As filed with the Securities and Exchange Commission on May 16, 1994.
Registration No. 33-
=============================================================================
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 Identification
Incorporation) Number)
Two Crescent Place, Oceanport, NJ 07757, (908) 870-4500
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Kevin J. Dell, Esq.
Vice President, General Counsel
and Assistant Secretary
Concurrent Computer Corporation
Two Crescent Place, Oceanport, NJ 07757, (908) 870-4500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective.
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]
Calculation of Registration Fee
Title of each Proposed
class of Proposed maximum
securities to maximum aggregate Amount of
be Amount to be offering price offering registration
registered registered per unit(1) price(1) fee
-------------- ------------- -------------- -------------- ------------
Common stock, 600,000 $1.9375 $1,162,500 $400.86
$.01 par value
per share
(1)Estimated solely for purposes of calculation of the registration fee.
Pursuant to Rule 457(c), estimated on the basis of the average of the closing
bid and asked prices of the Common Stock on May 11, 1994.
=============================================================================
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE>
Subject to completion May 16, 1994.
Prospectus
600,000 Shares
CONCURRENT
COMPUTER
CORPORATION
Common Stock
($.01 par value)
This Prospectus relates to the possible resale of shares of Common Stock,
$.01 par value ("Common Stock"), of Concurrent Computer Corporation
("Concurrent" or the "Company"). The shares of Common Stock are sometimes
referred to as the "Securities". The Securities may be offered from time to
time by the selling securityholders (the "Selling Securityholders").
The Securities will be offered for sale from time to time on terms to be
determined at the time of sale by the Selling Securityholders. The
Securities are listed on the NASDAQ National Market System under the symbol
"CCUR" and the last reported bid and asked prices on May 13, 1994 were $2.25
and $2.00, respectively. The Company will pay certain expenses of this
offering and will not receive any proceeds from the sale of the Securities.
See "USE OF PROCEEDS" and "PLAN OF DISTRIBUTION."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION, NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
-------------------
See "RISK FACTORS" for important information which should be
considered by prospective investors.
-----------------
The Selling Securityholders directly, through agents designated from time to
time, or through dealers or underwriters also to be designated, may sell the
Securities from time to time on terms to be determined at the time of sale.
To the extent required, the specific Securities to be sold, the purchase
price, the public offering price, the name of any such agent, dealer or
underwriter, and any applicable commission or discount with respect to a
particular offer will be set forth in a Prospectus Supplement. The aggregate
proceeds to the Selling Securityholders from the Securities will be the
purchase price of such Securities sold less the aggregate agents' commissions
and underwriters' discounts, if any, and other expenses of issuance and
distribution not borne by the Company. Any such Prospectus Supplement will
also set forth any additional information regarding indemnification by the
Company of the Selling Securityholders or any underwriter, dealer or agent
against certain liabilities, including liabilities under the Securities Act
of 1933, as amended (the "Securities Act"). The Selling Securityholders and
any broker-dealers, agents or underwriters that participate with the Selling
Securityholders in the distribution of any of the Securities may be deemed to
be "underwriters" within the meaning of the Securities Act, and any
commission received by them and any profit on the resale of the Securities
purchased by them may be deemed to be underwriting commissions or discounts
under the Securities Act. See "PLAN OF DISTRIBUTION" generally and for
indemnification agreements.
The date of this Prospectus is __________, 1994.
<PAGE>
No dealer, salesperson or any other person has been authorized to
give any information or to make any representations other than those
contained in this Prospectus in connection with the offer made by this
Prospectus and, if given or made, such information or representations may not
be relied upon as having been authorized by the Company. Neither the
delivery of this Prospectus nor any sale made hereunder shall under any
circumstances create any implication that there has been no change in the
affairs of the Company since the date as of which information is given in
this Prospectus. This Prospectus does not constitute an offer to sell or a
solicitation of an offer to buy the shares by anyone in any jurisdiction in
which such offer or solicitation is not authorized, or in which the person
making the offer or solicitation is not qualified to do so, or to any persons
to whom it is unlawful to make such offer or solicitation.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files periodic reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission").
The Company has filed with the Commission under the Securities Act
of 1933, as amended (the "Securities Act"), a Registration Statement on Form
S-3 (which term shall encompass any amendments thereto) with respect to the
securities offered hereby. This Prospectus, which constitutes part of the
Registration Statement, does not contain all the information set forth in the
Registration Statement and the exhibits and schedules thereto, to which
reference is hereby made, as permitted by the rules and regulations of the
Commission. Statements made in this Prospectus or in any document
incorporated or deemed to be incorporated by reference herein as to the
contents of any contract, agreement or other document referred to are not
necessarily complete and with respect to each such contract, agreement or
other document filed as an exhibit to the Registration Statement, reference
is made to the exhibit for a more complete description of the matter
involved, and each such statement shall be deemed qualified in its entirety
by such reference. Any interested parties may inspect the Registration
Statement, the exhibits and schedules forming a part thereof and the reports,
proxy statements and other information referred to above, without charge, at
the public reference facilities of the Securities and Exchange Commission,
Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and may obtain
copies of all or any part of such documents from the Commission upon payment
of the fees prescribed by the Commission. Such documents also are available
for inspection and copying at prescribed rates at the regional offices of the
Commission located at Seven World Trade Center, 13th Floor, New York, New
York 10048; and the Northwestern Atrium Center, 500 W. Madison Street, Suite
1400, Chicago, Illinois 60661-2511.
2
<PAGE>
INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which have been filed by the Company with
the Commission pursuant to the Exchange Act (File No. 0-13150), are hereby
incorporated by reference in and made a part of this Prospectus:
(1) The Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 1993.
(2) The Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1993, as amended by Amendment No. 1 on Form 10-
Q/A thereto filed February 7, 1994.
(3) The Company's Quarterly Report on Form 10-Q for the quarter
ended December 31, 1993.
(4) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1994.
(5) The description of the Common Stock contained in the Company's
Registration Statement on Form S-2 (No. 33-62440).
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering made hereby shall be
deemed to be incorporated by reference and a part of this Registration
Statement from the date of filing of such documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each
person to whom a copy of this Prospectus has been delivered, upon the request
of such person, a copy of any or all documents referred to above which have
been incorporated in this Prospectus by reference, other than exhibits to
such documents. Requests for such copies should be directed to Office of the
Assistant Secretary, Concurrent Computer Corporation, Two Crescent Place,
Oceanport, New Jersey 07757.
3
<PAGE>
TABLE OF CONTENTS
-----------------
AVAILABLE INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . 2
INCORPORATION OF DOCUMENTS BY REFERENCE . . . . . . . . . . . . . . . . . 3
THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
RISK FACTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SELLING SECURITYHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . 13
PLAN OF DISTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . . . 14
LEGAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
EXPERTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4
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THE COMPANY
Concurrent Computer Corporation (the "Company" or "Concurrent") is
the largest supplier of high-performance real-time computer systems, based on
1993 net sales of companies focused on providing real-time systems. "Real-
time" systems concurrently acquire, analyze, store, display and control,
within a predictable time, analog, digital and network data to provide time
critical information as real world events occur. Concurrent has over 25
years of experience in real-time systems, including specific expertise in
systems, applications software, productivity tools and networking.
Concurrent's real-time systems offer networked and distributed computing
solutions and may be configured to provide fault tolerance. The Company
sells its systems worldwide to end-users as well as to original equipment
manufacturers, systems integrators, independent software vendors and value-
added resellers who combine the Company's products with other equipment or
with additional application software for resale to end-users. End uses of
the Company's systems include product design and testing; flight simulation;
air traffic control and weather forecasting; intelligence data acquisition
and analysis; financial trading; and hospital information management.
The Company designs, manufactures (limited to assembly, systems
integration and systems test), sells, and supports real-time proprietary and
standards-based open systems. It also offers traditional maintenance and
support services ("Traditional Services") and professional services, such as
performance and capacity analysis and systems integration ("Professional
Services"). Currently, Traditional Services and Professional Services
account for approximately 93% and 7%, respectively, of total service
revenues. The Company anticipates a shift in end-user demand from
proprietary to open systems and, accordingly, has developed a strategy to be
the premier supplier of high technology real-time computer systems and
services through customer focus, total quality and the rapid development of
standard and custom products. The Company's strategy requires that it
upgrade and service its proprietary computing platforms while investing
heavily in developing its real-time open system computing platforms. The
Company is also leveraging its investment in research and development and
enhancing market penetration through strategic alliances. In October 1993,
the Company introduced its new MAXION(TM) multiprocessor system, which is a
next-generation open system based on the new MIPS 150 MHz R4400 reduced
instruction set microprocessor. This new system supports Concurrent's real-
time enhanced UNIX operating system which will include real-time extensions
to the UNIX SVR4.2 multiprocessor operating system through a partnership with
the Novell UNIX Systems Group. The Company also introduced in October 1993,
a new high-end Series 3200 multiprocessing system, the Model 3200-850. This
new system is an upgrade to Concurrent's Model 3280 MPS and MicroFive MPS
Systems. Full-scale production shipments of the new MAXION(TM) system and the
new Model 3200-850 system began on schedule during the quarter ended March
31, 1994.
The Company's principal offices are located at Two Crescent Place,
Oceanport, New Jersey 07757. Its telephone number is (908) 870-4500.
5
<PAGE>
RISK FACTORS
In addition to the other information in this Prospectus, the
following factors should be considered carefully in evaluating an investment
in the Common Stock offered by this Prospectus.
Shift in Emphasis to Open Systems
Many of the Company's markets are undergoing a shift away from
"proprietary" systems to "open" systems. Until the quarter ended March 31,
1994, the Company's sales of open systems have not been growing in absolute
or relative terms due to competitive pressures in the marketplace and, to a
lesser extent, the rapidly changing requirements of the open systems market.
