As filed with the Securities and Exchange Commission
on July 3, 1996
Registration No.333-05185
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EXCALIBUR TECHNOLOGIES CORPORATION
[Exact name of issuer as specified in its charter]
Delaware 85-0278207
(State or other jurisdiction of incorporation (I.R.S. Employer
or organization) Identification No.)
1921 Gallows Road, Suite 200
Vienna, Virginia 22182
703-761-3700
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
Patrick C. Condo
President and
Chief Executive Officer
1921 Gallows Road
Suite 200
Vienna, Virginia 22182
703-761-3700
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
Copies to:
Jay H. Diamond, Esq.
Tenzer Greenblatt LLP
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
(212) 573-5341
Approximate date of commencement of proposed sale to public:
From time to time after the effective date of this
Registration Statement
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]
-------------------------
The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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EXCALIBUR TECHNOLOGIES CORPORATION
Cross-Reference Sheet Pursuant to Rule 404(a)
and Item 501(b) of Regulation S-K
Form S-3 Item Number and Caption Caption in Prospectus
-------------------------------- ---------------------
1. Forepart of the Registration Cover Page
Statement and Outside Front
Cover Page of Prospectus
2 Inside Front and Outside Back Inside Front and Outside Back Cover
Cover Pages of Prospectus Pages of Prospectus; Available
Information
3. Summary Information, Risk Factors Prospectus Summary; The Company;
and Ratio of Earnings to Fixed Risk Factors
Charges
4. Use of Proceeds Use of Proceeds
5. Determination of Offering Price Not Applicable
6. Dilution Dilution
7. Selling Security Holders Selling Shareholders
8. Plan of Distribution Cover Page; Plan of Distribution;
Selling Shareholders
9. Description of Securities to be Cover Page; Description of Capital
Registered Stock
10. Interests of Named Experts and Legal Matters
Counsel
11. Material Changes Not Applicable
12. Incorporation of Certain Incorporation of Certain Information
Information by Reference by Reference
13. Disclosure of Commission Position Not Applicable
on Indemnification
-3-
Subject to Completion, dated July 3, 1996
PROSPECTUS
EXCALIBUR TECHNOLOGIES CORPORATION
50,095 SHARES OF COMMON STOCK
This Prospectus relates to 50,095 shares of Common Stock, par value $.01
per share (the "Shares"), of Excalibur Technologies Corporation, a Delaware
corporation (the "Company"), which may be sold from time to time by the persons
and entities listed as Selling Shareholders herein (the "Selling Shareholders").
The Company will not receive any proceeds from the sale of the Shares by the
Selling Shareholders. See "Plan of Distribution."
The Company will pay all the expenses, estimated to be approximately
$25,000, in connection with this offering, other than underwriting commissions
and discounts and counsel fees and expenses of the Selling Shareholders.
AN INVESTMENT IN THE SECURITIES OFFERED HEREBY INVOLVES A
HIGH DEGREE OF RISK. SEE "RISK FACTORS."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The Company's Common Stock is traded in the over-the-counter market and
included in the NASDAQ National Market System under the symbol EXCA. The last
reported sale price of the Common Stock reported in the NASDAQ National Market
System on July 1, 1996 was $21.75 per share.
The date of this Prospectus is July 3, 1996.
TABLE OF CONTENTS
Page
Available Information....................................... 3
Incorporation of Certain Information by Reference........... 3
The Company................................................. 5
Risk Factors................................................ 7
Plan of Distribution........................................ 9
Use of Proceeds............................................. 10
Dilution.................................................... 10
Selling Shareholders........................................ 11
Description of Capital Stock................................ 16
Experts..................................................... 18
Legal Matters............................................... 18
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS IN CONNECTION WITH
THE OFFERING DESCRIBED HEREIN AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFERING IN ANY JURISDICTION TO ANY
PERSON TO WHOM SUCH OFFER WOULD BE UNLAWFUL OR AN OFFERING OF ANY SECURITIES
OTHER THAN THE REGISTERED SECURITIES TO WHICH IT RELATES. NEITHER THE DELIVERY
OF THIS PROSPECTUS NOR ANY OFFER OR SALE MADE HEREUNDER AT ANY TIME SHALL IMPLY
THAT THE INFORMATION PROVIDED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS
DATE.
