As filed with the Securities and Exchange Commission
on August 29, 1997
Registration No.333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------------------
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 or (I.R.S. Employer
of incorporation 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 registrants 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:
Robert H. Werbel, Esq.
Werbel & Carnelutti
A Professional Corporation
711 Fifth Avenue
New York, New York 10022
(212) 832-8300
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. [ ]
CALCULATION OF REGISTRATION FEE
Proposed
Title of Each Maximum
Class of Securities Amount to Offering Price
to be Registered be Registered Per Unit (2)
- -----------------------------------------------------------------
2,000,000
Common Stock, (1)
$.01 par value shares $9.13
Proposed Maximum
Aggregate Amount of Registration
Offering Price (2) Fee (2)
- -----------------------------------------------------------------
$18,260,000 $5,533
(1) The amount of shares of Common Stock being registered
hereunder also includes such additional indeterminate number of
shares of Common Stock in connection with the market making
activities of Allen & Company Incorporated.
(2) Pursuant to Rule 457(c), the offering price and amount of
registration fee have been calculated based upon the average of the
high and low sale prices of the registrant's Common Stock as
reported by NASDAQ on August 22, 1997.
---------------------------
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.
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
Statement and Outside Front
Cover Page of Prospectus Cover Page
2. Inside Front and Outside Back Inside Front and Outside
Cover Pages of Prospectus Back Cover Pages of
Prospectus; Available
Information
3. Summary Information, Risk
Factors and Ratio of Earnings Prospectus Summary; The
to Fixed Charges Company; Risk Factors
4. Use of Proceeds Not Applicable
5. Determination of Offering Price Not Applicable
6. Dilution Dilution
7. Selling Security Holders Not Applicable
8. Plan of Distribution Cover Page; Plan of
Distribution
9. Description of Securities Cover Page; Description
to be Registered of Capital Stock
10. Interests of Named Experts
and Counsel Not Applicable
11. Material Changes Not Applicable
12. Incorporation of Certain Incorporation of Certain
Information by Reference Information by Reference
13. Disclosure of Commission
Position on Indemnification Not Applicable
Subject to Completion, dated August 29, 1997
PROSPECTUS
EXCALIBUR TECHNOLOGIES CORPORATION
2,000,000 SHARES OF COMMON STOCK
This Prospectus relates to 2,000,000 shares of Common
Stock, par value $.01 per share (the "Shares"), of Excalibur
Technologies Corporation, a Delaware corporation (the "Company").
The Shares being registered are intended to cover shares of Common
Stock of the Company that Allen & Company Incorporated ("Allen"),
as a registered securities broker-dealer, may sell from time to
time solely as a market maker in the National Association of
Securities Dealers Inc. Automated Quotation ("NASDAQ") system from
among shares of the Company's Common Stock that Allen has purchased
as a NASDAQ market maker from persons other than the Company. The
Company will not receive any proceeds from the sale of the Shares
by Allen. 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 Allen.
- ----------------------------------------------------------------
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 August 22,
1997 was $10.25 per share.
The date of this Prospectus is August 29, 1997.
TABLE OF CONTENTS
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Page
Available Information 3
Incorporation of Certain Information by Reference 3
The Company 5
Risk Factors 7
Plan of Distribution 9
Dilution 9
Description of Capital Stock 11
Experts 13
Legal Matters 13
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.
AVAILABLE INFORMATION
The Company is subject to the informational requirements
of the Securities and Exchange Act of 1934, as amended (the
"Exchange Act"), and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy and information
statements filed by the Company may be inspected and copied at the
Public Reference Section of the Commission at 450 Fifth Street,
N.W. Washington, D.C. 20549, and at the Commission's Regional
Offices at 7 World Trade Center, 13th Floor, New York, New York
10048 and Northwestern Atrium Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661-2511. Copies of such material
can also be obtained from the Public Reference Section of the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street N.W.,
Washington D.C. 20549 at prescribed rates. The Commission
maintains a Web site that contains reports, proxy and information
statements and other information regarding the Company; the address
of such site is http://www.sec.gov.
This Prospectus, which constitutes a part of the
Registration Statement, does not contain all of the information set
forth in the Registration Statement certain parts of which are
omitted in accordance with the rules and regulations of the
Commission. Copies of the Registration Statement, including all
exhibits thereto, may be obtained from the Commission's principal
office in Washington D.C. upon payment of the fees prescribed by
the Commission or may be examined without charge at the offices of
the Commission as described above.