During fiscal years 1992 and 1993, proprietary systems represented 69% and
78% of the Company's total systems sales, respectively, while open systems
represented 31% and 22% of total systems sales for the same periods. During
the first three quarters of fiscal year 1994, open systems increased to 25%
of total systems sales and represented nearly 34% of total system sales for
the quarter ended March 31, 1994, largely as a result of sales of the
Company's new MAXION(TM) multiprocessor system. The results achieved during
the first three quarters of fiscal year 1994 in general and during the third
quarter in particular are not necessarily indicative of the results expected
for the full fiscal year or for future quarters. The future growth of the
Company's business and its long-term future financial performance will depend
to a significant extent upon its ability to develop and market competitive
open systems which meet the real-time computing needs of its targeted
customers. The Company does not expect the shift in emphasis to open systems
to result in either significant incremental costs over current cost levels or
incremental capital investment. Moreover, the Company expects to fund the
shift, which is primarily a research and development effort, with cash from
operations at funding levels consistent with its recent levels of investment,
as a percentage of sales, in research and development. There can be no
assurance that the shift in emphasis will be accomplished at anticipated cost
levels or that the anticipated results of the shift in emphasis will be
realized. The Company has developed new next-generation real-time open-
systems products, based on the MIPS R4400 microprocessor which are expected
to strengthen the Company's competitive position. The first new systems
product, the MAXION(TM) multiprocessor system, was introduced during October
1993 and full-scale production shipments commenced during the third quarter
of fiscal year 1994. There can be no assurance that the new systems will be
successful in the marketplace. In the event that the Company's sales do
shift from proprietary systems to open systems, lower gross margins may
result. Currently, gross margins on the Company's open systems are lower
than gross margins on its proprietary systems. The Company's operating
income would be adversely affected by such a shift unless total net sales
increase, the gross margins on its open systems improve and/or total
operating expenses are further reduced. Although there can be no assurance
that this will be the case, the Company believes gross margins on its open
systems will improve with the continued implementation of its value-added
market strategy. This strategy involves the continued introduction of new
next generation open systems products, which the Company believes will
generate higher gross margins than its older
6
<PAGE>
open systems products. It also involves the development and sale of needed
value-added products and services, such as software productivity and
development tools, and packaged services comprised of Traditional Services
and Professional Services, which sales are expected to have an aggregate
positive impact on total gross margins.
Advances in Technology
The information technology industry is characterized by rapid
advances in technology and greater demand for more cost effective
"solutions." As a result of the rapid advances in technology, product life
cycles of many of the Company's products have been effectively shortened from
24-30 months to 18-24 months. Furthermore, many of its open systems products
are approaching the maturity stage of their product life cycles. Continued
rapid advances in technology will further accelerate the technological
obsolescence of older products. The Company's success will depend, among
other things, upon its ability to enhance its existing products, to
capitalize on its new MAXION(TM) product line, and to introduce new open-
systems products and features in a timely manner to meet changing customer
requirements. It will also be dependent on the success of the Company's
strategic technological alliances and its ability to maintain competitive
technology. The Company's choice of strategic technological alliances could
also have a significant impact on its success. The Company has chosen the
microprocessor technology developed by MIPS Technologies, Inc. (a subsidiary
of Silicon Graphics, Inc.) for use in its new next-generation standards-based
open systems. In addition, the Company's next generation open-systems
platform will be based on the Novell UNIX Systems Group's UNIX System V
Release 4 operating system software. The Company's business will be
adversely affected if the Company, its strategic partners, or its suppliers
incur delays in developing new products or enhancements, or if such products
or enhancements do not gain market acceptance because of competing
technology.
Trend in Net Sales
Net sales for the first three quarters of fiscal year 1994 were
$134.1 million compared to $164.8 million for the prior year period, a
decrease of $30.7 million. Net sales decreased to $220.5 million in fiscal
year 1993 from $221.6 million in fiscal year 1992 and $254.9 million in
fiscal year 1991. The decrease from the first three fiscal quarters of
fiscal year 1993 to the first three fiscal quarters of fiscal year 1994 was
due to a decrease of $24.9 million, or 27.4%, in computer systems sales and a
decrease of $5.8 million, or 7.9%, in service and other revenues. The
decrease from fiscal years 1992 to 1993 was due to a decrease of $5.2
million, or 5.0%, in service and other revenues partially offset by an
increase of $4.1 million, or 3.5%, in computer system sales. The decrease
from fiscal years 1991 to 1992 was primarily due to a decrease of $25.1
million, or 17.6%, in computer system sales and a decrease of $8.2 million,
or 7.3%, in service and other revenues. Management believes the decrease in
computer system sales since fiscal year 1991 has been due to reduced
government spending on the Company's systems, general economic conditions and
a slowdown in capital spending by customers in the Company's markets.
7
<PAGE>
During the first two quarters of fiscal year 1994, Concurrent
experienced continued slow business conditions throughout the world affecting
investment in its markets, combined with worldwide industry and government
spending controls and delays in orders for spare parts under the Department
of Commerce's Next Generation Weather Radar (NEXRAD) program. (See "RISK
FACTORS: Government Business.") As a result of these factors the Company
engaged in a further restructuring of its operations to position its cost
structure in line with current and anticipated revenue levels. During the
three months ended September 30, 1993, the Company recorded a provision for
restructuring of $12.0 million in connection with its operational
restructuring efforts. The restructuring is substantially completed and
resulted in a reduction of 300 employees from the Company's worldwide work
force to about 1,350. It also resulted in cost reduction actions, including
the consolidation of sales and services field offices and a deferral of
certain advertising and promotional activities. Such actions may have an
impact on revenues and revenue growth.
For the purposes of restructuring its operations, the Company
assumed a revenue trend for the three remaining quarters of fiscal year 1994
on average below the first quarter of fiscal year 1994 but growing on a
quarter to quarter basis from the second quarter of fiscal year 1994, which
is expected to be the low point for the fiscal year. Revenues for the first
three quarters of fiscal year 1994 were $49.4, $40.7 and $44.1 million,
respectively. There can be no assurance that the foregoing revenue
assumptions will be achieved in future quarters.
The future growth of the Company's business and its future
financial performance will depend, among other things, on its ability to
increase net sales by developing and marketing competitive open systems
products.
Decline in Service Revenue
Total service revenue decreased to $98.9 million in fiscal year
1993 from $104.1 million in fiscal year 1992 and $112.3 in fiscal year 1991
due to a decline in Traditional Services revenue. Total service revenue for
the nine months ended March 31, 1994 decreased to $68.2 million from $74.0
million for the comparable period of the preceding fiscal year. The declines
are attributable to lower sales of the Company's systems and the continuing
market shift to standards-based open systems. This shift is expected to
continue to depress revenues from Traditional Services for two reasons.
First, the Company anticipates that open systems will require less service
and maintenance than proprietary systems. And second, given the
"standards-based" nature of the open systems, greater competition can be
expected from third party maintenance providers, resulting in a reduction in
total Traditional Services margins. However, the market trend towards open
systems is creating additional demand for Professional Services. Although it
is the Company's goal that growth in Professional Services will eventually
offset the anticipated decline in Traditional Services revenue, there can be
no assurance that the Company will be able to successfully market
Professional Services to generate revenues that will exceed any decline. In
fiscal year 1993, Professional Services accounted for approximately $5
million of total annual service revenue. Professional Services revenue in
fiscal year 1992 was estimated to be approximately $4 million.
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<PAGE>
Liquidity
Management believes that anticipated improvements in cash flow from
operations resulting from the restructuring of operations and other actions,
together with reduced debt service requirements resulting from the
refinancing completed in July 1993, will enhance the Company's ability to
manage its cash requirements. The short term prospects for the Company's
liquidity are dependent to a significant degree upon the level of revenue
from sales and service of systems and the Company's restructuring actions and
cost containment efforts. The decline in revenue during the six months ended
December 31, 1993 adversely affected the Company's liquidity. Although
revenues for the three months ended March 31, 1994 increased compared to the
preceding three months, future declines may affect the Company's ability to
meet obligations when due. In the event of such declines, the Company may
need to negotiate for additional flexibility with respect to its obligations
under its bank term loan. On the other hand, to the extent that sales of the
Company's new open systems significantly increase, the Company will have
increased working capital requirements to fund inventory and capital
equipment needs. Management believes its ability to fund this potential need
for increased working capital through internal cash flow will depend on the
rate of growth and there may be a need to obtain financing from outside
sources. There can be no assurance that such financing can be obtained.
Government Business
The Company derives a significant portion of its revenues from the
supply of systems under government contracts. For fiscal year 1993,
approximately $64.3 million (29%) of the Company's worldwide revenues were
directly or indirectly related to agencies of the U.S. Government. A
significant portion of revenues from government business into fiscal year
1995 is expected to be derived from sales to the U.S. Department of
Commerce's Next Generation Radar (NEXRAD) program, which may include sales of
spare parts. The prospects for these future sales of spare parts are
currently unclear. The Department asserts that the Company's spare parts
prices are too high and is pursuing various alternatives to meet its spare
parts requirements, including competitive bids. In addition, the Department
is requiring documentation on pricing for spare parts under the NEXRAD
program. The Company maintains that its pricing practices and disclosures
are in compliance with applicable laws and regulations. The Company has
submitted proposals in response to two Department solicitations for spare
parts that are conditioned on a comprehensive resolution of all outstanding
matters related to the sale of spare parts under the NEXRAD program. There
can be no assurance that there will be a near-term comprehensive resolution
or that the Company will have continuing sales of spare parts under the
NEXRAD program or that the production phase of the program will be completed
as contemplated. Government business is in general subject to special risks,
such as delays in funding; termination contracts or subcontracts for the
convenience of the government; termination, reduction or modification of
contracts or subcontracts in the event of changes in the government's
policies or as a result of budgetary constraints; obligations for performance
guarantees or restrictions on the draw-down of funds subject to achievement
of performance milestones; and increased or unexpected costs resulting in
losses or reduced profits under fixed price contracts.
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<PAGE>
Financial Leverage
The Company has leverage higher than is common in companies in high
technology industries. At the end of the third quarter of fiscal year 1994
debt was $31.9 million and stockholders' equity was $32.5 million, a total
debt to total capitalization ratio of approximately 49.5%.
The degree to which the Company has senior indebtedness outstanding
from time to time could have important adverse consequences. After
modification of the Company's senior bank debt in July 1993, the balance of
the Company's senior bank debt was $31.5 million (which the Company is
obligated, subject to certain deferral rights, to reduce monthly by
$687,500). Based on the level of senior indebtedness outstanding from time
to time and the terms of the senior bank debt agreement: (i) the Company's
ability to obtain additional financing, if needed, in the future for working
capital, capital expenditures, acquisitions, research and development and
other general corporate purposes (which historically, together with debt
service on the Company's prior term loan, have been funded from cash flow
from operations) will be restricted; (ii) the Company will be prohibited from
making cash dividend payments until the senior bank debt is paid in full and
is subject to operating and financial restrictions which, if not satisfied,
may result in a default under the senior bank debt agreement; (iii) the
Company may be more leveraged than other providers of similar products and
services, which may place the Company at a competitive disadvantage; and (iv)
the Company may be vulnerable to changes in general economic conditions.
On September 28, 1993, November 18, 1993 and February 18, 1994,
the Company's bank term loan was amended to modify certain financial
covenants. The amendments on November 18, 1993 and February 18, 1994 also
waived the Company's requirements with respect to certain financial covenants
for the three months ended September 30, 1993 and December 31, 1993,
respectively.
On November 10, 1993, the term loan was also amended to allow the
Company to defer up to four monthly principal amortization payments,
depending on cash balances, and to provide for up to $3 million in standby
letters of credit in connection with overseas lines of credit. In connection
with that amendment the Company made a $3 million prepayment of the
amortization payment due on the June 30, 1995 maturity date.
