As filed with the Securities and Exchange Commission on February 13, 2002
REGISTRATION NO. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CONCURRENT COMPUTER CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware 04-2735766
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
4375 RIVER GREEN PARKWAY
DULUTH, GEORGIA 30096
(Address, including zip code, of registrant's principal executive offices)
CONCURRENT COMPUTER CORPORATION
1991 RESTATED STOCK OPTION PLAN;
2001 STOCK OPTION PLAN;
RICHARD P. RIFENBURGH
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NON-QUALIFIED STOCK OPTION PLAN AND AGREEMENT
(Full Title of the Plans)
STEVEN R. NORTON
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
CONCURRENT COMPUTER CORPORATION
4375 RIVER GREEN PARKWAY
DULUTH, GEORGIA 30096
(678) 258-4000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPIES TO:
ALAN J. PRINCE, ESQ.
JOHN D. CAPERS, JR., ESQ.
KING & SPALDING
191 PEACHTREE STREET
ATLANTA, GEORGIA 30303-1763
404-572-4600
This Registration Statement on Form S-8 relates to 6,824,800 shares of common stock, par value $.01 (the "Common Stock"), of Concurrent Computer Corporation (the "Company"), reserved for issuance pursuant to the Company's 1991 Restated Stock Option Plan, 2001 Stock Option Plan and Richard P. Rifenburgh Non-Qualified Stock Option Plan and Agreement.
Additional Shares Approved at the 1999 Annual Shareholders Meeting for the 1991 Plan 3,000,000
Additional Shares Approved at the 2000 Annual Shareholders Meeting for the 1991 Plan 1,500,000
Shares Approved at the 2001 Annual Shareholders Meeting for the 2001 Stock Option Plan 3,000,000
Shares Granted to Richard P. Rifenburgh, former Director, at retirement 10,000
Less: Unissued shares in 1991 Plan as of 10/31/01, transferred to 2001 Plan (685,200)
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Total shares being registered 6,824,800
==========
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The SEC allows us to "incorporate by reference" the information we file with them, which means that we can disclose important information to you by referring you to those documents. We incorporate by reference the documents listed below:
1. Our Annual Report on Form 10-K for the fiscal year ended June 30, 2001;
2. Our Quarterly Report on Form 10-Q for the quarter ended September 30, 2001;
3. The description of our common stock, par value $.01, contained in the registration statement on Form 8-A dated January 23, 1986, including any amendment or report filed for the purpose of updating such description; and
4. Our Current Reports on Form 8-K, dated October 22, 2001, October 25, 2001 and January 24, 2002.
All documents that we file subsequent to this Registration Statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed incorporated by reference in the registration statement and to be part thereof from the date of filing of such documents.
Any statement contained in any document incorporated by reference or deemed to be incorporated by reference into this Registration Statement shall be deemed to be modified or superseded for purposes thereof to the extent that a statement contained therein or in any other subsequently filed document that is also incorporated or deemed to be incorporated therein by reference modifies or supersedes such statement. Any such statement so modified or so superseded shall not be deemed to constitute a part of this Registration Statement.
You may request a copy of these filings by writing or telephoning us at:
Concurrent Computer Corporation, 4375 River Green Parkway, Duluth, Georgia
30096, Attn: Secretary; phone: (678) 258-4000.
Inapplicable.
The validity of the securities offered by this prospectus will be passed upon for us by King & Spalding. Bruce N. Hawthorne, a partner of King & Spalding, is a director of Concurrent.
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-a derivative action), 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 Eleventh 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 Eleventh 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 Eleventh 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.
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.
Inapplicable.
