As filed with the Securities and Exchange Commission on March 10, 2000.
Registration No. 333
------------
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________
CONCURRENT COMPUTER CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 04-2735766
(State or other jurisdiction (I.R.S. Employer Identification Number)
of incorporation or organization)
4375 River Green Parkway
Duluth, Georgia 30096
(Address, including zip code, of registrant's principal executive offices)
_______________
Vivid Technology, Inc. 1998 Equity Compensation Plan
(Full title of plan)
Steven R. Norton
Executive Vice President and Chief Financial Officer
Concurrent Computer Corporation
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
John D. Capers, Jr.
King & Spalding
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Telephone: (404) 572-4600
Facsimile: (404) 572-5100
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum Amount of
Title of Shares to be Amount to be Aggregate Price Per Aggregate Offering Registration
Registered Registered Unit (1) Price (1) Fee
<S> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------
Common Stock, $.01 par 378,983 shares $ 16.625 $ 6,300,593 $ 1,664
<FN>
(1) Estimated solely for the purpose of computing the amount of the registration fee pursuant to
Rule 457(h) on the basis of the average high and low sales prices per share of common stock of
Concurrent Computer Corporation as reported on the Nasdaq National Market on March 8, 2000.
</TABLE>
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<PAGE>
Part I.Information Required in the Section 10(A) Prospectus
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participating employees and directors as specified by
Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act").
These documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of this Registration Statement, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
Part II. Information Required in the Registration Statement
Item 3. Incorporation of Certain Documents by Reference
The following documents, which have been filed by the Registrant with the
Securities and Exchange Commission pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"), are incorporated in this registration
statement by reference and made a part hereof:
1. The Registrant's annual report on Form 10-K for the fiscal year ended
June 30, 1999;
2. The Registrant's quarterly reports on Form 10-Q for the fiscal quarters
ended September 30, 1999 and December 31, 1999
3. The Registrant's current report on Form 8-K filed on September 19, 1999;
4. The Registrant's current report on Form 8-K filed on January 11, 2000;
and
5. The description of the Registrant's common stock, par value $.01,
contained in the registration statement on Form 8-A dated January 23,
1986 filed under the Exchange Act, including any amendment or report
filed for the purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act after the effective date of this registration
statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold shall be deemed to be incorporated by reference
in this registration statement and to be a part hereof from the date of filing
of such documents. Any statement contained in a document incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this registration statement to the extent that a statement contained herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this registration statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Subsection (a) of Section 145 of the Delaware General Corporation Law
empowers a corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
<PAGE>
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by right of the corporation to
procure a judgment in its favor by reason of the fact that such person acted in
any of the capacities set forth above, against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification may be made in respect to any claim
issue or matter as to which such person shall have been adjudged to be liable to
the corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
Section 145 further provides that to the extent a director or officer of a
corporation has been successful on the merits or otherwise in the defense of any
such action, suit or proceeding referred to in subsections (a) and (b) of
Section 145 or in the defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith; that the indemnification provided for
by Section 145 shall not be deemed exclusive of any other rights which the
indemnified party may be entitled; that indemnification provided by Section 145
shall, unless otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of such person's heirs, executors and administrators; and
empowers the corporation to purchase and maintain insurance on behalf of a
director or officer of the corporation against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liabilities under Section 145.
Section 102(b)(7) of the Delaware General Corporation Law provides that a
certificate of incorporation may contain a provision eliminating or limiting the
personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided that such
provision shall not eliminate or limit the liability of the director (i) for any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law or (iv) for any transaction from which the
director derived an improper personal benefit.
Article 11 of the Registrant's Certificate of Incorporation provides that
directors shall not be liable for monetary damages resulting from a breach of
their fiduciary duties, except for liability for any of the following: (i) any
breach of the duty of loyalty to the Registrant and its stockholders, (ii) acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) as provided under Section 174 of the Delaware
General Corporation Law (which provides that directors are personally liable for
unlawful dividends or unlawful stock repurchase or redemptions), or (iv) any
transaction from which a director personally derived any improper personal
benefit. If the Delaware General Corporation Law is amended after approval by
the stockholders of Article 11 to authorize corporate action further eliminating
or limiting the personal liability of directors, then the liability of a
director of Concurrent shall be eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law, as so amended from time to
time. Any repeal or modification of Article 11 shall not increase the personal
liability of any director of Concurrent for any act or occurrence taking place
prior to such repeal or modification, or otherwise adversely affect any right or
protection of a director of Concurrent existing prior to the time of such repeal
or modification.