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AVAILABLE INFORMATION
This Prospectus does not contain all of the information set forth in the
Registration Statement of which this Prospectus is a part and which is filed
with the Securities and Exchange Commission (the "Commission"). The Company is
subject to the informational requirements of the Securities Exchange Act of 1934
(the "Exchange Act") and, in accordance therewith, files reports, proxy
statements and other information with the Commission. For further information
with respect to the Company, reference is made to such Registration Statement
and the exhibits thereto, and to such reports, proxy statements and other
information filed with the Commission. Such Registration Statement, reports,
proxy statements and other information can be inspected and copied at the public
reference facilities of the Commission at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the Commission's Regional Offices
located at Room 1400, 75 Park Place, New York, New York 10007 and Suite 1400,
Northwestern Atrium Center, 500 West Madison Street, Chicago, Illinois 60661.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by the Company with the Commission (File No.
0- 9747) are incorporated by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
January 31, 1996.
2. The Company's Quarterly Report on Form 10-Q for the three month period
ended April 30, 1996.
3. The Company's proxy statement dated May 28, 1996.
4. The Company's Annual Report on Form 10-K/A dated June 13, 1996.
All documents filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Shares shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the date of filing of
such documents. Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
Copies of any and all documents that have been incorporated by reference
herein, other than exhibits to such documents, may be obtained upon request
without charge from the
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Company's Corporate Secretary, Excalibur Technologies Corporation, 1921 Gallows
Road, Suite 200, Vienna, Virginia 22182, telephone number (703) 761-3700. Please
specify the information desired when making such request.
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THE COMPANY
Excalibur Technologies Corporation ("Excalibur") is a leader in the
development and sale of software solutions for information retrieval.
Excalibur's software products combine two complementary technologies: Adaptive
Pattern Recognition Processing (APRP(TM)) and semantic networks. The APRP(TM)
technology identifies and indexes the underlying binary patterns in digital
data, providing the capability to build content-based retrieval applications for
any type of digital information, including text, images, video and sounds.
Semantic networks leverage lexical knowledge, offering a system with build-in
knowledgebases to search for specific word meanings enriched by related terms
and concepts. Integration of these two approaches provides complete and powerful
information retrieval capabilities with accuracy and speed. Excalibur's core
technologies enable high fault-tolerant fuzzy searching and natural
language-based searching for text, as well as powerful query-by-example
capabilities which can be applied to words, pictures, video clips, fingerprints,
facial images and many other types of multi-media data.
Using these technologies, Excalibur has developed a comprehensive suite of
information retrieval software products, including libraries, services and
applications, called RetrievalWare. RetrievalWare is a unified family of
applications and software components for building retrieval solutions across
multiple information types. Its flexible and modular architecture supports the
full range of Excalibur development tools for value added resellers ("VARs"),
original equipment manufacturers ("OEMs"), systems integrators ("SIs") and
corporate and government information technology departments. Excalibur's
RetrievalWare is a complete software component architecture, enabling developers
to build information retrieval applications for workgroup, enterprises and
across the internet. RetrievalWare platforms include all major UNIX and
Windows/NT servers, with PC and UNIX clients.
In July 1995, Excalibur acquired ConQuest Software, Inc. ("ConQuest"), a
private company located in Columbia, Maryland, engaged in the business of
providing natural language text management software tools, through the issuance
of approximately 1,427,000 restricted shares of Excalibur common stock and
options to purchase approximately 572,000 restricted shares of Excalibur common
stock to the former ConQuest shareholders and option holders in exchange for all
of the outstanding common stock of ConQuest. The transaction has been accounted
for as a pooling of interests. The consolidated results of operations and the
discussion thereof that are presented herein reflect the combined results of the
pooled business for the respective periods presented.
The Company established a wholly-owned subsidiary in the United Kingdom,
Excalibur Technologies International, Ltd. ("ETIL"), which began operations in
July 1992. Except as otherwise noted, Excalibur, ConQuest (the acquired company)
and ETIL are collectively referred to hereinafter as the "Company."
The Company markets and distributes its products through VARs, SIs, OEMs,
direct sales, distribution agreements, and a marketing agreement with IBM. As of
January 31, 1996, more than 600 customers were using the Company's information
retrieval products.
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Excalibur was incorporated on February 11, 1980 as a New Mexico
corporation and reincorporated on September 26, 1989 as a Delaware corporation.
The Company's principal executive offices are located at 1921 Gallows Road,
Suite 200, Vienna, Virginia 22182, telephone (703) 761-3700.
