SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K/A
AMENDMENT NO. 1
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): August 7, 2002
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Concurrent Computer Corporation
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(Exact name of registrant as specified in its charter)
Delaware 0-13150 04-2735766
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(State or other jurisdiction (Commission: File Number) (IRS Employer
of incorporation) Identification Number)
4375 River Green Parkway, Duluth, Georgia 30096
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (678) 258-4000
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Not applicable
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(Former Name or Former Address, if Changed Since Last Report)
Item 5. Other Events.
This Amendment Number 1 (i) amends the Current Report on Form 8-K filed by
Concurrent Computer Corporation (the "Company") with the Securities and Exchange
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Commission on August 25, 1992 (the "1992 Current Report") and (ii) amends and
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restates the section entitled "Anti-Takeover Provisions - Restated Certificate
of Incorporation and Amended and Restated Bylaw Provisions - Rights Plan" (the
"Prior Description") of the Current Report on Form 8-K filed by the Company with
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the Securities and Exchange Commission on October 22, 2001.
On August 7, 2002, the Company (i) removed BankBoston, N.A. (f/k/a First
National Bank of Boston) as Rights Agent pursuant to the Rights Agreement dated
July 31, 1992, (ii) appointed American Stock Transfer & Trust Company as
successor Rights Agent and (iii) entered into an Amended and Restated Rights
Agreement ("Rights Agreement") with American Stock Transfer & Trust Company.
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The amendments to the Rights Agreement include the resetting of the threshold to
become an Acquiring Person (as defined in the Rights Agreement) from 20% to 15%
and the extension of the final expiration date from August 14, 2002 to August
14, 2012.
Item 5 of the 1992 Current Report and the Prior Description are each hereby
deleted in their entirety and the following is substituted therefore:
Description of Rights.
On July 31, 1992, the Board of Directors of Concurrent Computer Corporation
(the "Company") declared a dividend distribution of one Preferred Stock Purchase
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Right (a "Right") for each outstanding share of common stock of the Company
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payable on August 14, 1992 to stockholders of record at the close of business on
August 14, 1992. Each Right entitles the holder of record to purchase from the
Company at any time after the Distribution Date (as defined below) one
one-hundredth of a share of Series A Participating Cumulative Preferred Stock,
par value $0.01 per share, (the "Junior Preferred Stock"), at a price of $30 per
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one one-hundredth of one share, subject to adjustment (the "Purchase Price").
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The description and terms of the Rights are set forth in the Rights Agreement.
Initially, the Rights will attach to all certificates representing Common
Stock then outstanding, and no separate Rights Certificates (as hereinafter
defined) will be distributed. The Rights will become exercisable and separate
from the Common Stock upon the earlier to occur of (i) ten days following the
earlier of (x) the first public announcement or (y) the first public disclosure
that a Person or group of affiliated or associated Persons, subject to certain
exceptions, has acquired beneficial ownership of 15% or more of the outstanding
Voting Power of the Common Shares (as such terms are defined in the Rights
Agreement) (such person or group, subject to certain exceptions, being
hereinafter referred to as an "Acquiring Person" and such earlier date in clause
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(x) or (y) being hereinafter referred to as the "Shares Acquisition Date"); or
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(ii) ten business days (or such later date as the Board of Directors of the
Company may determine) following the commencement of, or announcement of an
intention to make, a tender offer or exchange offer, the consummation of which
would result in a Person or group, subject to certain exceptions, becoming the
beneficial owner of 15% or more of the outstanding Voting Power of the Common
Shares (the earlier of such dates in clauses (i) and (ii) being called the
"Distribution Date"). Common Stock beneficially owned by the Company or any
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subsidiary of the Company will not be considered outstanding for purposes of
calculating the percentage ownership of any Person.
The Rights Agreement provides that, until the Distribution Date (or earlier
redemption or expiration of the Rights), the Rights will be transferred with,
and only with, the Common Stock. Until the Distribution Date (or earlier
redemption or expiration), new Common Stock certificates issued after August 14,
1992 (the "Record Date") upon transfer or new issuance will contain a notation
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incorporating the Rights Agreement by reference. Until the Distribution Date
(or earlier redemption or expiration of the Rights), the surrender for transfer
of any certificates of Common Stock outstanding as of the Record Date, even
without such notation, also will constitute the transfer of the Rights
associated with the Common Stock represented by such certificate. As soon as
practicable following the Distribution Date, separate certificates evidencing
the Rights ("Rights Certificates") will be mailed to holders of record of the
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Common Stock as of the close of business on the Distribution Date, and such
separate Rights Certificates alone will evidence the Rights. The Rights are not
exercisable until the Distribution Date. The Rights will expire at the close of
business on August 14, 2012, unless earlier redeemed by the Company as described
below.