The Registrant maintains director and officer liability insurance policies
providing for the insurance on behalf of any person who is or was a director or
officer of the Registrant and subsidiary companies against any liability
incurred by him in any such capacity or arising out of his status as such. The
policies contain various reporting requirements and exclusions.
<PAGE>
The Registrant has entered into indemnity agreements with certain directors
and executive officers (each, an "Indemnitee" and collectively, the
"Indemnitees"). The indemnity agreements provide a contractual right to
indemnification to the Indemnitees for certain expenses incurred due to actions,
suits or other proceedings brought against them in their capacity as directors,
officers, employees or agents of the Registrant or any of its subsidiaries.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
The following exhibits are filed as part of this registration statement:
Exhibit
Number Description of Exhibits
4.1(1) - Restated Certificate of Incorporation of the Registrant.
4.2(2) - Amended and Restated By-laws of the Registrant
5.1 - Opinion of King & Spalding
23.1 - Consent of King & Spalding (included in Exhibit 5.1)
23.2 - Consent of Bergey Yoder Sweeny Witter & Roland PC
23.3 - Consent of KPMG LLP
24.1 - Powers of attorney (included on signature page hereto)
- -______________________________
(1) Incorporated herein by reference to the Exhibits to the Registrant's
Registration Statement on Form S-2 (No. 33-62440)
(2) Incorporated herein by reference to the Exhibits to the Registrant's
Quarterly Report on Form 10-Q for the fiscal quarter ended December 28, 1996.
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement.
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement;
and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that the undertakings set forth in paragraphs (a)(1)(i) and
(a)(1)(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that
are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
<PAGE>
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) That, for purposes of determining any liability under the Act, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act that is incorporated by reference in this registration
statement shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant, the Registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Duluth, State of Georgia
on March 10, 2000.
CONCURRENT COMPUTER CORPORATION
By: /s/ Steve G. Nussrallah
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Steve G. Nussrallah
Chief Executive Officer, President
POWER OF ATTORNEY
We, the undersigned directors and officers of Concurrent Computer
Corporation do hereby constitute and appoint Steve G. Nussrallah and Steven R.
Norton, and each or any of them, our true and lawful attorneys-in-fact and
agents, to do any and all acts and things in our names and on our behalf in our
capacities as directors and officers and to execute any and all instruments for
us and in our name in the capacities indicated below, which said attorneys and
agents, or any of them, may deem necessary or advisable to enable said
Corporation to comply with the Securities Act of 1933 and any rules, regulations
and requirements of the Securities and Exchange Commission, in connection with
this registration statement, or any registration statement for this offering
that is to be effective upon filing pursuant to Rule 462(b) under the Securities
Act of 1933, including specifically, but without limitation, power and authority
to sign for us or any of us in our names in the capacities indicated below, any
and all amendments (including post-effective amendments) hereto; and we do
hereby ratify and confirm all that said attorneys and agents, or any of them,
shall do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
on this 9th day of March, 2000.
Signature Title
--------- ------
Chairman of the Board and Director
- --------------------------------------------
E. Courtney Siegel
/s/ Steve G. Nussrallah Chief Executive Officer,President and Director
- --------------------------------------------
Steve G. Nussrallah
<PAGE>
/s/ Steven R. Norton Executive Vice President and
- ------------------------------------------------ Chief Financial Officer
Steven R. Norton
- ----------------------------------------------------------------------Director
Michael A. Brunner
/s/ Morton E. Handel
- ----------------------------------------------------------------------Director
Morton E. Handel
/s/ C. Shelton James
- ----------------------------------------------------------------------Director
C. Shelton James
/s/ Richard P. Rifenburgh
- ----------------------------------------------------------------------Director
Richard P. Rifenburgh
/s/ Bruce N. Hawthorne
- ----------------------------------------------------------------------Director
Bruce N. Hawthorne
<PAGE>
INDEX TO EXHIBITS
The following exhibits are filed as part of this registration statement:
Exhibit
Number Description of Exhibits
4.1(1) - Restated Certificate of Incorporation of the Registrant.
