AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 24, 2007
REGISTRATION NO. 333-_______
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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CONCURRENT COMPUTER CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 04-2735766
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
CONCURRENT COMPUTER CORPORATION
4375 RIVER GREEN PARKWAY, SUITE 100
DULUTH, GEORGIA 30096
(678) 258-4000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
T. GARY TRIMM
PRESIDENT AND CHIEF EXECUTIVE OFFICER
CONCURRENT COMPUTER CORPORATION
4375 RIVER GREEN PARKWAY, SUITE 100
DULUTH, GEORGIA 30096
(678) 258-4000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
JACK CAPERS ANNA T. PINEDO, ESQ.
KEITH TOWNSEND JAMES R. TANENBAUM, ESQ.
KING & SPALDING LLP MORRISON & FOERSTER LLP
1180 PEACHTREE STREET 1290 AVENUE OF THE AMERICAS
ATLANTA, GEORGIA 30309-3521 NEW YORK, NY 10104
(404) 572-4600 (212) 468-8000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement, as
determined by the stockholders.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this Form is a registration statement pursuant to General Instruction
I.D. or a post-effective amendment thereto that shall become effective upon
filing with the Commission pursuant to Rule 462(e) under the Securities Act,
check the following box. [ ]
If this Form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the
Securities Act, check the following box. [ ]
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM
PROPOSED MAXIMUM AGGREGATE
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED (1) PER SHARE(2) PRICE(2) REGISTRATION FEE
- ------------------------------------------ ----------------- ------------------ ------------------ -----------------
Common Stock, par value $0.01 per share(3) 14,000,000(4) $ 1.43 $ 20,020,000 $ 615
- ------------------------------------------------------------------------------------------------------------------------
(1) Pursuant to Rule 416 of the Securities Act of 1933, as amended, this
registration statement shall cover any additional shares of registrant's
common stock which become issuable by reason of any stock dividend, stock
split, recapitalization or any other similar transaction effected without
the receipt of consideration that results in an increase in the number of
shares of registrant's outstanding common stock.
(2) Estimated in accordance with Rule 457(c) of the Securities Act of 1933, as
amended, solely for the purpose of computing the amount of the registration
fee, based on the average of the high and low sales prices of the
Registrant's Common Stock on the NASDAQ Global Market on May 17, 2007.
(3) Each common share includes an attached right to purchase shares of our
Series A Participating Cumulative Preferred Stock under the terms described
in the Amended and Restated Rights Agreement dated as of August 7, 2002
between the Registrant and American Stock Transfer & Trust Company, as
rights agent.
(4) Of these shares, 2,800,000 shares are currently unissued shares to be
offered for resale by selling stockholders following issuance upon exercise
of outstanding warrants having an exercise price of $1.62 per share.
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 THAT SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE
STOCKHOLDERS IDENTIFIED IN THIS PROSPECTUS MAY NOT SELL THESE SECURITIES UNTIL
THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS
EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS
NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR
SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED MAY 24, 2007
PROSPECTUS
14,000,000 SHARES OF COMMON STOCK
CONCURRENT COMPUTER CORPORATION
------------------------------
This prospectus relates to shares of our common stock that may be offered
and sold by the selling stockholders named in this prospectus, including shares
issuable to the selling stockholders upon exercise and payment to the Company of
the exercise price of certain warrants. The selling stockholders acquired these
shares and the warrants from us in a private placement completed on May 18,
2007. We will not receive any of the proceeds from the sale of shares by the
selling stockholders.
Our common stock is traded on the NASDAQ Global Market under the symbol
"CCUR." On May 23, 2007, the last reported sales price for our common stock on
the NASDAQ Global Market was $1.58 per share.
------------------------------
SEE "RISK FACTORS" BEGINNING ON PAGE 4 OF THIS PROSPECTUS FOR FACTORS YOU
SHOULD CONSIDER BEFORE BUYING SHARES OF OUR COMMON STOCK.
------------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES, OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
The date of this Prospectus is May___, 2007.
FORWARD-LOOKING STATEMENTS
This prospectus, including the documents that we incorporate by reference,
contains forward-looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995 and Section 27A of the Securities Act of 1933, as
amended (the "Securities Act"). Statements in this prospectus that are not
historical facts are hereby identified as "forward-looking statements" for the
purpose of the safe harbor provided by Section 21E of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") and Section 27A of the Securities
Act. Statements regarding future events and developments, our future
performance, market share, and new market growth, as well as our expectations,
beliefs, plans, estimates, or projections relating to the future, are
forward-looking statements within the meaning of these laws. All forward-looking
statements are subject to certain risks and uncertainties that could cause
actual events to differ materially from those projected. The risks and
uncertainties which could affect our financial condition or results of
operations include, without limitation: availability of video-on-demand content;
delays or cancellations of customer orders; changes in product demand; economic
conditions; various inventory risks due to changes in market conditions;
uncertainties relating to the development and ownership of intellectual
property; uncertainties relating to our ability and the ability of other
companies to enforce their intellectual property rights; the pricing and
availability of equipment, materials and inventories; the concentration of our
customers; failure to effectively manage growth; delays in testing and
introductions of new products; rapid technology changes; system errors or
failures; reliance on a limited number of suppliers and failure of components
provided by those suppliers; uncertainties associated with international
business activities, including foreign regulations, trade controls, taxes, and
currency fluctuations; the impact of competition on the pricing of VOD products;
failure to effectively service the installed base; the entry of new
well-capitalized competitors into our markets; the success of new on-demand and
real-time products; financing for working capital needs; the availability of
Linux software in light of copyright issues raised by SCO Group; the success of
our relationship with Alcatel; capital spending patterns by a limited customer
base; and privacy concerns over data collection.
Because the risks referred to above, as well as the risk factors beginning
on page 4 of this prospectus, could cause actual results or outcomes to differ
materially from those expressed in any forward-looking statements made by us or
on our behalf, you should not place undue reliance on any forward-looking
statements. Further, any forward-looking statement speaks only as of the date on
which it is made, and we undertake no obligation to update any forward-looking
statement to reflect events or circumstances after the date on which the
statement is made or to reflect the occurrence of unanticipated events. New
factors emerge from time to time, and it is not possible for us to predict which
factors will arise. In addition, we cannot assess the impact of each factor on
our business or the extent to which any factor, or combination of factors, may
cause actual results to differ materially from those contained in any
forward-looking statements.
2
OUR BUSINESS
The Securities and Exchange Commission (the "SEC") allows us to
"incorporate by reference" certain information that we file with it, which means
that we can disclose important information to you by referring you to those
documents. The information incorporated by reference is considered to be part
of this prospectus, and information that we file later with the SEC will update
automatically, supplement and/or supersede this information. Any statement
contained in a document incorporated or deemed to be incorporated by reference
in this prospectus shall be deemed to be modified or superseded for purposes of
this prospectus to the extent that a statement contained in this prospectus or
in any other document which also is or is deemed to be incorporated by reference
in this prospectus 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 prospectus. You should read the detailed
information regarding our company, our common stock and our financial statements
and notes to those statements appearing elsewhere in this prospectus or
incorporated herein by reference. References in this prospectus to "our
company," "we," "our," and "us" refer to Concurrent Computer Corporation.
We are a provider of high-performance, real-time Linux based software and
solutions for commercial and government markets. For over 40 years our
technology has enabled a range of time-critical solutions including: modeling
and simulation, high speed data acquisition, visual imaging, low latency
transaction processing and video-on-demand television. We recently expanded our
software solutions to include performance measurement systems for interactive
media through our acquisition of Everstream in 2005. We approach our markets as
one company with two product lines, on-demand and real-time.
We were incorporated in the State of Delaware, and our principal executive
offices are located at 4375 River Green Parkway, Suite 100, Duluth, Georgia
30096 and our phone number is (678) 258-4000.
3
RISK FACTORS
An investment in our securities is very speculative and involves a high
degree of risk. You should carefully consider each of the following risk factors
and all of the other information contained or incorporated by reference in this
prospectus. These risks are not the only ones we face. Our business operations
could also be impaired by additional risks and uncertainties that, at present,
are not known to us, or that, at present, are considered immaterial.
If any of the following risks and uncertainties develops into actual
events, our business, financial condition and results of operations could be
materially and adversely affected. If that happens, the trading prices of our
common stock and other securities we may issue in the future could decline
significantly.
The risk factors below contain forward-looking statements regarding
Concurrent. Actual results could differ materially from those set forth in the
forward-looking statements. See "Forward-Looking Statements" on page 2.
RISK RELATED TO OUR BUSINESS
WE INCURRED NET LOSSES IN THE PAST AND MAY INCUR FURTHER LOSSES IN THE FUTURE.
We incurred net losses of $9.3, $7.7, $5.7 and $24.6 million in fiscal years
ended June 30, 2006, 2005, 2004 and 2003, respectively and $11.5 million in the
nine months ended March 31, 2007. Our net loss for the fiscal year ended June
2004 included a gain of $3.1 million from the partial recovery of a previously
recognized loss in a minority investment. Our net loss for the fiscal year ended
June 30, 2003 included a charge of $13.0 million from the write-down of our
investment in Thirdspace and a restructuring charge of $1.6 million. As of March
31, 2007, we had an accumulated deficit of approximately $157.3 million. We may
incur additional net losses in the future. If our losses continue, and we are
unable to obtain adequate financing, we may be forced to take extreme measures
to continue the business, such as further employee reductions, re-capitalization
or reorganization transactions at undesirable prices, incurring significant debt
at above market rates, or seeking bankruptcy protection.
WE HAVE SUBSTANTIAL LIQUIDITY NEEDS AND FACE SIGNIFICANT LIQUIDITY PRESSURE.