EXHIBIT DESCRIPTION
------- -----------
4.1 Restated Certificate of Incorporation of the Registrant
(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)
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4.2 Amended and Restated Bylaws of the Registrant (filed as
Exhibit 3 to the Company's Quarterly Report on Form 10-Q for
the quarter ended December 28, 1996 and incorporated herein
by reference)
4.3 Form of Common Stock Certificate (filed as Exhibit 4.9 to
the Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 1992 and incorporated herein by reference)
5.1 Opinion of King & Spalding
23.1 Consent of KPMG LLP
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of King & Spalding (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
99.1 Concurrent Computer Corporation 1991 Restated Stock Option
Plan (filed as Exhibit A to the Company's Proxy Statement
dated September 18, 2000 and incorporated herein by
reference)
99.2 Concurrent Computer Corporation 2001 Stock Option Plan
(filed as Annex II to the Company's Proxy Statement dated
September 19, 2001 and incorporated herein by reference)
99.3 Richard P. Rifenburgh Non-Qualified Stock Option Plan and
Agreement
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(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the Registrant's Annual Report pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's Annual Report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be
deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
EXPERTS
The consolidated financial statements as of and for each of the years in the two year period ended June 30, 2001 and the related financial statement schedule for each of the years in the two year period ended June 30, 2001 incorporated in this prospectus and in the registration statement by reference from Concurrent's Annual Report on Form 10-K for the year ended June 30, 2001 have been audited by Deloitte & Touche LLP, independent auditors, as stated in their report, which is incorporated herein by reference, and have been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.
The consolidated financial statements and schedule of Concurrent for the year ended June 30, 1999 have been incorporated by reference herein and in the related prospectus in reliance upon the report of KPMG LLP, independent certified public accountants, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, on the 13th day of February, 2002.
CONCURRENT COMPUTER CORPORATION
By: /s/ Steven R. Norton
---------------------
Steven R. Norton
Executive Vice President, Chief Financial
Officer and Secretary
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints, jointly and severally, Jack A. Bryant and Steven R. Norton, and each of them acting individually, as his attorney-in-fact, each with full power of substitution and resubstitution, for him in any and all capacities, to sign any and all amendments to this Registration Statement (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on the 13th day of February, 2002:
Signature Title
--------- -----
/s/ Steve G. Nussrallah Chairman of the Board and Director
-----------------------
Steve G. Nussrallah
/s/ Jack A. Bryant President, Chief Executive Officer and Director
----------------------- (Principal Executive Officer)
Jack A. Bryant
/s/ Steven R. Norton Executive Vice President, Chief Financial Officer and
----------------------- Secretary (Principal Financial and Accounting Officer)
Steven R. Norton
/s/ Alex B. Best Director
-----------------------
Alex B. Best
/s/ Michael A. Brunner Director
-----------------------
Michael A. Brunner
/s/ Morton E. Handel Director
-----------------------
Morton E. Handel
/s/ Bruce N. Hawthorne Director
-----------------------
Bruce N. Hawthorne
/s/ C. Shelton James Director
-----------------------
C. Shelton James
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EXHIBIT INDEX
EXHIBIT DESCRIPTION
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4.1 Restated Certificate of Incorporation of the Registrant
(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)
4.2 Amended and Restated Bylaws of the Registrant (filed as
Exhibit 3 to the Company's Quarterly Report on Form 10-Q for
the quarter ended December 28, 1996 and incorporated herein
by reference)
4.3 Form of Common Stock Certificate (filed as Exhibit 4.9 to
the Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 1992 and incorporated herein by reference)
5.1 Opinion of King & Spalding
23.1 Consent of KPMG LLP
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of King & Spalding (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
99.1 Concurrent Computer Corporation 1991 Restated Stock Option
Plan (filed as Exhibit A to the Company's Proxy Statement
dated September 18, 2000 and incorporated herein by
reference)
99.2 Concurrent Computer Corporation 2001 Stock Option Plan
(filed as Annex II to the Company's Proxy Statement dated
September 19, 2001 and incorporated herein by reference)
99.3 Richard P. Rifenburgh Non-Qualified Stock Option Plan and
Agreement
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[KING & SPALDING LETTERHEAD]
February 13, 2002
Concurrent Computer Corporation
4375 River Green Parkway
Duluth, Georgia 30096
Ladies and Gentlemen:
We have acted as counsel for Concurrent Computer Corporation, a Delaware corporation (the "Company"), in connection with the preparation of a Registration Statement on Form S-8 (the "Registration Statement") filed with the Securities and Exchange Commission. The Registration Statement relates to 6,824,800 shares (the "Shares") of the Company's common stock, par value $.01 per share, reserved for issuance pursuant to, or upon the exercise of options (the "Options") granted under, the Company's 1991 Restated Stock Option Plan (the "1991 Plan"), the Company's 2001 Stock Option Plan (the "2001 Plan"), and the Richard P. Rifenburgh Non-Qualified Stock Option Plan and Agreement (the "Rifenburgh Plan" and together with the 1991 Plan and the 2001 Plan, the "Plans").