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RISK FACTORS
A prospective investor should carefully consider all of the information
contained in this Prospectus and, in particular, the following:
Marketing Acceptance of Products and Historical Operating Losses. The
Company believes that its future profitability will depend on its ability to
effectively market existing and newly-developed software products through a
balanced multi-channel distribution network. There can be no assurance that the
expenses incurred in connection with the development, introduction and promotion
of enhanced or new products will not exceed the Company's expectations, or that
these products will generate revenues sufficient to offset these expenses. The
Company has operated at a loss for the most recent fiscal quarter and for each
of the past three fiscal years. The Company reported a net loss of $1,725,000 on
revenues of approximately $4,001,000 for its fiscal quarter ended April 30,
1996. The Company reported a net loss of approximately $884,000 on revenues of
approximately $18,675,000 for the fiscal year ended January 31, 1996, a net loss
of approximately $9,388,000 on revenues of approximately $12,638,000 for the
fiscal year ended January 31, 1995 and a net loss of approximately $8,319,000 on
revenues of approximately $12,285,000 for the fiscal year ended January 31,
1994. These losses reflect the Company's expenditures associated with building a
marketing organization to sell software products released in 1994 and 1995 and
further developing software products during such years. The Company will
continue to invest in these programs and, accordingly, operating losses may
continue for at least the next 12 months.
Relationship with IBM. In July and August 1993, the Company entered into
Cooperative Marketing Agreements with IBM under which IBM made guaranteed sales
commitments to the Company for fiscal 1994 and fiscal 1995. Revenues from sales
generated by IBM in fiscal years 1996, 1995 and 1994 represented 2%, 12% and 7%,
respectively, of total revenues. A decision by IBM to limit or discontinue its
relationship with the Company could result in a significant loss of revenue to
the Company.
Lack of Patent Protection. The Company has not obtained patents on any of
its technology. The Company regards its software as proprietary and relies
primarily on a combination of copyright, trademark and trade secret laws of
general applicability, employee confidentiality and invention assignment
agreements, distribution and OEM software protection agreements and other
intellectual property protection methods to safeguard its technology and
software products. The Company also relies upon its efforts to design and
produce new products, and upon improvements to existing products, to maintain a
competitive position in the marketplace. The Company has no assurance that its
technology will remain proprietary.
Competition. Competition in the computer and communications industry in
general, and the computer software industry in particular, is intense. The
Company's competitors include many companies which are larger and more
established and have substantially more resources than the Company.
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Dependence on Computer Manufacturers. The Company's computer software
products are designed to work specifically with manufacturers' computer systems;
however, the Company has no agreement with the manufacturers of those computers
by which it may ensure that the computers will not be redesigned in a manner
incompatible with the Company's products.
Dependence on Key Personnel. The Company's business is substantially
dependent upon the active participation and technical expertise of its executive
officers and key personnel. The Company's ability to maintain a competitive
position in light of technological developments will depend, in large part, on
its ability to attract and retain highly qualified personnel, of which there can
be no assurance. The Company has acquired $1 million life insurance policies on
the lives of each of Patrick Condo, its Chief Executive Officer and James W.
Dowe III, the Company's chief scientist.
Voting Control by Principal Shareholder. Allen & Company Incorporated
("Allen"), certain officers and shareholders of Allen and certain persons who
might be deemed to be related persons of Allen together beneficially own
approximately 36.7% of the outstanding shares of Common Stock of the Company.
Accordingly, Allen may be deemed to be an "affiliate" of the Company within the
meaning of the Securities Act of 1933. As a result of such ownership interest,
Allen and such other persons may be able to effectively control the outcome of
certain matters requiring a shareholder vote, including offers to acquire the
Company and election of directors. In addition, Richard M. Crooks, Jr., the
Chairman of the Board of Directors of the Company, is a director of and
consultant to Allen.
Authorization of Preferred Stock. The Company's Certificate of
Incorporation authorizes the issuance of one million shares of Preferred Stock
with such designations, rights and preferences as may be determined from time to
time by the Company's Board of Directors. Accordingly, the Board of Directors is
empowered, without shareholder approval, to issue Preferred Stock with dividend,
liquidation, conversion, voting, or other rights that could adversely affect the
voting power or other rights of the holders of the Company's Common Stock.
Although the Company has no present intention of issuing any shares of Preferred
Stock, it can give no assurance that it will not issue Preferred Stock in
future. See Description of Capital Stock - Preferred Stock".