At March 31, 2007, our cash and cash equivalents were $8.8 million. Our Amended
and Restated Loan and Security Agreement (the "Credit Agreement") contains
certain financial covenants, including a requirement that we maintain a minimum
tangible net worth. As of March 31, 2007 our required minimum tangible net
worth was $8.0 million and our tangible net worth was $9.4 million. After giving
effect to the sale of 11,200,000 shares of our common stock and warrants to
purchase 2,800,000 shares of our common stock for net proceeds of approximately
$12.6 million, our required minimum tangible net worth would have been
approximately $14.3 million and our tangible net worth would have been
approximately $22.0 million as of March 31, 2007. The Credit Agreement is
currently scheduled to expire on December 23, 2008. If we continue to use cash
from operating activities we may violate this covenant. If we violate the
minimum tangible net worth covenant in our Credit Agreement, and our lender is
unwilling to grant forbearance, waivers or amendments, our lender could
accelerate the maturity of amounts then outstanding under the Credit Agreement,
which would have a material adverse effect on our liquidity position. In such a
case we may be forced to take certain measures to continue the business, such as
raising additional funds through an offering of stock at a discounted price,
further employee reductions, re-capitalization or reorganization transactions at
undesirable prices, sale transactions, incurring debt at above market rates, or
seeking bankruptcy protection.
A SIGNIFICANT PORTION OF OUR REVENUE HAS BEEN, AND IS EXPECTED TO CONTINUE TO
BE, CONCENTRATED IN A SMALL NUMBER OF CUSTOMERS. IF WE ARE UNSUCCESSFUL IN
MAINTAINING AND EXPANDING RELATIONSHIPS WITH THESE CUSTOMERS OR LOSE ANY OF
THESE CUSTOMERS, OUR BUSINESS WILL BE ADVERSELY AFFECTED.
For the fiscal year ended June 30, 2006, Cox, Comcast and Lockheed Martin
accounted for approximately 16%, 13% and 13%, respectively, of our revenues. In
addition, for the nine months ended March 31, 2007, Cox, Comcast, Time Warner
and Lockheed Martin accounted for approximately 12%, 12%, 9% and 6% of our
revenues,
4
respectively. If we are unsuccessful in maintaining and expanding key
relationships with these and other existing customers, our business will be
materially adversely affected. Further, if we are unsuccessful in establishing
relationships with other large companies or experience problems in any of our
systems, our ability to attract new customers and sell additional products to
existing customers will be materially adversely affected.
Our VOD customers typically swap sites or purchase sites from competitors such
as the purchase and swap of sites from Adelphia between Time Warner Cable and
Comcast. If we already have products deployed at a swapped site, the new owner
may replace our products or discontinue maintenance with respect to such site.
Alternatively, forecasted revenues could be negatively impacted because the new
owner of the site may not need to purchase products from us due to their
existing agreement with us.
Due to our limited customer base and the relative size of each customer compared
to Concurrent, our customers may make unreasonable and extensive demands upon
our business. Such demands may include contractual service and product
obligations on unfavorable terms including decreased pricing. In addition, our
failure to adequately perform under these contracts could result in liquidated
damages. The payment of any liquidated damages or failure to meet our
customers' expectations could substantially harm our future business prospects.
We do not have written agreements that require customers to purchase fixed
minimum quantities of our products. Our sales to specific customers tend to,
and are expected to continue to, vary from year-to-year, depending on such
customers' budgets for capital expenditures and new product introductions.
CERTAIN PATENTS LICENSED TO CONCURRENT MAY NOT PASS TO AN ACQUIROR.
We have a license to a significant portfolio of video streaming patents that was
originally granted to us by Thirdspace Living Ltd. ("Thirdspace") and
subsequently regranted to us by Alcatel when Alcatel purchased the portfolio
from Thirdspace. The portfolio includes U.S. Patent Nos. 5,623,595 and 5,805,804
("Subject Patents"). Although our license from Alcatel does not, on its face,
terminate upon a merger, acquisition, or change in control of Concurrent, a
November 2000 agreement regarding the Subject Patents and entered into by
Thirdspace may have the effect of terminating our license to the Subject Patents
upon a merger or acquisition that results in a change in control of Concurrent.
This license limitation does not affect current operations, but upon change of
control the successor could face a lawsuit for selling on-demand products. We
currently are working to eliminate or mitigate the impact of this limitation,
but we cannot assure that we will be successful in altering this limitation on
favorable terms, or at all. This limitation may make it more difficult to
pursue, and may result in less favorable terms for us in connection with, a sale
of Concurrent, a sale of one of our businesses or any other business combination
transaction should such an opportunity arise.
WE UTILIZE SOURCE SOFTWARE WHICH COULD ENABLE OUR CUSTOMERS OR COMPETITORS TO
GAIN ACCESS TO OUR SOURCE CODE AND DISTRIBUTE IT WITHOUT PAYING ANY LICENSE FEE
TO CONCURRENT.
Key components of both our real-time and on-demand products utilize open source
software on Linux platforms. Some open source software, especially that
provided under the GNU Public License, is provided pursuant to licenses that
limit the restrictions that may be placed on the distribution and copying of the
provided code. Thus, it is possible that customers or competitors could copy
our software and freely distribute it. This could substantially impact our
business and the ability to protect future business.
WE RELY ON A COMBINATION OF CONTRACTS AND COPYRIGHT, TRADEMARK, PATENT AND TRADE
SECRET LAWS TO ESTABLISH AND PROTECT OUR PROPRIETARY RIGHTS IN OUR TECHNOLOGY.
IF WE ARE UNABLE TO PROTECT OUR INTELLECTUAL PROPERTY RIGHTS, OUR COMPETITIVE
POSITION COULD BE HARMED OR WE COULD BE REQUIRED TO INCUR EXPENSES TO ENFORCE
OUR RIGHTS. OUR BUSINESS ALSO COULD BE ADVERSELY AFFECTED IF WE ARE FOUND TO
INFRINGE ON THE INTELLECTUAL PROPERTY OF OTHERS.
We typically enter into confidentiality or license agreements with our
employees, consultants, customers and vendors, in an effort to control access to
and distribution of our proprietary information. Despite these precautions, it
may be possible for a third party to copy or otherwise obtain and use our
proprietary technology without authorization. The steps we take may not prevent
misappropriation of our intellectual property, and the agreements we enter into
may not be enforceable. In addition, effective copyright and trade secret
protection may be unavailable or limited in some foreign countries. Other
companies, such as Acacia Technologies Group, USA
5
Video Inc., Personalized Media Communication L.L.C., the SCO Group, and our
competitors, may currently own or obtain patents or other proprietary rights
that might prevent, limit or interfere with our ability to make, use or sell our
products. Further, we have indemnification obligations with numerous customers
that could require us to become involved in IP litigation. As a result, we may
be found to infringe on the intellectual property rights of others. In the
event of a successful claim of infringement against us or against a customer to
which we have an indemnification obligation and our failure or inability to
license the infringed technology, our business and operating results could be
adversely affected.
Any litigation or claims, whether or not valid, could result in substantial
costs and diversion of our resources. Intellectual property litigation or
claims could force us to do one or more of the following:
- cease selling, incorporating or using products or services that
incorporate the challenged intellectual property;
- obtain a license from the holder of the infringed intellectual
property right, which license may not be available on reasonable
terms, if at all; and
- redesign products or services that incorporate the disputed
technology.
If we are forced to take any of the foregoing actions, we could face substantial
costs and our business could be seriously harmed. Although we carry general
liability insurance, our insurance may not cover potential claims of this type
or be adequate to indemnify us for all liability that may be imposed.
We may initiate claims or litigation against third parties in the future for
infringement of our proprietary rights or to determine the scope and validity of
our proprietary rights or the proprietary rights of competitors. These claims
could result in costly litigation and the diversion of our technical and
management personnel. As a result, our operating results could suffer and our
financial condition could be harmed.
IN THE FUTURE, WE MAY NEED TO RAISE ADDITIONAL CAPITAL. THIS CAPITAL MAY NOT BE
AVAILABLE ON ACCEPTABLE TERMS, IF AT ALL. IF WE CANNOT RAISE FUNDS ON
ACCEPTABLE TERMS, IF AND WHEN NEEDED, WE MAY NOT BE ABLE TO DEVELOP OR ENHANCE
OUR PRODUCTS AND SERVICES, TAKE ADVANTAGE OF FUTURE OPPORTUNITIES, GROW OUR
BUSINESS OR RESPOND TO COMPETITIVE PRESSURES OR UNANTICIPATED REQUIREMENTS.
Our working capital declined from $43.5 million on June 30, 2002 to $17.4
million on June 30, 2006 and was $8.0 million on March 31, 2007. We expect that
our working capital may continue to decrease during fiscal year 2007. If our
revenue does not increase and stabilize in future periods, we will continue to
use substantial cash from operating activities, which will cause working capital
to further decline. If these losses continue, we may be forced to take extreme
measures to continue the business, such as raising additional funds through an
offering of stock at discounted prices, employee reductions, re-capitalization
or reorganization transactions at undesirable prices, incurring significant debt
at above market rates, or seeking bankruptcy protection.
THE MARKETS IN WHICH WE OPERATE ARE HIGHLY COMPETITIVE, AND WE MAY BE UNABLE TO
COMPETE SUCCESSFULLY AGAINST OUR CURRENT AND FUTURE COMPETITORS, WHICH WOULD
ADVERSELY AFFECT OUR BUSINESS.
The markets for on-demand and real-time products are extremely competitive. Our
primary on-demand competitor, SeaChange International, is well funded and has
been very successful in the VOD market. Additionally, some smaller competitors
have recently been acquired by larger public companies with experience in the
industry (such as Motorola acquiring Broadbus Technologies and Cisco Systems
acquiring Arroyo Video Solutions). This intense competition has negatively
impacted our VOD revenues and may severely impact our success and ability to
expand our on-demand deployments.
