0001015402-01-503108.txt : 20011026 0001015402-01-503108.hdr.sgml : 20011026 ACCESSION NUMBER: 0001015402-01-503108 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 20011022 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-3 SEC ACT: 1933 Act SEC FILE NUMBER: 333-72012 FILM NUMBER: 1763634 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-3 1 doc1.txt AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 22, 2001 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 2,054,431 shares $ 9.43 $ 19,373,285 $ 4,844 per share . . . . . . . . . . . --------------------------------- ---------------- --------------------------- ---------------------------- -----------------
(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 OCTOBER 22, 2001 _______________ The information in this prospectus is not complete and may be changed. The selling stockholders 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 2,054,431 SHARES OF COMMON STOCK This Prospectus relates to the public offering of 2,054,431 shares of our common stock that are issuable upon exercise of warrants we granted to the selling stockholders identified in this prospectus. We will not receive any proceeds from the sale of these shares. We will receive proceeds if and when the warrants are exercised by the selling stockholders, and those warrant proceeds will be used for general corporate purposes. The prices at which the selling stockholders may sell the shares will be determined by or based on the prevailing market price for the shares or in negotiated transactions. The selling stockholders may also 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 October 19, 2001 the last reported sale price of our common stock was $10.20 share. _______________ THE COMMON STOCK OFFERED INVOLVES A HIGH DEGREE OF RISK. SEE "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 OCTOBER __, 2001. BUSINESS OVERVIEW 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 expect that all seven of the largest U.S. cable system operators will begin deploying video-on-demand services in one or more residential markets by mid-2002. We believe we are well-positioned to be a provider of choice to these cable operators. 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. We recently introduced our MediaHawk Model 2000 video-on-demand system, which is compatible with both Scientific-Atlanta and Motorola equipment. As a result, we believe we are one of the few video-on-demand system providers currently providing technology compatible with both Scientific-Atlanta and Motorola digital cable equipment, the two largest providers of digital headend (cable) equipment and digital set-top boxes used in the United States. A real-time system is specially designed to acquire, process, store, and display large amounts of rapidly changing information in real-time that is, 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 plan to develop a new real time operating system on the Linux platform to provide our real time customers an alternative to our original, proprietary platform. We were incorporated in Delaware in 1981 under the name Massachusetts Computer Company. 2 USE OF PROCEEDS We will not receive any of the proceeds from the sale of the shares by the selling stockholders. All the proceeds will be received by the selling stockholders. We will receive proceeds if and when the warrants are exercised by the selling stockholders, and those warrant proceeds will be used for general corporate purposes. SELLING STOCKHOLDERS We are registering all 2,054,431 shares covered by this prospectus on behalf of the selling stockholders. We have registered the shares to permit the selling stockholders and their pledgees, donees, transferees or other successors-in-interest that receive their shares from the selling stockholders as a gift, partnership distribution or other non-sale related transfer after the date of this prospectus to resell the shares when they deem appropriate. We issued Scientific-Atlanta, Inc. a warrant to purchase 2,000,000 shares of our common stock directly from us. The warrant was originally issued on August 17, 1998, in connection with an agreement with Scientific-Atlanta, Inc. to jointly develop and market a video-on-demand system. Under the agreement, we were able to receive early development releases from Scientific-Atlanta. In addition, we have jointly developed a system architecture that is compliant with AOL Time Warner video-on-demand architecture requirements. Further, Scientific-Atlanta may in certain circumstances have the right to receive additional warrants to purchase up to a maximum of 8,000,000 additional shares of our common stock under the agreement. The granting of these additional warrants will be based upon performance goals measured by the revenue we receive from sales of equipment to systems employing Scientific-Atlanta's equipment. To date, no additional warrants have been granted. In January 2001, Scientific-Atlanta transferred the warrant to purchase the 2,000,000 shares covered by this prospectus to an affiliate, Scientific-Atlanta Strategic Investments, L.L.C. The warrant is currently exercisable at a price of $5.00 per share and must be exercised on or before August 17, 2002. We issued Comcast Concurrent Holdings, Inc. warrants to purchase 54,431 shares of our common stock directly from us. A warrant to purchase 50,000 shares was issued on March 29, 2001, in connection with a multi-year strategic purchase agreement with Comcast. A warrant to purchase 4,431 shares was issued to Comcast Concurrent Holdings on October 9, 2001, because performance goals under the agreement were met. We are generally obligated to issue new warrants to purchase shares of our common stock to Comcast Concurrent Holdings at the end of each quarter through March 31, 2004, based upon performance goals measured by the number of subscribers to Comcast's cable service with the ability to utilize our video-on-demand systems. We will also issue additional warrants to purchase shares of our common stock, if at the end of any quarter the total number of Comcast cable subscribers with the ability to utilize our video-on-demand system exceeds specified threshold levels. The warrant to purchase 50,000 shares is currently exercisable at a price of $5.196 per share and must be exercised by March 29, 2005. The warrant to purchase 4,431 shares is currently exercisable at a price of $6.251 per share and must be exercised by October 9, 2005. The following table sets forth the name of the selling stockholders, the number of shares of our common stock owned by the selling stockholders as of October 19, 2001, the number of shares that may be offered under this prospectus, and the number of shares of our common stock owned by the selling stockholders after this offering is completed. We have prepared this table based on information provided to us by the selling stockholders. Other than as described above, neither of the selling stockholders has 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 stockholders may offer under this prospectus. We do not know how long the selling stockholders will hold the shares before selling them, and we currently have no agreements, arrangements or understandings with the selling stockholders regarding the sale of any of the shares. The shares offered by this prospectus may be offered from time to time by the selling stockholders. 3
SHARES BENEFICIALLY SHARES BENEFICIALLY OWNED OWNED PRIOR TO OFFERING (1) NUMBER OF AFTER OFFERING (3) ----------------------- SHARES BEING -------------------- NAME OF SELLING STOCKHOLDERS NUMBER PERCENT OFFERED (2) NUMBER PERCENT ------------------------------------------ --------- ------------ ------------ ------ ------------ Scientific-Atlanta Strategic Investments, 2,000,000 3.3% 2,000,000 0 * L.L.C. (4) Comcast Concurrent Holdings, Inc. (5) 54,431 * 54,431 0 * ------------------------------------ * Represents beneficial ownership of less than one percent of our common stock. (1) Percentage ownership is based on 60,815,678 shares of our common stock outstanding on September 30, 2001, 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. (4) Scientific-Atlanta Strategic Investments, L.L.C. is an indirect wholly owned subsidiary of Scientific-Atlanta, Inc., a publicly traded company which has its common stock listed on the New York Stock Exchange under the ticker symbol "SFA." (5) Comcast Concurrent Holdings, Inc. is an indirect wholly owned subsidiary of Comcast Corporation, a publicly traded company which has its common stock traded on the Nasdaq National Market under the ticker symbol "CMCSK."
PLAN OF DISTRIBUTION Our common stock may be offered for sale and sold in one or more transactions, including block transactions, at a fixed price or prices, which may be changed, at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at prices determined on a negotiated or competitive bid basis. Shares of common stock may be sold directly, through agents designated from time to time, or by such other means as may be specified in any supplement to this prospectus. Participating agents or broker-dealers in the distribution of any of the shares of common stock may be deemed to be "underwriters" within the meaning of the Securities Act of 1933, as amended. Any discount or commission received by any underwriter and any participating agents or broker-dealers, and any profit on the resale of shares of common stock purchased by any of them may be deemed to be underwriting discounts or commissions under the Securities Act. Shares of our common stock may be sold through a broker-dealer acting as agent or broker or to a broker-dealer acting as principal. In the latter case, the broker-dealer may then resell such shares of common stock to the public at varying prices to be determined by the broker-dealer at the time of resale. To the extent required, the number of shares of common stock to be sold, information relating to the underwriters, the purchase price, the public offering price, if applicable, the name of any underwriter, agent or broker-dealer, and any applicable commissions, discounts or other items constituting compensation to such underwriters, agents or broker-dealers with respect to a particular offering will be set forth in an accompanying supplement to this prospectus. If underwriters are used in a sale, shares of common stock 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 of common stock 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 of common stock 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. Under the securities laws of some states, the shares of common stock registered by the registration statement may be sold in those states only through registered or licensed brokers or dealers. 4 Any person participating in the distribution 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 of our common stock by any such person. Furthermore, Regulation M may restrict the ability of any person engaged in the distribution of our common stock to engage in market-making activities with respect to our common stock. These restrictions may affect the marketability of our common stock and the ability of any person or entity to engage in market-making activities with respect to our common stock. Upon sale under the registration statement that includes this prospectus, the shares of 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 rooms in Washington, D.C., New York, New York and Chicago, Illinois. Please call the SEC at 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. The description of our common stock contained in the Registration Statement on Form 8-A dated January 23, 1986; and 3. 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. 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. 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 STOCKHOLDERS 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: 5 - 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; - 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. EXPERTS The consolidated financial statements as of and for each of the years in the two year period ended June 30, 2001 and the related financial statement schedule for each of the years in the two year period ended June 30, 2001 incorporated in this prospectus and in the registration statement by reference from Concurrent's Annual Report on Form 10-K for the year ended June 30, 2001 have been audited by Deloitte & Touche LLP, independent auditors, as stated in their report, which is incorporated herein by reference, and have been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing. The consolidated financial statements and schedule of Concurrent as of June 30, 1999 and 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. 6
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED Prospectus October __, 2001 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. 2,054,431 Shares Table Of Contents Page ---- Business . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . 3 Selling Stockholders . . . . . . . . . . . . . . . . . . . . . 3 Plan of Distribution . . . . . . . . . . . . . . . . . . . . . 4 CONCURRENT COMPUTER Where You Can Find More Information. . . . . . . . . . . . . . 5 CORPORATION Information Incorporated by Reference. . . . . . . . . . . . . 5 Cautionary Note Regarding Forward-Looking Statements . . . . . . . . . . . . . . . . . . . . . . . . . . 5 COMMON STOCK Legal Matters . . . . . . . . . . . . . . . . . . . . . . . . .6 Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. The following table sets forth all expenses, other than underwriting discounts and commissions, 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. . . . . . . . . . . . . $ 4,844 Nasdaq additional listing fee . . . . . . 17,500 Legal fees and expenses . . . . . . . . . 25,000 Accounting fees and expenses. . . . . . . 15,000 Miscellaneous expenses. . . . . . . . . . 2,656 ------- TOTAL . . . . . . . . . . . . . . . $65,000 ======= 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 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. II-1 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 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* Warrant to purchase shares of Common Stock of the Registrant dated January 8, 2001 (originally issued on August 17, 1998) reissued to Scientific-Atlanta Strategic Investments, L.L.C. 4.6* Letter Amendment, dated October 16, 2001, to Warrant to purchase shares of Common Stock of the Registrant dated January 8, 2001 (originally issued on August 17, 1998) reissued to Scientific-Atlanta Strategic Investments, L.L.C. 4.7* Registration Rights Agreement, dated March 29, 2001, by and among the Registrant and Comcast Concurrent Holdings, Inc. 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 _______________ * Filed herewith. 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, the purchase agreement, 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 22nd day of October, 2001. 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 22nd day of October, 2001:
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 /s/ Richard P. Rifenburgh Director ------------------------- Richard P. Rifenburgh