The February 18, 1994 amendment further deferred the four monthly
principal amortization payments. In connection with this amendment, the
Company granted the Selling Securityholders warrants to purchase an aggregate
of 600,000 shares of the Company's Common Stock. See "PLAN OF DISTRIBUTION."
The above amendments were obtained to provide the Company with
greater financial flexibility in light of lower than expected revenues and
earnings for the first six months of fiscal year 1994, a $12 millon provision
for restructuring recorded during the three months ended September 30, 1993
and anticipated financial results for the remainder of the fiscal year 1994.
The Company also anticipates seeking additional flexibility with respect to
the financial covenants under its bank term loan for fiscal year 1995 early
in that fiscal year.
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International Operations
The Company's financial results are highly dependent on its
international operations which represented approximately 35% of total
revenues for fiscal year 1993. The Company expects its international
operations to continue to account for a significant percentage of its total
revenues. Certain risks are inherent in international operations, including
exposure to currency fluctuations, the imposition of government controls,
export license requirements, restrictions on the export of critical
technology, political and economic instability, trade restrictions, changes
in tariffs, taxes and freight rates, generally longer payment cycles,
difficulties in staffing and managing international operations and general
economic conditions. Key international markets for the Company's products
and services include Japan, Australia, Germany and the United Kingdom whose
general economic conditions have historically affected the Company's
revenues. Of the approximately 35% of total revenues for fiscal year 1993
derived from international operations, these countries accounted for
approximately 16%, 13%, 12% and 27%, respectively, and Europe as a whole
accounted for approximately 59%. Although improving, these countries, and
Europe as a whole, are continuing to experience generally poor economic
conditions with a resulting depressing effect on investments in capital
goods, such as computer systems. Accordingly, the Company's revenues, and
therefore operating results, may be adversely affected by such economic
conditions. From time to time in the past, the Company's financial results
have been affected both favorably and unfavorably by fluctuations in currency
exchange rates. Future unfavorable fluctuations in currency exchange rates
may have an adverse impact on the Company's revenues and operating results.
Competition
The shift from proprietary systems to standards-based open systems
is expected both to expand market demand for systems with performance
characteristics previously only found in proprietary real-time computing
systems and to increase competition, making product differentiation a more
important factor. Due in part to the range of performance and applications
capabilities of its products, the Company competes in various markets against
a number of companies, many of which have greater financial and operating
resources than the Company.
Sources of Supply
In some cases, components are being purchased by the Company
principally from a single supplier to obtain the required technology and the
most favorable price and delivery terms. Although the Company has not
experienced any materially adverse impact on its operating results as a
result of a delay in supplier performance, any delay in delivery of
components may cause a delay in shipments by the Company of certain products.
The Company estimates that a lead time of up to 16-24 weeks may be necessary
to switch to an alternate supplier of certain custom application specific
integrated circuits ("ASICS") and printed circuit assemblies. A change in
the supplier of these components without the appropriate lead time would
result in a delay in shipments by the Company of certain products. Since
revenue is recognized typically upon shipment, any delay in shipment may
also result in a delay in revenue recognition, possibly outside the fiscal
period originally planned, and, as a result, may adversely affect the
Company's financial results for that particular period.
11
<PAGE>
Employee Requirements
As a high technology company in a highly competitive industry, the
Company's success will depend in part on its ability to attract and retain
highly-skilled technical, managerial, sales and marketing employees.
Competition for such personnel is intense. Although the Company is not
dependent on any one employee, the loss of a number of employees in
significant positions and the Company's inability to attract and retain
qualified replacement employees could adversely affect the Company's
business, operations and financial results.
Shares Eligible for Future Sale
Sales of a substantial number of shares of Common Stock in the
public market could adversely affect the market price of the Common Stock.
An aggregate of 6,855,425.5 shares of Common Stock became freely tradeable
after January 21, 1994, 4,544,501.5 on January 21, 1994 and the balance on
February 10, 1994 upon effectiveness of Registration Statement No. 33-72548.
The shares were previously subject to a "lock-up" arrangement, which expired
January 21, 1994, in connection with the public offering of Common Stock
which occurred in July 1993. The potential market overhang from the
6,855,425.5 shares of Common Stock that may be freely tradeable, together
with the 600,000 shares covered by this Prospectus, could adversely affect
the market price of the Common Stock.
Change of Control
Rights associated with the Common Stock may have the effect of
discouraging a third party from making an acquisition proposal of the Company
and may thereby inhibit a change in control of the Company in circumstances
that could give the holders of the Common Stock the opportunity to realize a
premium over the then prevailing market prices. Such provisions may also
adversely affect the market price of the Common Stock. In addition, the term
loan may be accelerated at the option of the lenders in the event of a change
in control (as defined in the senior bank debt agreement).
Volatility of Stock Prices
The trading price of the Common Stock has fluctuated widely in
response to quarter-to-quarter operating results, industry conditions, awards
of orders to the Company or its competitors and new product or product
development announcements by the Company or its competitors and as a result
of market illiquidity. In addition, the volatility of the stock markets in
recent years has caused wide fluctuations in trading prices of stocks of high
technology companies independent of their individual operating results. The
market value of the Common Stock at any given time may be adversely affected
by factors independent of the Company's operating results.
12
<PAGE>
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of
securities by the Selling Securityholders. The Securities are being
registered for sale pursuant to agreements with the Selling Securityholders.
See "PLAN OF DISTRIBUTION."
SELLING SECURITYHOLDERS
The following table sets forth certain information with respect to the
Securities issuable to the Selling Securityholders upon exercise of the
warrants described in "PLAN OF DISTRIBUTION." The Securities offered by this
Prospectus may be offered from time to time in whole or in part by the
Selling Securityholders. See "PLAN OF DISTRIBUTION."
Selling Shares of Common Stock
Securityholders Issuable Upon Exercise of Warrants
--------------- ----------------------------------
Fleet Bank of Massachusetts, N.A. 300,000
75 State Street
Boston, MA 02109
CIBC Inc. 300,000
Embarcadero Center
West Tower
275 Battery Street, Suite 1840
San Francisco, CA 94111
The following sets forth the nature of any position, office or
other material relationship which any of the Selling Securityholders has had
within the past three years with the Company.
On July 21, 1993, the Company completed a comprehensive refinancing
(the "Refinancing"). In connection with the Refinancing, the Company's
existing bank term loan was modified to, among other things, extend the
maturity date and reduce the interest rate therein. Fleet and CIBC, the
Selling Securityholders herein, were the senior lenders with respect to the
Refinancing. This existing bank term loan was subsequently modified, and
pursuant to the latest modification certain warrant and registration rights
were granted to Fleet and CIBC by the Company. See "PLAN OF DISTRIBUTION."
13
<PAGE>
PLAN OF DISTRIBUTION
Any and all of the Securities offered hereby may be sold from time
to time to purchasers directly by the Selling Securityholders.
Alternatively, the Selling Securityholders may from time to time offer the
Securities through brokers, underwriters, dealers or agents, who may receive
compensation in the form of underwriting discounts, concessions or
commissions from the Selling Securityholders and/or the purchasers of
Securities for whom they may act as agent. The Selling Securityholders and
any such underwriters, dealers or agents that participate in the distribution
of the Securities may be deemed to be underwriters, and any profit on the
sale of Securities by them and any discounts, commissions or concessions
received by any such underwriters, dealers or agents might be deemed to be
underwriting discounts and commissions under the Securities Act. The
Securities may be sold at varying prices determined at the time of sale or at
negotiated prices. Such prices will be determined by the Selling
Securityholders, or by agreement between the Selling Securityholders and
underwriters or dealers.
At the time a particular offer of Securities is made, to the extent
required, a Prospectus Supplement will be prepared by the Company based on
information provided by the Selling Securityholders and distributed, which
will set forth the number of Securities being offered and the terms of the
offering, including the name or names of any underwriters, dealers or agents,
any discounts, commissions or concessions allowed or reallowed or paid to
dealers, including the proposed selling price to the public.
In order to comply with certain states' securities laws, if
applicable, the Securities will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states
the Securities may not be sold unless the Securities have been registered or
qualified for sale in such state or an exemption from registration or
qualification is available and such sale is made in compliance with the
exemption.
300,000 of the Securities covered by this Prospectus are issuable
upon the exercise of warrants (the "Fleet Warrants") issued by the Company
pursuant to a Warrant and Registration Rights Agreement dated as of February
18, 1994 (the "Fleet Warrant Agreement"). The other 300,000 of the
Securities covered by this Prospectus are issuable upon the exercise of
warrants (the "CIBC Warrants") issued by the Company pursuant to a Warrant
and Registration Rights Agreement dated as of February 18, 1994 (the "CIBC
Warrant Agreement"). The Fleet Warrants and the CIBC Warrants were issued in
connection with the February 18, 1994 amendment to the term loan, which
amendment, in addition to modifying and waiving certain financial covenants,
allowed the Company to further defer four monthly principal amortization
payments. The Fleet Warrants and the CIBC Warrants were issued with an
exercise price of $1.50 per share and expire on September 30, 1994. This
expiration date may be extended first to November 15, 1994 and then to June
30, 1995 in exchange for the deferral of certain payment obligations under
the term loan. In the event that the Fleet Warrants and the CIBC Warrants
have not expired and the term loan is restructured by written agreement by
and between the Company and Fleet and CIBC on or before December 15, 1994,
this expiration date shall be extended through the maturity date of the
restructured term loan. Pursuant to the Fleet Warrant Agreement and the
CIBC Warrant Agreement, the Company has agreed to pay customary fees and
expenses in connection with registration of the shares of Common Stock
underlying the Fleet Warrants and the CIBC Warrants pursuant to this
Registration Statement of which this Prospectus is a part, excluding any
underwriting discounts, commissions and expenses or counsel fees and expenses
of Fleet and CIBC.
14
<PAGE>
The Company has also agreed to indemnify Fleet and CIBC (the
"Lenders"), each of their Affiliates (as defined in the Fleet Warrant
Agreement and CIBC Warrant Agreement), and each person who controls either of
the Lenders (within the meaning of the Securities Act and the rules and
regulations thereunder), on whose behalf registration, qualification or
compliance has been effected pursuant to Article IV of the Fleet and CIBC
Warrant Agreements, from and against certain civil liabilities, including
liabilities under the Securities Act. The Fleet and CIBC Warrants expire on
September 30, 1994, unless extended pursuant to the terms and conditions of
the respective warrant agreements.