The market for our real-time products is ever changing. Although we currently
enjoy a leadership position, a number of well-funded competitors such as Novell,
Oracle, IBM, or Red Hat could seek to displace us. As demand shifts, we may be
unable to adequately respond to customer demands or technology changes. There
may be new
6
entrants into the real-time market with better, more appropriate products. We
may also experience decreasing prices for our products and services due to
competition, the purchasing leverage of our customers and other factors.
A list of the competitors faced by both of our markets and a categorization of
our competitors is included under the Competition heading in the Business
section in our Annual Report on Form 10-K for the year ended June 30, 2006.
WE CURRENTLY HAVE STRATEGIC RELATIONSHIPS WITH NOVELL, ORACLE, ALCATEL, CISCO
SYSTEMS INC. AND MOTOROLA, AMONG OTHERS. WE MAY BE UNSUCCESSFUL IN MAINTAINING
THESE STRATEGIC RELATIONSHIPS, OR ESTABLISHING NEW STRATEGIC RELATIONSHIPS THAT
MAY BE AN IMPORTANT PART OF FUTURE SUCCESS. IN EITHER EVENT, OUR BUSINESS COULD
BE ADVERSELY AFFECTED.
The success of our business is and will continue to be dependent in part on our
ability to maintain existing and enter into new strategic relationships. There
can be no assurance that:
- such existing or contemplated relationships will be commercially
successful;
- we will be able to find additional strategic partners; or
- we will be able to negotiate acceptable terms with potential
strategic partners.
We cannot assure you that existing or future strategic partners will not pursue
alternative technologies or develop alternative products in addition to or in
lieu of our technology, either on their own or in collaboration with others,
including our competitors. For example, two current partners, Motorola and
Cisco, recently purchased VOD competitors Broadbus Technologies and Arroyo,
respectively. These alternative technologies or products may be in direct
competition with our technologies or products and may significantly erode the
benefit of our strategic relationships and adversely affect our business,
financial condition and results of operations.
WE HAVE A SIGNIFICANT BASE OF DEPLOYED PRODUCTS THAT OUR CUSTOMERS, OVER TIME,
MAY DECIDE TO SWAP FOR NEWER PRODUCTS FROM OTHER COMPANIES WITH IMPROVED
FUNCTIONALITY.
Although the VOD market is evolving in the view of most subscribers, a
significant number of our on-demand products have been deployed for several
years and may be facing obsolescence. When our customers evaluate replacing
those older products, they may choose to try a different vendor. If that were
to occur, we would lose future revenue opportunities from expansion as well as
maintenance.
A LOSS OF OUR GOVERNMENT CONTRACTS AND/OR ORDERS WOULD HAVE A MATERIAL ADVERSE
EFFECT ON OUR BUSINESS.
We derive a significant portion of our real-time revenues from the supply of
systems under government contracts and/or orders. For the fiscal year ended
June 30, 2006, we recorded $15.1 million in sales to U.S. government prime
contractors and agencies of the U.S. government, down $4.9 million, or 24%, from
the year ended June 30, 2005. For the nine months ended March 31, 2007, we
recorded $11.9 in sales to U.S. government prime contractors and agencies of the
U.S. government. These sales represent approximately 21% and 25% of our total
sales in the fiscal year ended June 30, 2006 and the nine months ended March 31,
2007, respectively. Government business is subject to many risks, such as
delays in funding, reduction or modification of contracts or subcontracts,
changes in governmental policies and the imposition of budgetary constraints. A
loss of government contract revenues would have a material adverse effect on our
business, results of operations and financial condition.
IF WE FAIL TO DEVELOP AND MARKET NEW PRODUCTS AND PRODUCT ENHANCEMENTS IN A
TIMELY MANNER OUR BUSINESS COULD BE ADVERSELY AFFECTED.
Our future success is dependent on our development and marketing of additional
products that achieve market acceptance and enhance our current products. In
addition, services, products or technologies developed by others may render one
or more of our products or technologies uncompetitive, unmarketable or obsolete.
Our future success will depend on our ability to continue to enhance our
existing products, including development of new applications for our technology,
and to develop and introduce new products to meet and adapt to changing customer
requirements and emerging technologies. Our failure to respond to rapidly
changing technologies could adversely
7
affect our business, financial condition and results of operations. Our
inability to develop, on a timely basis, new products or enhancements to
existing products, or the failure of such new products or enhancements to
achieve market acceptance could have a material adverse effect on our business,
financial condition and results of operations. There can be no assurance that
we will be successful in pursuing any new products or enhancements to existing
products.
IN SOME CASES, WE RELY ON A LIMITED NUMBER OF SUPPLIERS, WHICH ENTAILS SEVERAL
RISKS, INCLUDING THE POSSIBILITY OF DEFECTIVE PARTS, A SHORTAGE OF COMPONENTS,
AN INCREASE IN COMPONENT COSTS, AND REDUCED CONTROL OVER DELIVERY SCHEDULES.
We sometimes purchase product components from a single manufacturer/supplier in
order to obtain the required technology and the most favorable price and
delivery terms. These components include, for example, processors, power
supplies, integrated circuits, printed circuit assemblies, systems, sub systems
and storage devices. We purchase product components from the following single
suppliers: Pentair Electronic Packaging, APW Electronic Solutions, Dell Inc.,
DME Corporation, Kardios Systems Corporation, Macrolink, Inc., Metal Form, Inc.,
Qlogic Corporation, Curtiss-Wright Controls, Inc., Sanmina-SCI Corporation,
Seagate Technology, Inc., Tyco Electronics Corporation, GE Fanuc and Xyratex
Technology Limited. In most cases, comparable products are available from other
sources, but would require significant reengineering to conform to our system
specifications. Our reliance on single suppliers entails a number of risks,
including the possibility of defective parts, a shortage of components, increase
in components costs, and reduced control over delivery schedules. Any of these
events could adversely affect our business, results of operations and financial
condition. We estimate that a lead-time of 16-24 weeks may be necessary to
switch to an alternative supplier of certain custom application specific
integrated circuit and printed circuit assemblies. A change in the supplier of
these components without the appropriate lead-time could result in a material
delay in shipments by us of certain products. Where alternative sources are
available, qualification of the alternative suppliers and establishment of
reliable supplies of components from such sources may also result in delays.
Shipping delays may also result in a delay in revenue recognition, possibly
outside the fiscal year period originally planned, and, as a result, may
adversely affect our financial results for that particular period.
INTERNATIONAL SALES ACCOUNTED FOR APPROXIMATELY 32%, 33%, 18% AND 14% OF OUR
REVENUE IN FISCAL YEARS 2006, 2005, 2004 AND 2003, RESPECTIVELY, AND 31% OF OUR
REVENUE IN THE FISCAL QUARTER ENDED MARCH 31, 2007. ACCORDINGLY, OUR BUSINESS
IS SUSCEPTIBLE TO NUMEROUS RISKS ASSOCIATED WITH INTERNATIONAL OPERATIONS.
We are subject to a number of risks associated with international business
activities that could increase our costs, lengthen our sales cycle and require
significant management attention. These risks include:
- compliance with, and unexpected changes in, regulatory
requirements resulting in unanticipated costs and delays;
- difficulties in compliance with export and re-export regulations
governing U.S. goods and goods from our international subsidiaries;
- lack of availability of trained personnel in international locations;
- tariffs, export controls and other trade barriers;
- longer accounts receivable payment cycles than in the United States;
- potential difficulty of enforcing agreements and collecting
receivables in some foreign legal systems;
- potential difficulty in enforcing intellectual property rights in
certain foreign countries;
- potentially adverse tax consequences, including restrictions on
the repatriation of earnings;
- the burdens of complying with a wide variety of foreign laws;
8
- general economic conditions in international markets; and
- currency exchange rate fluctuations.
SYSTEM ERRORS, FAILURES, OR INTERRUPTIONS COULD CAUSE DELAYS IN SHIPMENTS,
REQUIRE DESIGN MODIFICATIONS OR FIELD REPLACEMENT WHICH MAY HAVE A NEGATIVE
IMPACT ON OUR BUSINESS AND DAMAGE OUR REPUTATION AND CUSTOMER RELATIONSHIPS.
System errors or failures may adversely affect our business, financial condition
and results of operations. Despite our testing and testing by current and
potential customers, all errors or failures may not be found in our products or,
if discovered, successfully corrected in a timely manner. These errors or
failures could cause delays in product introductions and shipments or require
design modifications that could adversely affect our competitive position.
Further, some errors may not be detected until the systems are deployed. In
such a case, we may have to undertake substantial field replacement programs to
correct the problem. Our reputation may also suffer if our customers view our
products as unreliable, whether based on actual or perceived errors or failures
in our products.
Further, a defect, error or performance problem with our on-demand systems could
cause our customers' VOD offerings to fail for a period of time or be degraded.
Any such failure would cause customer service and public relations problems for
our customers. As a result, any failure of our customers' systems caused by our
technology, including the failure of third party technology incorporated therein
or therewith, could result in delayed or lost revenue due to adverse customer
reaction, negative publicity regarding us and our products and services and
claims for substantial damages against us, regardless of our responsibility for
such failure. Any claim could be expensive and require us to spend a
significant amount of resources. In circumstances where third party technology
incorporated with or in our systems includes a defect, error or performance
problem or fails for any reason, we may have to replace such third party
technology at our expense and be responsible to our customers for their
corresponding claims. Such tasks could be expensive and could require us to
spend a significant amount of resources.
TRENDS IN OUR BUSINESS MAY CAUSE OUR QUARTERLY OPERATING RESULTS TO FLUCTUATE;
THEREFORE, PERIOD-TO-PERIOD COMPARISONS OF OUR OPERATING RESULTS MAY NOT
NECESSARILY BE MEANINGFUL.
