AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 7, 2002
REGISTRATION NO. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________
FORM S-3
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 of (I.R.S. Employer
Incorporation or Organization) Identification No.)
_______________
4375 RIVER GREEN PARKWAY
DULUTH, GEORGIA 30096
(678) 258-4000
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
_______________
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
JOHN D. CAPERS, JR.
KING & SPALDING
191 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30303-1763
(404) 572-4600
_______________
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
_______________
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering: [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [ ]
CALCULATION OF REGISTRATION FEE
============================================================================================================================
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PRICE PER SHARE (1) OFFERING PRICE (1) REGISTRATION FEE
--------------------------------- -------------- -------------------------- --------------------------- ----------------
Common Stock, $0.01 par value
per share . . . . . . . . . . . . 291,461 shares $6.01 $1,751,681 $162
--------------------------------- -------------- -------------------------- --------------------------- ----------------
(1) Estimated solely for the purpose of computing the amount of the
registration fee in accordance with Rule 457(c) under the Securities Act.
_______________
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
PRELIMINARY PROSPECTUS-SUBJECT TO COMPLETION, DATED JUNE 7, 2002
_______________
The information in this prospectus is not complete and may be changed. The
selling stockholder may not sell the common stock covered by this prospectus
until the registration statement filed with the Securities and Exchange
Commission is effective. This prospectus is not an offer to sell the common
stock, and it is not soliciting an offer to buy the common stock in any state
where the offer or sale is not permitted.
_______________
CONCURRENT COMPUTER CORPORATION
291,461 SHARES OF COMMON STOCK
This Prospectus relates to the public offering of 291,461 shares of our
common stock that were issued in a private placement to the selling stockholder
identified in this prospectus. We will not receive any proceeds from the sale
of these shares, and we have agreed to bear the expenses incurred in connection
with the registration of these shares.
The prices at which the selling stockholder may sell the shares will be
determined by or based on the prevailing market price for the shares or in
negotiated transactions. The selling stockholder also may sell the shares to or
with the assistance of broker-dealers, who may receive compensation in excess of
their customary commissions.
Our common stock is traded on the Nasdaq National Market under the symbol
"CCUR." On June 6, 2002, the last reported sale price of our common stock was
$5.70 per share.
_______________
THE COMMON STOCK OFFERED INVOLVES A HIGH DEGREE OF RISK. SEE "CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS" IN THIS PROSPECTUS AND "RISK FACTORS"
IN OUR CURRENT REPORT ON FORM 8-K, DATED OCTOBER 22, 2001, WHICH IS INCORPORATED
HEREIN BY REFERENCE, FOR A DISCUSSION OF SOME IMPORTANT RISKS YOU SHOULD
CONSIDER BEFORE BUYING ANY SHARES OF COMMON STOCK.
_______________
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES, OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS _______________, 2002.
BUSINESS
OVERVIEW
We believe that we are a leading provider of computer systems for both the
emerging video-on-demand market through our Xstreme division and real-time
applications through our Real-Time division. We provide computer hardware (our
video servers) and related software, referred to as our video-on-demand systems,
primarily to residential cable television operators. We also provide
high-performance computer systems, referred to as our real-time systems, for
simulations, data acquisition and industrial process applications. We market
our real-time systems to government agencies, government suppliers and
commercial markets where the immediate capture and delivery of information is
critical. We expect that substantially all of our future revenue growth will
come from our Xstreme division, which began commercial sales in 1999.
Our video-on-demand systems consist of digital video servers and related
software that enable cable operators to deliver video-on-demand to their
subscribers. In order to provide video-on-demand, the cable operator's system
must be upgraded to carry digital, rather than analog signals, and the cable
subscriber must have a digital set-top box. We currently provide
video-on-demand services to five of the seven largest U.S. cable system
operators that have begun to offer video-on-demand services in one or more
residential markets. As cable systems expand their video-on-demand product
offerings, we believe we are well-positioned to be a provider of choice.
Initially, we focused our video-on-demand business on the development of
systems compatible with Scientific-Atlanta, Inc. digital cable equipment. In
October 1999, we acquired Vivid Technology, Inc. and obtained technology
compatible with Motorola digital cable equipment. In 2001, we introduced our
MediaHawk Model 2000 video-on-demand system, which is compatible with both
Scientific-Atlanta and Motorola equipment.
