-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Q/ID+6JYI4GzdZnc1PwHE6EkkrnTn0iiXgVCvoP5nX0dJbGuYdoWZNXQPFmVcq7E H/Uz4zBHiCQLYTBvx+v6nQ== 0001015402-00-000631.txt : 20000313 0001015402-00-000631.hdr.sgml : 20000313 ACCESSION NUMBER: 0001015402-00-000631 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20000310 EFFECTIVENESS DATE: 20000310 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CONCURRENT COMPUTER CORP/DE CENTRAL INDEX KEY: 0000749038 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRONIC COMPUTERS [3571] IRS NUMBER: 042735766 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-32116 FILM NUMBER: 565680 BUSINESS ADDRESS: STREET 1: 4375 RIVER GREEN PARKWAY CITY: DULUTH STATE: GA ZIP: 30097 BUSINESS PHONE: 6782584000 MAIL ADDRESS: STREET 1: 4375 RIVER GREEN PARKWAY CITY: DULUTH STATE: GA ZIP: 30097 FORMER COMPANY: FORMER CONFORMED NAME: MASSACHUSETTS COMPUTER CORP DATE OF NAME CHANGE: 19881018 S-8 1 As filed with the Securities and Exchange Commission on March 10, 2000. 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 Identification Number) of incorporation or organization) 4375 River Green Parkway Duluth, Georgia 30096 (Address, including zip code, of registrant's principal executive offices) _______________ Vivid Technology, Inc. 1998 Equity Compensation Plan (Full title of plan) Steven R. Norton Executive Vice President and Chief Financial Officer Concurrent Computer Corporation (Name, address, including zip code, and telephone number, including area code, of agent for service) Copies to: John D. Capers, Jr. King & Spalding 191 Peachtree Street, N.E. Atlanta, Georgia 30303 Telephone: (404) 572-4600 Facsimile: (404) 572-5100
CALCULATION OF REGISTRATION FEE - ----------------------------------------------------------------------------------------------------- Proposed Maximum Proposed Maximum Amount of Title of Shares to be Amount to be Aggregate Price Per Aggregate Offering Registration Registered Registered Unit (1) Price (1) Fee - ----------------------------------------------------------------------------------------------------- Common Stock, $.01 par 378,983 shares $ 16.625 $ 6,300,593 $ 1,664 (1) Estimated solely for the purpose of computing the amount of the registration fee pursuant to Rule 457(h) on the basis of the average high and low sales prices per share of common stock of Concurrent Computer Corporation as reported on the Nasdaq National Market on March 8, 2000.
================================================================================ Part I.Information Required in the Section 10(A) Prospectus The document(s) containing the information specified in Part I of Form S-8 will be sent or given to participating employees and directors as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. Part II. Information Required in the Registration Statement Item 3. Incorporation of Certain Documents by Reference The following documents, which have been filed by the Registrant with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated in this registration statement by reference and made a part hereof: 1. The Registrant's annual report on Form 10-K for the fiscal year ended June 30, 1999; 2. The Registrant's quarterly reports on Form 10-Q for the fiscal quarters ended September 30, 1999 and December 31, 1999 3. The Registrant's current report on Form 8-K filed on September 19, 1999; 4. The Registrant's current report on Form 8-K filed on January 11, 2000; and 5. The description of the Registrant's common stock, par value $.01, contained in the registration statement on Form 8-A dated January 23, 1986 filed under the Exchange Act, including any amendment or report filed for the purpose of updating such description. All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the effective date of this registration statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement. Item 4. Description of Securities Not applicable. Item 5. Interests of Named Experts and Counsel Not applicable. Item 6. Indemnification of Directors and Officers Subsection (a) of Section 145 of the Delaware General Corporation Law empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he 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 his conduct was unlawful. Subsection (b) of Section 145 empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by right of the corporation to procure a judgment in its favor by reason of the fact that such person acted in any of the capacities set forth above, against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification may be made in respect to any claim issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. Section 145 further provides that to the extent a director or officer of a corporation has been successful on the merits or otherwise in the defense of any such action, suit or proceeding referred to in subsections (a) and (b) of Section 145 or in the defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith; that the indemnification provided for by Section 145 shall not be deemed exclusive of any other rights which the indemnified party may be entitled; that indemnification provided by Section 145 shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of such person's heirs, executors and administrators; and empowers the corporation to purchase and maintain insurance on behalf of a director or officer of the corporation against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liabilities under Section 145. Section 102(b)(7) of the Delaware General Corporation Law provides that a certificate of incorporation may contain