As such counsel, we have examined and relied upon such records, documents, certificates and other instruments as in our judgment are necessary or appropriate to form the basis for the opinions hereinafter set forth. In all such examinations, we have assumed the genuineness of signatures on original documents and the conformity to such original documents of all certified, conformed, or photographic copies submitted to us, and as to certificates of public officials, we have assumed the same to have been properly given and to be accurate.
For purposes of this opinion, we have assumed the following: (i) the Shares that may be issued pursuant to, or upon the exercise of Options granted under, the Plans will continue to be duly authorized on the dates of such issuance and (ii) on the date on which any Option is exercised, such Option will have been duly executed, issued and delivered by the Company and will constitute the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms subject, as to enforceability, to applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, general equitable principles and the discretion of courts in granting equitable remedies.
This opinion is limited in all respects to the corporate laws of the State of Delaware (which includes the Delaware General Corporation Law, applicable provisions of the Delaware Constitution and reported judicial decisions concerning those laws), and no opinion is expressed with respect to the laws of any other jurisdiction or any effect which such laws may have on the opinions expressed herein. This opinion is limited to the matters stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated herein.
Based upon the foregoing and subject to the limitations, qualifications and assumptions set forth herein, we are of the opinion that:
(a) The Shares are duly authorized; and
(b) When the Shares are issued pursuant to the Plans, or issued upon the exercise of Options granted under the Plans, such Shares will be validly issued, fully paid and nonassessable.
This opinion is given as of the date hereof, and we assume no obligation to advise you after the date hereof of facts or circumstances that come to our attention or changes in law that occur which could affect the opinions contained herein. This letter is being rendered solely for the benefit of Concurrent Computer Corporation in connection with the matters addressed herein. This opinion may not be furnished to or relied upon by any person or entity for any purpose without our prior written consent.
We consent to the filing of this opinion as an Exhibit to the Registration Statement.
Very truly yours,
KING & SPALDING
Consent of Independent Accountants
The Board of Directors
Concurrent Computer Corporation and subsidiaries:
We consent to the incorporation by reference in the registration statement of Concurrent Computer Corporation on Form S-8 of our report dated July 31, 1999, relating to the consolidated statements of operations, stockholders' equity and comprehensive income, and cash flows of Concurrent Computer Corporation and subsidiaries for the year ended June 30, 1999, and the related schedule, which report appears in the June 30, 2001 annual report on Form 10-K of Concurrent Computer Corporation and to the reference to our firm under the heading "Experts" in the registration statement.
KPMG LLP
Atlanta, Georgia
February 12, 2002
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of Concurrent Computer Corporation on Form S-8 of our report dated August 3, 2001 (September 14, 2001 as to paragraph two of Note 10), appearing in the Annual Report on Form 10-K of Concurrent Computer Corporation for the year ended June 30, 2001 and to the reference to us under the heading "Experts" in the Prospectus, which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
Atlanta, Georgia
February 12, 2002
CONCURRENT COMPUTER CORPORATION
RICHARD P. RIFENBURGH
NON-QUALIFIED STOCK OPTION PLAN AND AGREEMENT
THIS NON-QUALIFIED STOCK OPTION PLAN AND AGREEMENT evidences that, subject to the following terms and conditions, on August 21, 2001 (the "Grant Date"), Concurrent Computer Corporation, a Delaware Corporation, (the "Company") granted to Richard P. Rifenburgh (the "Optionee") a non-qualified stock option (the "Option") for the purchase of ten thousand (10,000) shares of the Company's common stock, $.01 par value (the "Stock"), at an option price of eleven dollars and five cents ($11.05) per share (the "Option Price"), for service provided as a director of the Company.