A real-time system is specially designed to acquire, process, store, and
display large amounts of rapidly changing information in real-time with
microsecond response as changes occur. We have over 30 years of experience in
real-time systems, including specific expertise in systems, applications
software, productivity tools, and networking. Our systems provide real-time
applications for gaming, simulation, engine test, air traffic control, weather
analysis, and mission critical data services such as financial market
information. We are currently developing a new real time operating system on
the Linux platform to provide our real time customers an alternative to our
original, proprietary platform.
2
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the shares by the
selling stockholder. All the proceeds will be received by the selling
stockholder.
SELLING STOCKHOLDER
We are registering all 291,461 shares covered by this prospectus on behalf
of the selling stockholder. We have registered the shares to permit the selling
stockholder and its affiliates that receive their shares from the selling
stockholder through non-sale related transfers after the date of this prospectus
to resell the shares when they deem appropriate.
We issued 291,461 shares of our common stock directly to Thirdspace Living
Limited on March 19, 2002. Under a Share Purchase and Warrant Issuance
Agreement, we invested $7,000,000 in C ordinary shares of Thirdspace through a
$4,000,000 cash payment and the issuance of approximately $3,000,000 of our
common stock, which amounted to 291,461 shares based on a 20-day trailing
average computed on March 12, 2002 of approximately $10.293 per share. In
connection with the issuance of our common stock, we entered into a Registration
Rights Agreement under which we agreed to file a registration statement with the
Securities and Exchange Commission on Form S-3 to register the shares issued in
the transaction. We also entered into a Strategic Alliance Agreement under which
we agreed to jointly develop and market an integrated end-to-end solution to
enable broadband telecommunications carriers to provide broadcast television,
interactive television, and video-on-demand services to subscribers on digital
subscriber line transportation networks.
The following table sets forth the name of the selling stockholder, the number
of shares of our common stock owned by the selling stockholder as of June 7,
2002, the number of shares that may be offered under this prospectus, and the
number of shares of our common stock owned by the selling stockholder after this
offering is completed. We have prepared this table based on information provided
to us by the selling stockholder. Other than as described above, the selling
stockholder has not had a material relationship with us within the past three
years. The number of shares in the column "Number of Shares Being Offered"
represent all of the shares that the selling stockholder may offer under this
prospectus. We do not know how long the selling stockholder will hold the shares
before selling them. The shares offered by this prospectus may be offered from
time to time by the selling stockholder. Notwithstanding the foregoing, the
selling stockholder has agreed not to sell any of the shares prior to August 1,
2002. After August 1, 2002, the selling stockholder may sell 145,731 of the
shares. After December 14, 2002, the selling stockholder may sell an additional
72,865 of the shares and after March 19, 2003, the selling stockholder may sell
the remaining 72,865 shares.
SHARES BENEFICIALLY
OWNED SHARES BENEFICIALLY
PRIOR TO OFFERING (1) NUMBER OF OWNED
------------------------ SHARES BEING AFTER OFFERING (3)
NAME OF SELLING STOCKHOLDER NUMBER PERCENT OFFERED (2) NUMBER PERCENT
--------------------------- ----------- ----------- ------------ --------- ---------
Thirdspace Living Limited 291,461 * 291,461 0 *
________________________________
* Represents beneficial ownership of less than one percent of our common
stock.
(1) Percentage ownership is based on 61,855,727 shares of our common stock
outstanding on June 7, 2002, and is calculated pursuant to Rule 13d-3(d)(1)
under the Exchange Act.
(2) This registration statement shall also cover any additional shares of
common stock which become issuable in connection with the shares registered
for sale hereby as a result of any stock dividend, stock split,
recapitalization or other similar transaction effected without the receipt
of consideration which results in an increase in the number of our
outstanding shares of common stock.
(3) Assumes the sale of all shares offered hereby and no other purchases or
sales of our common stock.