Each of the following Persons (as defined in the Rights Agreement) will not
be deemed to be an Acquiring Person even if they have acquired, or obtained the
right to acquire, beneficial ownership of 15% or more of the voting power of the
outstanding Common Shares of the Company: (i) the Company, (ii) any subsidiary
of the Company, (iii) any employee benefit plan of the Company or any subsidiary
of the Company, and (iv) any Person who would otherwise have become an Acquiring
Person solely by virtue of a reduction in the number of shares of outstanding
Common Stock unless and until such Person shall become the beneficial owner of
any additional shares of Common Stock.
If any Person becomes an Acquiring Person, each holder of a Right will
thereafter have the right (the "Flip-In Right") to receive, in lieu of shares of
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Junior Preferred Stock and upon payment of the Purchase Price, Common Stock (or
in certain circumstances, cash, property or other securities of the Company)
having a value equal to two times the Purchase Price of the Right.
Notwithstanding the foregoing, all Rights that are, or were, beneficially owned
by an Acquiring Person or any affiliate or associate thereof will be null and
void and not exercisable.
If, at any time on or after a Person becomes an Acquiring Person, (i) the
Company is acquired in a merger or other business combination transaction in
which the holders of all of the outstanding Common Stock immediately prior to
the consummation of the transaction are not the holders of all of the surviving
corporation's voting power, or (ii) more than 50% of the Company's assets, cash
flow or earning power is sold or transferred other than in the ordinary course
of the Company's business, then each holder of a Right (except Rights which have
previously been voided as set forth above) shall thereafter have the right (the
"Flip-Over Right") to receive, in lieu of Junior Preferred Stock and upon
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exercise and payment of the Purchase Price, common shares of the acquiring
company having a value equal to two times the Purchase Price. If a transaction
would otherwise result in a holder's having a Flip-In Right as well as a
Flip-Over Right, then only the Flip-Over Right will be exercisable. If a
transaction results in a holder's having a Flip-Over Right subsequent to a
transaction resulting in a holder's having a Flip-In Right, a holder will have
Flip-Over Rights only to the extent such holder's Flip-In Rights have not been
exercised.
The Purchase Price payable, and the number of shares of Junior Preferred
Stock, or other securities or property issuable, upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution (i) in the event of
a stock dividend on, or a subdivision, combination or reclassification of, the
Junior Preferred Stock, (ii) upon the grant to holders of the Junior Preferred
Stock of certain rights or warrants to subscribe for Junior Preferred Stock or
convertible securities at less than the current market price of the Junior
Preferred Stock, or (iii) upon the distribution to holders of the Junior
Preferred Stock of evidences of indebtedness or assets (excluding dividends
payable in Junior Preferred Stock) or of subscription rights or warrants (other
than those referred to above). However, no adjustment in the Purchase Price
will be required until cumulative adjustments require an adjustment of at least
1%.
The number of outstanding Rights and the number of one one-hundredths of a
share of a Junior Preferred Stock issuable upon exercise of each Right are also
subject to adjustment in the event of a stock split of the Common Stock or a
stock dividend on the Common Stock payable in Common Stock or subdivisions,
consolidations or combinations of the Common Shares occurring, in any such case,
prior to the Distribution Date.
Junior Preferred Stock purchasable upon exercise of the Rights will not be
redeemable. Each share of Junior Preferred Stock will be entitled to an
aggregate quarterly dividend of 100 times the dividend declared per share of
Common Stock. In the event of liquidation, the holders of shares of Junior
Preferred Stock will be entitled to an aggregate payment of 100 times the
payment made per share of Common Stock. Each share of Junior Preferred Stock
will have 100 votes, in each case voting together with each class or series of
stock entitled to vote thereon. Finally, in the event of any merger,
consolidation or other transaction in which the shares of Common Stock are
exchanged, each share of Junior Preferred Stock will be entitled to receive 100
times the amount received per share of Common Stock. These rights are protected
by customary dilution provisions.
Because of the nature of the dividend, liquidation and voting rights of the
Junior Preferred Stock, the value of the one one-hundredth interest in a share
of Junior Preferred Stock purchasable upon exercise of each Right should
approximate the value of one share of Common Stock.
If, after the triggering of Flip-In Rights, insufficient shares of Common
Stock are available for the exercise in full of the Rights, the Company shall
take all such action as may be necessary to authorize additional shares of
Common Stock for issuance upon exercise in full of the Rights. If, after the
expiration of 120 days after the triggering of Flip-In Rights, insufficient
shares of Common Stock are available for the exercise in full of the Rights,
holders of Rights will receive upon exercise Common Stock or to the extent
available cash, property or other securities of the Company, in proportions
determined by the Company, so that the aggregate value received is equal to
twice the Purchase Price.
The Company is not required to issue fractional shares of Junior Preferred
Stock (other than fractions which are integral multiples of one one-hundredth of
a share of Junior Preferred Stock, which may, at the election of the Company be
evidenced by depositary receipts), and in lieu thereof, a payment in cash will
be made to the holder of such Rights equal to the same fraction of the current
value of one one-hundredth of a share of Junior Preferred Stock. Following the
triggering of the Flip-In Rights, the Company will not be required to issue
fractional shares of Common Stock upon exercise of the Rights and, in lieu
thereof, a payment in cash will be made to the holder of such Rights equal to
the same fraction of the current market value of a share of Common Stock.
