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As filed with the Securities and Exchange Commission on November 20, 1997.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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CONCORD COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
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<S> <C>
Massachusetts 04-2710876
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
</TABLE>
33 Boston Post Road West
Marlboro, Massachusetts 01752
(508) 460-4646
(Address of Principal Executive Offices) (Zip Code)
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1995 Stock Plan
1997 Stock Plan
1997 Non-Employee Director Stock Option Plan
(Full title of the plans)
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John A. Blaeser
Chief Executive Officer and President
Concord Communications, Inc.
33 Boston Post Road West
Marlboro, Massachusetts 01752
(508) 460-4646
(Name and address including zip code and telephone number,
including area code, of agent for service)
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Copy to:
Edwin L. Miller, Jr., Esq.
TESTA, HURWITZ & THIBEAULT, LLP
High Street Tower, 125 High Street
Boston, Massachusetts 02110
(617) 248-7000
Approximate date of commencement of proposed sale to the public: As
soon as practicable after this Registration Statement becomes effective.
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Securities to be Price Per Offering Registration
to be Registered Registered Share Price Fee
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<S> <C> <C> <C> <C>
1995 STOCK PLAN
Common Stock (Par Value $.01 Per Share) 1,226,703 $ 0.10(1) $ 122,671 $ 38
Common Stock (Par Value $.01 Per Share) 48,125 $ 0.40(1) $ 19,250 $ 6
Common Stock (Par Value $.01 Per Share) 162,625 $ 0.90(1) $ 146,363 $ 45
Common Stock (Par Value $.01 Per Share) 260,375 $ 1.90(1) $ 494,713 $ 150
Common Stock (Par Value $.01 Per Share) 226,650 $ 4.10(1) $ 929,265 $ 282
Common Stock (Par Value $.01 Per Share) 54,000 $ 6.00(1) $ 324,000 $ 99
Common Stock (Par Value $.01 Per Share) 12,500 $ 7.50(1) $ 93,750 $ 29
Common Stock (Par Value $.01 Per Share) 2,750 $ 8.50(1) $ 23,375 $ 8
Common Stock (Par Value $.01 Per Share) 2,000 $10.00(1) $ 20,000 $ 7
Common Stock (Par Value $.01 Per Share) 699,508 $21.25(2) $14,864,545 $4,505
1997 STOCK PLAN
Common Stock (Par Value $.01 Per Share) 597,000 $21.25(2) $12,686,250 $3,845
Common Stock (Par Value $.01 Per Share) 150,000 $18.88(1) $ 2,832,000 $ 859
Common Stock (Par Value $.01 Per Share) 2,000 $20.00(1) $ 40,000 $ 13
Common Stock (Par Value $.01 Per Share) 1,000 $21.38(1) $ 21,380 $ 7
1997 NON-EMPLOYEE DIRECTOR STOCK
OPTION PLAN
Common Stock (Par Value $.01 Per Share) 95,000 $21.25(2) $ 2,018,750 $ 612
TOTAL: 3,540,236 $10,505
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(1) All such shares are issuable upon exercise of outstanding options with
fixed exercise prices. Pursuant to Regulation C, Rule 457(h)(1) under the
Securities Act of 1933, as amended, the aggregate offering price and the
fee have been computed upon the basis of the price at which the options may
be exercised.
(2) The price of $21.25 per share, which is the average of the high and low
prices of the common stock of the registrant reported on the Nasdaq
National Market on November 14, 1997, is set forth solely for purposes of
calculating the filing fee pursuant to Rule 457(c) and (h) and has been
used only for those shares without a fixed exercise price.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. PLAN INFORMATION.
The documents containing the information specified in this Item 1 will
be sent or given to employees, directors or others as specified by Rule
428(b)(1). In accordance with the rules and regulations of the Securities and
Exchange Commission (the "Commission") and the instructions to Form S-8, such
documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The documents containing the information specified in this Item 2 will
be sent or given to employees as specified by Rule 428(b)(1). In accordance with
the rules and regulations of the Commission and the instructions to Form S-8,
such documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission are incorporated by
reference in this Registration Statement:
(a) Registrant's Prospectus dated October 15, 1997 as filed with
the Commission pursuant to Rule 424(b)(1) of the Securities Act
of 1933, as amended (the "Securities Act"), on October 16,
1997; and
(b) The section entitled "Description of Registrant's Securities to
be Registered," contained in the Registrant's Registration
Statement on Form 8-A, filed on September 12, 1997 pursuant to
Section 12(g) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
All documents subsequently filed with the Commission by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered herein 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.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
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Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Restated Articles of Organization of the Company and the Restated
By-Laws provide for indemnification of the Company's directors and officers
unless such indemnification is prohibited by the Massachusetts Business
Corporation Law. The Massachusetts Business Corporation Law generally permits
indemnification of the Company's directors and officers for liabilities and
expenses that they may incur in such capacities, except with respect to any
matter that the indemnified person shall have been adjudicated in any proceeding
not to have acted in good faith in the reasonable belief that his or her action
was in the best interest of the Company. Reference is made to the Company's
corporate charter filed as Exhibit 3.02 to the Company's Registration Statement
on Form S-1 filed with the Commission on August 8, 1997, as amended (the "S-1")
and Restated By-Laws filed as Exhibit 3.03 to the Company's S-1.