3
PLAN OF DISTRIBUTION
The selling stockholder may sell the shares on the Nasdaq National Market,
in the over-the-counter market or otherwise, at market prices prevailing at the
time of sale, at prices related to the prevailing market prices, or at
negotiated prices. In addition, the selling stockholder may sell shares
through:
- a block trade in which a broker-dealer may resell a part of the block,
as principal, in order to facilitate the transaction;
- purchases by a broker-dealer, as principal, and resale by the
broker-dealer for its account; or
- ordinary brokerage transactions and transactions in which a broker
solicits purchasers.
When selling the shares, the selling stockholder may enter into one or
more, or a combination of, hedging transactions with financial institutions (the
"counterparties"), in which it:
- enters into transactions involving short sales of the shares by
counterparties;
- sells the shares short itself and redelivers such shares to close out
its short positions;
- enters into option, forward or other types of transactions that
require the selling stockholder to deliver the shares to a
counterparty, who may resell or transfer the shares under this
prospectus; or
- loan or pledge the shares to a counterparty, who may sell or transfer
such shares.
Broker-dealers or agents may receive compensation in the form of
commissions, discounts or concessions from the selling stockholder for their
services. A broker-dealer engaged by the selling stockholder may allow other
broker-dealers to participate in resales. The selling stockholder and any
broker-dealers involved in the sale or resale of the shares may qualify as
"underwriters" within the meaning of the Section 2(11) of the Securities Act.
In addition, the broker-dealers' commissions, discounts or concessions may
qualify as underwriters' compensation under the Securities Act. The selling
stockholder will be subject to the prospectus delivery requirements of the
Securities Act.
In addition to selling the shares under this prospectus, the selling
stockholder may:
- agree to indemnify any broker-dealer or agent against certain
liabilities related to the selling of the shares, including
liabilities arising under the Securities Act; or
- transfer its shares in other ways not involving market makers or
established trading markets, including directly by gift, distribution,
or other transfer.
The shares will be sold only through registered or licensed brokers or
dealers if required under applicable state securities laws. In addition, in
certain states, the shares may not be sold unless they have been registered or
qualified for sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied with.
Any person participating in the distribution of the shares of common stock
registered under the registration statement that includes this prospectus will
be subject to applicable provisions of the Securities Exchange Act of 1934, as
amended, and the applicable SEC rules and regulations, including, among others,
Regulation M, which may limit the timing of purchases and sales of any shares of
our common stock by any such person. Furthermore, Regulation M may restrict the
ability of any person engaged in the distribution of shares of our common stock
to engage in market-making activities with respect to shares of our common
stock. These restrictions may affect the marketability of shares of our common
stock and the ability of any person or entity to engage in market-making
activities with respect to shares of our common stock.
4
We will file a supplement to this prospectus, to the extent required,
pursuant to Rule 424(b) under the Securities Act upon being notified by the
selling stockholder that any material arrangement has been entered into with a
broker-dealer for the sale of shares through a block trade, special offering,
exchange distribution or secondary distribution of a purchase by a broker or
dealer. Such supplement will disclose:
- the name of the selling stockholder and of the participating
broker-dealer(s);
- the number of shares involved;
- the price at which such shares were sold;
- the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable;
- that such broker-dealer(s) did not conduct any investigation to verify
the information set out or incorporated by reference in this
prospectus; and
- other facts material to the transaction.
If underwriters are used in a sale, the shares will be acquired by the
underwriters for their own account and may be resold from time to time in one or
more transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. Shares may be
offered to the public either through underwriting syndicates represented by one
or more managing underwriters or directly by one or more firms acting as
underwriters. The underwriter or underwriters with respect to a particular
underwritten offering of shares will be named in the supplement to this
prospectus relating to that offering and, if an underwriting syndicate is used,
the managing underwriter or underwriters will be stated on the cover of the
prospectus supplement.
Upon sale under the registration statement that includes this prospectus,
the shares of our common stock registered by the registration statement will be
freely tradable in the hands of persons other than our affiliates.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the SEC. You
may read and copy any document we file at the SEC's public reference room in
Washington, D.C. Please call the SEC at 1-800-SEC-0330 (1-800-732-0330) for
further information on the public reference rooms. Our SEC filings are also
available to the public on the SEC's website at http://www.sec.gov.
INFORMATION INCORPORATED 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. The information incorporated by reference is
considered to be part of this prospectus, and later information filed with the
SEC will update and supersede this information. We incorporate by reference the
documents listed below and any future filings we make with the SEC under Section
13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 until this
offering is completed.