The Lenders agreed that they will, if Registrable Securities (as
defined in the Fleet and CIBC Warrant Agreements) held by them are included
in the securities as to which such registration, qualification or compliance
is being effected, indemnify the Company, each of its directors and officers
and each underwriter, if any, of the Company's securities covered by such a
registration statement, each person who controls the Company or such
underwriter (within the meaning of the Securities Act and the rules and
regulations thereunder), each other shareholder whose securities are included
in the securities as to which such registration, qualification or compliance
is being effected, and each of their officers, directors and partners, and
each person who controls such shareholder, against certain civil liabilities
related to information with respect to the Lenders contained in this
Registration Statement and the Prospectus included therein.
LEGAL MATTERS
Certain legal matters arising in connection with this Offering will
be passed upon for the Company by Kevin J. Dell, Esq., Vice President,
General Counsel and Assistant Secretary of the Company. Mr. Dell
beneficially owns 5,688 shares of Common Stock and holds options to purchase
36,724 shares of Common Stock.
EXPERTS
The Company's Consolidated Financial Statements and Financial
Statement Schedules as of June 30, 1993 and June 30, 1992 and for each of the
years in the three-year period ended June 30, 1993 incorporated by reference
in this Prospectus and the Registration Statement of which this Prospectus
is a part have been incorporated herein in reliance on the report of
Coopers & Lybrand, independent accountants, given on the authority of such
firm as experts in accounting and auditing.
15
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
-------------------------------------------
The estimated expenses of the issuance and distribution, all of which
are payable by the Registrant are as follows:
SEC Registration Fee $ 400.86
Legal Expenses 4,250.00
Accounting Expenses 5,750.00
NASD Listing Fee 12,000.00
Miscellaneous Expenses 1,000.00
-------------
Total
$23,400.86
=============
Item 15. Indemnification of Directors and Officers.
-----------------------------------------
Reference is made to Section 145 of the General Corporation Law of
the State of Delaware under the law of which the Company is incorporated,
which provides for indemnification of directors and officers under certain
circumstances. Provisions for indemnification of directors and officers of
the Company are also contained in the Company's By-Laws, as amended. The
Company maintains an insurance policy covering its directors and officers
against certain liabilities, including liabilities under the Act and has
established a trust to supplement the policy by covering the deductible
portion.
Item 16. Exhibits.
Exhibit No. Description
--------------------------
4.1 Restated Certificate of Incorporation of the Company.(a)
4.2 Rights Agreement dated as of July 31, 1992 between the Company and
The First National Bank of Boston, as rights agent.(b)
4.3 Warrant and Registration Rights Agreement dated as of February 18,
1994 between the Company and Fleet.
4.4 Warrant and Registration Rights Agreement dated as of February 18,
1994 between the Company and CIBC.
5.0 Opinion of Kevin J. Dell, Esq.
II-1
<PAGE>
23.1 Consent of Coopers & Lybrand.
23.2 Consent of Kevin J. Dell, Esq. (see Exhibit 5.0).
------------------------------------------------------
(a) Incorporated herein by reference to the Exhibits to the Company's
Amendment No. 3 to Registration Statement on Form S-2 dated July 14,
1993 (No. 33-62440).
(b) Incorporated herein by reference to the Company's Current Report on Form
8-K dated August 20, 1992 (File No. 0-13150).
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;
(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.
II-2
<PAGE>
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to section 13(a) or section 15(d) of
the Securities Exchange Act of 1934 that is incorporated by reference into
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 bone fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
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, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
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, in the town of Oceanport, New Jersey, on May 16, 1994.
CONCURRENT COMPUTER CORPORATION
By: /s/ Kevin J. Dell
-----------------------------------------
Kevin J. Dell
Vice President
General Counsel
and Assistant Secretary
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on
the dates indicated.
Name Capacity
---- --------
/s/ John T. Stihl Chairman of the Board, President
------------------------------
John T. Stihl and Chief Executive Officer
/s/ James P. McCloskey Vice President, Finance and Treasurer,
------------------------------
James P. McCloskey Chief Financial Officer and Chief
Accounting Officer
/s/ Phillip W. Arneson Director
------------------------------
Phillip W. Arneson
/s/ Kevin N. Clowe Director
------------------------------
Kevin N. Clowe
/s/ C. Forbes Dewey, Jr. Director
------------------------------
C. Forbes Dewey, Jr.
/s/ Morton E. Handel Director
------------------------------
Morton E. Handel
/s/ Leonard N. Hecht Director
------------------------------
Leonard N. Hecht
/s/ Richard P. Rifenburgh Director
----------------------------
Richard P. Rifenburgh
Date: May 16, 1994
II-4
<PAGE>
INDEX TO EXHIBITS
-----------------
Exhibit No. Description
--------------------------
4.1 Restated Certificate of Incorporation of the Company.(a)
4.2 Rights Agreement dated as of July 31, 1992 between the Company and
The First National Bank of Boston, as rights agent.(b)
4.3 Warrant and Registration Rights Agreement dated as of February 18,
1994 between the Company and Fleet.
4.4 Warrant and Registration Rights Agreement dated as of February 18,
1994 between the Company and CIBC.
5.0 Opinion of Kevin J. Dell, Esq.
23.1 Consent of Coopers & Lybrand.
23.2 Consent of Kevin J. Dell, Esq. (see Exhibit 5.0).
------------------------------------------------------
(a) Incorporated herein by reference to the Exhibits to the Company's
Amendment No. 3 to Registration Statement on Form S-2 dated July 14,
1993 (No. 33-62440).
(b) Incorporated herein by reference to the Company's Current Report on Form
8-K dated August 20, 1992 (File No. 0-13150).
THIS WARRANT AND THE SHARES OF COMMON STOCK TRANSFERRED UPON EXERCISE OF
THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAW AND MAY NOT BE SOLD,
MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT
(i) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND
ANY APPLICABLE STATE SECURITIES LAWS OR (ii) UPON FIRST FURNISHING TO
THE COMPANY AN OPINION OF COUNSEL SATISFACTORY TO IT THAT SUCH TRANSFER
IS NOT IN VIOLATION OF THE REGISTRATION REQUIREMENTS OF THE ACT OR ANY
APPLICABLE STATE SECURITIES LAW. THIS WARRANT IS ALSO SUBJECT TO THE
RESTRICTIONS ON TRANSFER SET FORTH HEREIN.
WARRANT
-------
THIS WARRANT dated as of February 18, 1994, between CONCURRENT
COMPUTER, a Delaware corporation (the "Company") and FLEET BANK OF
MASSACHUSETTS, N.A. ("Fleet"). Capitalized terms used herein shall have
the meanings ascribed to them in the Second Amended and Restated Credit
Agreement between Fleet, CIBC Inc., the Company and Fleet, as agent,
dated July 21, 1993, as amended ("Credit Agreement").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to Amendment No. 4 to Second Amended and Restated
Credit Agreement dated as of February 18, 1994, the Company has agreed
to issue to Fleet this warrant (the "Warrant") of the Company, which
entitles Fleet to purchase, upon the terms and conditions hereinafter
set forth, shares of the Company's Common Stock, $.01 par value per
share (the "Common Stock");
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
ARTICLE I
GRANT OF WARRANT
----------------
This Warrant entitles Fleet to purchase, at a price per share equal
to the Exercise Price per share (as defined in Section 2.1 hereof),
Three Hundred Thousand (300,000) shares of Common Stock, subject to
adjustment as set forth in Section 3.4 hereof.
<PAGE>
ARTICLE II
EXERCISE OF WARRANT; EXERCISE PRICE
-----------------------------------
Section 2.1 Exercise Price. This Warrant shall entitle Fleet,
--------------
subject to the provisions of this Article II, to purchase from the
Company the number of shares of Common Stock provided for in Article I,
at a purchase price per share equal to $1.50 (the closing price per
share on February 18, 1994), which shall be payable by wire transfer to
a designated account of the Company or cashier's check in the manner set
forth in Section 2.3.
Section 2.2 Right to Exercise the Warrant. This Warrant may be
-----------------------------
exercised in full at any time during the period from the date hereof
through September 30, 1994 (the "Termination Date"), subject to
extension pursuant to Section 2.5 below.
Section 2.3 Procedure for Exercising the Warrant. Fleet may
------------------------------------
exercise this Warrant by executing the Form of Election attached hereto
as Exhibit A and delivering it to the Company on any business day during
---------
normal business hours and tendering the aggregate Exercise Price of
which at least the dollar amount representing the par value of the
number of shares of Common Stock issuable upon such election shall be
payable upon such election with the balance of the aggregate Exercise
Price, if any, payable within five business days of such election (the
date of receipt of such Form of Election and the minimum amount of the
aggregate Exercise Price by the Company is hereinafter referred to as
the "Exercise Date").
Section 2.4 Issuance of Shares. Within five (5) business days
------------------
following the Exercise Date, the Company shall (provided that it has
received the Form of Election duly executed, accompanied by payment of
the Exercise Price pursuant to Section 2.1 hereof for each of the shares
of Common Stock to be purchased) execute and deliver to Fleet a
certificate or certificates for the number of shares of Common Stock for
which this Warrant is being exercised.
Section 2.5 Extension of Termination Date. The Termination Date
-----------------------------
may be extended as set forth below.
(a) November 15, 1994. In the event that the Lenders notify
-----------------
the Company in writing on or before September 26, 1994 that the payments
(the "Payments") due to the Lenders on or before September 30, 1994 and
December 31, 1994 pursuant to Section 4.01 of the Credit Agreement may
be deferred by the Company to on or before November 15, 1994 and
February 15, 1995, respectively, the Termination Date shall be extended
through November 15, 1994.
(b) June 30, 1995. In the event that the Termination Date is
-------------
extended to November 15, 1994 pursuant to paragraph (a) above and the
Lenders notify the Company in writing on or before November 10, 1994
that the Payments may be deferred by the Company to on or before June
30, 1995, the Termination Date shall be extended through June 30, 1995.
2
<PAGE>
(c) Maturity Date of Restructured Term Loans. In the event
----------------------------------------
that the Warrant has not expired and the Term Loans are restructured by
written agreement by and between the Company and the Lenders on or
before December 15, 1994, the Termination Date shall be extended through
the maturity date of the restructured Term Loan.
(d) Suspension Notice Extension. Notwithstanding and in
---------------------------
addition to any other extension of the Termination Date pursuant to
paragraphs (a), (b) or (c) above, upon the Company's giving a Suspension
Notice to Fleet, the Termination Date automatically shall be extended by
the number of days equal to the Extension Days, as defined in Section
4.4 hereof.
ARTICLE III
RESERVATION AND AVAILABILITY OF SHARES; ANTI-DILUTION
-----------------------------------------------------
Section 3.1 Reservation of Shares. The Company covenants and
---------------------
agrees that it will reserve and keep available out of its authorized and
unissued Common Stock, or its authorized and issued Common Stock held in
its treasury, the number of shares of Common Stock that will be
sufficient to permit the exercise in full of this Warrant.