The Underwriting Agreement provides that the Underwriters are
obligated, under certain circumstances, to indemnify directors, officers and
controlling persons of the Company against certain liabilities, including
liabilities under the Securities Act. Reference is made to the form of
Underwriting Agreement filed as Exhibit 1.01 to the Company's S-1.
Pursuant to an agreement between Charles River Partnership VII Limited
Partnership and Mr. Richard M. Burnes, Jr., Charles River Partnership VII has
agreed to indemnify Mr. Burnes against any liability incurred in his capacity as
a director of the Company.
The Company has entered into indemnification agreements with its
directors and officers and has obtained directors and officers liability
insurance for the benefit of its directors and officers.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
Exhibit No. Description of Exhibit
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Exhibit 5.1 Opinion of Testa, Hurwitz & Thibeault, LLP
(filed herewith).
Exhibit 23.1 Consent of Testa, Hurwitz & Thibeault, LLP
(contained in Exhibit 5.1).
Exhibit 23.2 Consent of Arthur Andersen LLP (filed herewith).
Exhibit 24.1 Power of Attorney (included as part of the
signature page to this Registration Statement).
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Item 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
Registration Statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set
forth in the Registration Statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if
the total dollar value of securities offered
would not exceed that which was registered)
and any deviation from the low or high and of
the estimated maximum offering range may be
reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price
represent no more than 20 percent change in
the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table
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;
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities
offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the 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 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by
reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of
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the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of
1933 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, Concord Communications, Inc., certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on Form S-8
and has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the Town of Marlboro,
Commonwealth of Massachusetts, on this 20th day of November, 1997.
CONCORD COMMUNICATIONS, INC.
By: /s/ John A. Blaeser
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John A. Blaeser
Chief Executive Officer and President
POWER OF ATTORNEY
We, the undersigned officers and directors of Concord Communications,
Inc., hereby severally constitute and appoint John A. Blaeser and Gary E.
Haroian, and each of them singly, our true and lawful attorneys, with full power
to them and each of them singly, to sign for us in our names in the capacities
indicated below, any amendments to this Registration Statement on Form S-8
(including post-effective amendments), and to file the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, and generally to do all things in our names and on our
behalf in our capacities as officers and directors to enable Concord
Communications, Inc., to comply with the provisions of the Securities Act of
1933, as amended, hereby ratifying and confirming our signatures as they may be
signed by our said attorneys, or any of them, to said Registration Statement and
all amendments thereto.
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.
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SIGNATURE TITLE(S) DATE
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<S> <C> <C>
/s/ John A. Blaeser Chief Executive Officer, President and November 20, 1997
- ------------------------------ Director (Principal Executive Officer)
John A. Blaeser
/s/ Gary E. Haroian Vice President, Finance and Administration, November 20, 1997
- ------------------------------ Chief Financial Officer, Clerk and Treasurer
Gary E. Haroian (Principal Financial and Accounting Officer)
/s/ Frederick W. W. Bolander Director November 20, 1997
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Frederick W. W. Bolander
/s/ Richard M. Burnes, Jr. Director November 20, 1997
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Richard M. Burnes, Jr.
/s/ Robert C. Hawk Director November 20, 1997
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Robert C. Hawk
/s/ John Robert Held Director November 20, 1997
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John Robert Held
/s/ Deepak Kamra Director November 20, 1997
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Deepak Kamra
/s/ Robert M. Wadsworth Director November 20, 1997
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Robert M. Wadsworth
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EXHIBIT INDEX
Exhibit No. Description of Exhibit Page Number
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5.1 Opinion of Testa, Hurwitz & Thibeault, LLP
23.1 Consent of Testa, Hurwitz & Thibeault, LLP
(contained in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
24.1 Power of Attorney (included as part of the signature
page to this Registration Statement)
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Exhibit 5.1
November 19, 1997
Concord Communications, Inc.
33 Boston Post Road West
Marlboro, Massachusetts 01752
Re: Registration Statement on Form S-8 Relating to each of the 1995
Stock Plan, the 1997 Stock Plan and the 1997 Non-Employee
Director Stock Option Plan of Concord Communications, Inc.
(all of the foregoing are hereinafter referred to collectively
as the "Plans")
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Dear Sir or Madam:
Reference is made to the above-captioned Registration Statement on Form
S-8 (the "Registration Statement") filed by Concord Communications, Inc. (the
"Company") on the date hereof with the Securities and Exchange Commission under
the Securities Act of 1933 relating to an aggregate of 3,540,236 shares of
Common Stock, par value $.01 per share, of the Company issuable pursuant to the
Plans (the "Shares").
We have examined, and are familiar with, and have relied as to factual
matters solely upon, copies of the Plans, the Restated Articles of Organization
and the Restated By-Laws of the Company, the minute books and stock records of
the Company and originals of such other documents, certificates and proceedings
as we have deemed necessary for the purpose of rendering this opinion.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, when issued and paid for in accordance with the terms of
the related Plan and the terms of any agreement relating to any of the options
granted thereunder, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ Testa, Hurwitz & Thibeault, LLP
TESTA, HURWITZ & THIBEAULT, LLP
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Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated August 1, 1997
(except for the matter discussed in Note 4, as to which the date is October 9,
1997) included in Concord Communications, Inc.'s Registration Statement on Form
S-1 (File No. 333-33227) for the six months ended June 30, 1997 and year ended
December 28, 1996 and to all references to our Firm included in this
Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Boston, Massachusetts
November 17, 1997