In addition, certain other terms used herein have definitions given to them in the first place in which they are used. For purposes of the definitions set forth in this Section 1, the singular shall include the plural and the plural shall include the singular.
owned by the Optionee; provided that if the Option is exercised using unrestricted common stock of the Company already owned by the Optionee, such stock must have been held by the Optionee for at least six (6) months.
In the discretion of the Committee, payment for any Stock subject to the Option also may be made by delivering a properly executed exercise notice to the Company together with a copy of irrevocable instructions to a broker to deliver promptly to the Company the purchase price. To facilitate the foregoing, the Company may enter into agreements for coordinated procedures with one or more brokerage firms. The value of already owned shares of common stock of the Company exchanged in full or partial payment for the shares purchased upon the exercise of the Option shall be equal to the aggregate Fair Market Value of such already owned shares of stock on the date preceding the exercise of the Option (and transfer of such already owned shares to the account of the Company).
This Plan and Agreement shall be administered by the Compensation Committee ("Committee") of the Board or such other committee of the Board, composed of not less than two (2) members, each of whom shall be appointed by and shall serve at the pleasure of the Board and shall come within the definition of a "non-employee director" under Rule 16b-3 and an "outside director" under Section 162(m) of the Internal Revenue Code of 1986, as amended from time to time, and any successor thereto. If at any time no Committee shall be in place, the functions of the Committee specified in this Plan and Agreement shall be exercised by the Board.
The Committee shall have the authority to adopt, alter and repeal such administrative rules, guidelines and practices governing this Plan and Agreement as it shall, from to time, deem advisable; to interpret the terms and provisions of this Plan and Agreement; and to otherwise supervise the administration of this Plan and Agreement.
The Committee may act only by a majority of its members then in office, except that the members thereof may authorize any one or more of their number or any officer of the Company to execute and deliver documents on behalf of the Committee. Any determination made by the Committee pursuant to the provisions of this Plan and Agreement with respect to the Option shall be made in its sole discretion at the time of the grant of the Option or, unless in contravention of any express term of this Plan and Agreement, at any time thereafter. All decisions made by the Committee pursuant to the provisions of this Plan and Agreement shall be final and binding on all persons, including the Company and the Optionee.
In the event of any merger, reorganization, consolidation, recapitalization (including, but not limited to, the issuance of common stock or any securities convertible into common stock in exchange for securities of the Company), stock dividend, stock split or reverse stock split, extraordinary distribution with respect to the Stock or other similar change in corporate structure affecting the Stock, such substitution or adjustments shall be made in the number and Option price of shares subject to the Option granted under this Plan and Agreement as may be determined to be appropriate by the Committee, in its sole discretion; provided, however, that the number of shares subject to the Option always shall be a whole number.
Upon the occurrence of a Change of Control, the Committee, in its discretion, shall have the right (but not the obligation) to cash out prior to the transaction the Option by paying the Optionee an amount, in cash or common stock, equal to the excess of the Fair Market Value of a share of Stock over the Option price per share of Stock times the number of shares of Stock subject to the Option on the effective date of the cash out (in which event the Option shall thereupon expire).