II-4 EXHIBIT INDEX 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* Warrant to purchase shares of Common Stock of the Registrant dated January 8, 2001 (originally issued on August 17, 1998) reissued to Scientific-Atlanta Strategic Investments, L.L.C. 4.6* Letter Amendment, dated October 16, 2001, to Warrant to purchase shares of Common Stock of the Registrant dated January 8, 2001 (originally issued on August 17, 1998) reissued to Scientific-Atlanta Strategic Investments, L.L.C. 4.7* Registration Rights Agreement, dated March 29, 2001, by and among the Registrant and Comcast Concurrent Holdings, Inc. 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 _______________ * Filed herewith. EX-4.5 3 doc5.txt EXHIBIT 4.5 THIS WARRANT AND THE SECURITIES TO BE ACQUIRED UPON THE EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT AND UNDER ANY APPLICABLE STATE SECURITIES LAWS. January 8, 2001 No. 002 Originally Issued: August 17, 1998 WARRANT TO PURCHASE SHARES OF COMMON STOCK OF CONCURRENT COMPUTER CORPORATION This certifies that Scientific-Atlanta Strategic Investments, L.L.C., a Delaware limited liability company, and its registered successors and assigns (the "Holder"), for value received, is entitled to purchase from Concurrent ------ Computer Corporation, a Delaware corporation (the "Company"), having a place of ------- business at 4375 RiverGreen Parkway, Duluth, Georgia 30096, for cash at the price of $5.00 per share (the "Stock Purchase Price") at any time or from time -------------------- to time after January 8, 2001 (the "Commencement Date") up to and including 5:00 ----------------- p.m. (Eastern time) on August 17, 2002 (the "Expiration Date"), two million --------------- (2,000,000) fully paid and nonassessable shares of the Company's Common Stock, $0.01 par value per share (the "Common Stock"), upon surrender to the Company at ------------ its principal office (or at such other location as the Company may advise the Holder in writing) of this Warrant properly endorsed with the Form of Subscription attached hereto duly filled in and signed and upon payment in cash or by check of the aggregate Stock Purchase Price for the number of shares for which this Warrant is being exercised determined in accordance with the provisions hereof. This Warrant is subject to the following terms and conditions. 1. EXERCISE; ISSUANCE OF CERTIFICATES; PAYMENT FOR SHARES. 1.1. GENERAL. This Warrant is exercisable at the option of the Holder, at any time or from time to time after the Commencement Date up to and including the Expiration Date for all or any part of the shares of Common Stock (but not for a fraction of a share) which may be purchased hereunder. The Company agrees that the shares of Common Stock purchased under this Warrant shall be and are deemed to be issued to the Holder hereof as the record owner of such shares as of the close of business on the date on which this Warrant shall have been surrendered, properly endorsed, together with the completed, executed Form of Subscription, and payment made for such shares. Certificates for the shares of Common Stock so purchased, 1 together with any other securities or property to which the Holder hereof is entitled upon such exercise, shall be delivered to the Holder hereof by the Company at the Company's expense within a reasonable time after the rights represented by this Warrant have been so exercised. In case of a purchase of less than all the shares of Common Stock which may be purchased under this Warrant, the Company shall cancel this Warrant and execute and deliver a new Warrant or Warrants of like tenor for the balance of the shares of Common Stock purchasable under the Warrant surrendered to the Holder hereof within a reasonable time. Each stock certificate so delivered shall be in such denominations of Common Stock as may be required by the Holder hereof and shall be registered in the name of such Holder. 2. SHARES TO BE FULLY PAID; RESERVATION OF SHARES. The Company covenants and agrees that all shares of Common Stock which may be issued upon the exercise of the rights represented by this Warrant will, upon issuance, be duly authorized, validly issued, fully paid and nonassessable, free from all preemptive rights of any shareholder and free of all taxes, liens and charges with respect to the issue thereof. The Company further covenants and agrees that during the period within which the rights represented by this Warrant may be exercised, the Company will at all times have authorized and reserved, for the purpose of issue or transfer upon exercise of the subscription rights evidenced by this Warrant, a sufficient number of shares of authorized but unissued Common Stock when and as required to provide for the exercise in full of the rights represented by this Warrant. The Company will take all such action as may be necessary to assure that such shares of Common Stock may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of any domestic securities exchange upon which the Common Stock is listed; provided, however, that the Company shall not be required to effect a registration under federal or state securities laws with respect to such exercise. If at any time the total number of shares of Common Stock issuable pursuant hereto, together with the maximum number of shares of Common Stock issuable upon conversion, exchange or exercise of (i) all then-outstanding securities (whether debt or equity) of the Company convertible or exchangeable for Common Stock and (ii) all then-outstanding warrants and options to purchase Common Stock, would exceed the total number of shares of Common Stock then authorized by the Company's articles of incorporation but unissued, the Company shall promptly amend its articles of incorporation to increase the number of authorized shares of Common Stock such that there shall be a sufficient number of authorized and unissued shares of Common Stock available at all times to effect the exercise hereof. 3. ANTIDILUTION ADJUSTMENTS. The Stock Purchase Price or shares issuable hereunder shall be subject to adjustment from time to time upon the occurrence of certain events described in this Section 3. 3.1. ADJUSTMENT FOR STOCK SPLITS, COMBINATIONS, DIVIDENDS AND DISTRIBUTIONS. (a) Adjustment for Stock Splits. If the Company shall, at any time or ------------------------------ from time to time, effect a subdivision of the outstanding shares of Common Stock, the Stock Purchase Price payable upon exercise of this Warrant in effect immediately prior to such subdivision shall be proportionately decreased by multiplying (i) such Stock Purchase Price, by (ii) a fraction: 2 (A) the numerator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to such subdivision; and (B) the denominator of which shall be the total number of shares of Common Stock issued and outstanding immediately after such subdivision. (b) Adjustment for Stock Combination. If the Company shall, at any time --------------------------------- or from time to time, effect any combination of the outstanding shares of Common Stock, the Stock Purchase Price payable upon exercise of this Warrant in effect immediately prior to such combination shall be proportionately increased by multiplying (i) such Stock Purchase Price, by (ii) a fraction: (A) the numerator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to such combination; and (B) the denominator of which shall be the total number of shares of Common Stock issued and outstanding immediately after such combination. (c) Date Adjustment Effective. Any adjustment under paragraph (a) or (b) ------------------------- of this Section 3.1 shall become effective at the close of business on the date on which such subdivision or combination becomes effective. (d) Adjustment for Stock Dividend or Distribution. In the event the -------------------------------------------------- Company shall, at any time or from time to time, make or issue, or fix a record date for the determination of holders of Common Stock entitled to receive, a dividend or other distribution payable in additional shares of Common Stock, then, and in each such event, the Stock Purchase Price payable upon exercise of this Warrant then in effect shall be decreased as of the time of such issuance or, in the event such a record date shall have been fixed, as of the close of the business on such record date, by multiplying (i) the Stock Purchase Price payable upon exercise of this Warrant then in effect, by (ii) a fraction: (A) the numerator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance or the close of business on such record date; and (B) the denominator of which shall be the sum of (1) the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance or the close of business on such record date, plus (2) the total number of shares of Common Stock issuable in payment of such dividend or distribution; provided however, that if such a record date shall have been fixed and such dividend is not fully paid, or such distribution is not fully made, on the date fixed therefor, then the Stock Purchase Price shall be recomputed accordingly as of the close of business on such record date. 3 In the event that the Holder elects to exercise such Warrant after any record date for determining holders of Common Stock entitled to receive any dividend or other distribution payable in shares of Common Stock but prior to the date on which such dividend is paid, the Company may defer, until such dividend is paid, the issue to the Holder of all of the additional shares of Common Stock issuable to the Holder upon the exercise of this Warrant solely by reason of the adjustment made to the Stock Purchase Price pursuant to paragraph (d) of this Section 3.1 on the record date for such dividend; provided however, that the Company shall, promptly upon the request of the Holder, issue to the Holder a written certificate or other instrument evidencing the Holder's right to receive such additional shares of Common Stock. 3.2. DIVIDENDS IN OTHER STOCK AND PROPERTY; RECLASSIFICATION. If at any time or from time to time the holders of Common Stock (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received or become entitled to receive, without payment therefor, (A) any shares of stock or other securities which are at any time directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution, (B) any cash paid or payable otherwise than as a cash dividend, or (C) additional stock or other securities or property (including cash) by way of spinoff, split-up, reclassification, combination of shares or similar corporate rearrangement (other than an event for which adjustment is otherwise made pursuant to Section 3.4 below), then and in each such case, the Holder hereof shall, upon the exercise of this Warrant, be entitled to receive, in addition to the number of shares of Common Stock receivable thereupon, and without payment of any additional consideration therefor, the amount of stock and other securities and property (other than cash paid or payable as a cash dividend) which such Holder would hold on the date of such exercise had he been the holder of record of such Common Stock as of the date on which holders of Common Stock received or became entitled to receive such other shares of stock and other securities and property. 3.3. REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE. If any reorganization of the capital stock of the Company, or any consolidation or merger of the Company with another corporation, or the sale of all or substantially all of its assets to another corporation shall be effected in such a way that holders of Common Stock shall be entitled to receive stock, securities, or other assets or property, then, as a condition of such reorganization, reclassification, consolidation, merger or sale, lawful and adequate provisions shall be made whereby the Holder hereof shall thereafter have the right to purchase and receive (in lieu of the shares of the Common Stock of the Company immediately theretofore purchasable and receivable upon the exercise of the rights represented hereby) such shares of stock, securities or other assets or property as may be issued or payable with respect to or in exchange for a number of outstanding shares of such Common Stock equal to the number of shares of such stock immediately theretofore purchasable and receivable upon the exercise of the rights represented 4 hereby. In any reorganization described above, appropriate provisions shall be made with respect to the rights and interests of the Holder of this Warrant to the end that the provisions hereof (including, without limitation, provisions for adjustments of the number of shares of Common Stock purchasable and receivable upon the exercise of this Warrant) shall thereafter be applicable, as nearly as may be, in relation to any shares of stock, securities or assets thereafter deliverable upon the exercise hereof. The Company will not effect any such consolidation, merger or sale unless, prior to the consummation thereof, the successor corporation (if other than the Company) resulting from such consolidation or the corporation purchasing such assets shall assume by written instrument, executed and mailed or delivered to the registered Holder hereof at the last address of such Holder appearing on the books of the Company, the obligation to deliver to such Holder such shares of stock, securities or assets as, in accordance with the foregoing provisions, such Holder may be entitled to purchase. 3.4. NOTICE OF ADJUSTMENT. Upon any adjustment pursuant to this Section 3, the Company shall give written notice thereof, by first class mail, postage prepaid, addressed to the registered Holder of this Warrant at the address of such Holder as shown on the books of the Company, and, in case of a Holder with an address of record outside of the United States, by facsimile, and confirmed in writing by first class air mail. The notice shall be signed by the Company's chief financial officer and shall state the nature of such adjustment, setting forth in reasonable detail the method of effecting the adjustment and the facts upon which such adjustment is based. If at any time in addition to any of the adjustments set forth in this Section 3, an increase in the number of authorized and unissued shares of Common Stock is required pursuant to Section 2 hereof, the Company shall promptly provide to the Holder a certificate of the Secretary of the Company certifying that the requisite number of shares of Common Stock have been authorized to permit the exercise of the Warrant. 3.5. OTHER NOTICES. If at any time: (1) the Company shall declare any cash dividend upon its Common Stock; (2) the Company shall declare any dividend upon its Common Stock payable in stock or make any special dividend or other distribution to the holders of its Common Stock; (3) the Company shall offer for subscription pro rata to the holders of its Common Stock any additional shares of stock of any class or other rights; (4) there shall be any capital reorganization or reclassification of the capital stock of the Company; or consolidation or merger of the Company; or consolidation or merger of the Company with, or sale of all or substantially all of its assets to, another corporation; or (5) there shall be a voluntary or involuntary dissolution, liquidation or winding-up of the Company; then, in any one or more of said cases, the Company shall give, by first class mail, postage prepaid, addressed to the Holder of this Warrant at the address of such Holder as shown on the 5 books of the Company, (a) at least twenty (20) days' prior written notice (by the method set forth in Section 3.4 above) of the date on which the books of the Company shall close or a record shall be taken for such dividend, distribution or subscription rights or for determining rights to vote in respect of any such reorganization, reclassification, consolidation, merger, sale, dissolution, liquidation or winding-up, and (b) in the case of any such reorganization, reclassification, consolidation, merger, sale, dissolution, liquidation or winding-up, at least twenty (20) days' prior written notice of the date when the same shall take place. Any notice given in accordance with the foregoing clause (a) shall also specify, in the case of any such dividend, distribution or subscription rights, the date on which the holders of Common Stock shall be entitled thereto. Any notice given in accordance with the foregoing clause (b) shall also specify the date on which the holders of Common Stock shall be entitled to exchange their Common Stock for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, sale, dissolution, liquidation, winding-up or conversion, as the case may be. 3.6. CERTAIN EVENTS. If any change in the outstanding Common Stock of the Company or any other event occurs as to which the other provisions of this Section 3 are not strictly applicable or if strictly applicable would not, in the reasonable opinion of the Company, fairly protect the purchase rights of the Holder of the Warrant in accordance with the essential intent and principles of such provisions, then the Board of Directors of the Company shall make an adjustment in the number and class of shares purchasable upon exercise of this Warrant or the application of such provisions, so as to protect such purchase rights as aforesaid. The adjustment shall be such as will give the Holder of the Warrant upon exercise for the same aggregate Stock Purchase Price the total number, class and kind of shares as he would have owned had the Warrant been exercised prior to the event and had he continued to hold such shares until after the event requiring adjustment. 