlawful dividends
or unlawful stock repurchases or redemptions); or (4) any transaction from which
a director personally derived any improper personal benefit. If the Delaware
General Corporation Law is amended after approval by the stockholders of Article
Eleventh to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of any of our directors
shall be eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended from time to time. Any repeal or
modification of Article Eleventh shall not increase the personal liability of
any of our directors for any act or occurrence taking place prior to such repeal
or modification, or otherwise adversely affect any right or protection of any of
our directors existing hereunder prior to the time of such repeal or
modification.
We maintain director and officer liability insurance policies on behalf of
any person who is or was a director or officer of us or our subsidiary companies
providing for insurance against any liability incurred by him or her in any such
capacity or arising out of his or her status as such. The policies contain
various reporting requirements and exclusions.
ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED.
------------------------------------
Inapplicable.
ITEM 8. EXHIBITS.
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EXHIBIT DESCRIPTION
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4.1 Restated Certificate of Incorporation of the Registrant
(filed as Exhibit 4.1 to the Company's Registration
Statement on Form S-2 (No. 33-62440) dated May 7, 1993 and
incorporated herein by reference)
4.2 Amended and Restated Bylaws of the Registrant (filed as
Exhibit 3 to the Company's Quarterly Report on Form 10-Q for
the quarter ended December 28, 1996 and incorporated herein
by reference)
4.3 Form of Common Stock Certificate (filed as Exhibit 4.9 to
the Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 1992 and incorporated herein by reference)
5.1 Opinion of King & Spalding
23.1 Consent of KPMG LLP
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of King & Spalding (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
99.1 Concurrent Computer Corporation 1991 Restated Stock Option
Plan (filed as Exhibit A to the Company's Proxy Statement
dated September 18, 2000 and incorporated herein by
reference)
99.2 Concurrent Computer Corporation 2001 Stock Option Plan
(filed as Annex II to the Company's Proxy Statement dated
September 19, 2001 and incorporated herein by reference)
99.3 Richard P. Rifenburgh Non-Qualified Stock Option Plan and
Agreement
ITEM 9. UNDERTAKINGS.
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(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;
(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. 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 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 Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 of 1933, each
filing of the Registrant's Annual Report pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's Annual Report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) 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 of 1933 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 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 Act and will be
governed by the final adjudication of such issue.
EXPERTS
The consolidated financial statements as of and for each of the years in
the two year period ended June 30, 2001 and the related financial statement
schedule for each of the years in the two year period ended June 30, 2001
incorporated in this prospectus and in the registration statement by reference
from Concurrent's Annual Report on Form 10-K for the year ended June 30, 2001
have been audited by Deloitte & Touche LLP, independent auditors, as stated in
their report, which is incorporated herein by reference, and have been so
incorporated in reliance upon the report of such firm given upon their authority
as experts in accounting and auditing.
The consolidated financial statements and schedule of Concurrent for the
year ended June 30, 1999 have been incorporated by reference herein and in the
related prospectus in reliance upon the report of KPMG LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
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, on the 13th day of February, 2002.
CONCURRENT COMPUTER CORPORATION
By: /s/ Steven R. Norton
---------------------
Steven R. Norton
Executive Vice President, Chief Financial
Officer and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints, jointly and severally, Jack A.
Bryant and Steven R. Norton, and each of them acting individually, as his
attorney-in-fact, each with full power of substitution and resubstitution, for
him in any and all capacities, to sign any and all amendments to this
Registration Statement (including post-effective amendments), and to file the
same, with exhibits thereto and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorneys-in-fact
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact, or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
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 13th day of February, 2002:
Signature Title
--------- -----
/s/ Steve G. Nussrallah Chairman of the Board and Director
-----------------------
Steve G. Nussrallah
/s/ Jack A. Bryant President, Chief Executive Officer and Director
----------------------- (Principal Executive Officer)
Jack A. Bryant
/s/ Steven R. Norton Executive Vice President, Chief Financial Officer and
----------------------- Secretary (Principal Financial and Accounting Officer)
Steven R. Norton
/s/ Alex B. Best Director
-----------------------
Alex B. Best
/s/ Michael A. Brunner Director
-----------------------
Michael A. Brunner
/s/ Morton E. Handel Director
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Morton E. Handel
/s/ Bruce N. Hawthorne Director
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Bruce N. Hawthorne
/s/ C. Shelton James Director
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C. Shelton James
EXHIBIT INDEX
EXHIBIT DESCRIPTION
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4.1 Restated Certificate of Incorporation of the Registrant
(filed as Exhibit 4.1 to the Company's Registration
Statement on Form S-2 (No. 33-62440) dated May 7, 1993 and
incorporated herein by reference)
4.2 Amended and Restated Bylaws of the Registrant (filed as
Exhibit 3 to the Company's Quarterly Report on Form 10-Q for
the quarter ended December 28, 1996 and incorporated herein
by reference)
4.3 Form of Common Stock Certificate (filed as Exhibit 4.9 to
the Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 1992 and incorporated herein by reference)
5.1 Opinion of King & Spalding
23.1 Consent of KPMG LLP
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of King & Spalding (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
99.1 Concurrent Computer Corporation 1991 Restated Stock Option
Plan (filed as Exhibit A to the Company's Proxy Statement
dated September 18, 2000 and incorporated herein by
reference)
99.2 Concurrent Computer Corporation 2001 Stock Option Plan
(filed as Annex II to the Company's Proxy Statement dated
September 19, 2001 and incorporated herein by reference)
99.3 Richard P. Rifenburgh Non-Qualified Stock Option Plan and
Agreement