Certain Anti-Takeover Provisions. Certain provisions of the Company's
Certificate of Incorporation, its Stock Option Plans and Delaware law could have
the effect, either alone or in combination with each other, of making more
difficult, or discouraging an acquisition of the Company deemed undesirable by
its Board of Directors. Under the Company's Certificate of Incorporation there
are approximately 4,464,000 unreserved shares of Common Stock and approximately
950,000 shares of Preferred Stock available for future issuance without
shareholder approval as of June 7, 1996. The existence of authorized but
unissued capital stock, together with the continued voting control of the
Company by Allen could have the foregoing effect of discouraging an acquisition
of the Company. Under the Company's Stock Option Plans, as amended (the
"Plans"), in the event of a change in control, stock appreciation rights
("SAR's") and limited SARs outstanding for at least six months and any stock
options which are not then exercisable will become fully exercisable and vested.
- 8 -
The Plans may have the effect of significantly increasing the costs of acquiring
the Company in a hostile takeover. The Company is subject to Section 203 of the
Delaware General Corporation Law, which prohibits a Delaware corporation, such
as the Company, from engaging in a wide range of specified transactions with any
person who becomes a 15% stockholder, under certain circumstances, within three
years after such person became an "interested shareholder."
Stock Options Outstanding. As of June 7, 1996, the Company had outstanding
stock options to purchase an aggregate of 2,497,283 shares of Common Stock at
exercise prices ranging from $1.04 to $29.64 per share. These options are likely
to be exercised, if at all, at a time when the Company otherwise could obtain a
price for the sale of shares of Common Stock which is higher than the option
exercise price per share. Such exercise or the possibility of such exercise may
impede the Company if it later seeks financing through the sale of additional
securities.
Future Sales of Common Stock. Of the Company's shares of Common Stock
currently outstanding, a substantial number of such shares are "restricted
securities" as that term is defined under Rule 144 under the Securities Act,
which, under certain circumstances, may be sold without registration with the
Commission under the Securities Act. An aggregate of approximately 1,625,996
shares of the Company's Common Stock subject to exercisable stock options are
presently being offered for sale under the Company's registered stock option
plan. The Company is unable to predict the effect that sales of Common Stock
made under Rule 144 or pursuant to the stock options described above, or
otherwise, may have on the then prevailing market price of Common Stock.
Increased Accounts Receivable. Total accounts receivable increased by
$47,000 in the three months ended April 30, 1996 to a balance of $7,364,000.
Accounts receivable increased by approximately $3,289,000, or 80%, in fiscal
year 1996. The increases were due to several factors including the overall
increase in the Company's revenues, an increase in the amount of sales
negotiated with extended customer payment terms, and an increase in the
percentage of sales booked close to the end of the period. The effect of these
factors has been to increase the amount of days sales outstanding. The average
days sales outstanding at April 30, 1996, January 31, 1996 and January 31, 1995
were 138, 114 and 88, respectively.
In the three month period ended April 30, 1996, the Company added $100,000
to the allowance for doubtful accounts. Management believes that the allowance
was adequate at April 30, 1996. However, in the event that the Company were
unable to collect its outstanding accounts receivable, the amount of bad debt
expense could increase in the future.
PLAN OF DISTRIBUTION
This Prospectus relates to the sale by the Selling Shareholders of
50,095 fully paid and non-assessable shares of the Company's Common Stock, par
value $.01 per share. The Shares may be sold from time to time by the Selling
Shareholders in the over-the-counter market at then prevailing market prices
- 9 -
or in privately negotiated transactions. Although the Company ultimately expects
that all 50,095 Shares may be sold, the actual number of Shares that will be
sold cannot be determined.
In offering the Shares, the Selling Shareholders and any selling broker or
dealer may be deemed to be statutory "underwriters" within the meaning of
Section 2(11) of the Securities Act in connection with such sales.
The Company has advised the Selling Shareholders that they, because they
may be deemed to be statutory underwriters, will be subject to the Prospectus
delivery requirements under the Securities Act. The Company has also advised the
Selling Shareholders that in the event of a "distribution" of their shares, such
Selling Shareholders, any selling broker or dealer and any "affiliated
purchasers" may be subject to Rule 10b-6 under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), until its participation in that
distribution is completed. A "distribution" is defined in Rule 10b-6(c)(5) as an
offering of securities "that is distinguished from ordinary trading transactions
by the magnitude of the offering and the presence of special selling efforts and
selling methods." The Company has also advised the Selling Shareholders that
Rule 10b-7 under the Exchange Act prohibits any "stabilizing bid" or
"stabilizing purchase" for the purpose of pegging, fixing or stabilizing the
price of Common Stock in connection with this offering.