a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of the director (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law or (iv) for any transaction from which the director derived an improper personal benefit. Article 11 of the Registrant's 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: (i) any breach of the duty of loyalty to the Registrant and its stockholders, (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) 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 (iv) 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 a director of Concurrent 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 director of Concurrent for any act or occurrence taking place prior to such repeal or modification, or otherwise adversely affect any right or protection of a director of Concurrent existing prior to the time of such repeal or modification. The Registrant maintains director and officer liability insurance policies providing for the insurance on behalf of any person who is or was a director or officer of the Registrant and subsidiary companies against any liability incurred by him in any such capacity or arising out of his status as such. The policies contain various reporting requirements and exclusions. The Registrant has entered into indemnity agreements with certain 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 the Registrant or any of its subsidiaries. Item 7. Exemption from Registration Claimed Not Applicable. Item 8. Exhibits The following exhibits are filed as part of this registration statement: Exhibit Number Description of Exhibits 4.1(1) - Restated Certificate of Incorporation of the Registrant. 4.2(2) - Amended and Restated By-laws of the Registrant 5.1 - Opinion of King & Spalding 23.1 - Consent of King & Spalding (included in Exhibit 5.1) 23.2 - Consent of Bergey Yoder Sweeny Witter & Roland PC 23.3 - Consent of KPMG LLP 24.1 - Powers of attorney (included on signature page hereto) - -______________________________ (1) Incorporated herein by reference to the Exhibits to the Registrant's Registration Statement on Form S-2 (No. 33-62440) (2) Incorporated herein by reference to the Exhibits to the Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended December 28, 1996. Item 9. Undertakings The undersigned Registrant hereby undertakes: (a) (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, as amended; (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; 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 the undertakings set forth in paragraphs (a)(1)(i) and (a)(1)(ii) above 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 Exchange Act that are incorporated by reference in this registration statement. (2) That, for the purpose of determining any liability under the Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, 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) 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 Exchange Act that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered herein, 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, 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. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant 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 March 10, 2000. CONCURRENT COMPUTER CORPORATION By: /s/ Steve G. Nussrallah - -------------------------------------------- Steve G. Nussrallah Chief Executive Officer, President POWER OF ATTORNEY We, the undersigned directors and officers of Concurrent Computer Corporation do hereby constitute and appoint Steve G. Nussrallah and Steven R. Norton, and each or any of them, our true and lawful attorneys-in-fact and agents, to do any and all acts and things in our names and on our behalf in our capacities as directors and officers and to execute any and all instruments for us and in our name in the capacities indicated below, which said attorneys and agents, or any of them, may deem necessary or advisable to enable said Corporation to comply with the Securities Act of 1933 and any rules, regulations and requirements of the Securities and Exchange Commission, in connection with this registration statement, or any registration statement for this offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, including specifically, but without limitation, power and authority to sign for us or any of us in our names in the capacities indicated below, any and all amendments (including post-effective amendments) hereto; and we do hereby ratify and confirm all that said attorneys and agents, or any of them, shall 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 this 9th day of March, 2000. Signature Title --------- ------ Chairman of the Board and Director - -------------------------------------------- E. Courtney Siegel /s/ Steve G. Nussrallah Chief Executive Officer,President and Director - -------------------------------------------- Steve G. Nussrallah /s/ Steven R. Norton Executive Vice President and - ------------------------------------------------ Chief Financial Officer Steven R. Norton - ----------------------------------------------------------------------Director Michael A. Brunner /s/ Morton E. Handel - ----------------------------------------------------------------------Director Morton E. Handel /s/ C. Shelton James - ----------------------------------------------------------------------Director C. Shelton James /s/ Richard P. Rifenburgh - ----------------------------------------------------------------------Director Richard P. Rifenburgh /s/ Bruce N. Hawthorne - ----------------------------------------------------------------------Director Bruce N. Hawthorne INDEX TO EXHIBITS The following exhibits are filed as part of this registration statement: Exhibit Number Description of Exhibits 4.1(1) - Restated Certificate of Incorporation of the Registrant. 