4. ISSUE TAX. The issuance of certificates for shares of Common Stock upon the exercise of the Warrant shall be made without charge to the Holder of the Warrant for any issue tax (other than any applicable income taxes) in respect thereof; provided, however, that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of any certificate in a name other than that of the then Holder of the Warrant being exercised. 5. CLOSING OF BOOKS. The Company will at no time close its transfer books against the transfer of any Warrant or of any shares of Common Stock issued or issuable upon the exercise of any warrant in any manner which interferes with the timely exercise of this Warrant. 6. NO VOTING OR DIVIDEND RIGHTS; LIMITATIONS OF LIABILITY. Nothing contained in this Warrant shall be construed as conferring upon the Holder hereof the right to vote or to consent or to receive notice as a stockholder of the Company or any other matters or any rights whatsoever as a stockholder of the Company. No dividends or interest shall be payable or accrued in respect of this Warrant or the interest represented hereby or the shares purchasable hereunder until and only to the extent that this Warrant shall have been exercised. No provisions hereof, in the absence of affirmative action by the Holder to purchase shares of Common Stock, and no mere enumeration herein of the rights or privileges of the Holder hereof, shall give rise to 6 any liability of such Holder for the Stock Purchase Price or as a stockholder of the Company, whether such liability is asserted by the Company or by its creditors. 7. REGISTRATION RIGHTS. The Holder hereof shall have the following rights: 7.1. DEMAND REGISTRATION. The Holder hereof shall have the right to request, on one (1) occasion, that the Company prepare and promptly file a registration statement under the Securities Act of 1933, as amended (the "Securities Act") covering the shares of Common Stock then issuable upon --------------- exercise hereof (but not less than 500,000 shares) and the Company shall use its best efforts to cause such registration statement to become effective as expeditiously as possible. Upon the receipt of such written request, the Company shall give prompt written notice to all the Holders that it shall use its best efforts to effect such registration; provided, however, that the -------- ------- Company shall not be required to effect any registration pursuant to this Section 7.1: (A) unless it shall have received written assurance that the Warrant will be exercised no later than the closing of the sale of the Common Stock to be sold pursuant to the related registration statement; or (B) at any time prior to the expiration of a period of such number of days following the date on which any previous distribution attempted in respect of a registration requested pursuant to this Section 7.1 shall have been terminated without being consummated as shall be determined by the lead managing underwriter of any such underwritten offering (or, in the event no underwriter shall have participated in such terminated distribution, by an investment banking firm of recognized national standing selected by the Holder) to be reasonably necessary and appropriate to effect the successful distribution of securities in a subsequent registration requested pursuant to this Section 7.1, but in any event not more than 90 days after any such registration shall have been terminated or not consummated; or (C) at any time, as the Board of Directors of the Company shall have reasonably determined that (1) such registration would have a material adverse effect on any plan by the Company to engage in any acquisition of material assets or any merger, consolidation, tender offer, or similar transaction, (2) such registration would require the Company to file a registration statement which includes audited financial statements as of any date other than the date as of which the Company regularly prepares audited financial statements and if the preparation thereof would entail material out-of-pocket expense on the part of the Company, (3) such registration would have a material adverse effect on the distribution of a registered primary offering of equity securities by the Company pursuant to a registration statement filed no more than four months before the date of such demand in connection with which the Holder was offered the opportunity to participate pursuant to Section 7.2 hereof, or (4) the Company has received a written opinion of independent counsel, a copy of which will be provided to the Holder, that the securities requested to be registered are freely tradable without registration pursuant to Rule 144(k) (or any successor thereto) under the Securities Act and applicable state securities laws; in any of the events described in clauses (C) (1), (C) (2), (C) (3) or (C) (4), the Company may delay commencement of its efforts to effect the registration pursuant to this 7 Section 7.1 until the earlier to occur of (x) the expiration of the 90-day period following the date on which such registration was requested or (y) such time as the circumstances requiring such a delay in registration cease to exist, provided, however, that the Company shall not be entitled to delay any such -------- ------- registration for more than one such 90-day period; and provided, further, -------- ------- however, that in any of the events described in clauses (C) (1), (C) (2), (C) (3), or (C) (4), the Holder shall be entitled to withdraw such request and, notwithstanding anything else provided herein, such demand shall not count as the permitted demand registration as described in this Section 7.1. 7.2. PIGGYBACK RIGHTS. In addition, each time the Company shall determine to file a registration statement under the Securities Act, (excluding a registration on Form S-4 or S-8 or a registration statement on Form S-1 covering solely an employee benefit plan) in connection with the proposed offer and sale for money of any of its securities either for its own account or on behalf of any other security holder, the Company shall give prompt written notice of such determination to the Holder hereof. The Holder hereof shall provide a written request to the Company if it desires to participate in such registration (the "Holder Notice"), accompanied by this Warrant, duly endorsed, ------------- together with a Form of Subscription attached hereto, duly filled in and signed, and the prompt payment in cash or by check of the aggregate Stock Purchase Price for the shares for which this Warrant is being exercised in accordance with Section 1 hereof, stating the number of shares of Common Stock to be registered, which Holder Notice must be given within twenty (20) days after the receipt by the Holder of the Company's notice. Upon receipt of the Holder Notice, the Company shall cause all shares of Common Stock issuable upon exercise of this Warrant with respect to which the Holder hereof has requested registration to be included in such registration statement and registered under the Securities Act, all to the extent requisite to permit the sale or other disposition by the prospective seller or sellers of the Common Stock issuable upon exercise hereof to be so registered. If the registration of which the Company gives written notice pursuant to this Section 7.2 is for a public offering involving an underwriting, the Company shall so advise the Holder as a part of its written notice. In such event, the right of the Holder hereof to registration pursuant to this Section 7.2 shall be conditioned upon the Holder's participation in such underwriting and the inclusion of such Holder's shares of Common Stock in the underwriting to the extent provided herein. If, at any time after giving written notice of its intention to register any of its securities and prior to the effective date of the registration statement filed in connection with such registration, the Company shall determine for any reason not to register such securities, the Company will give written notice of such determination to the Holder, and, upon giving such notice, the Company shall be relieved of its obligation to register any Common Stock acquired upon exercise of the Warrant in connection with such registration (but not from its obligation to pay the registration expenses in connection therewith), without prejudice, however, to the rights of the Holder to request that such registration be effected as a registration under Section 7.1. If, in connection with a registration pursuant to this Section 7.2, the lead managing underwriter advises the Company in writing that, in its opinion, the total number of securities requested to be included in such registration exceeds the number which can be sold in such offering without materially and adversely affecting the offering price of such securities by such 8 underwriters (such opinion to state the reasons therefor), the Company will promptly furnish the Holder with a copy of such opinion and will include the Common Stock to be acquired upon exercise of the Warrant in such registration to the extent of the number which the Company is so advised can be sold in such offering, determined as follows: (i) if such registration as proposed by the Company involves a primary registration of its securities, (x) first, the securities the Company ----- proposes to sell, and (y) second, securities of the Company (including without ------ limitation securities issuable upon conversion, exercise or exchange of other securities of the Company, and including the Common Stock to be acquired upon exercise of the Warrant) pursuant to contractual rights, pro rata among the --- ---- holders thereof (or, where appropriate, of the securities convertible into or exercisable or exchangeable for the securities to be registered) on the basis of the number of shares of such securities requested to be included by such holders; and (ii) if such registration as proposed by the Company was requested by holders of securities of the Company other than the Holder, (x) first, such ----- securities held by the holders initiating such registration, and (y) second, ------ securities of the Company (including without limitation securities issuable upon conversion, exercise or exchange of other securities of the Company, and including the Common Stock to be acquired upon exercise of the Warrant) requested to be included in such registration pursuant to contractual rights, pro rata among the holders thereof (or, where appropriate, of the securities convertible into or exercisable or exchangeable for the securities to be registered) on the basis of the number of shares of such securities requested to be included by such holders. 7.3. PROCEDURE. If and whenever the Company is required by the provisions of this Section 7 to effect the registration of shares of Common Stock issuable upon the exercise hereof under the Securities Act, the Company, at its expense and as expeditiously as possible shall, in accordance with the Securities Act and all applicable rules and regulations, prepare and file with the Securities and Exchange Commission (the "Commission") a registration ---------- statement with respect to such securities and shall use its best efforts to cause such registration statement to become and remain effective until the securities covered by such registration statement have been sold, and prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus contained therein as may be necessary to keep such registration statement effective and such registration statement and prospectus accurate and complete until the securities covered by such registration statement have been sold. The Company shall furnish to the Holder participating in such registration and to the underwriters of securities being registered such number of copies of the registration statement and each amendment and supplement thereto, preliminary prospectus, final prospectus and such other documents as such underwriters and holders may reasonably request in order to facilitate the public offering of such securities. In addition, the Company shall otherwise take such other actions as are necessary and appropriate to effect any such registration in compliance with all provisions of the Securities Act and all applicable state securities laws, including, without limitation, using its best efforts to register or qualify the securities covered by such registration statement under such state securities or Blue Sky laws of such jurisdictions as reasonably necessary to effect the sale thereof and such other actions as the Holder shall reasonably request. 9 8. MODIFICATION AND WAIVER. This Warrant and any provision hereof may be changed, waived, discharged or terminated only by an instrument in writing signed by the party against which enforcement of the same is sought. 9. NOTICES. Any notice, request or other document required or permitted to be given or delivered to the holder hereof or the Company shall be delivered or shall be sent by certified mail, postage prepaid, to each such holder at its address as shown on the books of the Company or to the Company at the address indicated therefor in the first paragraph of this Warrant or such other address as either may from time to time provide to the other and shall be sent to any such holder located outside of the United States by facsimile confirmed in writing by first class air mail. 10. BINDING EFFECT ON SUCCESSORS. This Warrant shall be binding upon any corporation succeeding the Company by merger, consolidation or acquisition of all or substantially all of the Company's assets. All of the obligations of the Company relating to the Common Stock issuable upon the exercise of this Warrant shall survive the exercise and termination of this Warrant. All of the covenants and agreements of the Company shall inure to the benefit of the successors and assigns of the holder hereof. 11. DESCRIPTIVE HEADINGS AND GOVERNING LAW. The description headings of the several sections and paragraphs of this Warrant are inserted for convenience only and do not constitute a part of this Warrant. This Warrant shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the laws of the State of Georgia. 12. LOST WARRANTS. The Company represents and warrants to the Holder hereof that upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction, or mutilation of this Warrant and, in the case of any such loss, theft or destruction, upon receipt of an indemnity reasonably satisfactory to the Company, or in the case of any such mutilation upon surrender and cancellation of such Warrant, the Company, at its expense, will make and deliver a new Warrant, of like tenor, in lieu of the lost, stolen, destroyed or mutilated Warrant. 