Any shares covered by this Prospectus which qualify for sale pursuant to
Rule 144 may be sold under Rule 144 rather than pursuant to this Prospectus.
The Company will pay all the expenses, estimated to be $25,000 in
connection with this offering, other than underwriting commissions and discounts
and counsel fees and expenses of the Selling Shareholders.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Shares by
the Selling Shareholders.
DILUTION
The net tangible book value of the Company as of April 30, 1996 was
approximately $22,075,000 or $1.79 per common share. Since the shares are being
offered by the Selling Shareholders, there is no increase in net tangible book
value per common share to existing shareholders by virtue of the sale. Without
taking into account any changes in net tangible book value after April 30, 1996
or shares issued after that date, the Company had as of that date an aggregate
of approximately 12,340,000 shares of Common Stock outstanding with a net
tangible book value of $1.79 per share. Assuming a sale at the anticipated
offering price set forth below, this will represent an immediate dilution of
$19.96 per share to new shareholders. The following table illustrates this
dilution per share:
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Anticipated offering price per share. $21.75
Net tangible book value per common
share before offering(1).........
$ 1.79
Net tangible book value per common
share after offering............. $ 1.79
Dilution per share to new $19.96
shareholders(2)
- -
The calculations above do not take into account the exercise of
outstanding stock options. On June 7, there were outstanding stock options to
purchase an aggregate of 2,497,283 shares of Common Stock at exercise prices
ranging from $1.04 to $29.64 per share. To the extent that these stock options
are exercised, there will be further dilution to new shareholders.
(1) Net tangible book value per common share represents the amount of total
tangible assets less total liabilities and preferred stock, divided by the
number of shares of Common Stock outstanding at that date.
(2) Dilution is determined by subtracting net tangible book value per common
share after the offering from the amount paid by an investor for a share
of Common Stock.
SELLING SHAREHOLDERS
Excalibur acquired ConQuest Software, Inc. on July 20, 1995. This
Registration Statement is being filed pursuant to Excalibur's obligation under
the ConQuest acquisition agreement.
The following table sets forth the number of shares of Common Stock of the
Company beneficially owned by the Selling Shareholders on June 7, 1996, the
number of Shares covered by this Prospectus and the amount and percentage
ownership by the Selling Shareholder after the offering. All shares are
beneficially owned and the sole voting and investment power is held by the
person named. None of the Selling Shareholders has had any material relationship
with the Company during the past three years other than the ownership of shares
of Common Stock.
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Number of
Shares of
Common Number of
Stock Shares Number Percentage of
Beneficially Covered of Shares Class of
Owned on by this to be Beneficial
Name June 7, 1996 Prospectus Retained Ownership
- -------------------------------------------------------------------------------
Edwin R. Addison 509,127 (1) 12,610 496,517 (1) 4.0%
Edwin S. Addison 10,578 372 10,206 Less than 1%
James H. and
Elaine B. Addison 10,360 377 9,983 Less than 1%
Jean Addison 10,360 377 9,983 Less than 1%
Ted Bagheri 1,608 57 1,551 Less than 1%
Bansi Bharwani 26,167 1,094 25,073 Less than 1%
Arden Blair 87,844 (2) 1,310 86,534 (2) Less than 1%
Heather Blair 2,413 85 2,328 Less than 1%
James B. Blair 102,552 3,600 98,952 Less than 1%
James R. Blair 2,413 85 2,328 Less than 1%
Susan Budd 752 27 725 Less than 1%
Edward H. Carlson 105,017(3) 3,509 (3) 101,508 (3) Less than 1%
- --------
<FN>
(1) Includes 162,525 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
(2) Includes 50,526 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
(3) Includes 12,065 shares issuable upon exercise of currently exercisable
options. Mr. Carlson's shares are subject to an agreement which provides
Excalibur with a right of first refusal with respect to any sale, transfer or
other disposition of the shares and further provides that any transferee must
agree to be bound by the same terms.