We have experienced significant variations in the revenue, expenses and
operating results from quarter to quarter in our business, and it is possible
that these variations will continue. We believe that fluctuations in the number
of orders for our products being placed from quarter to quarter are principally
attributable to the buying patterns and budgeting cycles of our customers. In
addition, sales cycles associated with the purchase of many of our producers is
typically lengthy and orders are often not finalized until the end of a quarter.
As a result, our results of operations have in the past and will possibly
continue to fluctuate in accordance with this purchasing activity. Therefore,
period-to-period comparisons of our operating results may not necessarily be
meaningful. In addition, because these factors are difficult for us to
forecast, our business, financial condition and results of operations for one
quarter or a series of quarters may be adversely affected and below the
expectations of securities analysts and investors, which could result in
material declines of our stock price.
THE VOD OPPORTUNITIES BEYOND THE NORTH AMERICAN CABLE MARKET, SUCH AS VOD OVER
TELCO NETWORKS AND INTERNATIONAL CABLE NETWORKS MARKETS MAY NOT DEVELOP OR MAY
NOT BE SUBSTANTIAL TO CONCURRENT.
In recent years there have been several false starts both in North American and
International markets in the deployment of video over telco networks and
international cable networks. If there is limited adoption of VOD, further
deployment delays or if we fail to participate in these new markets, we may not
be able to broaden our customer base and expand revenues. We have little
commercial experience in these markets and cannot assure that we can be
successful. Our failure to do so could materially adversely affect our
business, financial condition and results of operations.
9
THE INTRODUCTION OF BROADBAND INTERNET VOD SERVICES FOR TELEVISIONS MAY GAIN
TRACTION, THUS REPLACING CURRENT VOD SERVICES AND HAVING A NEGATIVE IMPACT ON
CONCURRENT'S ON-DEMAND BUSINESS.
A number of well-funded companies such as Google, Yahoo, and Apple have been
discussing broadband Internet VOD services for home television viewing. If
these products are developed they may be more cost effective than our VOD
solutions, which could result in our customers discontinuing purchases of our
on-demand products.
OUR BUSINESS MAY BE ADVERSELY AFFECTED IF WE FAIL TO RETAIN OUR CURRENT KEY
PERSONNEL, MANY OF WHOM WOULD BE DIFFICULT TO REPLACE, OR FAIL TO ATTRACT
ADDITIONAL QUALIFIED PERSONNEL.
Our future performance depends on the continued service of our senior management
and our engineering, sales and marketing and manufacturing personnel.
Competition for qualified personnel is intense, and we may fail to retain our
new key employees or to attract or retain other highly qualified personnel. In
the last year we have experienced abnormally high turnover. The loss of the
services of one or more of our key personnel could seriously impact our
business. Our future success also depends on our continuing ability to attract,
hire, train and retain highly skilled managerial, technical, sales, marketing
and customer support personnel. In addition, new employees frequently require
extensive training before they achieve desired levels of productivity. We do
not carry key person life insurance on any of our employees.
AS OUR PRODUCTS AGE, WE MAY NOT BE ABLE TO PURCHASE NECESSARY PARTS TO SUPPORT
LEGACY SYSTEMS DEPLOYED OR TO BE DEPLOYED.
With the passage of time, suppliers of essential parts may stop producing these
parts. In such cases, we may be required to redesign our products to
accommodate the obsolescence. If that occurs, we will have to spend
considerable effort in the redesign and, in some cases, may be forced to have
the redesigned products requalified. Requalification may take several months,
thereby delaying expected revenue.
OUR FACILITIES, ESPECIALLY OUR POMPANO BEACH, FLORIDA FACILITIES, COULD BE
SUBJECT TO SEVERE WEATHER THAT COULD SHUT DOWN THOSE FACILITIES AND HALT
PRODUCTION.
All of our facilities are, from time to time, subject to severe weather that
could result in a temporary shut-down of the impacted facility. However, our
Pompano Beach, Florida facilities are located in south Florida where there have
been a number of hurricanes in recent years. A hurricane could shut-down both
Pompano Beach facilities for extended periods thereby making it impossible for
us to manufacture and ship products since all of our products are shipped out of
those facilities. Further, an extended shut-down could slow the release of
software products for our real-time business since almost all the developers for
those products are located at those facilities.
RISKS RELATED TO OUR INDUSTRIES
THE SUCCESS OF OUR ON-DEMAND BUSINESS IS DEPENDENT UPON THE GROWTH OF THE
DIGITAL VIDEO MARKET, WHICH MAY NOT GROW AS WE EXPECT. ANY FAILURE BY THE
MARKET TO ACCEPT DIGITAL VIDEO TECHNOLOGY WILL HAVE A MATERIAL ADVERSE EFFECT ON
OUR BUSINESS.
VOD is still an evolving technology, and we cannot assure you that it will
attract widespread demand or market acceptance. Further, the potential size of
the VOD market and the timing of our development are uncertain. Our success in
the VOD market will depend upon the commercialization and broad acceptance of
VOD by residential subscribers and other industry participants, including
broadband companies, content providers, set-top box manufacturers, and
educational institutions. The future growth of our on-demand business will
depend on the pace of the installation of interactive digital cable and digital
set-top-boxes, the rate at which cable companies deploy digital infrastructure,
the rate at which digital video technology expands to additional market
segments, and the rate that the technology is adopted by consumers.
10
THE SUCCESS OF OUR ON-DEMAND BUSINESS IS DEPENDENT ON THE AVAILABILITY OF, AND
THE DISTRIBUTION WINDOWS FOR, MOVIES, PROGRAMS AND OTHER CONTENT. IF SUFFICIENT
VOD CONTENT IS NOT AVAILABLE ON A TIMELY BASIS, OUR ON-DEMAND BUSINESS WILL BE
ADVERSELY AFFECTED.
The success of VOD will largely be dependent on the availability of a wide
variety and substantial number of movies, subscription based content from
providers such as HBO, Showtime, and Starz Encore, specialty programs and other
material, which we refer to as content, in digital format. We do not provide
digital VOD content. Therefore, the future success of our on-demand business is
dependent in part on content providers, such as traditional media and
entertainment companies, providing significant content for VOD. Further, we are
dependent in part on other third parties to convert existing analog content into
digital content so that it may be delivered via VOD.
In addition, we believe that the ultimate success of VOD will depend in part on
the timing of the VOD distribution window. The distribution window is the time
period during which different mediums, such as home movie rental businesses,
receive and have exclusive rights to motion picture releases. Currently, video
rental businesses have an advantage of receiving motion picture releases on an
exclusive basis before most other forms of non-theatrical movie distribution,
such as pay-per-view, premium television, VOD, basic cable and network
syndicated television. The length of the exclusive distribution window for
movie rental businesses varies, typically ranging from 30 to 90 days for
domestic video stores. Thereafter, movies are made sequentially available to
various television distribution channels. We believe the success of VOD will
depend in part on movies being available for VOD distribution either
simultaneously with, or shortly after, they are available for video rental
distribution. The order, length and exclusivity of each window for each
distribution channel are determined solely by the studio releasing the movie.
Given the size of the home video rental industry, the studios have a significant
interest in maintaining that market. We cannot assure you that favorable
changes, if any, will be made relating to the length and exclusivity of the
video rental and television distribution windows.
We believe all of the major studios have entered into agreements with certain
cable companies and content aggregators to provide digital movies for
distribution through VOD. However, these agreements are subject to change. If
studios fail to reach agreements regarding content or cancel existing
agreements, our customers could delay or cancel on-demand system orders, which
would adversely affect our on-demand business.
THE DEPLOYMENT OF ON-DEMAND BY BROADBAND COMPANIES MAY BE DELAYED DUE TO LIMITED
BANDWIDTH OR OTHER TECHNOLOGY INITIATIVES THAT COULD REQUIRE BROADBAND COMPANIES
TO FURTHER UPGRADE THEIR NETWORKS.
Bandwidth is a limited resource. On-demand deployments may be delayed as
operators focus on new initiatives that require incremental bandwidth such as
high definition television, increased high-speed data speed, voice over internet
protocol, interactive television, gaming and other evolving applications. These
initiatives compete for the broadband companies' network bandwidth and may
require the cable companies to increase their bandwidth capabilities by further
upgrading their networks and therefore delaying on-demand related spending which
would adversely affect our on-demand business.
BOTH OF OUR PRODUCTS LINES ARE SUBJECT TO GOVERNMENTAL REGULATION. ANY FINDING
THAT WE HAVE BEEN OR ARE IN NONCOMPLIANCE WITH SUCH LAWS COULD RESULT IN, AMONG
OTHER THINGS, GOVERNMENTAL PENALTIES OR CLASS ACTION LAWSUITS. FURTHER, CHANGES
IN EXISTING LAWS OR NEW LAWS MAY ADVERSELY AFFECT OUR BUSINESS.
We are subject to various international, U.S. federal, state and local laws
affecting our on-demand and real-time product lines. The television industry is
subject to extensive regulation in the United States and other countries. Our
on-demand business is dependent upon the continued growth of the digital
television industry in the United States and internationally. Broadband
companies are subject to extensive government regulation by the Federal
Communications Commission and other federal and state regulatory agencies,
including privacy regulations. If we were found to be, or believed to be
non-compliant with privacy laws, we could face substantial exposure to
government fines or privacy litigation. This risk is especially important for
our Everstream products since these products, current and future, monitor
set-top-box functions that could be impacted by privacy law protections.