10 IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by its officers, thereunto duly authorized as of the Commencement Date. CONCURRENT COMPUTER CORPORATION a Delaware corporation By: /s/ Steven R. Norton --------------------------------- Title: Chief Financial Officer ------------------------------ ATTEST: Lynne B. Dyche ------------------------------- Secretary 11 EXHIBIT A SUBSCRIPTION FORM Date: ________________ ______________________________ ______________________________ ______________________________ Gentlemen: The undersigned hereby elects to exercise the warrant issued to it by Concurrent Computer Corporation (the "Company") and dated January 8, ------- 2001, (the "Warrant") and initially to purchase thereunder ------- _____________________ shares of the Common Stock of the Company (the "Shares"), subject to adjustment and increase, at a purchase price of ------ ____________________ Dollars ($__________) per share or an aggregate purchase price of ____________________ Dollars ($__________) (the "Purchase Price"). --------------- Pursuant to the terms of the Warrant the undersigned has delivered the Purchase Price herewith in full in cash or by certified check or wire transfer. The undersigned also makes the representations set forth on the attached Exhibit B of the Warrant. Very truly yours, ________________________________________ By: _______________________________ Title: ____________________________ 12 EXHIBIT B THIS AGREEMENT MUST BE COMPLETED, SIGNED AND RETURNED TO CONCURRENT COMPUTER CORPORATION, ALONG WITH THE SUBSCRIPTION FORM BEFORE THE COMMON STOCK ISSUABLE UPON EXERCISE OF THE WARRANT CERTIFICATE DATED JANUARY 8, 2001 WILL BE ISSUED. ______________________________________________ Concurrent Computer Corporation Attention: President The undersigned, _________________________________________ ("Purchaser"), --------- intends to acquire up to ______________________ shares of the Common Stock (the "Common Stock") of Concurrent Computer Corporation (the "Company") from the ------------- ------- Company pursuant to the exercise or conversion of a certain Warrant to purchase Common Stock held by Purchaser. The Common Stock will be issued to Purchaser in a transaction not involving a public offering and pursuant to an exemption from registration under the Securities Act of 1933, as amended (the "Securities Act") -------------- and applicable state securities laws. In connection with such purchase and in order to comply with the exemptions from registration relied upon by the Company, Purchaser represents, warrants and agrees as follows: Purchaser is acquiring the Common Stock for its own account, to hold for investment, and Purchaser shall not make any sale, transfer or other disposition of the Common Stock in violation of the Securities Act or the General Rules and Regulations promulgated thereunder by the Securities and Exchange Commission (the "SEC") or in violation of any applicable state securities law. --- Purchaser has been advised that the Common Stock has not been registered for initial issuance under the Securities Act or state securities laws on the ground that this transaction is exempt from registration, and that reliance by the Company on such exemptions is predicated in part on Purchaser's representations set forth in this letter. Purchaser has been informed that under the Securities Act and applicable state securities laws, the Common Stock must be held indefinitely unless it is subsequently registered under the Securities Act and applicable state securities laws or unless an exemption from such registration is available with respect to any proposed transfer or disposition by Purchaser of the Common Stock. 13 Purchaser also understands and agrees that there will be placed on the certificate(s) for the Common Stock, or any substitutions therefor, a legend stating in substance: The securities evidenced by this certificate have not been registered under the securities act of 1933, as amended, or under any applicable state securities laws. The securities may not be sold or transferred in the absence of such registration or an exemption therefrom under such act and under any applicable state securities laws. Purchaser has carefully read this letter and has discussed its requirements and other applicable limitations upon Purchaser's resale of the Common Stock with Purchaser' s counsel. Very truly yours, __________________________________________ (Purchaser) By: _______________________________ Title: ____________________________ 14 EX-4.6 4 doc6.txt EXHIBIT 4.6 Concurrent Computer Corporation 4375 River Green Parkway Duluth, Georgia 30096 (678) 258-4000 October 16, 2001 Scientific-Atlanta Strategic Investments, L.L.C. Scientific-Atlanta, Inc. Attn: Wallace G. Haislip, President Attn: General Counsel 5030 Sugarloaf Parkway 5030 Sugarloaf Parkway Lawrenceville, Georgia 30044 Lawrenceville, Georgia 30044 Gentlemen: Reference is hereby made to the Development Agreement Regarding Video-On-Demand System, between Scientific-Atlanta, Inc. ("Scientific-Atlanta") and Concurrent Computer Corporation ("Concurrent"), dated August 17, 1998 (the "Agreement") and the Warrant to Purchase Shares of Common Stock of Concurrent Computer Corporation reissued to Scientific-Atlanta Strategic Investments, L.L.C. ("SASI" and together with Scientific-Atlanta, "S-A"), dated January 8, 2001 (the "Warrant"). Capitalized terms used, but not defined, herein shall have the meanings ascribed to such terms in the Warrant. In consideration of the agreements of the parties contained herein and other good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, each of the parties hereto hereby agrees as follows: 1. Shelf Registration Rights. Concurrent and S-A hereby agree that ------------------------- Concurrent will, at its expense, prepare and file with the Securities and Exchange Commission (the "Commission") a registration statement that covers all ---------- of the shares of Common Stock then issuable upon exercise of the Warrant (the "Shares") to be offered on a delayed or continuous basis pursuant to Rule 415 ------- under the Securities Act (the "Shelf Registration Statement"). Concurrent ---------------------------- further agrees to prepare and file with the Commission such amendments and supplements to the Shelf Registration Statement and the prospectus contained therein as may be necessary to keep such Shelf Registration Statement effective until the earlier of (i) the date that all of the Shares have been sold or (ii) the date on which the Shares are eligible for resale pursuant to Rule 144 under the Securities Act and could be sold in one transaction in accordance with the volume limitations contained in Rule 144(e)(1) under the Securities Act. S-A acknowledges that is has used its one (1) demand right pursuant to Section 7.1 of the Warrant in causing Concurrent to file the Shelf Registration Statement. 2. Blackout Period for Shelf Registration Statement. Concurrent and S-A ------------------------------------------------ hereby agree that if Concurrent is in possession of material nonpublic information that it deems advisable not to disclose or is engaged in active negotiations or planing for a merger or acquisition or disposition transaction, Concurrent may deliver written notice to S-A to the effect that S-A may not make offers or sales under the Shelf Registration Statement for a period not to exceed sixty (60) days from the date of such notice; provided, however, that Concurrent may only deliver two such notices during any twelve month period. 3. Shelf Registration Notice. S-A will deliver a written notice to ------------------------- Concurrent (the "Shelf Registration Notice") that S-A intends to make offers or ------------------------- sales under the Shelf Registration Statement prior to any such offer or sale. If Concurrent determines that it is necessary to amend or supplement the prospectus, Concurrent will cause such amendment or supplement to be prepared and filed with the Commission as soon as possible, and in no event later than ten (10) business days after receipt of the Shelf Registration Notice. S-A will not offer or sell any Shares under the Shelf Registration Statement until it has received from Concurrent copies of the prospectus, as amended or supplemented as the case may be, and has received written notice from Concurrent that the Shelf Registration Statement and any post-effective amendments have become effective. Further, S-A shall notify Concurrent upon completion of such offer and sale or at such time as S-A no longer intends to make offers or sales under the Shelf Registration Statement. 4. Performance Warrants. S-A acknowledges that Concurrent's decision to -------------------- file the Shelf Registration Statement should not be construed as an agreement to file a registration statement covering shares of Common Stock issuable upon exercise of any "performance warrant" issued to S-A in the future (such warrants are referred to in Section 9.2 of the Agreement and a form of such warrant is included as Exhibit D to the Agreement) on a delayed or continuous basis --------- pursuant to Rule 415 under the Securities Act. Each performance warrant granted to S-A will be governed by the terms of such warrant. 5. Counterparts. This letter agreement may be executed in two or more ------------ counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. 6. Governing Law. This letter agreement shall be governed by and ------------- construed in accordance with the internal laws of the State of Georgia, without giving effect to choice of law provisions. If the foregoing accurately reflects our understanding, please sign below to evidence your acceptance and agreement with the foregoing and return one copy of this letter to the undersigned, whereupon it shall become a binding agreement. Very truly yours, /s/ Steven R. Norton Steven R. Norton Executive Vice President and Chief Financial Officer, Concurrent Computer Corporation Agreed and accepted as of the date first above written: SCIENTIFIC-ATLANTA, INC. By: /s/ Wallace G. Haislip -------------------------------- Name: Wallace G. Haislip Title: Senior Vice President Chief Financial Officer and Treasurer SCIENTIFIC-ATLANTA STRATEGIC INVESTMENTS, L.L.C By: /s/ Wallace G. Haislip -------------------------------- Name: Wallace G. Haislip Title: President EX-4.7 5 doc7.txt EXHIBIT 4.7 REGISTRATION RIGHTS AGREEMENT This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made as of this 29th day of March, 2001 by and between Concurrent Computer Corporation, a Delaware corporation (the "COMPANY"), Comcast Concurrent Holdings, Inc., a Delaware corporation (the "PROVIDER," and, together with any and all of its permitted assignees of the rights granted hereunder, the "HOLDERS"). WHEREAS, concurrently with the execution of this Agreement, the Company and Comcast Cable Communications of Pennsylvania, Inc. ("COMCAST") are entering into a video-on-demand purchase agreement (the "VOD PURCHASE AGREEMENT") regarding the purchase and deployment of the Company's video-on-demand equipment and technologies by cable television systems operators controlled by Comcast and its subsidiaries; WHEREAS, concurrently with the execution of the this Agreement and the VOD Purchase Agreement, the Provider is receiving a warrant to purchase 50,000 shares of Common Stock of the Company; WHEREAS, concurrently with the execution of this Agreement and the VOD Purchase Agreement, the Company and the Provider entered into a Warrant Issuance Agreement (the "WARRANT ISSUANCE AGREEMENT"), pursuant to which the Provider is entitled to receive additional warrants to purchase shares of Common Stock of the Company upon the satisfaction of certain thresholds set forth in the Warrant Issuance Agreement. WHEREAS, as an inducement for and a condition to the Provider entering into the Warrant Issuance Agreement and to Comcast entering into the VOD Purchase Agreement, the Company has agreed to enter into this Registration Rights Agreement. NOW, THEREFORE, in consideration of the foregoing recitals, the mutual promises set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows: 1. DEFINITIONS. As used in this Agreement, the following terms shall ----------- have the following respective meanings: (a) "AFFILIATE" shall mean any person directly or indirectly controlled by, controlling or under common control with another person, where the term "control," for purposes of this definition, means the power to direct the management of the person in question. (b) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. (c) "FORM S-3" shall mean such form under the Securities Act as is in effect on the date hereof or any successor registration form under the Securities Act subsequently adopted by the SEC that permits inclusion or incorporation of substantial information by reference to other documents filed by the Company with the SEC. (d) "NASD" shall mean the National Association of Securities Dealers, Inc. (e) The term "PERSON" shall mean any individual, partnership, corporation, business trust, trust, unincorporated association, joint venture or other entity of whatever nature. (f) "REGISTRABLE SECURITIES" shall mean (i) the Common Stock issued or issuable upon exercise of the Warrants and (ii) any Common Stock issued as (or issued or issuable upon the conversion, exchange or exercise of any Rights of the Company that are issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of, the Warrants or the Common Stock issued upon exercise of the Warrants. Notwithstanding the foregoing, Registrable Securities shall not include any shares of Common Stock that have been sold (1) to the public pursuant to a registration statement filed under the Securities Act or (2) in reliance on the exemption from registration provided by Rule 144 under the Securities Act or (3) in a private transaction in which the transferor's rights under this Agreement are not assigned. (g) "REGISTRATION EXPENSES" shall mean all expenses incurred by the Company in connection with any registration, qualification or compliance pursuant to the provisions hereof, including, without limitation, all registration and filing fees, printing expenses, fees and disbursements of counsel for the Company and the underwriters (unless otherwise provided for in subsection (k) below), blue sky fees and expenses and the expenses of any audits incident to or required by any such registration. (h) "RIGHTS" shall mean any options, warrants, securities, rights or other instruments convertible into or exchangeable or exercisable for, or otherwise giving the holder thereof the right to acquire, with or without consideration, directly or indirectly, any Common Stock or any other such option, warrant, security, right or instrument, including any instrument the value of which is measured by reference to the value of the Common Stock. (i) "SEC" shall mean the United States Securities and Exchange Commission. (j) "SECURITIES ACT" shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. (k) "SELLING EXPENSES" shall mean (i) all underwriting discounts and selling commissions applicable to a sale of Registrable Securities and (ii) if the registration is demanded by the Provider or any other Holder, the fees and expenses of counsel to the underwriters (if applicable). (l) The term "UNDERWRITER" shall have the meaning ascribed to such term in Section 2(11) of the Securities Act, including any person deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act. (m) "WARRANTS" shall mean the Commitment Warrants, the Incentive Warrants and the Cliff Warrants as those terms are defined in the Warrant Issuance Agreement. - 2 - 2. Registration Under the Securities Act. (a) Demand Registration. ------------------- (i) Subject to the provisions set forth in this Section 2(a)(i), at any time and from time to time, any Holder or Holders may elect, by giving written notice thereof to the Company, to require the Company to use its reasonable best efforts to register all or a portion of the Registrable Securities of such Holder or Holders (each, an "INITIATING HOLDER," and, collectively, the "INITIATING HOLDERS") under the Securities Act; provided, however, that the Company shall be obligated to use its reasonable best efforts to register the Registrable Securities upon such demand only if the number of Registrable Securities to be so registered is at least (A) 65,000 shares (as adjusted for stock splits, stock dividends, combinations, reorganizations, reclassifications and other similar events) or (B) all of the Initiating Holder's shares of Registrable Securities, if such Holder holds fewer than 65,000 shares of Registrable Securities. Promptly following such demand, the Company shall (A) give notice to each other Holder of Registrable Securities of such demand, which notice shall set forth the identity of the Initiating Holders, and (B) use its reasonable best efforts, in accordance with the provisions of Section 3(a), to cause to be declared or become effective under the Securities Act a Form S-3 registration statement providing for the registration of, and the sale in accordance with the intended method or methods of distribution thereof by the Initiating Holders of, the Registrable Securities to be so registered. Any other Holder of Registrable Securities may elect, by giving written notice to such effect to the Company no later than 10 business days after the Company shall have given the notice referred to in clause (A) of the preceding sentence, to have all or a portion of such Holder's Registrable Securities included in such registration, and such Holder shall thereby become an Initiating Holder with respect to such registration for all purposes hereunder. If the Company is not then eligible to use Form S-3, the registration statement shall