</FN>
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Number of
Shares of
Common Number of
Stock Shares Number Percentage of
Beneficially Covered of Shares Class of
Owned on by this to be Beneficial
Name June 7, 1996 Prospectus Retained Ownership
- -------------------------------------------------------------------------------
Ken Clark 189,423 (4) 3,844 185,579 (4) 1.5%
Bob Dahm 7,852 (5) 16 7,836 (5) Less than 1%
Mark R. David 6,290 (6) 21 6,269 (6) Less than 1%
D&G Partnership 6,905 212 6,693 Less than 1%
John Fauber 19,142 672 18,470 Less than 1%
Robert and
Margery Feder 1,206 43 1,163 Less than 1%
Elizabeth T. Hobbs 10,671 (7) 127 10,544 Less than 1%
Adam and Bernice
Hummel 13,271 466 12,805 Less than 1%
Robert Hummel 8,331 (8) 72 8,259 Less than 1%
Dagfin Jensen 73,968 (9) 2,691 (9) 71,277 (9) Less than 1%
- --------
<FN>
(4) Includes 79,927 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
(5) Includes 7,370 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
(6) Includes 5,711 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
(7) Includes 7,052 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
(8) Includes 6,305 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
(9) Mr. Jensen's shares are subject to an agreement which provides
Excalibur with a right of first refusal with respect to any sale, transfer or
other disposition of the shares and further provides that any transferee must
agree to be bound by the same terms.
</FN>
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Number of
Shares of
Common Number of
Stock Shares Number Percentage of
Beneficially Covered of Shares Class of
Owned on by this to be Beneficial
Name June 7, 1996 Prospectus Retained Ownership
- -------------------------------------------------------------------------------
Bob Kaminski 13,500 (10) 39 13,461 (10) Less than 1%
Gholam H. Khaksari 21,260 (11) 17 21,243 (11) Less than 1%
H. Mary King 33,351 (12) 119 33,232 (12) Less than 1%
Mary Kittle 10,617 373 10,244 Less than 1%
Joel D. Koblentz 8,530 311 8,219 Less than 1%
Sam Little 193 7 186 Less than 1%
Jack E. McDonald 96 4 92 Less than 1%
Paul Medlock 193 7 186 Less than 1%
Cherle Moore 14,949 (13) 7 14,942 (13) Less than 1%
Motorola, Inc. 116,415 4,235 112,180 Less than 1%
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<FN>
(10) Includes 12,391 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
(11) Includes 20,778 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
(12) Includes 29,973 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
(13) Includes 14,756 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
</FN>
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Number of
Shares of
Common Number of
Stock Shares Number Percentage of
Beneficially Covered of Shares Class of
Owned on by this to be Beneficial
Name June 7, 1996 Prospectus Retained Ownership
- -------------------------------------------------------------------------------
Billie Carter Nelson 26,301 924 25,377 Less than 1%
Linda Nelson 3,619 127 3,492 Less than 1%
Paul Nelson 362,192 (14) 8,361 353,831 (14) 2.8%
Cheri Pender 1,303 46 1,257 Less than 1%
William H.S. Rice 9,190 (15) 21 9,169 (15) Less than 1%
Joan E. Schaech 6,928 (16) 7 6,921 (16) Less than 1%
Gerald Schirtzinger 193 7 186 Less than 1%
Eric A. and Helen C
Weiss 21,717 763 20,954 Less than 1%
H. Donald Wilson 87,446 (17) 3,053 84,393 (17) Less than 1%
TOTAL 50,095
- --------
<FN>
(14) Includes 123,993 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
(15) Includes 8,611 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
(16) Includes 6,735 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
(17) Includes 1,250 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
</FN>
- 15 -
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 20,000,000 shares
of Common Stock, par value $.01 per share, and 1,000,000 shares of Preferred
Stock, par value $.01 per share, of which 49,587 shares are designated as
Cumulative Convertible Preferred Stock. At June 7, 1996, 12,357,217 shares of
Common Stock were issued and outstanding and no shares of Preferred Stock were
issued or outstanding, except for 27,180 shares of Cumulative Convertible
Preferred Stock.
Common Stock
The issued and outstanding shares of Common Stock are, and the Shares
being offered hereby by the Selling Shareholders are, validly issued, fully paid
and non-assessable. The holders of outstanding shares of Common Stock are
entitled to receive dividends out of assets legally available therefor at such
times and in such amounts as the Board of Directors may from time to time
determine. The Company has not paid any dividends and does not expect to pay
cash dividends on its Common Stock in the foreseeable future.
All shares of Common Stock have equal voting rights and, when validly
issued and outstanding, have one vote per share in all matters to be voted upon
by the shareholders. Cumulative voting in the election of directors is not
allowed, which means that the holders of more than 50% of the outstanding shares
can elect all the directors if they choose to do so and, in such event, the
holders of the remaining shares will not be able to elect any directors.