Section 3.2 Shares to be Duly Authorized and Issued. The
---------------------------------------
Company covenants and agrees that it will take all such action as may be
necessary to ensure that all shares of Common Stock delivered upon
exercise of this Warrant shall, at the time of delivery of the
certificates for such shares, be duly and validly authorized and issued.
Section 3.3 Stock Record Date. Each person or entity in whose
-----------------
name any certificate for shares of Common Stock is issued upon the
exercise of this Warrant shall for all purposes be deemed to have become
the holder of record of the shares of Common Stock represented thereby
on, and such certificate shall be dated, the date upon which the Form of
Election was duly executed and payment of the aggregate Exercise Price
therefor was made. Prior to the exercise of this Warrant, Fleet shall
not be entitled to any rights of a stockholder of the Company with
respect to the shares of Common Stock for which this Warrant shall be
exercisable, including, without limitation, the right to vote or to
receive dividends or other distributions and shall not be entitled to
receive any notice of any proceedings of the Company, except as provided
herein.
Section 3.4 Anti-Dilution Adjustment and Reorganizations.
---------------------------------------------
(a) Common Stock Dividend, Subdivisions and Contributions.
-----------------------------------------------------
In the event of any change in the shares of Common Stock by reason of
stock dividend, split up, merger, recapitalization, subdivision,
conversion, combination, exchange of shares or similar transactions, the
type and number of Common Stock issuable under the Warrant and the
Exercise Price therefor shall be adjusted appropriately, and proper
provision shall be made in the agreements governing such transaction, so
that Fleet shall receive upon exercise of the
3
<PAGE>
Warrant the number and class of shares or other securities or property
that Fleet would have held immediately after such event if the Warrant
had been exercised immediately prior to such event, or the record date
therefor, as applicable.
(b) Reorganizations. In case of any consolidation or merger
---------------
of the Company with or into another corporation (other than a merger or
consolidation in which the Company is the continuing corporation and
which does not result in any reclassification of the outstanding shares
of Common Stock or the conversion of such outstanding shares of Common
Stock into shares of other stock or other securities or property), or
the sale of the property of the Company as an entirety or substantially
as an entirety (collectively such actions being hereinafter referred to
as "Reorganizations"), there shall thereafter be deliverable upon
exercise of this Warrant (in lieu of the number of shares of Common
Stock theretofore deliverable) the number of shares of stock or other
securities or property to which a holder of the number of shares of
Common Stock (on an as-converted basis) which would otherwise have been
deliverable upon the exercise of this Warrant would have been entitled
upon such Reorganization if this Warrant had been exercised immediately
prior to such Reorganization. In the event of sale or conveyance or
other transfer of all or substantially all of the assets of the Company
as a part of a plan for liquidation of the Company, all rights to
exercise this Warrant shall terminate thirty (30) days after the Company
gives written notice to Fleet that such sale or conveyance or other
transfer has been consummated.
ARTICLE IV
REGISTRATION RIGHTS
-------------------
Section 4.1 Definitions. For purposes of this Agreement, the
-----------
following terms shall have the following respective meanings:
(a) "Affiliate" shall have the meaning set forth in Rule 12b-
2 under the Securities Exchange Act of 1934, as in effect as of the date
hereof.
(b) "Registrable Securities" shall mean (i) shares of Common
Stock issuable to Fleet or an Affiliate of Fleet upon exercise of this
Warrant, (ii) shares of Common Stock issued to Fleet or an Affiliate of
Fleet pursuant to the exercise of this Warrant that remain issued and
outstanding and owned by Fleet or an Affiliate of Fleet following such
exercise, and (iii) any shares of Common Stock that are issued as a
dividend or other distribution with respect to, or in exchange for or
conversion or replacement of, any of the shares referenced in
clause (ii) above pursuant to Section 3.4 of the Warrant and that remain
issued and outstanding and owned by Fleet or an Affiliate of Fleet
following exercise of this Warrant; provided, however, that Registrable
-------- -------
Securities shall not include any of the foregoing shares that have been
sold in a distribution pursuant to a registered public offering or sold
under Rule 144 of the Securities Act of 1933, as amended (the "Act").
4
<PAGE>
(c) "Registration Expenses" shall mean all expenses incurred
by the Company in compliance with this Article IV, including, without
limitation, all registration, qualifying and filing fees, printing
expenses, fees and disbursements of counsel for the Company, blue sky
fees and expenses, and any accounting fees and expenses incident to or
required by any such registration (but excluding the Selling Expenses
which shall be paid by the persons who are selling the securities).
(d) "Selling Expenses" shall mean all underwriting discounts
and selling commissions applicable to the sale of the Registrable
Securities and all fees and disbursements of special independent counsel
for the persons who are selling such securities.
Section 4.2 Registration Rights. The Company shall (a) cause a
-------------------
registration statement (the "Registration Statement") relating to the
Registrable Securities to be filed under the Act, on an appropriate form
on or before April 30, 1994 and to cause appropriate filings to be made
under the laws of various state jurisdictions specified by Fleet and (b)
use its best efforts consistent with its responsibilities under the Act
and related securities laws to have the Registration Statement declared
effective on or before June 30, 1994 ("Initial Registration Date").
Section 4.3 Expenses of Registration. All Registration Expenses
------------------------
incurred in connection with any registration, qualification or
compliance pursuant to this Article IV shall be borne by the Company,
and all Selling Expenses shall be borne by the persons who are selling
Registrable Securities.
Section 4.4 Registration Procedures. In the case of the
-----------------------
registration effected by the Company pursuant to this Article IV, the
Company will keep Fleet advised in writing as to the initiation of the
registration and as to the completion thereof. At its expense, the
Company will:
(a) use its best efforts to keep the Registration Statement
effective from the Initial Registration Date until the date which is 18
months after the Termination Date; provided that Rule 415, or any
successor rule under the Act, permits an offering on a continuous or
delayed basis, and provided further that applicable rules under the Act
governing the obligation to file a post-effective amendment permit, in
lieu of filing a post-effective amendment which (i) includes any
prospectus required by Section 10(a)(3) of the Act or (ii) reflects
facts or events representing a material or fundamental change in the
information set forth in the registration statement, the incorporation
by reference of information required to be included in clauses (i) and
(ii) above to be contained in periodic reports filed pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 in the
registration statement; and
(b) furnish such number of prospectuses and other documents
incident thereto as Fleet from time to time may reasonably request.
5
<PAGE>
Notwithstanding anything to the contrary contained herein, upon receipt
of any notice (a "Suspension Notice") from the Company of the happening
of any event which makes any statement made in the Registration
Statement or related prospectus untrue or which requires the making of
any changes in such Registration Statement or prospectus so that they
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 they were made
not misleading, Fleet shall forthwith discontinue disposition of the
Registrable Securities pursuant to the Registration Statement covering
such Registrable Securities until Fleet's receipt of the copies of the
supplemented or amended prospectus filed with the Securities and
Exchange Commission which does not contain an untrue statement of a
material fact or omit a material fact necessary to make any statement
therein not misleading or until Fleet is advised in writing (the
"Advice") by the Company that the use of such prospectus may be resumed,
and has received copies of any additional or supplemental filings which
are incorporated by reference in the subject prospectus; provided,
however, that the Company shall not give more than one Suspension Notice
during any period of twelve consecutive months and in no event shall the
period from the date on which Fleet receives a Suspension Notice to the
date on which Fleet receives either the Advice or copies of the above
supplemented or amended prospectus exceed 60 days. In the event that
the Company shall give any Suspension Notice, (i) the Company shall use
commercially reasonable efforts and take such actions as are reasonably
necessary to render the Advice as promptly as practicable and (ii) the
time periods for which a Registration Statement is required to be kept
effective pursuant to Section 4.4 hereof shall be extended by the number
of days (the "Extension Days") during the period from and including the
date of the giving of such notice to and including the date when Fleet
shall have received (x) the copies of the supplemented or amended
prospectus or (y) the Advice.
Section 4.5 Indemnification.
---------------
(a) The Company will, and does hereby undertake to, indemnify
each of the Lenders, each of its Affiliates, and each person who
controls either of the Lenders (within the meaning of the Act and the
rules and regulations thereunder), on whose behalf registration,
qualification or compliance has been effected pursuant to this
Article IV, from and against all expenses, claims, losses, damages and
liabilities (or actions in respect thereof to which they become
subject), including settlement of any litigation, commenced or
threatened, to which they may become subject, arising out of or based on
any untrue statement (or alleged untrue statement) of a material fact
contained in any registration statement, including any preliminary or
final prospectus contained therein or any amendment thereto, or other
document incident to any such registration, qualification or compliance,
or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or any violation by the Company of
the Act, any rule or regulation thereunder or any other federal, state
or common law rule, regulation or statute applicable to the Company and
relating to action or inaction required of the Company in connection
with any such registration, qualification or compliance, and will
reimburse each of the Lenders, each of its Affiliates, and each person
who controls either of the Lenders for the reasonable legal costs of one
counsel for such
6
<PAGE>
Lenders, or one separate counsel for each of the Lenders in the event
either of the Lenders in its reasonable discretion believes there is a
conflict of interest or other circumstances which would make it
appropriate to be represented by separate counsel, and other expenses
reasonably incurred in connection with investigating, preparing and
defending any such claim, loss, damage, liability or action; provided
that the Company will not be liable in any such case to the extent that
any such claim, loss, damage, liability or expense arises from or is
based on any untrue statement or omission or alleged untrue statement or
omission based upon written information furnished to the Company by
Fleet or any of its Affiliates, or any person who controls Fleet,
expressly for use therein.
(b) Fleet will, if Registrable Securities held by it are
included in the securities as to which such registration, qualification
or compliance is being effected, indemnify the Company, each of its
directors and officers and each underwriter, if any, of the Company's
securities covered by such a registration statement, each person who
controls the Company or such underwriter (within the meaning of the Act
and the rules and regulations thereunder), each other shareholder whose
securities are included in the securities as to which such registration,
qualification or compliance is being effected, and each of their
officers, directors and partners, and each person who controls such
shareholder, against all claims, losses, damages and liabilities (or
actions in respect thereof to which they become subject), including
settlement of any litigation, commenced or threatened, to which they may
become subject, arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such
registration statement, including any preliminary or final prospectus
contained therein or any amendment thereto, or other document incident
to any such registration, qualification or compliance, or based on any
omission (or alleged omission) to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company and such shareholders,
directors, officers, partners, persons, underwriters or controlling
persons for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement or alleged
omission) is made in such registration statement, including any
preliminary or final prospectus contained therein or any amendment
thereto, or other document in reliance upon and in conformity with
written information furnished to the Company by Fleet or any Affiliate
of Fleet expressly for use therein. In no event, however, shall the
liability of Fleet or any Affiliate of Fleet for indemnification under
this Section 4.6(b) exceed the proceeds received by Fleet or any
Affiliates of Fleet from the sale of Registrable Securities under such
registration statement.