1. Our Annual Report on Form 10-K for the fiscal year ended June 30,
2001;
2. Our Quarterly Reports on Form 10-Q for the quarters ended September
30, 2001, December 31, 2001 and March 31, 2002;
3. Our Current Reports on Form 8-K, dated October 22, 2001, October 25,
2001, January 29, 2002, March 20, 2002, April 25, 2002 and June 7,
2002; and
4. The description of our common stock contained in the Registration
Statement on Form 8-A dated January 23, 1986, as amended by our
Current Report on Form 8-K, dated October 22, 2001.
The reports and other documents that we file after the date of this
prospectus will update and supersede the information in this prospectus.
5
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: Assistant Secretary; phone: (678) 258-4000. We will provide this
information at no cost to you.
YOU SHOULD RELY ONLY ON THE INFORMATION PROVIDED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH
DIFFERENT INFORMATION. THE SELLING STOCKHOLDER IS NOT MAKING AN OFFER OF THESE
SECURITIES IN ANY STATE WHERE THE OFFER IS NOT PERMITTED. YOU SHOULD NOT ASSUME
THAT THE INFORMATION IN THIS PROSPECTUS IS ACCURATE AS OF ANY DATE OTHER THAN
THE DATE ON THE FRONT OF THIS DOCUMENT.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements made or incorporated by reference in this prospectus may
constitute "forward-looking statements" within the meaning of the federal
securities laws. When used or incorporated by reference in this prospectus, the
words "believes," "expects," "estimates" and similar expressions are intended to
identify forward-looking statements. Statements regarding future events and
developments and our future performance, as well as our expectations, beliefs,
plans, estimates or projections relating to the future, are forward-looking
statements within the meaning of these laws. All forward-looking statements are
subject to certain risks and uncertainties that could cause actual events to
differ materially from those projected. The risks and uncertainties which could
affect our financial condition or results of operations include, without
limitation:
- availability of video-on-demand content;
- delays or cancellations of customer orders;
- changes in product demand;
- economic conditions;
- various inventory risks due to changes in market conditions;
- uncertainties relating to the development and ownership of
intellectual property;
- uncertainties relating to our ability and the ability of other
companies to enforce their intellectual property rights;
- the pricing and availability of equipment, materials and inventories;
- the limited operating history of our video-on-demand segment;
- the concentration of our customers;
- failure to effectively manage growth;
- delays in testing and introductions of new products;
- rapid technology changes;
- demand shifts from high-priced, proprietary real-time systems to
low-priced, open server systems;
- system errors or failures;
- reliance on a limited number of suppliers;
- uncertainties associated with international business activities,
including foreign regulations, trade controls, taxes, and currency
fluctuations;
- the highly competitive environment in which we operate; and
- the entry of new well-capitalized competitors into our markets.
Other important risk factors are discussed in our Current Report on Form
8-K, dated October 22, 2001, incorporated herein by reference.
Our forward looking statements are based on current expectations and speak
only as of the date of such statements. We undertake no obligation to publicly
update or revise any forward-looking statement, whether as a result of future
events, new information or otherwise.
LEGAL MATTERS
The validity of the shares of common stock 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.
6
EXPERTS
The consolidated financial statements and the related financial statement
schedules as of June 30, 2001 and 2000, and for each of the two years in the
period ended June 30, 2001 incorporated in this prospectus and in the
registration statement by reference from Concurrent's Current Report on Form 8-K
dated June 7, 2002 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 related schedule of Concurrent
for the year ended June 30, 1999 have been incorporated by reference herein and
in the registration statement 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.
7
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS IN
CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY US. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF
AN OFFER TO BUY ANY SECURITIES OTHER THAN THE COMMON STOCK TO WHICH IT RELATES,
OR AN OFFER IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE
SUCH AN OFFER IN SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR
ANY SALE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT
THE INFORMATION CONTAINED HEREIN IS CORRECT AT ANY TIME AFTER THE DATE HEREOF.