The shares have no pre-emptive, subscription, conversion or redemption
rights. Upon liquidation, dissolution or winding-up of the Company, the holders
of Common Stock are entitled to receive pro rata the assets of the Company which
are legally available for distribution to shareholders.
Preferred Stock
The Board of Directors of the Company has the authority to issue 950,413
shares of Preferred Stock in one or more series and to fix the designation,
relative powers, preferences and rights and qualifications, limitations or
restrictions of all shares of each such series, including, without limitation,
dividend rates, conversion rights, voting rights, redemption and sinking fund
provisions, liquidation preferences and the number of shares constituting each
such series, without any further vote or action by the shareholders.
- 16 -
The Company's 49,587 shares of Cumulative Convertible Preferred Stock, of
which 27,180 shares are outstanding, are convertible into shares of Common Stock
at the rate of ten shares of Common Stock per share of Cumulative Convertible
Preferred Stock. Holders of the Cumulative Convertible Preferred Stock are
entitled to receive cumulative dividends at $0.50 per share per annum payable
annually on April 1, if declared by the Board of Directors, in cash or shares of
Common Stock (to be determined by the Board), valued at the lower of $1.00 per
share or the market price on the date of declaration. In the event of voluntary
liquidation, dissolution or winding-up of the Company, or upon any distribution
of assets, whether voluntary or involuntary, holders of the Cumulative
Convertible Preferred Stock would have a liquidation preference of $10.00 per
share, plus accrued and unpaid dividends.
The issuance of Preferred Stock could decrease the amount of earnings and
assets available for distribution to holders of Common Stock or adversely affect
the rights and powers, including voting rights, of the holders of Common Stock
and could, among other things, have the effect of delaying, deferring or
preventing a change in control of the Company without further action by the
shareholders. The Company has no present plans to issue any shares of Preferred
Stock or Cumulative Convertible Preferred Stock.
Certain Anti-Takeover Provisions
Under the Company's Certificate of Incorporation, there are approximately
4,463,887 unreserved shares of Common Stock, 950,413 shares of Preferred Stock
and 22,407 shares of Cumulative Convertible Preferred Stock available for future
issuance without shareholder approval, as of June 7, 1996. The existence of
authorized but unissued capital stock, together with the continued voting
control of the Company by Allen (see "Risk Factors -Voting Control by Principal
Shareholder"), could have the effect, either alone or in combination with each
other, of making more difficult or discouraging an acquisition of the Company
deemed undesirable by its Board of Directors.
Under the Company's Stock Option Plans, as amended (the "Plans"), in the
event of a change in control, stock appreciation rights ("SAR's") and limited
SARs outstanding for at least six months and any stock options which are not
then exercisable will become fully exercisable and vested. The Plans may have
the effect of significantly increasing the costs of acquiring the Company in a
hostile takeover.
- 17 -
The Company is subject to Section 203 of the Delaware General Corporation
Law, which prohibits a Delaware corporation, such as the Company, from engaging
in a wide range of specified transactions with any person who becomes a 15%
stockholder, under certain circumstances, within three years after such person
became an "interested shareholder." Because Allen & Company Incorporated's stock
ownership in the Company, which otherwise would cause it to be such an
"interested stockholder," antedates the 1987 effective date of Section 203,
Allen is not subject to the prohibitions of such Section.
Transfer Agent
The transfer agent and registrar for the Common Stock is American
Securities Transfer, Inc. of Denver, Colorado.
EXPERTS
The audited consolidated financial statements and schedule of Excalibur
Technologies Corporation ("Excalibur") at January 31, 1996 and 1995, and for
each of the three years in the period ended January 31, 1996, incorporated in
this Prospectus by reference to Excalibur's Annual Report on Form 10-K for the
year ended January 31, 1996 (the "Form 10-K") have been audited by Arthur
Andersen LLP, independent public accountants, as indicated in their report with
respect thereto, and are incorporated herein by reference in reliance upon the
authority of said firm as experts in giving said report.
The financial statements of ConQuest Software, Inc. ("ConQuest") for the
year ended December 31, 1993, not separately presented in this Prospectus or in
the Annual Report on Form 10-K of Excalibur Technologies Corporation
("Excalibur") for the year ended January 31, 1996 (the "Form 10-K"), have been
audited by Price Waterhouse LLP, independent accountants, whose report (which
contains an explanatory paragraph relating to ConQuest's ability to continue as
a going concern as described in Note 2 to those financial statements) thereon
has been incorporated in this Prospectus by reference to the Form 10-K. The
financial statements of ConQuest for the year ended December 31, 1993, to the
extent they have been included in the consolidated financial statements of
Excalibur, have been so included in reliance on their report given on the
authority of said firm as experts in auditing and accounting.