4.2(2) - Amended and Restated By-laws of the Registrant
5.1 - Opinion of King & Spalding
23.1 - Consent of King & Spalding (included in Exhibit 5.1)
23.2 - Consent of Bergey Yoder Sweeny Witter & Roland PC
23.3 - Consent of KPMG LLP
24.1 - Powers of attorney (included on signature page)
- -______________________________
(1) Incorporated herein by reference to the Exhibits to the Registrant's
Registration Statement on Form S-2 (No. 33-62440)
(2) Incorporated herein by reference to the Exhibits to the Registrant's
Quarterly Report on Form 10-Q for the fiscal quarter ended December 28, 1996.
<PAGE>
EXHIBIT 5.1
March 9, 2000
Concurrent Computer Corporation
4375 River Green Parkway
Duluth, Georgia 30096
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel for Concurrent Computer Corporation (the
"Company") in connection with the preparation and filing of a registration
statement on Form S-8 (the "Registration Statement"), relating to the
registration by the Company under the Securities Act of 1933, as amended (the
"Act"), of up to 378,983 shares of the Company's common stock, par value $.01
(the "Common Stock"), to be issued by the Company from time to time pursuant to
options granted under the Vivid Technology, Inc. 1998 Equity Compensation Plan
(the "Stock Plan") (all such shares and options are referred to herein as the
"Shares" and "Options," respectively).
As such counsel, we have examined and relied upon such records, documents,
certificates and other instruments as in our judgment are necessary or
appropriate to form the basis for the opinions hereinafter set forth. In all
such examinations, we have assumed the genuineness of signatures on original
documents and the conformity to such original documents of all copies submitted
to us as certified, conformed or photographic copies, and as to certificates of
public officials, we have assumed the same to have been properly given and to be
accurate.
For purposes of this opinion, we have assumed the following: (i) the
Shares that may be issued upon exercise of the Options granted pursuant to the
Stock Plan will continue to be duly authorized on the dates of such issuance and
(ii) on the date on which any Option is exercised, such Option will have been
duly executed, issued and delivered by the Company and will constitute the
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms subject, as to enforceability, to
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, general equitable principles and the
discretion of courts in granting equitable remedies.
The opinions expressed herein are limited in all respects to the federal
laws of the United States of America and the Delaware General Corporation Law,
and no opinion is expressed with respect to the laws of any other jurisdiction
or any effect which such laws may have on the opinions expressed herein. This
opinion is limited to the matters stated herein, and no opinion is implied or
may be inferred beyond the matters expressly stated herein.
<PAGE>
Based upon the foregoing and subject to the limitations, qualifications and
assumptions set forth herein, we are of the opinion that:
a. The Shares are duly authorized; and
b. When the Shares are issued upon exercise of the Options granted
pursuant the Stock Plan against payment therefor, as provided in
the Stock Plan, such Shares will be validly issued, fully paid
and nonassessable.
This opinion is given as of the date hereof, and we assume no obligation to
advise you after the date hereof of facts or circumstances that come to our
attention or changes in law that occur which could affect the opinions contained
herein. This letter is being rendered solely for the benefit of Concurrent
Computer Corporation in connection with the matters addressed herein. This
opinion may not be furnished to or relied upon by any person or entity for any
purpose without our prior written consent.
We consent to the filing of this opinion as an Exhibit to the Registration
Statement.
Very truly yours,
/s/ King & Spalding
King & Spalding
<PAGE>
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Concurrent Computer Corporation
We consent to the incorporation by reference in this Registration Statement of
Concurrent Computer Corporation on Form S-8 of our report dated November 26,
1999 insofar as such reports relate to the financial statements of Vivid
Technology, Inc. for the years ended December 31, 1998 and 1997, appearing in
the Current Report on Form 8-K/A dated October 28, 1999 of Concurrent Computer
Corporation.
/s/ Bergey, Yoder, Sweeney, Witter & Roland, P.C.
Bergey, Yoder, Sweeney, Witter & Roland, P.C.
Telford, PA
March 7, 2000
<PAGE>
Exhibit 23.3
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Concurrent Computer Corporation
We consent to incorporation by reference in the registration statement on Form
S-8 Concurrent Computer Corporation of our report dated July 31, 1999, relating
to the balance sheets of Concurrent Computer Corporation as of June 30, 1999 and
1998, and the related statements of operations, redeemable preferred stock,
stockholders' equity and comprehensive income, and cash flows for each of the
years in the three-year period ended June 30, 1999, and all related schedules,
which report appears in the June 30, 1999, annual report on Form 10-K of
Concurrent Computer Corporation.
/s/ KPMG LLP
KPMG LLP
Atlanta, Georgia
March 8, 2000
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