Additionally, regulations could have the effect of limiting capital expenditures
by broadband companies and thus could have a material adverse effect on our
business, financial condition and results of operations. The enactment by
federal, state or international governments of new laws or regulations could
adversely affect our broadband
11
customers, and thereby materially adversely affect our business, financial
condition and results of operations. Our real-time business is also subject to
strict government regulation as the result of the government work we do. The
regulations deal with security clearances, privacy, employment practices,
pricing, purchasing, intellectual property and integrity. If we were ever found
in violation or if out of tolerance, our production and resultant revenues could
be halted or significantly delayed.
WE MAY BE SUBJECT TO LIABILITY IF PRIVATE INFORMATION SUPPLIED TO OUR CUSTOMERS,
INCLUDING BROADBAND COMPANIES, IS MISUSED.
Our on-demand systems allow broadband companies to collect and store video
preferences and other data that many viewers may consider confidential.
Unauthorized access or use of this information could result in liability to our
customers, and potentially us, and might deter potential on-demand viewers. We
have no control over the policy of our customers with respect to the access to
this data and the release of this data to third parties.
OTHER RISKS
WE HAVE IMPLEMENTED CERTAIN ANTI-TAKEOVER PROVISIONS THAT COULD MAKE IT MORE
DIFFICULT FOR A THIRD PARTY TO ACQUIRE US.
Provisions of Delaware law and our restated certificate of incorporation,
amended and restated bylaws, and rights plan could make it more difficult for a
third party to acquire us, even if doing so would be beneficial to our
stockholders.
We are subject to certain Delaware anti-takeover laws regulating corporate
takeovers. These anti-takeover laws prevent a Delaware corporation from
engaging in a business combination involving a merger or sale of more than 10%
of our assets with any stockholder, including affiliates and associates of the
stockholder, who owns 15% or more of the outstanding voting stock, for three
years following the date that the stockholder acquired 15% or more of the
corporation's stock except under limited circumstances.
There are provisions in our restated certificate of incorporation and our
amended and restated bylaws that also may delay, deter or impede hostile
takeovers or changes of control.
In addition, we have a rights plan, also known as a poison pill. The rights
plan has the potential effect of significantly diluting the ownership interest
in us of any person that acquires beneficial ownership of 15% or more of our
common stock or commences a tender offer that would result in a person or group
owning 15% or more of our common stock.
OUR STOCK PRICE HAS BEEN VOLATILE IN THE PAST AND MAY BE VOLATILE IN THE FUTURE.
Our common stock is traded on the NASDAQ Global Market. For the twelve months
ended March 31, 2007, the high and low prices reported on the NASDAQ Global
Market were $3.40 and $1.21, respectively. Further, as of May 23, 2007, the
price as reported on the NASDAQ Global Market was $1.58. The market price of our
common stock may fluctuate significantly in the future in response to various
factors, some of which are beyond our control, including, among others:
- variations in our quarterly operating results;
- changes in securities analysts' estimates of our financial
performance;
- the development of the on-demand market in general;
- changes in market valuations of similar companies;
- announcement by us or our competitors of significant contracts,
acquisitions, strategic partnerships, joint ventures or capital
commitments;
12
- loss of a major customer or failure to complete significant
transactions; and
- additions or departures of key personnel.
In addition, in recent years the stock market in general, and the NASDAQ Global
Market and the market for technology companies in particular, have experienced
extreme price and volume fluctuations. In some cases, these fluctuations have
been unrelated or disproportionate to the operating performance of these
companies. These market and industry factors may materially and adversely
affect our stock price, regardless of our operating performance.
In the past, class action litigation often has been brought against companies
following periods of volatility in the market price of those companies' common
stock. We may become involved in this type of litigation in the future.
Litigation is often expensive and diverts management's attention and resources,
which could materially and adversely affect our business, financial condition
and results of operations.
ANY WEAKNESSES IDENTIFIED IN OUR SYSTEM OF INTERNAL CONTROLS BY US AND OUR
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM PURSUANT TO SECTION 404 OF THE
SARBANES-OXLEY ACT OF 2002 COULD HAVE AN ADVERSE EFFECT ON OUR BUSINESS.
Section 404 of the Sarbanes-Oxley Act of 2002 requires that companies evaluate
and report on their systems of internal control over financial reporting. In
addition, our independent registered public accounting firm must report on
management's evaluation of those controls. In future periods, we may identify
deficiencies, including as a result of the loss of the services of one or more
of our key personnel, in our system of internal controls over financial
reporting that may require remediation. There can be no assurances that any
such future deficiencies identified may not be significant deficiencies or
material weaknesses that would be required to be reported in future periods.
13
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registration statement we filed with the SEC.
You should rely only on the information contained in this prospectus or
incorporated herein by reference. We have not authorized anyone else to provide
you with different information. We are not making an offer of these securities
in any state where the offer is not permitted. You should not assume that the
information in this prospectus is accurate as of any date other than the date on
the front page of this prospectus, regardless of the time of delivery of this
prospectus or any sale of common stock.
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read, without charge, and copy the documents
we file at the SEC's public reference rooms in Washington, D.C., New York, New
York and Chicago, Illinois. You can request copies of these documents by
writing to the SEC and paying a fee for the copying cost. Please call the SEC
at 1-800-SEC-0330 for further information on the public reference rooms. Our
SEC filings are also available to the public at no cost from the SEC's website
at http://www.sec.gov.
We incorporate by reference the filed documents listed below, except as
superseded, supplemented or modified by this prospectus, and any future filings
we will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act:
- our Annual Report on Form 10-K for the fiscal year ended June 30, 2006
- our Quarterly Reports on Form 10-Q for the quarters ended
September 30, 2006, December 31, 2006 and March 31, 2007;
- our Current Reports on Form 8-K filed on September 11, 2006,
December 22, 2006, January 31, 2007, February 14, 2007, March 9, 2007,
May 16, 2007 and May 18, 2007; and
- our definitive Proxy Statement for our Annual Meeting of
Stockholders held on October 26, 2006.
The reports and other documents that we file after the date of this
prospectus will update, supplement and supersede the information in this
prospectus. You may request and obtain a copy of these filings, at no cost, by
writing or telephoning us at the following address or phone number:
Concurrent Computer Corporation
4375 River Green Parkway, Suite 100
Duluth, Georgia 30096
Attn: Kirk Somers, Esq.
(678) 258-4000
14
SELLING STOCKHOLDERS
We are registering for resale the shares covered by this prospectus on
behalf of the stockholders identified below. The stockholders acquired the
resale shares from us in a private placement or through the exercise of warrants
acquired from us in the private placement. CIBC World Markets Corp. assisted us
in connection with selling the resale shares and the warrants in the private
placement. We are registering the shares to permit the stockholders and their
pledgees, donees, transferees and other successors-in-interest that receive
their shares from a stockholder as a gift, partnership distribution or other
non-sale related transfer after the date of this prospectus to resell the shares
when and as they deem appropriate. The following table sets forth:
- the name of the stockholders;
- the number and percent of shares of our common stock that the
stockholders beneficially owned prior to the offering for resale of
the shares under this prospectus;
- the number of shares of our common stock that may be offered for
resale for the account of the stockholders under this prospectus; and
- the number and percent of shares of our common stock to be
beneficially owned by the stockholders after the offering of the
resale shares (assuming all of the offered resale shares are sold by
the stockholders).
The number of shares in the column "Number of Shares Being Offered"
represents all of the shares that each stockholder may offer under this
prospectus. We do not know how long the stockholders will hold the shares
before selling them or how many shares they will sell and we currently have no
agreements, arrangements or understandings with any of the stockholders
regarding the sale of any of the resale shares. The shares offered by this
prospectus may be offered from time to time by the stockholders listed below.
This table is prepared solely based on information supplied to us by the
listed stockholders, any Schedules 13D or 13G and Forms 3 and 4, and other
public documents filed with the SEC, and assumes the sale of all of the resale
shares. The applicable percentages of beneficial ownership are based on an
aggregate of 82,867,058 shares of our common stock issued and outstanding on May
18, 2007, adjusted as may be required by rules promulgated by the SEC.
NUMBER OF
SHARES BENEFICIALLY OWNED SHARES SHARES BENEFICIALLY OWNED
PRIOR TOOFFERING BEING AFTER OFFERING
---------------------------- ---------------------------
STOCKHOLDERS NUMBER PERCENT OFFERED NUMBER PERCENT
- --------------------------------------------- ------------- ------------- --------- ------------- ------------
Special Situations Fund III QP, L.P. (1)(5) 2,500,000 3.0% 2,500,000 - -
Special Situations Technology Fund, L.P.
(2)(5) 236,500 * 236,500 - -
Special Situations Technology Fund II, L.P.
(3)(5) 1,263,500 1.5% 1,263,500 - -
Special Situations Private Equity Fund, L.P.
(4)(5) 1,000,000 1.2% 1,000,000 - -
Fort Mason Master, LP (6)(8) 4,695,500 4.99% 4,695,500 - -
Fort Mason Partners, LP (7)(8) 304,500 * 304,500 - -
LB I Group Inc. (9) 3,000,000 3.6% 3,000,000 - -
Prism Partners I, L.P. (10)(15) 150,000 * 150,000 - -
Prism Partners II Offshore Fund (11)(15) 110,000 * 110,000 - -
Prism Partners III Leveraged L.P. (12)(15) 370,000 * 370,000 - -
Prism Partners IV Leveraged Offshore Fund
(13)(15) 350,000 * 350,000 - -
Prism Partners Offshore Fund (14)(15) 20,000 * 20,000 - -
* Less than 1%.
(1) Includes 500,000 shares of common stock underlying warrants exercisable as
of May 18, 2007.
(2) Includes 47,300 shares of common stock underlying warrants exercisable as
of May 18, 2007.
15
(3) Includes 252,700 shares of common stock underlying warrants exercisable as
of May 18, 2007.
(4) Includes 200,000 shares of common stock underlying warrants exercisable as
of May 18, 2007.
