-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TbMUaU46yVLHjIuDYb+AVpTKeH4geqbEV2+jS+zA0uAC831TK4RDf29dAAiYRjmp /M9mBXGjX01RxnFY+G6v9A== 0001140361-07-010879.txt : 20070524 0001140361-07-010879.hdr.sgml : 20070524 20070524160555 ACCESSION NUMBER: 0001140361-07-010879 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20070524 DATE AS OF CHANGE: 20070524 EFFECTIVENESS DATE: 20070524 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CONCURRENT COMPUTER CORP/DE CENTRAL INDEX KEY: 0000749038 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRONIC COMPUTERS [3571] IRS NUMBER: 042735766 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-143229 FILM NUMBER: 07877049 BUSINESS ADDRESS: STREET 1: 4375 RIVER GREEN PARKWAY CITY: DULUTH STATE: GA ZIP: 30097 BUSINESS PHONE: 6782584000 MAIL ADDRESS: STREET 1: 4375 RIVER GREEN PARKWAY CITY: DULUTH STATE: GA ZIP: 30097 FORMER COMPANY: FORMER CONFORMED NAME: MASSACHUSETTS COMPUTER CORP DATE OF NAME CHANGE: 19881018 S-8 1 forms8.txt CONCURRENT COMPUTER CORP S-8 5-24-2007 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 24, 2007 REGISTRATION NO. 333-_______ ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------- CONCURRENT COMPUTER CORPORATION (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 04-2735766 (STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER) 4375 RIVER GREEN PARKWAY DULUTH, GEORGIA 30096 (ADDRESS, INCLUDING ZIP CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) CONCURRENT COMPUTER CORPORATION AMENDED AND RESTATED 2001 STOCK OPTION PLAN (FULL TITLE OF THE PLAN) ------------------- KIRK L. SOMERS GENERAL COUNSEL CONCURRENT COMPUTER CORPORATION 4375 RIVER GREEN PARKWAY DULUTH, GEORGIA 30096 (678) 258-4000 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) ------------------- COPIES TO: ALAN J. PRINCE, ESQ. KING & SPALDING 1180 PEACHTREE STREET N.E. ATLANTA, GEORGIA 30309-3521 404-572-4600
CALCULATION OF REGISTRATION FEE - ----------------------------------------------------------------------------------------------------------------------- Title of Each Class of Proposed Maximum Proposed Maximum Securities to be Offering Price Aggregate Offering Price (1) Amount of Registered Amount to be Registered Per Share (1) Registration Fee - ----------------------- ------------------------ ------------------ ----------------------------- ----------------- Common Stock, par value $.01 per share 4,000,000 (2) $ 1.43 $ 5,720,000 $ 175.61 Series A Participated Cumulative Preferred Rights (3) 4,000,000 N/A N/A N/A - -----------------------------------------------------------------------------------------------------------------------
(1) Estimated solely for purposes of calculating the registration fee in accordance with Rule 457(h), based upon the average of the high and low reported sales price of the Registrant's Common Stock on the Nasdaq Global Market on May 17, 2007. (2) Does not include 7,000,000 shares of Common Stock of Concurrent Computer Corporation previously registered on Registration Statement No. 333-82686 and Registration Statement No. 333-125974 and to which the Prospectus relating to this Registration Statement relates. (3) The Series A Participating Cumulative Preferred Rights are attached to and trade with all the shares of Common Stock outstanding as of, and issued subsequent to, August 14, 1992, pursuant to the terms of the Rights Agreement, dated as of July 31, 1992, as amended on August 7, 2002. Until the occurrence of certain prescribed events, the Series A Participating Cumulative Preferred Rights are not exercisable, are evidenced by the certificates for the Common Stock and will be transferred only with such stock. The value attributable to such Series A Participating Cumulative Preferred Rights, if any, is reflected in the market price of Common Stock. EXPLANATORY NOTE ---------------- Concurrent Computer Corporation (the "Company") filed registration statements on Form S-8's on February 13, 2002 (File No. 333-82686) and June 20, 2005 (File No. 333-125974) (collectively, the "Prior Registration Statements") to register under the Securities Act of 1933, as amended (the "Securities Act"), 3,000,000 shares of the Company's common stock, par value $.01 per share ("Common Stock") and 4,000,000 shares of Common Stock, respectively, issuable under the Concurrent Computer Corporation 2001 Stock Option Plan, as amended (the "2001 Stock Option Plan"). The Company is filing this registration statement on Form S-8 (the "Registration Statement") pursuant to and in accordance with General Instruction E of Form S-8 to register an additional 4,000,000 shares of Common Stock to be issued pursuant to the 2001 Stock Option Plan. This Registration Statement incorporates by reference the contents of the Prior Registration Statements. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The contents of the Prior Registration Statements are incorporated by reference into this Registration Statement. In addition, the following documents filed with the Securities and Exchange Commission (the "Commission") are hereby incorporated by reference into this Registration Statement: 1. The Company's Annual Report on Form 10-K for the year ended June 30, 2006; 2. The Company's Quarterly Reports on Form 10-Q for the quarter ended September 30, 2006, December 31, 2006 and March 31, 2007; 3. The Company's Current Reports on Form 8-K filed on September 11, 2006, December 22, 2006, January 31, 2007, February 14, 2007, March 9, 2007, May 16, 2007 and May 18, 2007; and 4. The description of our Common Stock contained in the Registration Statement on Form 8-A, dated January 23, 1986, filed under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as amended by our Current Report on Form 8-K, dated October 22, 2001. All documents filed by the Company subsequent to the date of this Registration Statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. ITEM 8. EXHIBITS. EXHIBIT DESCRIPTION ------- ----------- 5.1 Opinion of King & Spalding 23.1 Consent of Deloitte & Touche LLP 23.2 Consent of King & Spalding (included in Exhibit 5.1) 24.1 Power of Attorney (included on signature page) 1 ITEM 9. UNDERTAKINGS. (a) The Company 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; (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 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that 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 reports filed with or furnished to the Commission by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, 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 Company hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Company's Annual Report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) 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 may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. 