(c) Each party entitled to indemnification under this
Section 4.6 (the "Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying Party") promptly
after such Indemnified Party has actual knowledge of any claim as to
which indemnity may be sought, and shall permit the Indemnifying Party
to assume the defense of any such claim or any litigation resulting
therefrom, and the Indemnified Party may participate in such defense at
such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not
7
<PAGE>
relieve the Indemnifying Party of its obligations under this Article IV.
No Indemnifying Party, in the defense of any such claim or litigation,
shall, except with the consent of each Indemnified Party (which consent
shall not unreasonably be withheld), consent to entry of any judgment or
enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified
Party of a release from all liability in respect to such claim or
litigation. Each Indemnified Party shall furnish such information
regarding itself or the claim in question as an Indemnifying Party may
reasonably request in writing and as shall be reasonably required in
connection with defense of such claim and litigation resulting
therefrom.
Section 4.6 Information by Fleet. Fleet and its Affiliates
--------------------
shall furnish to the Company such information regarding Fleet and the
distribution proposed by Fleet and its Affiliates as the Company may
request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this
Article IV.
ARTICLE V
PURCHASER REPRESENTATIONS, WARRANTIES AND COVENANTS
---------------------------------------------------
Fleet represents and warrants to and covenants with, the Company,
as follows:
Section 5.1 Representations. It is acquiring the Warrant for
---------------
investment for its own account and not with the view to, or for resale
in connection with, any distribution thereof. It has no present
intention of selling, granting participation in, or otherwise
distributing the Warrant or the shares of Common Stock issuable upon
exercise thereof other than to an Affiliate of Fleet. It understands
that the Warrant and the shares of Common Stock issuable upon exercise
thereof have not been registered under the Securities Act, or any state
blue sky laws. It acknowledges that the Warrant and the shares of
Common Stock issuable upon exercise thereof must be held indefinitely
unless they are subsequently registered under the Act or an exemption
from such registration is available. It has been advised or is aware of
the provisions of Rules 144 and 144A promulgated under the Act, which
permit the resale of shares purchased in a private placement subject to
the satisfaction of certain conditions and that such Rules may not be
available for resale of the shares.
Section 5.2 Restrictive Legend. Each certificate representing
------------------
shares of the Company's Common Stock issuable upon exercise of the
Warrant, or any other securities issued in respect of the Common Stock
issued upon exercise of the Warrant, upon any stock split, stock
dividend, recapitalization, merger, consolidation or similar event,
shall (unless otherwise permitted or unless the securities evidenced by
such certificate shall have been registered under the Securities Act) be
stamped or otherwise imprinted with a legend in substantially the
following form (in addition to any legend required under applicable
state securities laws):
8
<PAGE>
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE SOLD, ASSIGNED OR
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
FOR SUCH SECURITIES UNDER SAID ACT, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT, IN THE
CIRCUMSTANCES, REQUIRED, OR EVIDENCE SATISFACTORY TO THE COMPANY
THAT THE SHARES HAVE BEEN SOLD IN COMPLIANCE WITH RULE 144
PROMULGATED UNDER SAID ACT.
ARTICLE VI
MISCELLANEOUS
-------------
Section 6.1 Notices. Notices or demands relating to this
-------
Warrant shall be sufficiently given or made if sent to the party to whom
notice is being given by first-class mail, postage prepaid, addressed as
follows, or telexed, telecopied, or delivered by overnight or other
courier:
If to Fleet:
Fleet Bank of Massachusetts, N. A.
75 State Street
Boston, MA 02109
Attn: Thomas J. Bullard
with a copy to
Goodwin, Procter & Hoar
Exchange Place
Boston, MA 02109
Attn: Jon D. Schneider, P.C.
If to the Company:
Concurrent Computer Corporation
2 Crescent Place
Oceanport, NJ 07724
Attn: Vice President, General Counsel
Section 6.2 Successors. All of the covenants and provisions of
----------
this Warrant by or for the benefit of the Company or Fleet shall bind
and inure to the benefit of their respective successors and permitted
assigns hereunder.
9
<PAGE>
Section 6.3 THIS WARRANT, AND ALL QUESTIONS RELATING TO THE
INTERPRETATION, CONSTRUCTION AND ENFORCEABILITY OF THIS WARRANT, SHALL
BE GOVERNED IN ALL RESPECTS BY THE SUBSTANTIVE LAWS OF THE COMMONWEALTH
OF MASSACHUSETTS.
Section 6.4 Amendments and Waivers. Except as otherwise
----------------------
provided herein, the provisions of this Warrant may not be amended,
modified or supplemented, other than by a written instrument executed by
the Company and Fleet.
Section 6.5 Severability. In the event that any one or more of
------------
the provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions
contained herein shall not be in any way impaired thereby, it being
intended that all of the rights and privileges of Fleet shall be
enforceable to the fullest extent permitted by law.
Section 6.6 Transferability. The Warrant shall be transferable
---------------
in whole but not in part to an Affiliate of Fleet, and after December
15, 1994, to the extent then exercisable, to other than an Affiliate of
Fleet, and the Company upon being provided with evidence satisfactory to
it of such transfer and of compliance with the Act and related
securities laws, shall issue a new Warrant certificate in the name of
such transferee. In the event of any transfer other than to an
Affiliate, the registration provisions of Section 4 hereof shall not
apply to shares of Common Stock or otherwise Registrable Securities
issuable upon exercise of such transferred Warrant.
IN WITNESS WHEREOF, the parties hereto have caused this Warrant to
be duly executed and delivered, all as of the date and year first above
written.
CONCURRENT COMPUTER CORPORATION
By: /s/ Kevin J. Dell
--------------------------------
Name: Kevin J. Dell
Title: Vice President, General Counsel and
Assistant Secretary
FLEET BANK OF MASSACHUSETTS
By: /s/ Thomas Bullard
--------------------------------
Name: Thomas Bullard
Title: Vice President
10
<PAGE>
EXHIBIT A
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Warrant)
CONCURRENT COMPUTER CORPORATION
2 Crescent Place
Oceanport, NJ 07724
Ladies and Gentlemen:
The undersigned hereby irrevocably elects to exercise
--------------
Warrants to purchase ( ) of the shares
------------ -------------- -----
of Common Stock issuable upon the exercise of such Warrant and requests
that certificates for such shares be issued in the name of:
-----------------------------------------------------------------
(Please print name and address)
-----------------------------------------------------------------
The undersigned hereby makes payment by wire transfer/cashier's
check in the amount of $_________ toward the aggregate Exercise Price of
$_______ and irrevocably promises to pay the balance, if any, of the
aggregate Exercise Price within five business days of the date hereof.
Please insert social security or other identifying number
---------------
------------
Dated: , 19 .
------------- --
FLEET BANK OF MASSACHUSETTS, N.A.
By:
--------------------------------
Name:
Title:
54590.c3
2/21/94 2:43 pm
11
THIS WARRANT AND THE SHARES OF COMMON STOCK TRANSFERRED UPON EXERCISE OF
THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAW AND MAY NOT BE SOLD,
MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT
(i) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND
ANY APPLICABLE STATE SECURITIES LAWS OR (ii) UPON FIRST FURNISHING TO
THE COMPANY AN OPINION OF COUNSEL SATISFACTORY TO IT THAT SUCH TRANSFER
IS NOT IN VIOLATION OF THE REGISTRATION REQUIREMENTS OF THE ACT OR ANY
APPLICABLE STATE SECURITIES LAW. THIS WARRANT IS ALSO SUBJECT TO THE
RESTRICTIONS ON TRANSFER SET FORTH HEREIN.
WARRANT
-------
THIS WARRANT dated as of February 18, 1994, between CONCURRENT
COMPUTER, a Delaware corporation (the "Company") and CIBC Inc. ("CIBC").
Capitalized terms used herein shall have the meanings ascribed to them
in the Second Amended and Restated Credit Agreement between Fleet Bank
of Massachusetts, N.A. ("Fleet"), CIBC, the Company and Fleet, as agent,
dated July 21, 1993, as amended ("Credit Agreement").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to Amendment No. 4 to Second Amended and Restated
Credit Agreement dated as of February 18, 1994, the Company has agreed
to issue to CIBC this warrant (the "Warrant") of the Company, which
entitles CIBC to purchase, upon the terms and conditions hereinafter set
forth, shares of the Company's Common Stock, $.01 par value per share
(the "Common Stock");
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
ARTICLE I
GRANT OF WARRANT
----------------
This Warrant entitles CIBC to purchase, at a price per share equal
to the Exercise Price per share (as defined in Section 2.1 hereof),
Three Hundred Thousand (300,000) shares of Common Stock, subject to
adjustment as set forth in Section 3.4 hereof.
<PAGE>
ARTICLE II
EXERCISE OF WARRANT; EXERCISE PRICE
-----------------------------------
Section 2.1 Exercise Price. This Warrant shall entitle CIBC,
--------------
subject to the provisions of this Article II, to purchase from the
Company the number of shares of Common Stock provided for in Article I,
at a purchase price per share equal to $1.50 (the closing price per
share on February 18, 1994), which shall be payable by wire transfer to
a designated account of the Company or cashier's check in the manner set
forth in Section 2.3.
Section 2.2 Right to Exercise the Warrant. This Warrant may be
-----------------------------
exercised in full at any time during the period from the date hereof
through September 30, 1994 (the "Termination Date"), subject to
extension pursuant to Section 2.5 below.
Section 2.3 Procedure for Exercising the Warrant. CIBC may
------------------------------------
exercise this Warrant by executing the Form of Election attached hereto
as Exhibit A and delivering it to the Company on any business day during
---------
normal business hours and tendering the aggregate Exercise Price of
which at least the dollar amount representing the par value of the
number of shares of Common Stock issuable upon such election shall be
payable upon such election with the balance of the aggregate Exercise
Price, if any, payable within five business days of such election (the
date of receipt of such Form of Election and the minimum amount of the
aggregate Exercise Price by the Company is hereinafter referred to as
the "Exercise Date").
Section 2.4 Issuance of Shares. Within five (5) business days
------------------
following the Exercise Date, the Company shall (provided that it has
received the Form of Election duly executed, accompanied by payment of
the Exercise Price pursuant to Section 2.1 hereof for each of the shares
of Common Stock to be purchased) execute and deliver to CIBC a
certificate or certificates for the number of shares of Common Stock for
which this Warrant is being exercised.
Section 2.5 Extension of Termination Date. The Termination Date
-----------------------------
may be extended as set forth below.