The Company's Common Stock is traded on the National
Association of Securities Dealers' Automated Quotation ("NASDAQ")
National Market System. All reports and other information
concerning the Company can be inspected at the National Association
of Securities Dealers, Inc., Listing Department, 1735 K Street,
N.W., Washington, D.C. 20006.
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, 1997.
2. The Company's Quarterly Report on Form 10-Q for the
quarter ended April 30, 1997.
3. The Company's proxy statement dated May 29, 1997
relating to the Company's 1997 Annual Meeting of Shareholders.
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
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.
THE COMPANY
Excalibur Technologies Corporation ("Excalibur") believes
that it is the pioneer and technology leader in providing
enterprise-wide, accurate, scaleable and secure knowledge-retrieval
software solutions. Excalibur's software products combine two
complementary technologies: semantic networks and Adaptive Pattern
Recognition Processing (APRP tm). Semantic networks leverage
lexical knowledge at the highest level, using built-in
knowledgebases to search for specific word meanings enriched by
related terms and concepts. The APRP tm technology identifies
patterns in digital data, providing the capability to build
content-based retrieval applications for virtually any type of
digital information. By integrating these two approaches,
Excalibur believes that it delivers the most complete, powerful,
yet easy to use knowledge retrieval capabilities available today
and provides knowledge workers with intuitive, efficient and
accurate access to the meaningful content of all types of digital
information including unstructured text, live information streams,
database fields, images and video.
Based on these technologies, Excalibur has developed a
comprehensive suite of knowledge retrieval software products
including Excalibur RetrievalWare and Excalibur EFS (Electronic
Filing Software). Excalibur RetrievalWare is a unified family of
software components, including libraries, services and
applications, that enables developers to build best-of-breed
solutions that transform information into knowledge. Excalibur's
software solutions deliver capabilities for real-time profiling and
retrospective text searching, combined full-text and database
searching, word meaning-based semantic searching, fault-tolerant
pattern recognition-based searching, statistical searching and a
full suite of traditional keyword and Boolean search techniques.
Excalibur offers its software solutions to information systems for
workgroups, enterprises and distributed wide area networks,
including the Internet and World Wide Web. Excalibur
RetrievalWare's modular architecture supports parallel processing
on distributed, multi-threaded servers and is designed to support
both very large databases and large information systems with
thousands of users. Excalibur EFS is a multi-platform, commercial,
end-user software application for document imaging and information
retrieval.
On May 5, 1997, the Company acquired Interpix Software
Corporation ("Interpix"), located in Santa Clara, California, a
privately-owned company and developer of a commercial technology
enabling the collection, indexing, management and presentation of
multimedia data on the Internet and corporate intranets. The
purchase method of accounting will be applied to this acquisition
transaction and, accordingly, the results of operations of Interpix
will be included in the Company's consolidated results of
operations from the date of acquisition. The results of operations
of Interpix for fiscal periods prior to the acquisition are not
significant to the prior period operating results of the Company.
The shareholders of Interpix received 275,000 shares of common
stock of Excalibur in exchange for all of the outstanding common
stock of Interpix. The total purchase price included the value of
the Excalibur shares and out-of-pocket acquisition costs. It was
allocated to the assets purchased and the liabilities assumed based
upon their fair values on the date of acquisition. Purchase price
of approximately $1,284,000 was allocated to research and
development projects in process and was expensed in the three month
period ended July 31, 1997. The excess of the purchase price over
the fair value of the net assets of Interpix of approximately
$545,000 will be amortized on a straight-line basis over five
years.
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 shares of Excalibur common stock and options to purchase
approximately 572,000 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 was
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.
In July 1992, the Company established a wholly-owned
subsidiary in the United Kingdom, Excalibur Technologies
International, Ltd. ("ETIL"), in order to conduct international
sales activities. Except as otherwise noted, Excalibur, ConQuest,
Interpix and ETIL are collectively referred to hereinafter as the
"Company."
The Company licenses its software products to commercial
businesses and government agencies throughout North America, Europe
and other parts of the world. The Company licenses to end user
organizations on a direct basis and also distributes its software
products through license agreements with value-added resellers,
system integrators, original equipment manufacturers and other
strategic partners. As of January 31, 1997, more than 900
customers were using the Company's software products.
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.