2 SIGNATURES Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Duluth, state of Georgia on this 24th day of May, 2007. CONCURRENT COMPUTER CORPORATION By: /s/ Kirk L. Somers ------------------------------------ Kirk L. Somers General Counsel POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENT, that each person whose signature appears below hereby constitutes and appoints, jointly and severally, Gary Trimm, acting individually, as his attorney-in-fact, 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 Commission, granting unto said attorney-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 attorney-in-fact, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities indicated on this 24th day of May, 2007: Signature Title --------- ----- /s/ Steve Nussrallah Chairman of the Board - ---------------------- Steve G. Nussrallah /s/ T. Gray Trimm President, Chief Executive Officer and Director - ---------------------- (Principal Executive Officer) T. Gary Trimm /s/ Emory Berry Chief Financial Officer - ---------------------- (Principal Financial and Accounting Officer) Emory Berry /s/ Alex B. Best Director - ---------------------- Alex B. Best /s/ Charles Blackmon Director - ---------------------- Charles Blackmon /s/ Larry L. Enterline Director - ---------------------- Larry L. Enterline /s/ C. Shelton James Director - ---------------------- C. Shelton James EXHIBIT INDEX EXHIBIT DESCRIPTION - ------- ----------- 5.1 Opinion of King & Spalding 23.1 Consent of Deloitte & Touche LLP 23.2 Consent of King & Spalding (included in Exhibit 5.1) 24.1 Power of Attorney (included on signature page) EX-5.1 2 ex5_1.txt EXHIBIT 5.1 Exhibit 5.1 King & Spalding LLP 1l80 Peachtree Street N.E. [LOGO OMITTED] Atlanta, Georgia 30309-3521 KING & SPALDING LLP Phone: 404/ 572-4600 Fax: 404/572-5100 www.kslaw.com May 24, 2007 Concurrent Computer Corporation 4375 River Green Parkway Duluth, Georgia 30096 Re: Concurrent Computer Corporation -- Registration Statement on Form S-8 --------------------------------------------------------------------- Ladies and Gentlemen: We have acted as counsel for Concurrent Computer Corporation, a Delaware corporation (the "Company"), in connection with the preparation of a Registration Statement on Form S-8 (the "Registration Statement") filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended. The Registration Statement relates to 4,000,000 shares (the "Shares") of the Company's common stock, par value $.01 per share, reserved for issuance pursuant to, or upon the exercise of options (the "Options") granted under, the Company's Amended and Restated 2001 Stock Option Plan (the "Plan"). 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 certified, conformed, or photographic copies submitted to us, 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. For purposes of this opinion, we have assumed the following: (i) the Shares that may be issued pursuant to the Plan or upon the exercise of Options granted pursuant to the Plan will continue to be duly authorized on the dates of such issuance and (ii) on the date on which any Option is exercised, such Option will have been duly executed, issued and delivered by the Company and will constitute the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms subject, as to enforceability, to applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, general equitable principles and the discretion of courts in granting equitable remedies. The opinions expressed herein are limited in all respects to the federal laws of the United States of America and the laws 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. Based upon the foregoing and subject to the limitations, qualifications and assumptions set forth herein, we are of the opinion that: (a) The Shares have been duly authorized; and (b) When the Shares are issued pursuant to the Plan or upon exercise of the Options granted pursuant to the Plan against payment therefore, as the case may be, as provided in the Plan, such Shares will be validly issued, fully paid and nonassessable. This opinion is given as of the date hereof, and we assume no obligation to advise you after the date hereof of facts or circumstances that come to our attention or changes in law that occur which could affect the opinions contained herein. This opinion is being rendered for the benefit of the Company in connection with the matters addressed herein. We consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, KING & SPALDING LLP EX-23.1 3 ex23_1.txt EXHIBIT 23.1 Exhibit 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated September 1, 2006, relating to the consolidated financial statements and consolidated financial statement schedule of Concurrent Computer Corporation and subsidiaries (the "Company") and management's report on the effectiveness of internal control over financial reporting appearing in the Company's Annual Report on Form 10-K for the year ended June 30, 2006. /s/ Deloitte & Touche LLP Atlanta, Georgia May 24, 2007 -----END PRIVACY-ENHANCED MESSAGE-----