(a) November 15, 1994. In the event that the Lenders notify
-----------------
the Company in writing on or before September 26, 1994 that the payments
(the "Payments") due to the Lenders on or before September 30, 1994 and
December 31, 1994 pursuant to Section 4.01 of the Credit Agreement may
be deferred by the Company to on or before November 15, 1994 and
February 15, 1995, respectively, the Termination Date shall be extended
through November 15, 1994.
(b) June 30, 1995. In the event that the Termination Date is
-------------
extended to November 15, 1994 pursuant to paragraph (a) above and the
Lenders notify the Company in writing on or before November 10, 1994
that the Payments may be deferred by the Company to on or before June
30, 1995, the Termination Date shall be extended through June 30, 1995.
2
<PAGE>
(c) Maturity Date of Restructured Term Loans. In the event
----------------------------------------
that the Warrant has not expired and the Term Loans are restructured by
written agreement by and between the Company and the Lenders on or
before December 15, 1994, the Termination Date shall be extended through
the maturity date of the restructured Term Loan.
(d) Suspension Notice Extension. Notwithstanding and in
---------------------------
addition to any other extension of the Termination Date pursuant to
paragraphs (a), (b) or (c) above, upon the Company's giving a Suspension
Notice to CIBC, the Termination Date automatically shall be extended by
the number of days equal to the Extension Days, as defined in Section
4.4 hereof.
ARTICLE III
RESERVATION AND AVAILABILITY OF SHARES; ANTI-DILUTION
-----------------------------------------------------
Section 3.1 Reservation of Shares. The Company covenants and
---------------------
agrees that it will reserve and keep available out of its authorized and
unissued Common Stock, or its authorized and issued Common Stock held in
its treasury, the number of shares of Common Stock that will be
sufficient to permit the exercise in full of this Warrant.
Section 3.2 Shares to be Duly Authorized and Issued. The
---------------------------------------
Company covenants and agrees that it will take all such action as may be
necessary to ensure that all shares of Common Stock delivered upon
exercise of this Warrant shall, at the time of delivery of the
certificates for such shares, be duly and validly authorized and issued.
Section 3.3 Stock Record Date. Each person or entity in whose
-----------------
name any certificate for shares of Common Stock is issued upon the
exercise of this Warrant shall for all purposes be deemed to have become
the holder of record of the shares of Common Stock represented thereby
on, and such certificate shall be dated, the date upon which the Form of
Election was duly executed and payment of the aggregate Exercise Price
therefor was made. Prior to the exercise of this Warrant, CIBC shall
not be entitled to any rights of a stockholder of the Company with
respect to the shares of Common Stock for which this Warrant shall be
exercisable, including, without limitation, the right to vote or to
receive dividends or other distributions and shall not be entitled to
receive any notice of any proceedings of the Company, except as provided
herein.
Section 3.4 Anti-Dilution Adjustment and Reorganizations.
---------------------------------------------
(a) Common Stock Dividend, Subdivisions and Contributions.
-----------------------------------------------------
In the event of any change in the shares of Common Stock by reason of
stock dividend, split up, merger, recapitalization, subdivision,
conversion, combination, exchange of shares or similar transactions, the
type and number of Common Stock issuable under the Warrant and the
Exercise Price therefor shall be adjusted appropriately, and proper
provision shall be made in the agreements governing such transaction, so
that CIBC shall receive upon exercise of the
3
<PAGE>
Warrant the number and class of shares or other securities or property
that CIBC would have held immediately after such event if the Warrant
had been exercised immediately prior to such event, or the record date
therefor, as applicable.
(b) Reorganizations. In case of any consolidation or merger
---------------
of the Company with or into another corporation (other than a merger or
consolidation in which the Company is the continuing corporation and
which does not result in any reclassification of the outstanding shares
of Common Stock or the conversion of such outstanding shares of Common
Stock into shares of other stock or other securities or property), or
the sale of the property of the Company as an entirety or substantially
as an entirety (collectively such actions being hereinafter referred to
as "Reorganizations"), there shall thereafter be deliverable upon
exercise of this Warrant (in lieu of the number of shares of Common
Stock theretofore deliverable) the number of shares of stock or other
securities or property to which a holder of the number of shares of
Common Stock (on an as-converted basis) which would otherwise have been
deliverable upon the exercise of this Warrant would have been entitled
upon such Reorganization if this Warrant had been exercised immediately
prior to such Reorganization. In the event of sale or conveyance or
other transfer of all or substantially all of the assets of the Company
as a part of a plan for liquidation of the Company, all rights to
exercise this Warrant shall terminate thirty (30) days after the Company
gives written notice to CIBC that such sale or conveyance or other
transfer has been consummated.
ARTICLE IV
REGISTRATION RIGHTS
-------------------
Section 4.1 Definitions. For purposes of this Agreement, the
-----------
following terms shall have the following respective meanings:
(a) "Affiliate" shall have the meaning set forth in Rule 12b-
2 under the Securities Exchange Act of 1934, as in effect as of the date
hereof.
(b) "Registrable Securities" shall mean (i) shares of Common
Stock issuable to CIBC or an Affiliate of CIBC upon exercise of this
Warrant, (ii) shares of Common Stock issued to CIBC or an Affiliate of
CIBC pursuant to the exercise of this Warrant that remain issued and
outstanding and owned by CIBC or an Affiliate of CIBC following such
exercise, and (iii) any shares of Common Stock that are issued as a
dividend or other distribution with respect to, or in exchange for or
conversion or replacement of, any of the shares referenced in
clause (ii) above pursuant to Section 3.4 of the Warrant and that remain
issued and outstanding and owned by CIBC or an Affiliate of CIBC
following exercise of this Warrant; provided, however, that Registrable
-------- -------
Securities shall not include any of the foregoing shares that have been
sold in a distribution pursuant to a registered public offering or sold
under Rule 144 of the Securities Act of 1933, as amended (the "Act").
4
<PAGE>
(c) "Registration Expenses" shall mean all expenses incurred
by the Company in compliance with this Article IV, including, without
limitation, all registration, qualifying and filing fees, printing
expenses, fees and disbursements of counsel for the Company, blue sky
fees and expenses, and any accounting fees and expenses incident to or
required by any such registration (but excluding the Selling Expenses
which shall be paid by the persons who are selling the securities).
(d) "Selling Expenses" shall mean all underwriting discounts
and selling commissions applicable to the sale of the Registrable
Securities and all fees and disbursements of special independent counsel
for the persons who are selling such securities.
Section 4.2 Registration Rights. The Company shall (a) cause a
-------------------
registration statement (the "Registration Statement") relating to the
Registrable Securities to be filed under the Act, on an appropriate form
on or before April 30, 1994 and to cause appropriate filings to be made
under the laws of various state jurisdictions specified by CIBC and (b)
use its best efforts consistent with its responsibilities under the Act
and related securities laws to have the Registration Statement declared
effective on or before June 30, 1994 ("Initial Registration Date").
Section 4.3 Expenses of Registration. All Registration Expenses
------------------------
incurred in connection with any registration, qualification or
compliance pursuant to this Article IV shall be borne by the Company,
and all Selling Expenses shall be borne by the persons who are selling
Registrable Securities.
Section 4.4 Registration Procedures. In the case of the
-----------------------
registration effected by the Company pursuant to this Article IV, the
Company will keep CIBC advised in writing as to the initiation of the
registration and as to the completion thereof. At its expense, the
Company will:
(a) use its best efforts to keep the Registration Statement
effective from the Initial Registration Date until the date which is 18
months after the Termination Date; provided that Rule 415, or any
successor rule under the Act, permits an offering on a continuous or
delayed basis, and provided further that applicable rules under the Act
governing the obligation to file a post-effective amendment permit, in
lieu of filing a post-effective amendment which (i) includes any
prospectus required by Section 10(a)(3) of the Act or (ii) reflects
facts or events representing a material or fundamental change in the
information set forth in the registration statement, the incorporation
by reference of information required to be included in clauses (i) and
(ii) above to be contained in periodic reports filed pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 in the
registration statement; and
(b) furnish such number of prospectuses and other documents
incident thereto as CIBC from time to time may reasonably request.
5
<PAGE>
Notwithstanding anything to the contrary contained herein, upon receipt
of any notice (a "Suspension Notice") from the Company of the happening
of any event which makes any statement made in the Registration
Statement or related prospectus untrue or which requires the making of
any changes in such Registration Statement or prospectus so that they
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 they were made
not misleading, CIBC shall forthwith discontinue disposition of the
Registrable Securities pursuant to the Registration Statement covering
such Registrable Securities until CIBC's receipt of the copies of the
supplemented or amended prospectus filed with the Securities and
Exchange Commission which does not contain an untrue statement of a
material fact or omit a material fact necessary to make any statement
therein not misleading or until CIBC is advised in writing (the
"Advice") by the Company that the use of such prospectus may be resumed,
and has received copies of any additional or supplemental filings which
are incorporated by reference in the subject prospectus; provided,
however, that the Company shall not give more than one Suspension Notice
during any period of twelve consecutive months and in no event shall the
period from the date on which CIBC receives a Suspension Notice to the
date on which CIBC receives either the Advice or copies of the above
supplemented or amended prospectus exceed 60 days. In the event that
the Company shall give any Suspension Notice, (i) the Company shall use
commercially reasonable efforts and take such actions as are reasonably
necessary to render the Advice as promptly as practicable and (ii) the
time periods for which a Registration Statement is required to be kept
effective pursuant to Section 4.4 hereof shall be extended by the number
of days (the "Extension Days") during the period from and including the
date of the giving of such notice to and including the date when CIBC
shall have received (x) the copies of the supplemented or amended
prospectus or (y) the Advice.
Section 4.5 Indemnification.
---------------
(a) The Company will, and does hereby undertake to, indemnify
each of the Lenders, each of its Affiliates, and each person who
controls either of the Lenders (within the meaning of the Act and the
rules and regulations thereunder), on whose behalf registration,
qualification or compliance has been effected pursuant to this
Article IV, from and against all expenses, claims, losses, damages and
liabilities (or actions in respect thereof to which they become
subject), including settlement of any litigation, commenced or
threatened, to which they may become subject, arising out of or based on
any untrue statement (or alleged untrue statement) of a material fact
contained in any registration statement, including any preliminary or
final prospectus contained therein or any amendment thereto, or other
document incident to any such registration, qualification or compliance,
or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or any violation by the Company of
the Act, any rule or regulation thereunder or any other federal, state
or common law rule, regulation or statute applicable to the Company and
relating to action or inaction required of the Company in connection
with any such registration, qualification or compliance, and will
reimburse each of the Lenders, each of its Affiliates, and each person
who controls either of the Lenders for the reasonable legal costs of one
counsel for such
6
<PAGE>
Lenders, or one separate counsel for each of the Lenders in the event
either of the Lenders in its reasonable discretion believes there is a
conflict of interest or other circumstances which would make it
appropriate to be represented by separate counsel, and other expenses
reasonably incurred in connection with investigating, preparing and
defending any such claim, loss, damage, liability or action; provided
that the Company will not be liable in any such case to the extent that
any such claim, loss, damage, liability or expense arises from or is
based on any untrue statement or omission or alleged untrue statement or
omission based upon written information furnished to the Company by CIBC
or any of its Affiliates, or any person who controls CIBC, expressly for
use therein.