LEGAL MATTERS
The validity of the Common Stock offered hereby will be passed upon for
the Company by Tenzer Greenblatt LLP, The Chrysler Building, 405 Lexington
Avenue, 23rd Floor, New York, New York 10174. Members of that firm beneficially
own an aggregate of 25,000 shares of the Company's Common Stock. Jay H. Diamond,
a partner in such law firm, is a Director of the Company.
- 18 -
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Securities and Exchange Commission
Registration Fee..........................$
Legal Fees and Expenses*....................$
Accountants' Fees*..........................$
Miscellaneous........................... ...$
Total Expenses......................$25,000.00
* Estimated.
All expenses incurred in connection with this registration will be borne
by the registrant. The Selling Shareholders shall be responsible for their
underwriting commissions and discounts, if any, and counsel fees and expenses.
Item 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
empowers the Company to, and the By-laws of the Company provide that it shall,
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding by reason of
the fact that he is or was a director, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses, judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful; except that, in the case
of an action or suit by or in the right of the Company, no indemnification may
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable for negligence or misconduct in the performance
of his duty to the Company unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
that such person is fairly and reasonably entitled to indemnity for proper
expenses.
The Company's By-laws provide, pursuant to Section 145 of the General
Corporation Law of the State of Delaware, for indemnification of officers,
directors, employees and agents of the Company and persons serving at the
request of the Company in such capacities within other business organizations
against certain losses, costs, liabilities and expenses incurred by reason of
their position with the Company or such other business organizations.
Item 16. Exhibits.
23.2 Consent of Arthur Andersen LLP, Independent
Public Accountants.
23.3 Consent of Price Waterhouse LLP, Independent
Accountants
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the registration statement is on Form S-3 or Form S-8 and 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 therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
- II- 2 -
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at the 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 will be
governed by the final adjudication of such issue.
- II- 3 -
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 this Amendment to this Registration Statement on
Form S-3 and has duly caused this Amendment to this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of McLean, State of Virginia, on the 2nd day of July, 1996.
EXCALIBUR TECHNOLOGIES
CORPORATION
By: /s/Patrick C. Condo
Patrick C. Condo
Chief Executive Officer and President
POWER OF ATTORNEY
Know all men by these presents, that each officer or director of
Excalibur Technologies Corporation whose signature appears below constitutes and
appoints Patrick C. Condo, James H. Buchanan and Jay H. Diamond and each of them
severally her/his true and lawful attorney-in-fact and agent, with full and
several power of substitution, for her/him and in her/his name, place and stead,
in any and all capacities, to sign any or all amendments, including
post-effective amendments and supplements to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as they or she/he might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or her/his or their substitute or substitutes may lawfully do or cause to
be done by virtue thereof.
- II- 4 -
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated.
Signature Title Date
Chairman of the Board of , 1996
- ----------------------------Directors
Donald R. Keough
* Director July 2, 1996
- ----------------------------
Richard M. Crooks, Jr.
* Chief Executive Officer, July 2, 1996
- ----------------------------President and Director
Patrick C. Condo (Principal Executive Officer)
* Chief Financial Officer July 2, 1996
- ----------------------------(Principal Financial
James H. Buchanan Accounting Officer)
*
- ----------------------------Executive Vice President and July 2, 1996
Edwin R. Addison Director
* Chief Scientist and Director July 2, 1996
- ----------------------------
James W. Dowe III
* Director July 2, 1996
- ----------------------------
Jay H. Diamond
* Director July 2, 1996
- ----------------------------
J.M. Kennedy
* Director July 2, 1996
- ----------------------------
W. Frank King III
Director , 1996
- ----------------------------
John G. McMillian
- II- 5 -
* Director July 2, 1996
- ----------------------------
Philip J. O'Reilly
Director , 1996
- ----------------------------
Shaun C. Viguerie
*/s/Jay H. Diamond July 2, 1996
- ---------------------------
Jay H. Diamond
As Attorney-In-Fact
- II- 6 -
EXHIBIT INDEX
23.2 Consent of Arthur Andersen LLP, Independent
Public Accountants
23.3 Consent of Price Waterhouse LLP, Independent
Accountants