be filed using such form as may be available for the proposed distribution by the Initiating Holders with which it is least burdensome for the Company to comply. Subject to the provisions in Section 5 and, as set forth in Section 10, the termination of the registration rights granted under this Agreement, the Holders shall be limited to two demands made under this Section 2(a)(i) for an underwritten registration of Registrable Securities and the Company shall not be required to effect any registration (A) within 90 days of the effective date of any registration made under Section 2(a) or Section 2(b) or (B) within 90 days of the date on which any registration has been withdrawn under Section 2(c). (ii) If, in connection with a registration of Registrable Securities pursuant to Section 2(a)(i), any managing underwriter shall advise the Initiating Holders in writing that, in its opinion, the inclusion in the registration statement of some or all of the Registrable Securities sought to be registered by the Initiating Holders creates a substantial risk that the price per unit that such Initiating Holders will derive from such registration will be materially and adversely affected or that the number of Registrable Securities sought to be registered is too large a number to be reasonably sold, the Company will include in such registration statement such number of Registrable Securities as the Initiating Holders are so advised can reasonably be sold in such offering, or can be sold without such an effect, allocated pro rata and without any priority as between the Initiating Holders, in proportion to the number of Registrable Securities that each Initiating Holder owns or has the right to acquire relative to - 3 - the total number of Registrable Securities that all Initiating Holders own or have the right to acquire. (b) "Piggyback" Registration. ----------------------- (i) If, at any time, the Company proposes to register any of its Common Stock, Rights or other equity securities under the Securities Act on Form S-1, Form S-2 or Form S-3 (or an equivalent general registration form then in effect) for purposes of an offering or sale by or on behalf of the Company of its Common Stock, Rights or other equity securities for its own account (a "PRIMARY OFFERING"), or upon the request or for the account of any holder of its Common Stock, Rights or other equity securities (a "SECONDARY OFFERING"), or for purposes of a combined primary and secondary offering (a "COMBINED OFFERING"), then each such time the Company shall, at least 20 business days prior to the time when any such registration statement is filed with the Commission, give prompt written notice to the Holders of its intention to do so. Such notice shall specify, at a minimum, the number and class of shares, Rights or equity securities so proposed to be registered, the proposed date of filing of such registration statement, any proposed means of distribution of such shares, Rights or securities, any proposed managing underwriter or underwriters of such shares, Rights or securities and a good faith estimate by the Company of the proposed maximum offering price thereof, as such price is proposed to appear on the facing page of such registration statement. Upon the written direction of any Holder or Holders, given within 15 business days following the receipt by such Holder of any such written notice (which direction shall specify the number of Registrable Securities intended to be disposed of by such Holder and the intended method of distribution thereof), the Company shall include in such registration statement any or all of the Registrable Securities then held by such Holder requesting such registration (a "SELLING HOLDER") to the extent necessary to permit the sale or other disposition of such number of Registrable Securities as such Holder has so directed the Company to be so registered. Notwithstanding the foregoing, the Holders shall not have any right under this Section 2(b)(i) if the registration proposed to be effected by the Company relates solely to shares of Common Stock, Rights or other equity securities which are issuable solely to officers or employees of the Company or any subsidiary thereof pursuant to a bona fide employee stock option, bonus or other employee benefit plan or as direct consideration in connection with a merger, exchange offer or acquisition of a business. (ii) If the Company proposes to register shares of Common Stock, Rights or other equity securities for purposes of a primary offering, and any managing underwriter shall advise the Company and the Selling Holders in writing that, in its opinion, the inclusion in the registration statement of some or all of the Registrable Securities sought to be registered by such Selling Holders creates a substantial risk that the price per unit the Company will derive from such registration will be materially and adversely affected or that the number of shares, Rights or securities sought to be registered (including, in addition to the securities sought to be registered by the Company, any securities sought to be included in such registration statement by any other stockholder pursuant to "piggyback" registration rights (a "PIGGYBACK STOCKHOLDER") and those sought to be registered by the Selling Holders) is too large a number to be reasonably sold, then the Company will include in such registration statement such number of shares, Rights or securities as the Company, the Piggyback Stockholders and such Selling Holders are so advised can be sold in such offering without such an effect (the "PRIMARY - 4 - MAXIMUM NUMBER"), as follows and in the following order of priority: (A) first, such number of shares, Rights or securities as the Company, in its reasonable judgment and acting in good faith and in accordance with sound financial practice, shall have determined, and (B) second, if and to the extent that the number of shares, Rights or securities to be registered under clause (A) is less than the Primary Maximum Number, shares, Rights or securities of each Selling Holder and Piggyback Stockholder pro rata, and without any priority as between the Selling Holders and such Piggyback Stockholders, in proportion to the number sought to be registered by each Selling Holder and each such Piggyback Stockholder relative to the number sought to be registered by all the Selling Holders and all such Piggyback Stockholders, which in the aggregate, when added to the number of shares, Rights or securities to be registered under clause (A), equals the Primary Maximum Number. (iii) If the Company proposes to register shares of Common Stock or other equity securities for purposes of a secondary offering, upon the request or for the account of any holder thereof pursuant to "demand" registration rights of such holder including, without limitation, the Provider or any other Holder (each a "REQUESTING HOLDER"), and any managing underwriter shall advise the Requesting Holder or Holders and the Selling Holders in writing that, in its opinion, the inclusion in the registration statement of some or all of the shares, Rights or securities sought to be registered by the Requesting Holders and of the Registrable Securities sought to be registered by the Selling Holders creates a substantial risk that the price per unit that such Requesting Holder or Holders and such Selling Holders will derive from such registration will be materially and adversely affected or that the number of shares, Rights or securities sought to be registered (including any securities sought to be registered at the instance of the Requesting Holder or Holders, any securities sought to be included in such Registration Statement by any Piggyback Stockholder and those sought to be registered by the Selling Holders) is too large a number to be reasonably sold, the Company will include in such registration statement such number of shares, Rights or securities as the Requesting Holders and the Selling Holders are so advised can reasonably be sold in such offering, or can be sold without such an effect (the "SECONDARY MAXIMUM NUMBER"), as follows and in the following order of priority: (A) first, such number of shares, Rights or securities as the Requesting Holder shall have requested, and (B) second, if and to the extent that the number of shares, Rights or securities to be registered under clause (A) is less than the Secondary Maximum Number, shares, Rights or securities of each Selling Holder and Piggyback Stockholder pro rata, and without any priority as between the Selling Holders and each such Piggyback Stockholders, in proportion to the number sought to be registered by each Selling Holder and such Piggyback Stockholder relative to the number sought to be registered by all the Selling Holders and all such Piggyback Stockholders, which, in the aggregate, when added to the number of shares, Rights or securities to be registered under clause (A), equals the Secondary Maximum Number. (iv) If the Company proposes to register shares of Common Stock, Rights or other equity securities for purposes of a combined offering, and any managing underwriter shall advise the Company, the Requesting Holder or Holders and the Selling Holders in writing that, in its opinion, the inclusion in the registration statement of some or all of the Registrable Securities sought to be registered by the Selling Holders and any shares, Rights or securities sought to be registered by Piggyback Stockholders creates a substantial risk that the price per unit the Company and/or the Requesting Holders will derive from such registration will - 5 - be materially and adversely affected, then the Company will include in such registration statement such number of shares, Rights or securities as the Company, the Requesting Holders, the Piggyback Stockholders and the Selling Holders are so advised can be sold in such offering without such an effect (the "COMBINED MAXIMUM NUMBER"), as follows and in the following order of priority: (A) first, such number of shares, Rights or securities as the Company, in its reasonable judgment and acting in good faith and in accordance with sound financial practice, shall have determined, and any shares, Rights or securities sought to be registered by any Requesting Holders, (B) second, if and to the extent that the number of shares, Rights or securities to be registered under clause (A) is less than the Combined Maximum Number, shares, Rights or securities of each Selling Holder and Piggyback Stockholder pro rata, and without any priority as between the Selling Holders and each such Piggyback Stockholders, in proportion to the number sought to be registered by each Selling Holder and each such Piggyback Stockholder relative to the number sought to be registered by all the Requesting Holders and Selling Holders, which, in the aggregate, when added to the number of shares, Rights or securities to be registered under clause (A), equals the Combined Maximum Number. (c) Withdrawals. Any Holder having notified or directed the Company ----------- to include any or all of such Holder's Registrable Securities in a registration statement pursuant to Section 2(a) or 2(b) hereof shall have the right to withdraw such notice or direction with respect to any or all of the Registrable Securities designated for registration thereby by giving written notice to such effect to the Company at least five business days prior to the anticipated effective date of such registration statement. In the event of any such withdrawal, the Company shall amend such registration statement and take such other actions as may be necessary so that such withdrawn Registrable Securities are not included in the applicable registration and not sold pursuant thereto, and such withdrawn Registrable Securities shall continue to be Registrable Securities in accordance herewith. No such withdrawal shall affect the obligations of the Company with respect to Registrable Securities not so withdrawn; provided, however, that in the case of a registration pursuant to Section 2(a) if such withdrawal shall reduce the total number of Registrable Securities to be so registered to less than 65,000 shares (as adjusted for stock splits, stock dividends, combinations, reorganizations, reclassifications and other similar events), then the Company shall, prior to the filing or effectiveness, as appropriate, of such registration statement, give each Holder of Registrable Securities so to be registered notice, referring to this Agreement, of such fact and, within 10 business days following the giving of such notice, either the Company or the Holders of a majority of such Registrable Securities may, by written notice to each Holder of such Registrable Securities and the Company, as the case may be, elect that such registration statement not be filed or, if it has theretofore been filed, that it be withdrawn. During such 10 business day period, the Company shall not file such registration statement or, if it has theretofore been filed, shall use its reasonable best efforts not to permit it to become effective. In the event of any election contemplated by the proviso to the next preceding sentence, no registration statement with respect to Registrable Securities shall thereafter be filed with the SEC without compliance with all of the procedures set forth in Section 2(a) hereof. 3. REGISTRATION PROCEDURES ----------------------- (a) Company Obligations. In connection with the Company's ------------------- obligations with respect to any registration of Registrable Securities pursuant to Section 2 hereof, the - 6 - Company shall use its reasonable best efforts to effect or cause such registration to permit the sale of the Registrable Securities by the Holders thereof in accordance with the intended method or methods of distribution thereof described in the registration statement relating thereto and to maintain the effectiveness of such registration statement for the period from the date of effectiveness (the "EFFECTIVE DATE") of such registration statement until the earlier of (x) 180 days after the Effective Date and (y) the date on which the disposition of all of the Registrable Securities covered by such registration statement is completed (such period, the "REGISTRATION PERIOD"). In connection therewith, the Company shall, as soon as reasonably possible: (i) prepare and file with the SEC a registration statement on Form S-3, or such other form as may be utilized by the Company and as shall permit the disposition of the Registrable Securities in accordance with the intended method or methods thereof, as specified in writing by the Holders thereof, and use its reasonable best efforts to cause such registration statement to become effective as soon as reasonably possible thereafter; (ii) (A) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to keep such registration statement effective during the Registration Period and to comply with the provisions of the Securities Act with respect to the sale or other disposition of the Registrable Securities by the Holders, and (B) furnish to the Holders of Registrable Securities registered thereby and the underwriters, if any, thereof and the sales or placement agent, if any, therefor copies of any such supplement or amendment prior to its being used and/or filed with the SEC; (iii) comply in all material respects with the provisions of the Securities Act applicable to the Company with respect to the disposition of all of the Registrable Securities covered by such registration statement in accordance with the intended method or methods of disposition by the Holders thereof; (iv) provide (A) any Holder registering more than 10% of the Registrable Securities to be registered, (B) the underwriters, if any, thereof, (C) the sales or placement agent, if any, therefor, (D) counsel for such underwriters or agent, and (E) counsel for the Holders thereof the opportunity to participate in the preparation of such registration statement, each prospectus included therein or filed with the SEC and each supplement or amendment thereto; (v) furnish to each of the parties referred to in Section 3(a)(iv) and to each other Holder of Registrable Securities to be registered in such registration statement (A) such number of copies (including manually executed and conformed copies) of such registration statement and of each