In general, the Company may redeem the Rights at a price of $0.0025 per
Right (subject to adjustment), at any time prior to the existence of an
Acquiring Person.
At any time after any Person becomes an Acquiring Person and prior to the
acquisition by any Person of 50% or more of the outstanding shares of Common
Stock, the Board of Directors of the Company may exchange the then outstanding
and exercisable Rights (other than Rights owned by an Acquiring Person, which
will have become null and void), in whole or in part, for shares of Common
Stock, each Right being exchangeable for one share of Common Stock or common
share equivalents equal to one share of Common Stock, subject to adjustment.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends.
The issuance of the Rights is not taxable to the Company or to stockholders
under presently existing federal income tax law, and will not change the way in
which stockholders can presently trade the Company's Common Stock. If the
Rights should become exercisable, stockholders, depending on then existing
circumstances, may recognize taxable income.
Prior to the existence of an Acquiring Person, the Rights Agreement
generally may be amended by the Board of Directors of the Company. From and
after the existence of an Acquiring Person, the Company may amend the Rights
Agreement only to (i) cure any ambiguity, (ii) correct or supplement any
provision which may be defective or inconsistent with the other provisions of
the Rights Agreement, or (iii) change or supplement the Rights Agreement in any
other manner which the Company may deem necessary or desirable, provided that no
amendment shall adversely affect the interests of the holders of Rights (other
than any interest of an Acquiring Person or an affiliate or associate of an
Acquiring Person). However, no amendment may be made at any time when the
Rights are not redeemable.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a Person or group that attempts to acquire the Company
without conditioning the offer on a substantial number of Rights being acquired.
Accordingly, the existence of the Rights may deter certain acquirors from making
takeover proposals or tender offers. However, the rights plan helps ensure that
the Company's stockholders receive fair and equal treatment in the event of any
proposed takeover of the Company. The amendment and restatement of the plan is
not in response to any specific takeover threat or proposal.
A copy of the Rights Agreement has been filed with the Securities and
Exchange Commission as an Exhibit to this Current Report Statement on Form 8-K
with respect to the Rights filed with the Securities and Exchange Commission
(Commission File No.0-13150). A copy of the Rights Agreement is available free
of charge from the Company, 4375 River Green Parkway, Duluth, Georgia 30096,
Attention: General Counsel. This summary description of the Rights does not
purport to be complete and is qualified in its entirety by reference to the
Rights Agreement, which is incorporated herein by reference.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
Certain matters discussed herein may constitute Forward-looking Statements
within the meaning of Section 27A of the Securities Act of 1933, as amended, and
Section 21E of the Securities Exchange Act of 1934, as amended, each as amended
by the Private Securities Litigation Reform Act of 1995, 15 U.S.C.A. Sections
77z-2 and 78u-5 (Supp. 1996). Those statements include statements regarding the
intent, belief or current expectations of the Company and members of its
management team as well as the assumptions on which such statements are based.
Any such Forward-looking Statements are not guarantees of future performance and
the Company's actual result could differ materially from those set forth in such
Forward-looking Statements. The risks and uncertainties which could affect the
Company's 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 the Company's ability and the ability of other companies to enforce
intellectual property rights; the pricing and availability of equipment,
materials and inventories; the limited operating history of the Company's
video-on-demand segment; the concentration of its 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 the Company
operates; and the entry of new well-capitalized competitors into the Company's
markets. Other important factors are detailed from time to time in the Company's
filings with the Securities and Exchange Commission, including Quarterly Reports
on Form 10-Q, Current Reports on Form 8-K (including specifically the Current
Report on Form 8-K dated October 22, 2001, incorporated herein by reference) and
Annual Reports on Form 10-K. The Company undertakes no obligation to update or
revise Forward-Looking Statements to reflect changed assumptions, the occurrence
of unanticipated events or changes to future operating results over time.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Financial Statements of Businesses Acquired.
None.
(b) Pro Forma Financial Information.
None.
(c) Exhibits.
The following exhibits are filed herewith:
Exhibit No. Description
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4.1 Amended and Restated Rights Agreement dated as of August 7,
2002 between Concurrent Computer Corporation and American
Stock Transfer & Trust Company, as Rights Agent, which
includes the Form of Amended Certificate of Designations of
Series A Participating Cumulative Preferred Stock as Exhibit
A, Form of Amendment to Amended Certificate of Designations
of Series A Participating Cumulative Preferred Stock as
Exhibit B, and the Form of Rights Certificate as Exhibit C
4.2 Form of Rights Certificate
99.1 Press Release, dated August 9, 2002, announcing adoption of
Amended and Restated Rights Agreement
Signatures
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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.
Date: August 9, 2002
CONCURRENT COMPUTER CORPORATION
By: /s/ Jack A. Bryant
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Name: Jack A. Bryant
Title: President and Chief
Executive Officer