4.2(2) - Amended and Restated By-laws of the Registrant 5.1 - Opinion of King & Spalding 23.1 - Consent of King & Spalding (included in Exhibit 5.1) 23.2 - Consent of Bergey Yoder Sweeny Witter & Roland PC 23.3 - Consent of KPMG LLP 24.1 - Powers of attorney (included on signature page) - -______________________________ (1) Incorporated herein by reference to the Exhibits to the Registrant's Registration Statement on Form S-2 (No. 33-62440) (2) Incorporated herein by reference to the Exhibits to the Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended December 28, 1996. EX-5.1 2 EXHIBIT 5.1 March 9, 2000 Concurrent Computer Corporation 4375 River Green Parkway Duluth, Georgia 30096 Re: Registration Statement on Form S-8 Ladies and Gentlemen: We have acted as counsel for Concurrent Computer Corporation (the "Company") in connection with the preparation and filing of a registration statement on Form S-8 (the "Registration Statement"), relating to the registration by the Company under the Securities Act of 1933, as amended (the "Act"), of up to 378,983 shares of the Company's common stock, par value $.01 (the "Common Stock"), to be issued by the Company from time to time pursuant to options granted under the Vivid Technology, Inc. 1998 Equity Compensation Plan (the "Stock Plan") (all such shares and options are referred to herein as the "Shares" and "Options," respectively). As such counsel, we have examined and relied upon such records, documents, certificates and other instruments as in our judgment are necessary or appropriate to form the basis for the opinions hereinafter set forth. In all such examinations, we have assumed the genuineness of signatures on original documents and the conformity to such original documents of all copies submitted to us as certified, conformed or photographic copies, and as to certificates of public officials, we have assumed the same to have been properly given and to be accurate. For purposes of this opinion, we have assumed the following: (i) the Shares that may be issued upon exercise of the Options granted pursuant to the Stock Plan will continue to be duly authorized on the dates of such issuance and (ii) on the date on which any Option is exercised, such Option will have been duly executed, issued and delivered by the Company and will constitute the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms subject, as to enforceability, to applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, general equitable principles and the discretion of courts in granting equitable remedies. The opinions expressed herein are limited in all respects to the federal laws of the United States of America and the Delaware General Corporation Law, and no opinion is expressed with respect to the laws of any other jurisdiction or any effect which such laws may have on the opinions expressed herein. This opinion is limited to the matters stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated herein. Based upon the foregoing and subject to the limitations, qualifications and assumptions set forth herein, we are of the opinion that: a. The Shares are duly authorized; and b. When the Shares are issued upon exercise of the Options granted pursuant the Stock Plan against payment therefor, as provided in the Stock Plan, such Shares will be validly issued, fully paid and nonassessable. This opinion is given as of the date hereof, and we assume no obligation to advise you after the date hereof of facts or circumstances that come to our attention or changes in law that occur which could affect the opinions contained herein. This letter is being rendered solely for the benefit of Concurrent Computer Corporation in connection with the matters addressed herein. This opinion may not be furnished to or relied upon by any person or entity for any purpose without our prior written consent. We consent to the filing of this opinion as an Exhibit to the Registration Statement. Very truly yours, /s/ King & Spalding King & Spalding EX-23.2 3 Exhibit 23.2 INDEPENDENT AUDITORS' CONSENT The Board of Directors Concurrent Computer Corporation We consent to the incorporation by reference in this Registration Statement of Concurrent Computer Corporation on Form S-8 of our report dated November 26, 1999 insofar as such reports relate to the financial statements of Vivid Technology, Inc. for the years ended December 31, 1998 and 1997, appearing in the Current Report on Form 8-K/A dated October 28, 1999 of Concurrent Computer Corporation. /s/ Bergey, Yoder, Sweeney, Witter & Roland, P.C. Bergey, Yoder, Sweeney, Witter & Roland, P.C. Telford, PA March 7, 2000 EX-23.3 4 Exhibit 23.3 INDEPENDENT AUDITORS' CONSENT The Board of Directors Concurrent Computer Corporation We consent to incorporation by reference in the registration statement on Form S-8 Concurrent Computer Corporation of our report dated July 31, 1999, relating to the balance sheets of Concurrent Computer Corporation as of June 30, 1999 and 1998, and the related statements of operations, redeemable preferred stock, stockholders' equity and comprehensive income, and cash flows for each of the years in the three-year period ended June 30, 1999, and all related schedules, which report appears in the June 30, 1999, annual report on Form 10-K of Concurrent Computer Corporation. /s/ KPMG LLP KPMG LLP Atlanta, Georgia March 8, 2000 -----END PRIVACY-ENHANCED MESSAGE-----