(5) Austin W. Marxe and David M. Greenhouse share voting and investment power
over the shares of common stock and warrants owned by Special Situations Fund
III QP, L.P., Special Situations Technology Fund, L.P., Special Situations
Technology Fund II, L.P., and Special Situations Private Equity Fund, L.P.
(collectively, the "Special Situations Funds"). Austin W. Marxe and David M.
Greenhouse are the controlling principals of AWM Investment Company, Inc., the
general partner of MGP Advisors Limited Partnership, the general partner of and
investment adviser to Special Situations Fund III QP, L.P. Mr. Marx and Mr.
Greenhouse are members of MG Advisers, L.L.C. the general partner and investment
adviser to Special Situations Private Equity Fund, L.P. Mr. Marx and Mr.
Greenhouse are also members of SST Advisers, L.L.C., the general partner and
investment adviser to Special Situations Technology Fund, L.P. and Special
Situations Technology Fund II, L.P. Shares of common stock and warrants owned
by each of the Special Situations Funds may be deemed to be beneficially owned
by each of the other Special Situations Funds.
(6) The number of shares listed as beneficially owned by Fort Mason Master, L.P.
("Master") includes 939,100 shares of common stock underlying warrants
exercisable as of May 18, 2007. A provision in the warrants held by Master
prevents it from exercising the warrants, if Master and its affiliates, which
such affiliates include Fort Mason Partners, L.P. ("Partners"), would hold more
than 4.99% of Concurrent's outstanding common stock (the "4.99% Master
Blocker"). The 4.99% Master Blocker is waivable by Master with 61 days' notice
to Concurrent; provided, however, in no event can Master and its affiliates hold
more than 9.99% of Concurrent's outstanding common stock.
(7) The number of shares listed as beneficially owned by Partners includes
60,900 shares of common stock underlying warrants exercisable as of May 18,
2007. A provision in the warrants held by Partners prevents it from exercising
the warrants, if Partners and its affiliates, which such affiliates include
Master, would hold more than 4.99% of Concurrent's outstanding common stock (the
"4.99% Partners Blocker"). The 4.99% Partners Blocker is waivable by Partners
with 61 days' notice to Concurrent; provided, however, in no event can Partners
and its affiliates hold more than 9.99% of Concurrent's outstanding common
stock.
(8) Fort Mason Capital, LLC serves as the general partner of each of Master and
Partners (collectively the "Fort Mason Funds") and, in such capacity, exercises
sole voting and investment authority with respect to shares owned by the Fort
Mason Funds. Mr. Daniel German serves as the sole managing member of Fort Mason
Capital, LLC. Fort Mason Capital, LLC and Mr. German each disclaim beneficial
ownership of shares owned by the Fort Mason Funds, except to the extent of its
or his pecuniary interest therein, if any.
(9) Consists of 2,400,000 shares of common stock and 600,000 shares of common
stock underlying warrants exercisable as of May 18, 2007 owned by LB I Group
Inc. LB I Group Inc. is a wholly-owned subsidiary of Lehman Brothers Inc.,
which is a wholly-owned subsidiary of Lehman Brothers Holdings Inc., a public
reporting company. Both Lehman Brothers Inc. and Lehman Brothers Holdings Inc.
may be deemed to be the beneficial owners of the shares of common stock and
warrants owned by LB I Group Inc. Lehman Brothers Inc. is a registered
broker-dealer. This selling stockholder has represented to us that it (i)
purchased the shares in the ordinary course and (ii) did not have an agreement
or understanding, directly or indirectly, with any person to distribute the
shares at the time it purchased the shares.
(10) Includes 30,000 shares of common stock underlying warrants exercisable as
of May 18, 2007.
(11) Includes 22,000 shares of common stock underlying warrants exercisable as
of May 18, 2007.
(12) Includes 74,000 shares of common stock underlying warrants exercisable as
of May 18, 2007.
(13) Includes 70,000 shares of common stock underlying warrants exercisable as
of May 18, 2007.
(14) Includes 4,000 shares of common stock underlying warrants exercisable as
of May 18, 2007.
(15) Weintraub Capital Management, L.P. serves as general partner or investment
adviser of each of Prism Partners I, L.P., Prism Partners II Offshore Fund,
Prism Partners III Leveraged L.P., Prism Partners IV Leveraged Offshore Fund and
Prism Partners Offshore Fund (collectively, the "Prism Funds"), and as such
exercises sole voting and investment authority with respect to the shares owned
by the Prism Funds. Jerald M. Weintraub is the sole manager
16
of Weintraub Capital Management, LLC, which is the general partner of Weintraub
Capital Management, L.P. Weintraub Capital Management, L.P., Weintraub Capital
Management, LLC and Jerald M. Weintraub each disclaim beneficial ownership of
such shares, except to the extent of its or his pecuniary interest therein, if
any.
17
PLAN OF DISTRIBUTION
The selling stockholders may sell the shares being offered from time to
time in one or more transactions:
- on the NASDAQ Global Market or otherwise;
- in the over-the-counter market;
- in negotiated transactions;
- through broker-dealers, who may act as agents or principals;
- through one or more underwriters on a firm commitment or best
efforts basis;
- through the writing of options on shares, whether the options are
listed on an options exchange or otherwise; or
- a combination of such methods of sale.
The selling stockholders may sell the shares at market prices prevailing at
the time of sale, at prices related to those market prices or at negotiated
prices. The selling stockholders also may sell the shares pursuant to Rule 144
adopted under the Securities Act, as permitted by that rule. The selling
stockholders may effect transactions by selling shares directly to purchasers or
to or through broker-dealers. The broker-dealers may act as agents or
principals. The broker-dealers may receive compensation in the form of
discounts, concessions or commissions from the selling stockholders or the
purchasers of the shares. The compensation of any particular broker-dealer may
be in excess of customary commissions. Because the selling stockholders and
broker-dealers that participate with the selling stockholders in the
distribution of shares may be deemed to be "underwriters" within the meaning of
Section 2(11) of the Securities Act, the selling stockholders will be subject to
the prospectus delivery requirements of the Securities Act. Any commissions
received by them and any profit on the resale of shares may be deemed to be
underwriting compensation.
The selling stockholders have advised us that they have not entered into
any agreements, understandings or arrangements with any underwriters or
broker-dealers regarding the sale of their securities. There is no underwriter
or coordinating broker acting in connection with the proposed sale of shares by
the selling stockholders.
The shares will be sold through registered or licensed brokers or dealers
if required under applicable state securities laws. In addition, in certain
states the shares may not be sold unless they have been registered or qualified
for sale in the applicable state or an exemption from the registration or
qualification requirement is available and is complied with.
Under applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of the shares may not simultaneously engage in
market making activities with respect to our common stock for a period of two
business days prior to the commencement of such distribution. In addition, each
selling stockholder will be subject to applicable provisions of the Exchange Act
and the associated rules and regulations under the Exchange Act, including
Regulation M, which provisions may limit the timing of purchases and sales of
shares of our common stock by the selling stockholders. We will make copies of
this prospectus available to the selling stockholders and have informed them of
the need to deliver copies of this prospectus to purchasers at or prior to the
time of any sale of the shares.
We will bear all costs, expenses and fees in connection with the
registration of the shares. The selling stockholders will bear all commissions
and discounts, if any, attributable to the sales of the shares. The selling
stockholders may agree to indemnify any broker-dealer or agent that participates
in transactions involving sales of the shares against certain liabilities,
including liabilities arising under the Securities Act. The selling stockholders
have agreed to indemnify certain persons, including broker-dealers and agents,
against certain liabilities in connection with the offering of the shares,
including liabilities arising under the Securities Act.
18
Upon notification to us by a selling stockholder that any material
arrangement has been entered into with broker-dealers for the sale or purchase
of shares, we will file a supplement to this prospectus, if required,
disclosing:
- the name of the participating broker-dealers;
- the number of shares involved;
- the price at which such shares were sold;
- the commissions paid or discounts or concessions allowed to such
broker-dealers, where applicable;
- that such broker-dealers did not conduct any investigation to
verify the information set out or incorporated by reference in this
prospectus; and
- other facts material to the transaction.
In addition, upon being notified by a selling stockholder that a donee or
pledgee intends to sell more than 500 shares, we will file a supplement to this
prospectus.
19
DESCRIPTION OF CAPITAL STOCK
GENERAL
Our authorized capital stock consists of 100,000,000 shares of common
stock, $0.01 par value, 25,000,000 shares of Series Preferred Stock, $0.01 par
value, and 20,000 shares of Class A Preferred Stock, $100 par value. As of May
18, 2007, there were 82,867,058 shares of common stock outstanding and no shares
of preferred stock outstanding.
COMMON STOCK
Holders of common stock are entitled to one vote for each share held of
record on all matters submitted to a vote of the stockholders. The holders of
common stock are not entitled to cumulative voting rights with respect to the
election of directors, and as a consequence, minority stockholders will not be
able to elect directors on the basis of their votes alone. Subject to
preferences that may be applicable to any then outstanding preferred stock,
holders of common stock are entitled to receive ratably such dividends as may be
declared by the board of directors out of funds legally available therefor. In
the event of a liquidation, dissolution or winding up, holders of the common
stock are entitled to share ratably in all assets remaining after payment of
liabilities and the liquidation preference of any then outstanding preferred
stock. Holders of common stock have no preemptive rights and no right to
convert their common stock into any other securities. There are no redemption
or sinking fund provisions applicable to the common stock. All outstanding
shares of common stock are fully paid and non-assessable.
SERIES PREFERRED STOCK
Under the terms of our restated certificate of incorporation, the board of
directors is authorized to issue shares of preferred stock in one or more series
without stockholder approval. The board has discretion to determine the rights,
preferences, privileges and restrictions, including voting rights, dividend
rights, conversion rights, redemption privileges and liquidation preferences of
each series of preferred stock.