For purposes of this Plan, "Change of Control" means the occurrence of any of the following events:
(a) the acquisition, directly or indirectly, by any "person" or "group" (as those terms are defined in Sections 3(a)(9), 13(d), and 14(d) of the Exchange Act and the rules thereunder, including, without limitation, Rule 13d-5(b)) of "beneficial ownership" (as determined pursuant to Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in the election of directors ("voting securities") of the Company that represent 35% or more of the combined voting power of the Company's then outstanding voting securities, other than
(i) an acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company or by any employee benefit plan (or related trust) sponsored or maintained by the Company or any person controlled by the Company, or
(ii) an acquisition of voting securities by the Company or a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of the stock of the Company, or
(iii) an acquisition of voting securities pursuant to a transaction described in clause (c) below that would not be a Change of Control under clause (c);
(b) a change in the composition of the Board that causes less than a majority of the directors of the Company to be directors that meet one or more of the following descriptions:
(i) a director who has been a director of the Company for a continuous period of at least 24 months, or
(ii) a director whose election or nomination as director was
approved by a vote of at least two-thirds of the then
directors described in clauses (b)(i), (ii), or (iii)
by prior nomination or election, but excluding, for the
purpose of this subclause (ii), any director whose
initial assumption of office occurred as a result of an
actual or threatened (y) election contest with respect
to the election or removal of directors or other actual
or threatened solicitation of proxies or consents by or
on behalf of a person or group other than the Board or
(z) tender offer, merger, sale of substantially all of
the Company's assets, consolidation, reorganization, or
business combination that would be a Change of Control
under clause (c) on consummation thereof, or
(iii) who were serving on the Board as a result of the consummation of a transaction described in clause (c) that would not be a Change of Control under clause (c);
(c) the consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company's assets or (z) the acquisition of assets or stock of another entity, in each case, other than in a transaction
(i) that results in the Company's voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company's assets or otherwise succeeds to the business of the Company (the Company or such person, the "Successor Entity")) directly or indirectly, at least 50% of the combined voting power of the Successor Entity's outstanding voting securities immediately after the transaction, and
(ii) after which more than 50% of the members of the board of directors of the Successor Entity were members of the Board at the time of the Board's approval of the agreement providing for the transaction or other action of the Board approving the transaction (or whose election or nomination was approved by a vote of at least two-thirds of the members who were members of the Board at that time), and
(iii) after which no person or group beneficially owns voting securities representing 35% or more of the combined voting power of the Successor Entity, unless the Board determines in its discretion that beneficial ownership by a person or group of voting securities representing 35% or more of the combined voting power of the Successor Entity shall not be deemed a Change of Control; or
(d) a liquidation or dissolution of the Company.
For purposes of clarification, an acquisition of Company securities by the Company that causes the Company's voting securities beneficially owned by a person or group to represent 35% or more of the combined voting power of the Company's then outstanding voting securities is not to be treated as an "acquisition" by any person or group for purposes of clause (a) above. For purposes of clause (a) above, the Company makes the calculation of voting power as if the date of the acquisition were a record date for a vote of the Company's shareholders, and for purposes of clause (c) above, the Company makes the calculation of voting power as if the date of the consummation of the transaction were a record date for a vote of the Company's shareholders.
The Board may amend this Plan and Agreement, but no amendment shall be made that would (i) impair the rights of the Optionee without the Optionee's consent, except such an amendment made to cause this Plan and Agreement to qualify for the exemption provided by Rule 16b-3, or (ii) disqualify this Plan and Agreement from the exemption provided by Rule 16b-3. In addition, no such amendment shall be made without the approval of the Company's stockholders to the extent such approval is required by law.
PLEASE INDICATE YOUR UNDERSTANDING AND ACCEPTANCE OF THE FOREGOING BY
SIGNING AND RETURNING A COPY OF THIS PLAN AND AGREEMENT.
CONCURRENT COMPUTER
CORPORATION
By: _______________________________
Name:
Title:
I hereby acknowledge receipt of the Option granted on August 21, 2001, which has been granted to me under the foregoing terms and conditions. I further agree to conform to all of the terms and conditions of the Option.
OPTIONEE
Date: _________________________