As filed with the Securities and Exchange Commission on June 20, 2005
REGISTRATION NO. 333-_____
UNITED STATES
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
AMENDED AND RESTATED
2001 STOCK OPTION PLAN
(Full Title of the Plan)
GREG WILSON
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.
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 (1) Amount of
Registered Amount to be Registered Per Share (1) Registration Fee
- ------------------------------------------------------------------------------------------------------------------------
Common Stock, par
value $.01 per share 4,000,000 (2) $ 2.07 $ 8,280,000 $ 974.56
Series A Participated
Cumulative Preferred
Rights (3) 4,000,000 N/A N/A N/A
- ------------------------------------------------------------------------------------------------------------------------
(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 June 17, 2005.
(2) Does not include 3,000,000 shares of Common Stock of Concurrent
Computer Corporation previously registered on Registration Statement No.
333-82686 and to which the Prospectus relating to this Registration
Statement relates.
(3) The Series A Participating Cumulative Preferred Rights are attached to
and trade with all the shares of Common Stock outstanding as of, and issued
subsequent to, August 14, 1992, pursuant to the terms of the Rights
Agreement, dated as of July 31, 1992, as amended on August 7, 2002. Until
the occurrence of certain prescribed events, the Series A Participating
Cumulative Preferred Rights are not exercisable, are evidenced by the
certificates for the Common Stock and will be transferred only with such
stock. The value attributable to such Series A Participating Cumulative
Preferred Rights, if any, is reflected in the market price of Common Stock.
STATEMENT OF INCORPORATION BY REFERENCE
---------------------------------------
This Registration Statement on Form S-8 relating to the Amended and
Restated 2001 Stock Option Plan of Concurrent Computer Corporation (the
"Company") incorporates by reference the contents of the Registration Statement
on Form S-8, File No. 333-82686, filed by the Company with the Securities and
Exchange Commission on February 13, 2002, relating to the Company's 2001 Stock
Option Plan, except for the information required by Items 6 and 8, which is
contained below.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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
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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 have entered into indemnity agreements with our directors and executive
officers (each, an "Indemnitee" and collectively, the "Indemnitees"). The
indemnity agreements provide a contractual right to indemnification to the
Indemnitees for certain expenses incurred due to actions, suits or other
proceedings brought against them in their capacity as directors, officers,
employees or agents of us or any of our subsidiaries.
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 8. EXHIBITS.
EXHIBIT DESCRIPTION
- ------- -----------
4.1 Restated Certificate of Incorporation of the Company
(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 Company
(filed as Exhibit 3.2 to the Company's Quarterly Report on Form 10-Q for
the quarter ended March 31, 2003 and incorporated herein by reference)
4.3 Certificate of Correction to Restated Certificate of Incorporation of the
Company (filed as Exhibit 3.3 to the Company's Annual report on Form 10-
K for the fiscal year ended June 30, 2002 and incorporated herein by
reference).
4.4 Amended Certificate of Designation of Series A Participating Cumulative
Preferred Stock (filed as Exhibit 4.1 to the Company's Registration
Statement on Form 8-A/A dated August 9, 2002 and incorporated herein by
reference).
4.5 Amendment to Amended Certificate of Designations of Series A
Participating Cumulative Preferred Stock (filed as Exhibit 4.1 to the
Company's Registration Statement on Form 8-A/A dated August 9, 2002
and incorporated herein by reference).
4.6 Form of Common Stock Certificate
(filed as Exhibit 4.1 to the Company's Quarterly Report on Form 10-Q for
the quarter ended March 31, 2003 and incorporated herein by reference)
4.7 Form of Rights Certificate (filed as Exhibit 4.2 to the Company's Current
Report on Form 8-K/A dated August 7, 2002 and incorporated herein by
reference)
4.8 Amended and Restated Rights Agreement dated as of August 7, 2002
between the Company and American Stock Transfer & Trust Company, as
rights agent (filed as Exhibit 4.1 to the Company's Current Report on Form
8-K/A dated August 7, 2002 and incorporated herein by reference)
5.1 Opinion of King & Spalding
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of King & Spalding (included in Exhibit 5.1)
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24.1 Power of Attorney (included on signature page)
99.1 Concurrent Computer Corporation Amended and Restated 2001 Stock
Option Plan
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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, in the city of Duluth, state of Georgia on this 20th day of June,
2005.
CONCURRENT COMPUTER CORPORATION
By: /s/ Greg Wilson
-----------------------
Greg Wilson
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints, jointly and severally, Gary Trimm
and Greg Wilson, 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.
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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 this 20th day of June, 2005:
Signature Title
--------- -----
/s/ Steve G. Nussrallah Chairman of the Board
- ------------------------
Steve G. Nussrallah
/s/ Gary Trimm President, Chief Executive Officer and Director
- ------------------------ (Principal Executive Officer)
Gary Trimm
/s/ Greg Wilson Chief Financial Officer
- ------------------------ (Principal Financial and Accounting Officer)
Greg Wilson
/s/ Alex B. Best Director
- ------------------------
Alex B. Best
/s/ Charles Blackmon Director
- ------------------------
Charles Blackmon
/s/ Michael A. Brunner Director
- ------------------------
Michael A. Brunner
/s/ C. Shelton James Director
- ------------------------
C. Shelton James
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EXHIBIT DESCRIPTION
- ------- -----------
4.1 Restated Certificate of Incorporation of the Company
(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 Company
(filed as Exhibit 3.2 to the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2003 and incorporated herein by reference)
4.3 Certificate of Correction to Restated Certificate of Incorporation of the Company
(filed as Exhibit 3.3 to the Company's Annual report on Form 10-K for the fiscal year
ended June 30, 2002 and incorporated herein by reference).
4.4 Amended Certificate of Designation of Series A Participating Cumulative Preferred
Stock (filed as Exhibit 4.1 to the Company's Registration Statement on Form 8-A/A
dated August 9, 2002 and incorporated herein by reference).
4.5 Amendment to Amended Certificate of Designations of Series A Participating
Cumulative Preferred Stock (filed as Exhibit 4.1 to the Company's Registration
Statement on Form 8-A/A dated August 9, 2002 and incorporated herein by
reference).
4.6 Form of Common Stock Certificate
(filed as Exhibit 4.1 to the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2003 and incorporated herein by reference)
4.7 Form of Rights Certificate (filed as Exhibit 4.2 to the Company's Current Report on
Form 8-K/A dated August 7, 2002 and incorporated herein by reference)
4.8 Amended and Restated Rights Agreement dated as of August 7, 2002 between the
Company and American Stock Transfer & Trust Company, as rights agent (filed as
Exhibit 4.1 to the Company's Current Report on Form 8-K/A dated August 7, 2002
and incorporated herein by reference)
5.1 Opinion of King & Spalding
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of King & Spalding (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
99.1 Concurrent Computer Corporation Amended and Restated 2001 Stock Option Plan
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