The purpose of authorizing the board of directors to issue preferred stock
and determine its rights and preferences is to eliminate delays associated with
a stockholder vote on specific issuances. The issuance of preferred stock,
while providing desirable flexibility in connection with possible acquisitions
and other corporate purposes, could make it more difficult for a third party to
acquire, or could discourage a third party from acquiring, a majority of our
outstanding voting stock. We have no present plans to issue any shares of
preferred stock.
CLASS A PREFERRED STOCK
Under the terms of our restated certificate of incorporation, 20,000 shares
of Class A Preferred Stock, $100 par value, are authorized, and no shares of
Class A Preferred Stock are outstanding. The holders of Class A Preferred Stock
have no voting rights. The holders of the Class A Preferred Stock are entitled
to receive a cash dividend, if, as and when declared by the board of directors
out of funds legally available therefor, at the rate of $6.00 per share per
annum from the date of issue on a cumulative basis. In the event of a
liquidation, dissolution or winding up, the holders of Class A Preferred Stock
shall be entitled to receive from our assets $100 per share in cash or other
property plus, in the case of each share, an amount equal to any dividends
declared but unpaid thereon to the date of the liquidation, dissolution or
winding up. The holders of Class A Preferred Stock have the right to require us
to repurchase with funds legally available therefor up to 20% each year of the
number of Class A Preferred Stock outstanding at a repurchase price of $100 per
share plus any dividends declared but unpaid thereon to the date of repurchase.
We have the right to redeem all or any of the shares of Class A Preferred Stock
upon 30 days written notice at the redemption price of $100 per share plus any
dividends declared but unpaid thereon to the date fixed for redemption.
20
SERIES A PARTICIPATING CUMULATIVE PREFERRED STOCK
Under the terms of our rights agreement described below, our board of
directors declared a dividend distribution of one Series A Participating
Cumulative Preferred Right for each share of our common stock. See
"Anti-takeover Provisions--Rights Agreement."
ANTI-TAKEOVER PROVISIONS
DELAWARE LAW
We are subject to the provisions of Section 203 of the Delaware General
Corporation Law regulating corporate takeovers. Section 203 prevents Delaware
corporations, including those that are listed on The NASDAQ Global Market, from
engaging in a business combination involving a merger or sale of more than 10%
of the corporation's assets, with any interested stockholder, that is, a
stockholder who owns 15% or more of the corporation's outstanding voting stock,
as well as affiliates and associates of any such person, for three years
following the date that the stockholder became an interested stockholder unless:
- the transaction that resulted in the stockholder becoming an
interested stockholder was approved by the board of directors prior to
the date the interested stockholder attained such status;
- upon consummation of the transaction that resulted in the
stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced, excluding those
shares owned by (1) persons who are directors as well as officers and
(2) employee stock plans in which employee participants do not have
the right to determine confidentially whether shares held subject to
the plan will be tendered in a tender or exchange offer; or
- on or subsequent to such date, the business combination is
approved by the board of directors and authorized at an annual or
special meeting of stockholders by the affirmative vote of at least
two-thirds of the outstanding voting stock that is not owned by the
interested stockholder.
A Delaware corporation may opt out of Section 203 with an express provision
in its original certificate of incorporation or an express provision in its
certificate of incorporation or bylaws resulting from a stockholders' amendment
approved by at least a majority of the outstanding voting shares. We have not
opted out of the provisions of Section 203. This statute could prohibit or
delay mergers or other takeover or change of control attempts with respect to us
and, accordingly, may discourage attempts to acquire us.
RESTATED CERTIFICATE OF INCORPORATION AND AMENDED AND RESTATED BYLAW
PROVISIONS
There are provisions in our restated certificate of incorporation and our
amended and restated bylaws that may make it more difficult to acquire control
of us by various means. These provisions could deprive the stockholders of
opportunities to realize a premium on the shares of common stock owned by them.
In addition, these provisions may adversely affect the prevailing market price
of the stock. These provisions are intended to:
- enhance the likelihood of continuity and stability in the
composition of the board and in the policies formulated by the board;
- discourage the types of transactions which may involve an actual
or threatened change in control of us;
- discourage tactics that may be used in proxy fights;
- encourage persons seeking to acquire control of us to consult
first with the board of directors to negotiate the terms of any
proposed business combination or offer; and
21
- reduce our vulnerability to an unsolicited proposal for a
takeover that does not contemplate the acquisition of all of our
outstanding shares or that is otherwise unfair to our stockholders.
Advance Notice Requirements for Stockholder Proposals and Director
Nominations. Our amended and restated bylaws provide that stockholders seeking
to bring business before an annual meeting of stockholders or seeking to
nominate candidates for election as directors at an annual meeting of
stockholders, must provide timely notice thereof in writing. To be timely, a
stockholder's notice must be delivered to, or mailed and received at, our
principal executive offices not less than 60 days nor more than 90 days prior to
the date of our annual meeting. Our amended and restated bylaws also specify
requirements as to the form and content of a stockholder's notice. These
provisions may preclude stockholders from bringing matters before an annual
meeting of stockholders or from making nominations for directors at an annual
meeting of stockholders.
Authorized but Unissued Shares. The authorized but unissued shares of
common stock and preferred stock are available for future issuance without
stockholder approval. These additional shares may be utilized for a variety of
corporate purposes, including future public offerings to raise additional
capital, corporate acquisitions and employee benefit plans. The existence of
authorized but unissued shares of common stock and preferred stock could render
more difficult or discourage an attempt to obtain control of us by means of a
proxy contest, tender offer, merger or otherwise.
Stockholder Action by Written Consent. The Delaware General Corporation
Law provides generally that any action required or permitted to be taken at any
annual or special meeting of our stockholders may be taken without a meeting
upon the written consent of a majority of the shares entitled to vote on the
matter. Our restated certificate of incorporation provides that no action
required or permitted to be taken at any annual or special meeting of our
stockholders may be taken without a meeting except upon the written consent of
the holders of 100% of the shares of stock entitled to vote upon the action.
This limitation on the right of stockholders to take action by written consent
could make it more difficult for stockholders to initiate actions.
Supermajority Vote to Amend Stockholder Action by Written Consent
Provision. The Delaware General Corporation Law provides generally that the
affirmative vote of a majority of the shares entitled to vote on any matter is
required to amend a corporation's certificate of incorporation or bylaws, unless
a corporation's certificate of incorporation or bylaws, as the case may be,
requires a greater percentage. Our restated certificate of incorporation
imposes a 66 2/3% vote requirement in connection with the amendment of the
provisions relating to the ability of stockholders to take action by written
consent.
RIGHTS AGREEMENT
We have a stockholder rights plan whereby one preferred stock purchase
right (each, a right) accompanies each outstanding share of common stock. Such
rights will become exercisable, or separate from the common stock upon the
earlier of the (1) tenth day following the public announcement that a person or
group has acquired beneficial ownership of 15% or more of the outstanding voting
power of the common shares or (2) tenth business day following the commencement
of, or announcement of an intention to make, a tender offer, the consummation of
which would result in a person or group acquiring the beneficial ownership of
15% or more of the outstanding voting power of the common shares. Each right
may be exercised to acquire one one-hundredth of a share of Series A
Participating Cumulative Preferred Stock, at an exercise price of $30 per one
one-hundredth of a share, subject to adjustment. Alternatively, upon the
occurrence of certain specified events, the rights allow holders to purchase our
common stock having a market value at such time of twice the right's purchase
price. We may redeem the rights at a redemption price of $0.0025 per right at
any time prior to the existence of a person or group that has acquired
beneficial ownership of 15% or more of the voting power of common shares. The
rights expire on August 14, 2012. The rights will cause substantial dilution to
a person or group that attempts to acquire us without conditioning the offer on
a substantial number of the rights being acquired. Accordingly, the existence
of the rights may deter certain acquirors from making takeover proposals or
tender offers.
22
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the resale shares
by the stockholders. All proceeds from the sale of the resale shares will be
solely for the accounts of the stockholders.
LEGAL MATTERS
The validity of the issuance of the shares of common stock offered hereby
will be passed upon for us by King & Spalding LLP, Atlanta, Georgia.
EXPERTS
The consolidated financial statements of Concurrent Computer Corporation
and subsidiaries (the "Company") and management's report on the effectiveness of
internal control over financial reporting incorporated in this prospectus by
reference from the Company's Annual Report on Form 10-K for the year ended June
30, 2006 have been audited by Deloitte & Touche LLP, an independent registered
public accounting firm, as set forth in their reports, which are incorporated by
reference herein, and have been so incorporated in reliance upon the reports of
such firm given upon their authority as experts in accounting and auditing.
23
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS. WE HAVE
NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH INFORMATION DIFFERENT FROM THAT
CONTAINED IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT. THIS PROSPECTUS IS
NOT AN OFFER OF THESE SECURITIES IN ANY JURISDICTION WHERE AN OFFER AND SALE IS
NOT PERMITTED. THE INFORMATION CONTAINED IN THIS PROSPECTUS IS ACCURATE ONLY AS
OF THE DATE OF THIS PROSPECTUS, REGARDLESS OF THE TIME OF DELIVERY OF THIS
PROSPECTUS OR ANY SALE OF OUR COMMON STOCK.