(b) CIBC will, if Registrable Securities held by it are
included in the securities as to which such registration, qualification
or compliance is being effected, indemnify the Company, each of its
directors and officers and each underwriter, if any, of the Company's
securities covered by such a registration statement, each person who
controls the Company or such underwriter (within the meaning of the Act
and the rules and regulations thereunder), each other shareholder whose
securities are included in the securities as to which such registration,
qualification or compliance is being effected, and each of their
officers, directors and partners, and each person who controls such
shareholder, against all claims, losses, damages and liabilities (or
actions in respect thereof to which they become subject), including
settlement of any litigation, commenced or threatened, to which they may
become subject, arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such
registration statement, including any preliminary or final prospectus
contained therein or any amendment thereto, or other document incident
to any such registration, qualification or compliance, or based on any
omission (or alleged omission) to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company and such shareholders,
directors, officers, partners, persons, underwriters or controlling
persons for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement or alleged
omission) is made in such registration statement, including any
preliminary or final prospectus contained therein or any amendment
thereto, or other document in reliance upon and in conformity with
written information furnished to the Company by CIBC or any Affiliate of
CIBC expressly for use therein. In no event, however, shall the
liability of CIBC or any Affiliate of CIBC for indemnification under
this Section 4.6(b) exceed the proceeds received by CIBC or any
Affiliates of CIBC from the sale of Registrable Securities under such
registration statement.
(c) Each party entitled to indemnification under this
Section 4.6 (the "Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying Party") promptly
after such Indemnified Party has actual knowledge of any claim as to
which indemnity may be sought, and shall permit the Indemnifying Party
to assume the defense of any such claim or any litigation resulting
therefrom, and the Indemnified Party may participate in such defense at
such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not
7
<PAGE>
relieve the Indemnifying Party of its obligations under this Article IV.
No Indemnifying Party, in the defense of any such claim or litigation,
shall, except with the consent of each Indemnified Party (which consent
shall not unreasonably be withheld), consent to entry of any judgment or
enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified
Party of a release from all liability in respect to such claim or
litigation. Each Indemnified Party shall furnish such information
regarding itself or the claim in question as an Indemnifying Party may
reasonably request in writing and as shall be reasonably required in
connection with defense of such claim and litigation resulting
therefrom.
Section 4.6 Information by CIBC. CIBC and its Affiliates shall
-------------------
furnish to the Company such information regarding CIBC and the
distribution proposed by CIBC and its Affiliates as the Company may
request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this
Article IV.
ARTICLE V
PURCHASER REPRESENTATIONS, WARRANTIES AND COVENANTS
---------------------------------------------------
CIBC represents and warrants to and covenants with, the Company, as
follows:
Section 5.1 Representations. It is acquiring the Warrant for
---------------
investment for its own account and not with the view to, or for resale
in connection with, any distribution thereof. It has no present
intention of selling, granting participation in, or otherwise
distributing the Warrant or the shares of Common Stock issuable upon
exercise thereof other than to an Affiliate of CIBC. It understands
that the Warrant and the shares of Common Stock issuable upon exercise
thereof have not been registered under the Securities Act, or any state
blue sky laws. It acknowledges that the Warrant and the shares of
Common Stock issuable upon exercise thereof must be held indefinitely
unless they are subsequently registered under the Act or an exemption
from such registration is available. It has been advised or is aware of
the provisions of Rules 144 and 144A promulgated under the Act, which
permit the resale of shares purchased in a private placement subject to
the satisfaction of certain conditions and that such Rules may not be
available for resale of the shares.
Section 5.2 Restrictive Legend. Each certificate representing
------------------
shares of the Company's Common Stock issuable upon exercise of the
Warrant, or any other securities issued in respect of the Common Stock
issued upon exercise of the Warrant, upon any stock split, stock
dividend, recapitalization, merger, consolidation or similar event,
shall (unless otherwise permitted or unless the securities evidenced by
such certificate shall have been registered under the Securities Act) be
stamped or otherwise imprinted with a legend in substantially the
following form (in addition to any legend required under applicable
state securities laws):
8
<PAGE>
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE SOLD, ASSIGNED OR
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
FOR SUCH SECURITIES UNDER SAID ACT, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT, IN THE
CIRCUMSTANCES, REQUIRED, OR EVIDENCE SATISFACTORY TO THE COMPANY
THAT THE SHARES HAVE BEEN SOLD IN COMPLIANCE WITH RULE 144
PROMULGATED UNDER SAID ACT.
ARTICLE VI
MISCELLANEOUS
-------------
Section 6.1 Notices. Notices or demands relating to this
-------
Warrant shall be sufficiently given or made if sent to the party to whom
notice is being given by first-class mail, postage prepaid, addressed as
follows, or telexed, telecopied, or delivered by overnight or other
courier:
If to CIBC:
CIBC Inc.
Embarcadero Center
West Tower
275 Battery Street, Suite 1840
San Francisco, CA 94111
Attn: Thomas R. Wagner
with a copy to
Goodwin, Procter & Hoar
Exchange Place
Boston, MA 02109
Attn: Jon D. Schneider, P.C.
If to the Company:
Concurrent Computer Corporation
2 Crescent Place
Oceanport, NJ 07724
Attn: Vice President, General Counsel
9
<PAGE>
Section 6.2 Successors. All of the covenants and provisions of
----------
this Warrant by or for the benefit of the Company or CIBC shall bind and
inure to the benefit of their respective successors and permitted
assigns hereunder.
Section 6.3 THIS WARRANT, AND ALL QUESTIONS RELATING TO THE
INTERPRETATION, CONSTRUCTION AND ENFORCEABILITY OF THIS WARRANT, SHALL
BE GOVERNED IN ALL RESPECTS BY THE SUBSTANTIVE LAWS OF THE COMMONWEALTH
OF MASSACHUSETTS.
Section 6.4 Amendments and Waivers. Except as otherwise
----------------------
provided herein, the provisions of this Warrant may not be amended,
modified or supplemented, other than by a written instrument executed by
the Company and CIBC.
Section 6.5 Severability. In the event that any one or more of
------------
the provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions
contained herein shall not be in any way impaired thereby, it being
intended that all of the rights and privileges of CIBC shall be
enforceable to the fullest extent permitted by law.
Section 6.6 Transferability. The Warrant shall be transferable
---------------
in whole but not in part to an Affiliate of CIBC, and after December 15,
1994, to the extent then exercisable, to other than an Affiliate of
CIBC, and the Company upon being provided with evidence satisfactory to
it of such transfer and of compliance with the Act and related
securities laws, shall issue a new Warrant certificate in the name of
such transferee. In the event of any transfer other than to an
Affiliate, the registration provisions of Section 4 hereof shall not
apply to shares of Common Stock or otherwise Registrable Securities
issuable upon exercise of such transferred Warrant.
IN WITNESS WHEREOF, the parties hereto have caused this Warrant to
be duly executed and delivered, all as of the date and year first above
written.
CONCURRENT COMPUTER CORPORATION
By: /s/ Kevin J. Dell
--------------------------------
Name: Kevin J. Dell
Title: Vice President, General Counsel and
Assistant Secretary
CIBC INC.
By: /s/ Thomas R. Wagner
--------------------------------
Name: Thomas R. Wagner
Title: Vice President
10
<PAGE>
EXHIBIT A
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Warrant)
CONCURRENT COMPUTER CORPORATION
2 Crescent Place
Oceanport, NJ 07724
Ladies and Gentlemen:
The undersigned hereby irrevocably elects to exercise
--------------
Warrants to purchase ( ) of the shares
------------ -------------- -----
of Common Stock issuable upon the exercise of such Warrant and requests
that certificates for such shares be issued in the name of:
-----------------------------------------------------------------
(Please print name and address)
-----------------------------------------------------------------
The undersigned hereby makes payment by wire transfer/cashier's
check in the amount of $_________ toward the aggregate Exercise Price of
$_______ and irrevocably promises to pay the balance, if any, of the
aggregate Exercise Price within five business days of the date hereof.
Please insert social security or other identifying number
---------------
------------
Dated: , 19 .
------------- --
CIBC INC.
By:
--------------------------------
Name:
Title:
56338.c1
2/21/94 2:56 pm
11
EXHIBIT 5.0
May 12, 1994
Concurrent Computer Corporation
2 Crescent Place
Oceanport, NJ 07757
Dear Sirs:
Reference is made to a Registration Statement on Form S-3
(the "Registration Statement") filed on May 16, 1994 by
Concurrent Computer Corporation (the "Company") with the
Securities and Exchange Commission for the purpose of registering
under the Securities Act of 1933 an aggregate of 600,000 shares
(the "Shares") of the Company's Common Stock, par value $.01 per
share. The Shares are issuable upon the exercise of the warrants
that were issued by the Company on February 18, 1994.
I have examined the Restated Certificate of Incorporation
and By-Laws of the Company and have examined and relied upon the
originals or copies certified to my satisfaction of such records
of meetings of directors and stockholders of the Company and such
other documents as in my judgment are necessary or appropriate to
enable me to render the opinion expressed below.
In my examination of the foregoing documents, I have assumed
the genuineness of all signatures and the authenticity of all
documents submitted to me as originals, the conformity to
original documents of all documents submitted to me as certified
or photostatic copies, and the authenticity of the originals of
such latter documents.
On the basis of the foregoing, I advise you that, in my
opinion, the Shares have been duly and validly authorized for
issuance by the Company and, upon issuance thereof and payment
thereof, will be fully paid and non-assessable, with no personal
liability attaching to the ownership thereof.
I hereby consent to the filing of this opinion as Exhibit
5.0 to the Registration Statement, and to the reference to me
under the caption "Legal Matters" in the Prospectus constituting
part of the Registration Statement.
Sincerely,
/s/ KEVIN J DELL
-----------------------------------
(KEVIN J. DELL)
VICE PRESIDENT, GENERAL
COUNSEL AND ASSISTANT SECRETARY
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We consent to the incorporation by reference in the registration
statement of Concurrent Computer Corporation on Form S-3 of our
report dated August 20, 1993, on our audits of the consolidated
financial statements and financial statements schedules of
Concurrent Computer Corporation as of June 30, 1993 and 1992, and
for three years in the period ended June 30, 1993, which report
is included in the Company's Annual Report on Form 10-K.
/s/ COOPERS & LYBRAND
Parsippany, New Jersey
May 12, 1994