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 each of the past three fiscal years. The Company
reported a net loss of approximately $7,173,000 on revenues of
approximately $20,259,000 for the fiscal year ended January 31,
1997, a net loss of approximately $884,000 on revenues of
approximately $18,675,000 for the fiscal year ended January 31,
1996, and a net loss of approximately $9,388,000 on revenues of
approximately $12,638,000 for the fiscal year ended January 31,
1995. For the three and six month periods ended July 31, 1997, the
Company incurred net losses of $3,221,000 and $7,778,000,
respectively, on revenues of $5,185,000 and $8,638,000,
respectively. These losses reflect the Company's expenditures
associated with building a sales and marketing organization to sell
new software products 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.
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.
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 a $1 million
life insurance policy on the life of Patrick C. Condo, its
President and Chief Executive Officer.
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 39% 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, Donald R. Keough, the Chairman
of the Board of Directors of the Company is the Chairman of the
Board of Directors of Allen, and Richard M. Crooks, Jr., the
Chairman of the Executive Committee of the Board of Directors of
the Company, is a director of and consultant to Allen.
Authorization of Preferred Stock. The Companys
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 Companys
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 Companys 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 Companys 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 Companys Certificate of
Incorporation there are approximately 22,787,000 unreserved shares
of Common Stock and approximately 950,000 shares of Preferred Stock
available for future issuance without shareholder approval as of
July 31, 1997. 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 ("SARs") 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. 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 July 31, 1997, the
Company had outstanding stock options to purchase an aggregate of
2,330,261 shares of Common Stock at exercise prices ranging from
$1.04 to $28.69 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 2,085,111
shares of the Company's Common Stock subject to stock options are
presently being offered for sale under the Company's registered
stock option plans. 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.
PLAN OF DISTRIBUTION
This Prospectus relates to the sale by Allen of 2,000,000
fully paid and non-assessable shares of the Companys Common Stock,
par value $.01 per share. The Shares being registered are intended
to cover Shares of Common Stock of the Company that Allen, as a
registered securities broker-dealer, may sell from time to time
solely as a market maker in the NASDAQ system from among shares of
the Company's Common Stock that Allen (which may be deemed to be an
"affiliate" of the Company within the meaning of the Securities
Act) has purchased as a NASDAQ market maker from persons other than
the Company. During the past year, there have been between 20 and
33 other market makers in the Company's Common Stock who are
unaffiliated with the Company and/or Allen.
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 Allen.
DILUTION
The net tangible book value of the Company as of July 31,
1997 was approximately $11,710,000 or $0.90 per common share.
Since the shares are being offered by Allen, 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 July 31, 1997 or
shares issued after that date, the Company had as of that date an
aggregate of approximately 13,049,000 shares of Common Stock
outstanding with a net tangible book value of $0.90 per share.
Assuming a sale at the anticipated offering price set forth below,
this will represent an immediate dilution of $8.23 per share to new
shareholders. The following table illustrates this dilution per
share:
Anticipated offering price per share $9.13
Net tangible book value per common share
before offering (1) $0.90
Net tangible book value per common share
after offering $0.90
Dilution per share to new shareholders (2) $8.23
The calculations above do not take into account the
exercise of outstanding stock options. On July 31, 1997, there
were outstanding options to purchase an aggregate of 2,330,261
shares of Common Stock at exercise prices ranging from $1.04 to
$28.69 per share. To the extent that these stock options are
exercised, there may 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.
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of
40,000,000 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 July 31, 1997, 13,048,613 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 Allen 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.
The Company's 49,587 shares of Cumulative Convertible
Preferred Stock 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 22,787,130 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 July 31, 1997. 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.
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, 1997 and 1996, and for each of the three years in the
period ended January 31, 1997, incorporated in this Prospectus by
reference to Excalibur's Annual Report on Form 10-K for the year
ended January 31, 1997 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.
LEGAL MATTERS
The validity of the Common Stock offered hereby will be
passed upon for the Company by Werbel & Carnelutti, A Professional
Corporation, 711 Fifth Avenue, New York, New York 10022.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Securities and Exchange Commission
Registration Fee 5,500
Legal Fees and Expenses* 10,000
Accountants' Fees* 5,000
Miscellaneous 4,500
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Total Expenses $ 25,000
* Estimated.
All expenses incurred in connection with this registration
will be borne by the registrant. Allen shall be responsible for
its underwriting commissions and discounts, as well as 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.
5.1 Opinion re: Legality
23.1 Consent of Werbel & Carnelutti, A Professional
Corporation (included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP, Independent Public
Accountants.