amendment thereof and supplement thereto (including all annexes, appendices, schedules and exhibits), (B) such number of copies of the prospectus used in connection with such registration statement (including each preliminary prospectus, any summary prospectus and the final prospectus and including prospectus supplements), and (C) such number of copies of other documents, if any, incorporated by reference in such registration statement or prospectus, in each case as each respective party may reasonably request in order to facilitate the offering and disposition of the Registrable Securities owned by any such Holder, - 7 - offered or sold by such agent, or underwritten by such underwriter, and to permit each Holder, agent and underwriter to satisfy the prospectus delivery requirements of the Securities Act; and the Company hereby consents to the use of such prospectus (including each preliminary prospectus, any summary prospectus and the final prospectus) and any amendment or supplement thereto by each Holder and by any such agent and underwriter, in each case in the form most recently provided to such party by the Company, in connection with the offering and sale of the Registrable Securities covered by the prospectus (including each preliminary prospectus, any summary prospectus and the final prospectus) or any supplement or amendment thereto; (vi) promptly notify the Holders of Registrable Securities registered thereby, the managing underwriter or underwriters, if any, thereof and the sales or placement agent, if any, therefor and, if requested by any such party, confirm such notification in writing, (A) when a prospectus or any prospectus supplement has been filed with the SEC and when the registration statement or any post-effective amendment thereto has been filed with and declared effective by the SEC, (B) of the issuance by the SEC of any stop order or the coming to its knowledge of the initiation of any proceedings for that purpose, (C) of the receipt by the Company of any notification with respect to the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, (D) of the occurrence of any event that requires the making of any changes to the registration statement or related prospectus so that such documents will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (and the Company shall promptly prepare and furnish to the parties referred to in Section 3(a)(v), upon request, a reasonable number of copies of a supplemented or amended prospectus such that, as thereafter delivered to the purchasers of the Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading), and (E) of the Company's determination that the filing of a post-effective amendment to the registration statement shall be necessary or appropriate; and, upon the receipt of any notice from the Company of the occurrence of any event of the kind described in this Section 3(a)(vi)(B), (C) (but only with respect to the jurisdiction suspending qualification), (D) or (E), (1) the Holders, underwriters and agents shall forthwith discontinue any offer and disposition of the Registrable Securities pursuant to the registration statement covering such Registrable Securities and, if so directed by the Company, shall deliver to the Company all copies (other than permanent file copies) of the defective prospectus covering such Registrable Securities that are then in the Holders', underwriters' and agents' possession or control, and (2) the Company shall, as promptly as practicable thereafter (subject, in the case of Section 3(a)(vi)(D), to the provisions of Section 5), take such action as shall be necessary to remedy such event to permit the Holders (and the underwriters and agents, if any) to continue to offer and dispose of the Registrable Securities, including, without limitation, preparing and filing with the SEC and furnishing to the parties referred to in Section 3(a)(v) a supplement or amendment to such prospectus so that, as thereafter deliverable to the purchasers of the Registrable Securities, such prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary to make - 8 - the statements therein, in the light of the circumstances under which they were made, not misleading; (vii) use its reasonable best efforts to register or qualify the Registrable Securities covered by such registration statement under and to the extent required by such other securities or state blue sky laws of such jurisdictions as any Holder, underwriter or sales or placement agent shall request, and do any and all other acts and things that may be necessary under such securities or blue sky laws to enable the Holders, underwriters and agents to consummate the public sale or other disposition in such jurisdictions of the Registrable Securities owned by the Holders, except that the Company shall not for any such purpose be required to qualify to do business as a foreign corporation in any jurisdiction wherein it is not so qualified or submit to liability for state or local taxes where it would not otherwise be liable for such taxes; (viii) for a reasonable period prior to the filing of such registration statement, and throughout the Registration Period, make available for inspection by the parties referred to in Section 3(a)(iv), subject to execution and delivery of a confidentiality agreement in customary form in favor of the Company by the Holders seeking to exercise such inspection rights, such financial and other information and books and records of the Company, and cause the officers, directors, employees, counsel and independent certified public accountants of the Company to respond to such inquiries, as shall be reasonably necessary, in the judgment of the respective counsel referred to in Section 3(a)(iv), to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act; (ix) if requested by any managing underwriter or underwriters, any placement or sales agent or any Holder, promptly incorporate in a prospectus supplement or post-effective amendment such information as is required by the applicable rules and regulations of the SEC and as such managing underwriter or underwriters, such agent or such Holder specifies should be included therein relating to the terms of the sale of such Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold by the Holders or agent or to any underwriters, the name and description of the Holders, agent or underwriter, the offering price of such Registrable Securities and any discount, commission or other compensation payable in respect thereof, the purchase price being paid therefor by such underwriters and with respect to any other terms of the offering of the Registrable Securities to be sold by the Holders or agent or to such underwriters; and make all required filings of such prospectus supplement or post-effective amendment promptly after notification of the matters to be incorporated in such prospectus supplement or post-effective amendment; (x) use its reasonable best efforts to obtain the consent or approval of each governmental agency or authority, whether federal, state or local, that may be required to effect such registration or the offering or sale in connection therewith or to enable the Holders to offer, or to consummate the disposition of, the Registrable Securities; (xi) furnish to the Holders or the managing underwriters, if any, on a timely basis and at the Company's expense, certificates free of any restrictive legends representing ownership of the Registrable Securities being sold in such denominations and - 9 - registered in such names as the Holders or managing underwriters shall request, and notify the transfer agent of the Company's securities that it may effect transfers of the Registrable Securities upon notification from each respective Holder that it has complied with this Agreement and the prospectus delivery requirements of the Securities Act; (xii) enter into one or more underwriting agreements, engagement letters, agency agreements, "best efforts" underwriting agreements or similar agreements, as appropriate, and take such other actions in connection therewith as the Holders shall reasonably request in order to expedite or facilitate the disposition of the Registrable Securities so registered; (xiii) (A) make such representations and warranties to the Holders and the placement or sales agent, if any, therefor and the underwriters, if any, thereof in form, substance and scope as are customarily made in connection with an underwritten or a non-underwritten offering, as the case may be, of common stock or other equity securities pursuant to any appropriate agreement and/or to a registration statement filed on the form applicable to such registration; (B) if any portion of the offering contemplated by the registration statement is an underwritten offering, use its reasonable best efforts to obtain an opinion of counsel to the Company in customary form and covering such matters, of the type customarily covered by such an opinion, as the managing underwriters, if any, and as the Holders may reasonably request, addressed to the Holders and the placement or sales agent, if any, therefor and the underwriters, if any, thereof, and dated the Effective Date (and if such registration statement contemplates an underwritten offering of a part or all of the Registrable Securities, dated the date of the closing under the underwriting agreement relating thereto); (C) if any portion of the offering contemplated by the registration statement is an underwritten offering, use its reasonable best efforts to obtain a "comfort" letter or letters from the independent certified public accountants of the Company addressed to the Holders and the placement or sales agent, if any, therefor and the underwriters, if any, thereof, dated (1) the Effective Date, (2) the effective date of each prospectus supplement, if any, to the prospectus included in such registration statement or post-effective amendment to such registration statement that includes unaudited or audited financial statements as of a date or for a period subsequent to that of the latest such statements included in such prospectus and (3) if such registration statement contemplates an underwritten offering pursuant to any prospectus supplement to the prospectus included in such registration statement or post-effective amendment to such registration statement that includes unaudited or audited financial statements as of a date or for a period subsequent to that of the latest such statements included in such prospectus, dated the date of the closing under the underwriting agreement relating thereto, such letter or letters to be in customary form and covering such matters of the type customarily covered by letters of such type; (D) deliver such documents and certificates, including officers' certificates, as may be reasonably requested by the Holders and the placement or sales agent, if any, therefor and the managing underwriters, if any, thereof to evidence the accuracy of the representations and warranties made pursuant to clause (A) of this Section 3(a)(xiii) and the compliance with or satisfaction of any agreements or conditions contained in the underwriting agreement or other agreement entered into by the Company; and (E) undertake such obligations relating to expense reimbursement, indemnification and contribution as are provided in Section 6 hereof; - 10 - (xiv) If (A) any broker-dealer registered under the Exchange Act shall underwrite any Registrable Securities or participate as a member of an underwriting syndicate or selling group or "assist in the distribution" (within the meaning of the Rules of Fair Practice and the By-Laws of the NASD) thereof, whether as a Holder of Registrable Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, or (B) more than 10% of the net offering proceeds, not including underwriting compensation, of such distribution is intended to be paid to any such broker-dealer or "associated or affiliated persons" of such broker-dealer or "members of the immediate family of such persons" (each within the meaning of such Rules), the Company shall take reasonable steps to assist such broker-dealer in complying with the requirements of such Rules and By-Laws, including, without limitation, by (1) if such Rules or By-Laws shall so require, engaging a "qualified independent underwriter" (as defined in such Schedule) to participate in the preparation of the registration statement relating to such Registrable Securities, to exercise usual standards of due diligence in respect thereto and, if any portion of the offering contemplated by such registration statement is an underwritten offering or is made through a placement or sales agent, to recommend the price of such Registrable Securities, (2) indemnifying any such qualified independent underwriter to the extent of the indemnification of underwriters provided in Section 6 hereof, and (3) providing such information to such broker-dealer as may be required in order for such broker-dealer to comply with the requirements of the Rules of Fair Practice of the NASD; (xv) comply with all applicable rules and regulations of the SEC, and make generally available to its securityholders, as soon as practicable but in any event not later than 18 months after the Effective Date, an earning statement of the Company and its subsidiaries complying with Section 11(a) of the Securities Act (including, at the option of the Company, Rule 158 thereunder); and (xvi) use its reasonable best efforts to list prior to the Effective Date, subject to notice of issuance, the Registrable Securities covered by such registration statement, to the extent they are not already so listed, on the Nasdaq National Market System or such other securities exchange or quotation system on which the Common Stock is then listed or quoted. (b) Holders' Obligations. -------------------- (i) It shall be a condition precedent to the Company's obligations under Section 2 hereof that each of the Holders included in any registration hereunder furnish to the Company in writing such information regarding that Holder and the distribution of the Registrable Securities proposed by that Holder as the Company may reasonably request to complete or amend the information required by the registration statement to be filed by the Company pursuant to Section 3(a). (ii) The Holders included in any registration hereunder shall, and shall cause the underwriters, if any, thereof and the sales or placement agents, if any, therefor to, (A) offer to sell or otherwise distribute the Registrable Securities in reliance upon a registration contemplated by this Agreement only after a registration statement shall have been filed with the SEC, (B) sell or otherwise distribute the Registrable Securities in reliance upon such registration - 11 - only if a registration statement is then effective under the Securities Act, (C) comply with the provisions of Section 3(a)(vi)(1) hereof, (D) distribute the Registrable Securities only in accordance with the manner of distribution contemplated by the prospectus and (E) report to the Company distributions made by the Holders, the underwriters or the agents of Registrable Securities pursuant to the prospectus. (iii) The Holders of Registrable Securities included in any registration hereunder, and the underwriters, if any, thereof and the sales or placement agents, if any, therefor, shall not, during the Registration Period, (A) effect any stabilization transactions or engage in any stabilization activity in connection with the Common Stock or other equity securities of the Company in contravention of Regulation M under the Exchange Act, or (B) permit any "Affiliated Purchaser" (as that term is defined in Regulation M under the Exchange Act) to bid for or purchase for any account in which any such Holder has a beneficial interest, or attempt to induce any other Person to purchase, any shares of Common Stock or other equity securities in contravention of Regulation M under the Exchange Act. 4. REGISTRATION EXPENSES. The Company shall bear and pay or cause to be --------------------- paid promptly upon request being made therefor all Registration Expenses; provided that the Company shall not be obligated to pay the costs related to the preparation of any audited financial statements included in any registration statement required to be prepared and filed by it pursuant to the terms hereof as of any date other than June 30 (or the end of any fiscal year, if other than June 30) or for any audited financial statements for a period of less than twelve months or ending on any date other than June 30 (or the end of its fiscal year, if other than June 30), unless such audited financial statements are prepared in conjunction with a primary offering by the Company. The Holders of the Registrable Securities so registered shall bear and pay or cause to be paid promptly upon request being made therefor all Selling Expenses, allocated pro rata on the basis of the number of Registered Securities so registered by each Holder. 