TABLE OF CONTENTS
PAGE
----
Forward-Looking Statements 2
Our Business 3
Risk Factors 4
Where You Can Find More Information 14
Selling Stockholders 15
Plan of Distribution 18
Description of Capital Stock 20
Use of Proceeds 23
Legal Matters 23
Experts 23
-----------------------------
14,000,000 SHARES
OF COMMON STOCK
CONCURRENT COMPUTER CORPORATION
-----------------------------
PROSPECTUS
-----------------------------
MAY __, 2007
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth an estimate of the fees and expenses
relating to the offering and sale to the public of the securities being
registered hereby, other than underwriting discounts and commissions, all of
which shall be borne by Concurrent Computer Corporation (the "Registrant" or the
"Company"). All of such fees and expenses, except for the SEC Registration Fee,
are estimated:
SEC registration fee. . . . . . . $ 615
Transfer agent's fees and expenses 5,000
Legal fees and expenses . . . . . 30,000
Printing fees and expenses. . . . 10,000
Accounting fees and expenses. . . 10,000
Miscellaneous fees and expenses . 4,385
-------
Total . . . . . . . . . . . . . $60,000
=======
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 145 of the Delaware General Corporation Law generally provides that
a corporation may indemnify directors and officers as well as other employees
and individuals against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement in connection with specified actions, suits or
proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation), if they acted in good
faith and in a manner they reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe their conduct was unlawful. A
similar standard is applicable in the case of derivative actions, except that
indemnification only extends to expenses (including attorneys' fees) incurred in
connection with the defense or settlement of such action, and the statute
requires court approval before there can be any indemnification where the person
seeking indemnification has been found liable to the corporation. The statute
also provides that it is not exclusive of other indemnification that may be
granted by a corporation's charter, bylaws, disinterested director vote,
stockholder vote, agreement or otherwise, and permits a corporation to advance
expenses to or on behalf of a person entitled to be indemnified upon receipt of
an undertaking to repay the amounts advanced if it is determined that the person
is not entitled to be indemnified.
Article XXIII of our Amended and Restated Bylaws provides for
indemnification of our directors, officers, employees and agents for expenses
(including attorneys' fees), judgments or fines of any threatened, pending or
completed action, suit or proceeding.
Article Eleven of our Restated Certificate of Incorporation provides that
directors shall not be liable for monetary damages resulting from a breach of
their fiduciary duties, except for liability for any of the following: (1) any
breach of the duty of loyalty to us and our stockholders; (2) acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law; (3) as provided under Section 174 of the Delaware General Corporation
Law (which provides that directors are personally liable for unlawful dividends
or unlawful stock repurchases or redemptions); or (4) any transaction from which
a director personally derived any improper personal benefit. If the Delaware
General Corporation Law is amended after approval by the stockholders of Article
Eleven to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of any of our directors
shall be eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended from time to time. Any repeal or
modification of Article Eleven shall not increase the personal liability of any
of our directors for any act or occurrence taking place prior to such repeal or
modification or otherwise adversely affect any right or protection of any of our
directors existing hereunder prior to the time of such repeal or modification.
II-1
We have entered into indemnity agreements with our directors and executive
officers (each, an "Indemnitee" and collectively, the "Indemnitees"). The
indemnity agreements provide a contractual right to indemnification to the
Indemnitees for certain expenses incurred due to actions, suits or other
proceedings brought against them in their capacity as directors, officers,
employees or agents of us or any of our subsidiaries.
We maintain director and officer liability insurance policies on behalf of
any person who is or was a director or officer of us or our subsidiary companies
providing for insurance against any liability incurred by him or her in any such
capacity or arising out of his or her status as such. The policies contain
various reporting requirements and exclusions.
SECURITIES AND SECURITIES AND EXCHANGE COMMISSION POSITION REGARDING
INDEMNIFICATION LIABILITIES ARISING UNDER THE SECURITIES ACT
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling the Registrant
pursuant to the foregoing provisions, the Registrant has been informed that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is
therefore unenforceable.
ITEM 16. EXHIBITS
a) EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- ------- ----------------------------------------------------------------------
3.1 Restated Certificate of Incorporation of the Company (filed as
Exhibit 4.1 to the Company's Registration Statement on Form S-2)
(No. 33-62440) dated May 7, 1993 and incorporated herein by
reference)
3.2 Amended and Restated Bylaws of the Registrant (incorporated by
reference to the Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended December 28, 1996)
3.3 Certificate of Correction to Restated Certificate of Incorporation of
the Company (filed as Exhibit 3.3 to the Company's Annual Report
on Form 10-K for the fiscal year ended June 30, 2002 and
incorporated herein by reference).
3.4 Amended Certificate of Designations of Series A Participating
Cumulative Preferred Stock (incorporated by reference to the Form
8-A/A, dated August 9, 2002).
3.5 Amendment to Amended Certificate of Designations of Series A
Participating Cumulative Preferred Stock (incorporated by reference
to the Form 8-A/A, dated August 9, 2002).
4.1 Form of Common Stock Certificate (incorporated by reference to the
Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1992).
4.2 Amended and Restated Rights Agreement dated as of August 7, 2002
between the Company and American Stock Transfer & Trust
Company, as rights agent (filed as Exhibit 4.1 to the Company's
Current Report on Form 8-K/A dated August 7, 2002 and
incorporated herein by reference).
4.3 Form of Rights Certificate (filed as Exhibit 4.2 to the Company's
Current Report on Form 8-K/A dated August 7, 2002 and
incorporated herein by reference).
4.4 Form of Warrant (filed as Exhibit 4.1 to the Company's Current
Report on Form 8-K dated May 15, 2007 and incorporated herein by
reference).
4.5 Form of Warrant (filed as Exhibit 4.2 to the Company's Current
Report on Form 8-K dated May 15, 2007 and incorporated herein by
reference).
II-2
5.1 Opinion of King & Spalding as to the legality of the securities being
registered.
10.1 Form of Securities Purchase Agreement by and among Concurrent
Computer Corporation and the purchasers set forth on the signature
pages thereto (filed as Exhibit 10.1 to the Company's Current Report
on Form 8-K dated May 15, 2007 and incorporated herein by
reference).
23.1 Consent of King & Spalding (included in Exhibit 5.1).
23.2 Consent Deloitte & Touche LLP, independent registered public
accounting firm for the Registrant.
24.1 Power of Attorney. Reference is made to page II-5.
ITEM 17. UNDERTAKINGS.
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, 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.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(iii)To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that subparagraphs (i) and (ii) above do not apply if
the information required to be included in a post-effective amendment by
these subparagraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, 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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, 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
II-3
annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in this 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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, 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 of whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 city of Duluth, State of Georgia, on the 24th day of May,
2007
Concurrent Computer Corporation
By: /s/ T. Gary Trimm
----------------------------------------
T. Gary Trimm
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Gary Trimm and Kirk Somers, and each of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for the undersigned and in his or her name,
place and stead, in any and all capacities, to sign any or all amendments
(including post-effective amendments) to the Registration Statement and to file
the same, with all exhibits thereto, and all documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as he or she might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, the following
persons in the capacities and on the dates indicated have signed this
Registration Statement below.
/s/Steve G. Nussrallah Chairman of the Board and Director May 24, 2007
- ----------------------
Steve G. Nussrallah
/s/ T. Gary Trimm President, Chief Executive Officer and Director May 24, 2007
- ----------------------
T. Gary Trimm (principal executive officer)
/s/ Emory Berry Chief Financial Officer May 24, 2007
- ----------------------
Emory Berry (principal financial and accounting officer)
/s/ Alex B. Best Director May 24, 2007
- ----------------------
Alex B. Best
/s/ Charles Blackmon Director May 24, 2007
- ----------------------
Charles Blackmon
/s/ Larry L. Enterline Director May 24, 2007
- ----------------------
Larry L. Enterline
/s/ C. Shelton James Director May 24, 2007
- ----------------------
C. Shelton James
II-5
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- ------- ----------------------------------------------------------------------
3.1 Restated Certificate of Incorporation of the Company (filed as
Exhibit 4.1 to the Company's Registration Statement on Form S-2)
(No. 33-62440) dated May 7, 1993 and incorporated herein by
reference)
3.2 Amended and Restated Bylaws of the Registrant (incorporated by
reference to the Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended December 28, 1996)
3.3 Certificate of Correction to Restated Certificate of Incorporation of
the Company (filed as Exhibit 3.3 to the Company's Annual Report
on Form 10-K for the fiscal year ended June 30, 2002 and
incorporated herein by reference).
3.4 Amended Certificate of Designations of Series A Participating
Cumulative Preferred Stock (incorporated by reference to the Form
8-A/A, dated August 9, 2002).
3.5 Amendment to Amended Certificate of Designations of Series A
Participating Cumulative Preferred Stock (incorporated by reference
to the Form 8-A/A, dated August 9, 2002).
4.1 Form of Common Stock Certificate (incorporated by reference to the
Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1992).
4.2 Amended and Restated Rights Agreement dated as of August 7, 2002
between the Company and American Stock Transfer & Trust
Company, as rights agent (filed as Exhibit 4.1 to the Company's
Current Report on Form 8-K/A dated August 7, 2002 and
incorporated herein by reference).
4.3 Form of Rights Certificate (filed as Exhibit 4.2 to the Company's
Current Report on Form 8-K/A dated August 7, 2002 and
incorporated herein by reference).
4.4 Form of Warrant (filed as Exhibit 4.1 to the Company's Current
Report on Form 8-K dated May 15, 2007 and incorporated herein by
reference).
4.5 Form of Warrant (filed as Exhibit 4.2 to the Company's Current
Report on Form 8-K dated May 15, 2007 and incorporated herein by
reference).
5.1 Opinion of King & Spalding as to the legality of the securities being
registered.
10.1 Form of Securities Purchase Agreement by and among Concurrent
Computer Corporation and the purchasers set forth on the signature
pages thereto (filed as Exhibit 10.1 to the Company's Current Report
on Form 8-K dated May 15, 2007 and incorporated herein by
reference).
23.1 Consent of King & Spalding (included in Exhibit 5.1).
23.2 Consent Deloitte & Touche LLP, independent registered public
accounting firm for the Registrant.
24.1 Power of Attorney. Reference is made to page II-5.
II-6