Table Of Contents
Page
----
Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Selling Stockholder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
Where You Can Find More Information . . . . . . . . . . . . . . . . . . . . . 5
Information Incorporated by Reference . . . . . . . . . . . . . . . . . . . . 5
Cautionary Note Regarding Forward-Looking Statements. . . . . . . . . . . . . 6
Legal Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Prospectus __________, 2002
291,461 Shares
CONCURRENT COMPUTER
CORPORATION
COMMON STOCK
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth all expenses payable by the Registrant in
connection with the sale of the common stock being registered. The amounts
shown are estimates, except for the registration fee.
Registration Fee. . . . . . . $ 162
Nasdaq additional listing fee 22,500
Legal fees and expenses . . . 25,000
Accounting fees and expenses. 15,000
Miscellaneous expenses 338
---------
TOTAL . . . . . . . . . . . $ 63,000
=========
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Section 145 of the Delaware General Corporation Law 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 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. 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 11 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 repurchase 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
11 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 11 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.
II-1
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) EXHIBITS.
EXHIBIT NO. DESCRIPTION
--------------- -----------
4.1 Restated Certificate of Incorporation of the Registrant (Incorporated by reference to
the Registrant's Registration Statement on Form S-2 (No. 33-62440))
4.2 Amended and Restated Bylaws of the Registrant (Incorporated by reference to the
Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended December
28, 1996)
4.3 Form of Common Stock Certificate (Incorporated by reference to the Registrant's
Annual Report on Form 10-K for the fiscal year ended June 30, 1992)
4.4 Rights Agreement dated as of July 31, 1992 between the Registrant and First
National Bank of Boston, as rights agent (Incorporated by reference to the
Registrant's Current Report on Form 8-K dated August 20, 1992)
4.5 Registration Rights Agreement, dated March 19, 2002 between the Registrant and
Thirdspace Living Limited (Incorporated by reference to the Registrant's Current
Report on Form 8-K, dated March 20, 2002)
4.6 Share Purchase and Warrant Issuance Agreement, dated March 19, 2002 between the
Registrant and Thirdspace Living Limited (Incorporated by reference to the
Registrant's Current Report on Form 8-K dated March 20, 2002)
5.1 Opinion of King & Spalding regarding the validity of the securities being registered
23.1 Consent of KPMG LLP
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of King & Spalding (included as part of Exhibit 5.1)
24 Power of Attorney (included on page II-4)
---------------
II-2
ITEM 17. 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;
(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% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement;
(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 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 Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 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 Company pursuant to the foregoing provisions, Delaware
Corporation law, 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 hereunder,
the Registrant will, unless in the opinion of its counsel the question has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question of 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.
II-3
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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, on the 7th day of June, 2002.
CONCURRENT COMPUTER CORPORATION
By: /s/ Jack A. Bryant
-------------------------------------
Jack A. Bryant
President and Chief Executive Officer
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 thereof.
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 7th day of June, 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 G. Handel Director
-----------------------
Morton G. Handel
/s/ Bruce N. Hawthorne Director
-----------------------
Bruce N. Hawthorne
/s/ C. Shelton James Director
-----------------------
C. Shelton James
II-4
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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4.1 Restated Certificate of Incorporation of the Registrant (Incorporated by reference to
the Registrant's Registration Statement on Form S-2 (No. 33-62440))
4.2 Amended and Restated Bylaws of the Registrant (Incorporated by reference to the
Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended December
28, 1996)
4.3 Form of Common Stock Certificate (Incorporated by reference to the Registrant's
Annual Report on Form 10-K for the fiscal year ended June 30, 1992)
4.4 Rights Agreement dated as of July 31, 1992 between the Registrant and First
National Bank of Boston, as rights agent (Incorporated by reference to the
Registrant's Current Report on Form 8-K dated August 20, 1992)
4.5 Registration Rights Agreement, dated March 19, 2002 between the Registrant and
Thirdspace Living Limited (Incorporated by reference to the Registrant's Current
Report on Form 8-K, dated March 20, 2002)
4.6 Share Purchase and Warrant Issuance Agreement, dated March 19, 2002 between the
Registrant and Thirdspace Living Limited (Incorporated by reference to the
Registrant's Current Report on Form 8-K dated March 20, 2002)
5.1 Opinion of King & Spalding regarding the validity of the securities being registered
23.1 Consent of KPMG LLP
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of King & Spalding (included as part of Exhibit 5.1)
24 Power of Attorney (included on page II-4)
---------------