25.1 Power of Attorney (included in signature page
hereof).
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.
(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.
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
Registration Statement 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 Town of Vienna,
Commonwealth of Virginia, on the 27th day of August, 1997.
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 person whose
signature appears below constitutes and appoints Patrick C. Condo
his true and lawful attorney-in-fact and agent with full power of
substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities to sign any or all amendments
(including post-effective amendments) to this registration
statement and any related registration statement filed under Rule
462(b), and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, each
acting alone, 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 for all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, each acting alone, 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, this Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
SIGNATURES Title
/s/ Patrick C. Condo President, Chief Executive
- -------------------- Officer and Director
Patrick C. Condo (Principal Executive Officer)
Dated: August 27, 1997
Chairman of the Board
- --------------------- of Directors
Donald R. Keough
Dated: August __, 1997
/s/ James H. Buchanan Chief Financial Officer
- --------------------- and Treasurer (Principal
James H. Buchanan Financial and Accounting Officer)
Dated: August 27, 1997
/s/ Richard M. Crooks, Jr. Director
- --------------------------
Richard M. Crooks, Jr.
Dated: August 29, 1997
/s/John S. Hendricks Director
- --------------------------
John S. Hendricks
Dated: August 27, 1997
/s/ W. Frank King III Director
- --------------------------
W. Frank King III
Dated: August 26, 1997
/s/ John G. McMillian Director
- --------------------------
John G. McMillian
Dated: August 28, 1997
/s/ Philip J. O'Reilly Director
- --------------------------
Philip J. O'Reilly
Dated: August 27, 1997
/s/ Shaun C. Viguerie Director
- --------------------------
Shaun C. Viguerie
Dated: August 27, 1997
EXHIBIT INDEX
5.1 Opinion re: Legality
23.1 Consent of Werbel & Carnelutti, A Professional Corporation
(included in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP, Independent Public
Accountants
25.1 Power of Attorney (included in signature page to
Registration Statement)
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to
the incorporation by reference in this Registration Statement of
our report dated February 28, 1997 included in the Company's Form
10-K for the year ended January 31, 1997, and to all references to
our Firm included in this Registration Statement.
ARTHUR ANDERSEN LLP
Washington, D.C.
August 27, 1997
FORM OF LEGAL OPINION
OF
WERBEL & CARNELUTTI
A Professional Corporation
August 29, 1997
Excalibur Technologies Corporation
1921 Gallows Road, Suite 200
Vienna, VA 22182
Dear Sirs:
We are acting as counsel to Excalibur Technologies
Corporation (the "Company") in connection with the Registration
Statement on Form S-3, to be filed on or about August 29, 1997 (the
"Registration Statement"), under the Securities Act of 1933, as
amended (the "Act"), covering 2,000,000 shares of the Company's
Common Stock, par value $.01 per share (the "Shares").
We have examined the originals, or certified, conformed
or reproduction copies, of all such records, agreements,
instruments and documents as we have deemed relevant or necessary
as the basis for the opinion hereinafter expressed. In all such
examinations, we have assumed the genuineness of all signatures on
original or certified copies and the conformity to original or
certified copies of all copies submitted to us as conformed or
reproduction copies. As to various questions of fact relevant to
such opinion, we have relied upon, and assumed the accuracy of,
certificates and oral or written statements and other information
of or from public officials, officers or representatives of the
Company, and others.
Based upon the foregoing, we are of the opinion that the
Shares have been validly issued and fully paid and are non-
assessable shares of Common Stock of the Company.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
WERBEL & CARNELUTTI
By /S/ Werbel & Carnelutti
WERBEL & CARNELUTTI
A Professional Corporation
711 Fifth Avenue
New York, New York 10022
August 29, 1997
VIA EDGAR
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Attention: Filing Desk
Re: Excalibur Technologies Corporation (the " Company")
Registration Statement on Form S-3
Dear Ladies and Gentlemen:
Accompanying this letter for filing pursuant to the
Securities Act of 1933, as amended, is a conformed copy of the
above-captioned Registration Statement on Form S-3 filed on behalf
of the Company. Manually executed signature pages have been
executed prior to the time of this electronic filing. The filing
fee of $5,533 is being transmitted by wire transfer to the
Commission's account at Mellon Bank.
If we can respond to any comments or questions, please
do not hesitate to contact the undersigned collect, at (212) 832-
8300.
Sincerely,
/s/ Victoria J. Vitrano
Enclosure
cc: Hank Deily
102786