5. INFORMATION BLACKOUT. -------------------- (a) In the event that, following any demand pursuant to Section 2(a)(i) hereof but prior to the filing of a registration statement in respect of such demand, (i) the Company, after consultation with outside counsel, determines reasonably and in good faith that the sale of Registrable Securities pursuant to a registration statement filed hereunder would require disclosure of non-public material information, the disclosure of which at such time could reasonably be expected to have a material adverse effect on the business or affairs of the Company or a material adverse effect on any proposal or plan by the Company or any of its subsidiaries to engage in any extraordinary engagement or activity by the Company, including, without limitation, any material acquisition of assets or any merger, consolidation, tender offer or similar transaction, and (ii) the Company gives the Initiating Holders written notice of such determination (which notice shall include a copy of the resolutions of the Board of Directors of the Company reflecting such determination), the Company shall, notwithstanding the provisions of Section 2(a)(i) hereof, be entitled to postpone for up to 60 days the filing of any registration statement otherwise required to be prepared and filed by it pursuant to Section 2(a)(i) hereof (the - 12 - number of days of any such postponement is hereinafter called a "REGISTRATION POSTPONEMENT PERIOD"). (b) At any time when a registration statement covering Registrable Securities is effective, upon written notice from the Company to the Holders of Registrable Securities included in such registration statement, and the underwriters, if any, thereof and the sales or placement agents, if any, therefor, that the Company, after consultation with outside counsel, has determined reasonably and in good faith that the sale of Registrable Securities pursuant to the registration statement would require disclosure of non-public material information, the disclosure of which at such time could reasonably be expected to have a material adverse effect on the business or affairs of the Company or a material adverse effect on any proposal or plan by the Company or any of its subsidiaries to engage in any extraordinary engagement or activity by the Company, including, without limitation, any material acquisition of assets or any merger, consolidation, tender offer or similar transaction, such Holders, underwriters and agents shall suspend sales of the Registrable Securities pursuant to the registration statement until the earlier of (i) 60 days after the Company notifies the Holders, underwriters and agents of such good faith determination, or (ii) such time as the Company notifies the Holders, underwriters and agents that such material information has been disclosed to the public or has ceased to be material or that sales pursuant to the registration statement may otherwise be resumed (the number of days from such suspension of sales by the Holders until the day when such sales may be resumed hereunder is hereinafter called a "SALES BLACKOUT PERIOD"). (c) No Registration Postponement Period or Sales Blackout Period shall be commenced by the Company within 90 days after the end of a Registration Postponement Period or Sales Blackout Period, and the Company shall not be permitted to commence more than two Registration Postponement Periods or Sales Blackout Periods, collectively, in any 12 month period. (d) No Registration Postponement Period or Sales Blackout Period shall preclude any sales of Registrable Securities that the Holder thereof may effect in compliance with Rule 144 without registration of such Registrable Securities under the Securities Act; provided that the Holder otherwise conforms with the requirements under the Securities Act and the Exchange Act. 6. INDEMNIFICATION. --------------- (a) Indemnification by the Company. Upon the registration of any ------------------------------ Registrable Securities pursuant to Section 2 hereof, the Company shall indemnify and hold harmless the Holders, their respective officers, directors, members and partners, and each person, if any, who controls any of the foregoing within the meaning of the Securities Act ("HOLDER INDEMNITEES"), from and against any and all claims, liabilities, losses, damages, expenses and judgments, joint or several, to which they or any of them may become subject, including any amount paid in settlement of any litigation commenced or threatened, and shall promptly reimburse them, as and when incurred, for any legal or other expenses incurred by them in connection with investigating any claims and defending any actions, insofar as such losses, claims, damages, liabilities or actions shall arise out of, or shall be based upon, any violation or alleged violation by the Company of the Securities Act, any blue sky laws or securities laws of - 13 - any state or county in which the Registrable Securities are offered, and relating to action taken or action or inaction required of the Company in connection with such offering, or shall arise out of, or shall be based upon, any untrue statement or alleged untrue statement of a material fact contained in the registration statement (or in any preliminary or final prospectus included therein) relating to the offering and sale of the Registrable Securities, or any amendment thereof or supplement thereto, or in any document incorporated by reference therein, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, the Company shall not be liable to any Holder Indemnitee in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement, or any omission or alleged omission, if such statement or omission shall have been (i) made in reliance upon and in conformity with information furnished to the Company in writing by or on behalf of any Holder Indemnitee for inclusion in such registration statement (or in any preliminary or final prospectus included therein), or any amendment thereof or supplement thereto, or (ii) made in any preliminary prospectus and the final prospectus shall have corrected such statement or omission and a copy of such final prospectus shall have been delivered to the Holder Indemnitee prior to the time such final prospectus is required to be delivered by such Holder Indemnitee under applicable law. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Holder Indemnitee and shall survive the transfer of such securities. The foregoing indemnity agreement is in addition to any liability that the Company may otherwise have to any Holder Indemnitee. (b) Indemnification by the Holder and Any Underwriters. The Company -------------------------------------------------- may require, as a condition to including any Registrable Securities in any registration statement filed pursuant to Section 2 hereof and to entering into any underwriting agreement with respect thereto, that the Company shall have received an undertaking from the Holder thereof and from each underwriter named in such underwriting agreement, severally and not jointly, to indemnify and hold harmless the Company and all other Holders, if any, of Registrable Securities selling under the same registration statement, their respective officers and directors and each person, if any, who controls any of the foregoing within the meaning of the Securities Act (the "COMPANY INDEMNITEES"), from and against any and all claims, liabilities, losses, damages, expenses and judgments, joint or several, to which they or any of them may become subject, including any amount paid in settlement of any litigation commenced or threatened, and shall promptly reimburse them, as and when incurred, for any legal or other expenses incurred by them in connection with investigating any claims and defending any actions, insofar as any such losses, claims, damages, liabilities or actions shall arise out of, or shall be based upon, any violation or alleged violation by the Holder or underwriters of the Securities Act, any blue sky laws or securities laws of any state or country in which the Registrable Securities are offered, and relating to action taken or action or inaction required of the Holder or underwriters in connection with such offering, or shall arise out of, or shall be based upon, any untrue statement or alleged untrue statement of a material fact contained in such registration statement (or in any preliminary or final prospectus included therein) relating to the offering and sale of the Registrable Securities or any amendment thereof or supplement thereto, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, but in each case (i) - 14 - only to the extent that such untrue statement is contained in, or such fact is omitted from, information furnished to the Company in writing by or on behalf of the Holder for inclusion in the registration statement (or in any preliminary or final prospectus included therein), and (ii) if such statement or omission is incorporated by the Company in any preliminary prospectus, only to the extent that such statement or omission shall not have been corrected in writing by or on behalf of the Holder prior to the time the final prospectus is required to be delivered by the Company under applicable law. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any Company Indemnitee. The foregoing indemnity is in addition to any liability that the Holder and underwriters may otherwise have to any Company Indemnitee. (c) Indemnification Procedures. In case any proceeding (including -------------------------- any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to this Section 6, such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing. No indemnification provided for in subsection (a) or (b) shall be available to any person who shall fail to give notice as provided in this subsection (c) if the indemnifying party to whom notice was not given was unaware of the proceeding to which such notice would have related and was materially prejudiced by the failure to give such notice, but the failure to give such notice shall not relieve the indemnifying party or parties from any liability that it or they may have to the indemnified party for indemnification pursuant to subsection (a) or (b) to the extent it was not materially prejudiced. In case any such proceeding shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party and shall pay as incurred the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel at its own expense. Notwithstanding the foregoing, the indemnifying party shall pay as incurred the fees and expenses of the counsel retained by the indemnified party in the event (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel, in the written opinion of such counsel, would be inappropriate due to actual or potential differing interests between them, or (iii) the indemnifying party does not promptly defend the indemnified party. The indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm for all such indemnified parties (in addition to local counsel if required). Such firm shall be designated in writing by the Holder in the case of Holder Indemnitees and by the Company in the case of Company Indemnitees. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent (which consent shall not be unreasonably withheld) but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party shall indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. The obligations of the Company and the Holders and underwriters under this Section 6 shall survive the - 15 - completion of any offering of Registrable Securities pursuant to a registration effected pursuant to Section 2 hereof. (d) Limitations on Indemnity. ------------------------ (i) The indemnity provided for hereunder shall not inure to the benefit of any indemnified party to the extent that the claim is based on such indemnified party's failure to comply with the applicable prospectus delivery requirements of the Securities Act as then applicable to the person asserting the loss, claim, damage or liability for which indemnity is sought. (ii) In no event shall the liability of any Holder or underwriter under this Section 6, whether for indemnification or contribution, exceed the net proceeds received by the Holder or underwriter from the sale of Registrable Securities pursuant to the registration effected pursuant to Section 2 hereof. (e) Contribution. If the indemnification provided for in this ------------ Section 6 is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any claims, liabilities, losses, damages, expenses or judgments referred to herein, the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall to the extent permitted by applicable law contribute to the amount paid or payable by such indemnified party as a result of such claim, liability, loss, damage, expense or judgment in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party on the other in connection with the circumstances that resulted in such claim, liability, loss, damage, expense or judgment, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by a court of law by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or any other method of allocation that does not take into account the equitable consideration referred to in this paragraph (e). 7. DESIGNATION OF MANAGING UNDERWRITER(S). -------------------------------------- (a) Demand Registration. If any of the Registrable Securities ------------------- covered by any registration statement filed pursuant to Section 2(a) hereof are to be sold pursuant to an underwritten offering, the managing underwriter or underwriters thereof shall be a nationally recognized investment banking firm designated by the Initiating Holders, provided that such designated managing underwriter or underwriters is or are reasonably acceptable to the Company. (b) Company Registration. If any of the Registrable Securities -------------------- covered by any registration statement filed pursuant to Section 2(b) hereof are to be sold pursuant to an underwritten offering, the managing underwriter or underwriters thereof shall be designated by - 16 - the Company, and no Holder of Registrable Securities so to be offered shall be entitled to participate therein unless such Holder agrees to sell its Registrable Securities pursuant to the terms of the underwriting arrangement as agreed upon between the Company and the designated managing underwriter or underwriters, and to complete and execute all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangement. 8. RULE 144. With a view to making available to the Holders the benefits -------- of Rule 144 and any other rule or regulation of the SEC that may at any time permit the Holders to sell securities of the Company to the public without registration, in addition to the foregoing provisions of this Agreement, the Company shall: (a) make and keep adequate current public information with respect to the Company available, as those terms are understood and defined in Rule 144; (b) use its reasonable best efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act; and (c) furnish to each Holder upon written request (A) a written statement by the Company as to whether it has complied with the reporting requirements of Rule 144, the Securities Act and the Exchange Act, (B) a copy of the most recent annual or quarterly report of the Company, and (C) such other reports and documents of the Company as such Holder may reasonably request and as is publicly available to enable such Holder to avail itself of any rule or regulation of the SEC that permits the selling of any such securities without registration; provided that nothing in this Section 8 shall require the Company to take any action that would subject the Company to the requirements of the Exchange Act if at such time the Company is not subject to the requirement of the Exchange Act. 9. ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company to --------------------------------- use its reasonable best efforts to register Registrable Securities pursuant to Section 2 hereof may not be assigned, in whole or in part, by a Holder to a transferee or assignee of Registrable Securities (or Rights or other securities upon the conversion, exchange or exercise of which Registrable Securities are issuable) without the prior written consent of the Company (which consent will not be unreasonably withheld), except that a Holder may assign its rights to cause the Company to use its reasonable best efforts to register Registrable Securities pursuant to Section 2 hereof (a) to an Affiliate of such Holder or (b) to a person that holds least 65,000 shares (as adjusted for stock splits, stock dividends, combinations, reorganizations, reclassifications and other similar events) of Registrable Securities (or Rights or other securities upon the conversion, exchange or exercise of which Registrable Securities are issuable) following the transfer or assignment; provided, however, that (i) the transferor furnishes to the Company prior to such transfer written notice of the name and address of such assignee or transferee and the securities with respect to which such registration rights are being assigned or transferred and such other information as the Company may reasonably request and (ii) the transferee agrees in writing reasonably acceptable to the Company concurrently with such assignment or transfer to be subject to all restrictions set forth - 17 - in this Agreement with respect to the rights assigned or transferred to such transferee. Notwithstanding the foregoing, (x) no assignment or transfer of the rights to cause the Company to use its reasonable best efforts to register Registrable Securities pursuant to Section 2 hereof in accordance with this Section 9 shall relieve the transferor of responsibility for any of its obligations hereunder and (y) the rights to cause the Company to use reasonable best efforts to register Registrable Securities pursuant to Section 2.1 may not be assigned by a Holder to SeaChange International, Inc, nCUBE Corporation or Diva Systems Corporation, unless with respect to provision (y) of this Section 9, such corporation is: (A) an Affiliate of such Holder, (B) the purchaser of substantially all of the assets of such Holder or an Affiliate of such Holder, (C) the purchaser of all or substantially all of the assets of a division or line of business of such Holder or an Affiliate of such Holder, or (D) in the case of a consolidation or merger in which such Holder is not the surviving entity, to the surviving entity of such consolidation or merger. Any attempted assignment or transfer by a Holder of any rights to cause the Company to use its reasonable best efforts to register Registrable Securities pursuant to Section 2 hereof in violation of this Section 9 shall be null and void. 10. TERMINATION OF REGISTRATION RIGHTS. A Holder's registration rights ---------------------------------- provided hereunder with respect to any Registrable Securities shall terminate upon the earlier of (a) the second anniversary of the date on which the shares of Common Stock that are the subject of such Registrable Securities are actually issued to such Holder or (b) the date on which all Registrable Securities issued or issuable to such Holder on the basis of a cash exercise price may be sold in accordance with the provisions of Rule 144(k) under the Securities Act. 11. NO INCONSISTENT AGREEMENTS. The Company shall not (a) grant -------------------------- registration rights with respect to any shares of Common Stock, Rights or other equity securities that would be inconsistent with the terms contained in this Agreement, or (b) enter into or become bound by, or permit any subsidiary of the Company to enter into or become bound by, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument that would prohibit, be violated by, conflict with or provide that a default would arise from, the compliance by the Company with any of the provisions of this Agreement or the consummation of the transactions herein contemplated, except for any such prohibitions, violations, conflicts or defaults that, individually and in the aggregate, would not have a material adverse effect on the business, financial condition, results of operations or prospects of the Company and its subsidiaries taken as a whole and would not impair, delay or restrict the exercise by the Holders of their rights hereunder. The Company represents and warrants that it is not currently a party to any agreement with respect to any of its equity or debt securities granting any registration rights to (i) any person that would prohibit, be violated by, conflict with or provide that a default would arise from, the compliance by the Company with any of the provisions herein or consummation of any of the transactions contemplated hereby, or (ii) any customer of the Company other than Comcast and its Affiliates. 12. MISCELLANEOUS. ------------- (a) Governing Law. This Agreement shall be governed in all respects ------------- by the internal laws of the State of Delaware as applied to contracts entered into solely between - 18 - residents of, and to be performed entirely within, such state, and without reference to principles of conflicts of laws or choice of laws. (b) Specific Enforcement; Venue. The parties hereto acknowledge and --------------------------- agree that each would be irreparably damaged if any of the provisions of this Agreement are not performed by the other in accordance with their specific terms or are otherwise breached. It is accordingly agreed that each party shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement by the other and to enforce this Agreement and the terms and provisions hereof specifically against the other, in addition to any other remedy to which such aggrieved party may be entitled at law or in equity. Any action or proceeding seeking to enforce any provision of, or based on any rights arising out of, this Agreement may be brought against any of the parties in the courts of the State of Delaware, County of New Castle, or in the United States District Court for the District of Delaware, and each of the parties consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. Process in any action or proceeding referred to in the preceding sentence may be served on any party anywhere in the world. (c) Survival. The respective indemnitees, agreements, -------- representations, warranties and each other provision set forth in this Agreement or made pursuant hereto shall survive delivery of and payment for the Shares, Additional Shares (if any) and Investment Warrant pursuant to the Amended and Restated Purchase Agreement, the delivery of the Incentive Warrants pursuant to the Service Agreement, the delivery of the shares of Common Stock issuable upon exercise of the Warrants and the transfer and registration of Registrable Securities by any Holder. (d) Successors and Assigns. The rights and obligations set forth ---------------------- herein may not be assigned or delegated, in whole or in part, by the Company or the Holders without the prior written consent of the other party, except that the Holders may assign, in whole or in part, any of its rights and delegate its obligations hereunder in accordance with the provisions of Section 9 hereof without obtaining the prior written consent of the Company. Any attempted assignment by a party of any of its rights or obligations hereunder in violation of this Section 13(d) shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. (e) Entire Agreement; Amendment. Except as expressly provided to the --------------------------- contrary in any separate agreement, this Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subject matter hereof, and supersedes all prior agreements and understandings among the parties relating to the subject matter hereof. Neither this Agreement nor any term hereof may be amended, waived, discharged or terminated other than by a written instrument signed by the party against whom enforcement of any such amendment, waiver, discharge or termination is sought. (f) Notices. All notices, requests, demands or other communications ------- that are required or may be given pursuant to the terms of this Agreement shall be in writing and shall be deemed to have been duly given: (A) on the date of delivery if personally delivered by hand, (B) upon the third day after such notice is (1) deposited in the United States mail, if mailed by - 19 - registered or certified mail, postage prepaid, return receipt requested, or (2) sent by a nationally recognized overnight express courier, or (C) by facsimile upon written confirmation (other than the automatic confirmation that is received from the recipient's facsimile machine) of receipt by the recipient of such notice: (i) if to the Company, to it at: Concurrent Computer Corporation 4375 RiverGreen Parkway Duluth, GA 30096 Facsimile Number: (678) 258-4314 Attention: Steve Norton with a copy to: King & Spalding 191 Peachtree Street Atlanta, GA 30303 Tel: (404) 572-4600 Fax: (404) 572-5100 Attention: John D. Capers, Jr. (ii) if to the Provider or any Holder, to it at: c/o Comcast Corporation 1500 Market Street Philadelphia, PA 19102-2148 Attention: General Counsel Facsimile Number: (215) 981-7794 with a copy to: Howard A. Blum, Esq. Drinker Biddle & Reath LLP One Logan Square 18th and Cherry Streets Philadelphia, PA 19103-6996 Facsimile Number: (215) 988-2757 (iii) if to any other Holder, to it at such address as is provided to the Company in the written notice described in Section 9; or to such other address or facsimile number as any party may have furnished to the others in writing in accordance herewith, except that notices of change of address or facsimile number shall be effective only upon receipt. - 20 - (g) Delays or Omissions. No delay or omission to exercise any right, ------------------- power or remedy accruing to any person hereunder shall impair any such right, power or remedy nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any person hereunder of any breach or default under this Agreement, or any waiver on the part of any such person of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies either under this Agreement or by law or otherwise shall be cumulative and not alternative. (h) Severability. If any term, provision, covenant or restriction of ------------ this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restriction of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. (i) Counterparts. This Agreement may be executed in two or more ------------ partially or fully executed counterparts and by facsimile signatures, each of which shall be deemed an original and shall bind the signatory, but all of which together shall constitute but one and the same instrument. The execution and delivery of the signature page to this Agreement by any party hereto who shall have been furnished the final form of this Agreement shall constitute the execution and delivery of this Agreement by such party. (j) Further Assurances. Each of the Company and the Holders shall ------------------ use its reasonable efforts at any time and from time to time to execute and deliver to the other such further documents and instruments and to take all such further actions as the other may reasonably request in order to consummate the transactions contemplated hereby. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] - 21 - IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective authorized officers as of the date first above written. CONCURRENT COMPUTER CORPORATION By: /s/ Steven R. Norton --------------------------------- Name: Steven R. Norton ------------------------------- Title: EVP and CFO ------------------------------ COMCAST CONCURRENT HOLDINGS, INC. By: /s/ Rosemarie S. Peta --------------------------------- Name: Rosemarie S. Peta ------------------------------- Title: Vice President ------------------------------ [SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT] EX-5.1 6 doc2.txt EXHIBIT 5.1 October 22, 2001 Concurrent Computer Corporation 4375 River Green Parkway Duluth, Georgia 30096 Re: Concurrent Computer Corporation Registration Statement on Form S-3 Ladies and Gentlemen: We have acted as counsel to Concurrent Computer Corporation, a Delaware corporation (the "Company"), in connection with the registration of 2,054,431 shares of common stock (the "Shares"), as described in the Company's Registration Statement on Form S-3 (the "Registration Statement"), filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended. The Shares will be issued to the selling stockholders upon exercise of (i) the Warrant to Purchase Shares of Common Stock of Concurrent Computer Corporation reissued to Scientific-Atlanta Strategic Investments, L.L.C. on January 8, 2001, (ii) the Warrant to Purchase Common Stock of Concurrent Computer Corporation issued to Comcast Concurrent Holdings, Inc. on March 29, 2001 and (iii) the Warrant to Purchase Common Stock of Concurrent Computer Corporation issued to Comcast Concurrent Holdings, Inc. on October 9, 2001 (the "Warrants"). 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. As to matters of fact material to this opinion, we have relied upon statements and representations of representatives of the Company and public officials. The opinions expressed herein are limited in all respects to the corporate law of the State of Delaware (which includes the Delaware General Corporation Law, applicable provisions of the Delaware Constitution and reported judicial decisions concerning those laws), 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. For purposes of this opinion, we have assumed the following: (1) the Shares that may be issued upon exercise of the Warrants will continue to be duly authorized on the dates of such issuance and (2) on the date on which the Warrants are exercised, such Warrants 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. Based upon the foregoing and subject to the other limitations and qualifications set forth herein, we are of the opinion that: (i) The Company is a corporation validly existing and in good standing under the laws of the State of Delaware; and (ii) The Shares to be issued to the selling stockholders upon exercise of the Warrants have been duly authorized and, when issued in accordance with the terms set forth in the Warrants, 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 effective date of the Registration Statement 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 the Company 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 and to the reference to this firm under the caption "Legal Matters" in the prospectus which is part of the Registration Statement. Very truly yours, /s/ King & Spalding KING & SPALDING EX-23.1 7 doc3.txt EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT The Board of Directors Concurrent Computer Corporation and subsidiaries: We consent to the incorporation by reference in the registration statement of Concurrent Computer Corporation on Form S-3 of our report dated July 31, 1999, related to the consolidated statements of operations, stockholders' equity and comprehensive income, and cash flows of Concurrent Computer Corporation and subsidiaries for the year ended June 30, 1999, and the related schedule, which report appears in the June 30, 2001 annual report on Form 10-K of Concurrent Computer Corporation incorporated by reference herein and to the reference to our firm under the heading "Experts" in the registration statement. KPMG LLP Atlanta, Georgia October 22, 2001 EX-23.2 8 doc4.txt EXHIBIT 23.2 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Concurrent Computer Corporation on Form S-3 of our report dated August 3, 2001 (September 14, 2001 as to paragraph two of Note 10), appearing in the Annual Report on Form 10-K of Concurrent Computer Corporation for the year ended June 30, 2001 and to the reference to us under the heading "Experts" in the Prospectus, which is part of this Registration Statement. DELOITTE & TOUCHE LLP Atlanta, Georgia October 22, 2001