AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 3, 1999
REGISTRATION STATEMENT 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 registrant as specified in its charter)
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)
Delaware 85-0278207
(State or other jurisdiction (I.R.S. Employer Identification
of incorporation or Organization) Number)
James H. Buchanan
Chief Financial Officer, Secretary and Treasurer
Excalibur Technologies Corporation
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)
Copy to:
Robert H. Werbel, Esq.
Heller Ehrman White & McAuliffe
711 Fifth Avenue
New York, New York 10022
(212) 832-8300
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of the 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 underthe Securities Act of
1933, as amended (the "Securities Act"), other than securities being offered
only in connection with dividend or interest reinvestment plans, check the
following box. [X]
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
- -------------------------------------- -------------------- ------------------------- ----------------------------- ----------------
Title of Each Class of Securities Amount to Proposed Maximum Proposed Maximum Amount of
to be Registered be Registered(1) Offering Price per Share Aggregate Offering Price Registration Fee
- -------------------------------------- -------------------- ------------------------- ----------------------------- ----------------
- -------------------------------------- -------------------- ------------------------- ----------------------------- ----------------
Common Stock, par value
$.01 per share............... 500,000 Shares $15.0625 (2) $7,531,250 $2,093
- -------------------------------------- -------------------- ------------------------- ----------------------------- ----------------
(1) Pursuant to Rule 416 under the Securities Act, this registration statement
also covers an indeterminate number of additional shares as may be issued as a
result of adjustments by reason of any stock split, stock dividend or similar
transaction. (2) Estimated pursuant to Rule 457(c) solely for the purpose of
calculating the amount of the registration fee. The average of the high and low
prices reported on The Nasdaq National Market System was $15.0625 on June 2,
1999. 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.
PROSPECTUS
500,000 SHARES
EXCALIBUR TECHNOLOGIES CORPORATION
COMMON STOCK
-------------------------
The Selling Stockholders identified in this Prospectus may offer from time
to time up to 500,000 shares of common stock of Excalibur Technologies
Corporation (the "Shares"). We will not receive any proceeds from the sale
of Shares by the Selling Stockholders. The Selling Stockholders have
acquired the Shares offered by this Prospectus in private placement
transactions. Registering these Shares will allow the Selling Stockholders
to publicly sell or otherwise distribute their Shares.
The Selling Stockholders may offer these Shares in one or more transactions
on the Nasdaq National Market System at prices then prevailing, in
negotiated transactions or otherwise. The Selling Stockholders and brokers
through whom the sale of the Shares are made may be deemed to be
"underwriters" within the meaning of Section 2(11) of the Securities Act of
1933, as amended. In addition, any profits realized by the Selling
Stockholders or such brokers on the sale of Shares may be deemed to be
underwriting commissions under the Securities Act. The price at which any
of the Shares may be sold and the commissions paid in connection with any
sale may vary from transaction to transaction. We will pay certain expenses
of this offering.
Our common stock is quoted on the Nasdaq Market System under the symbol
"EXCA." On June 2, 1999, the closing price of the common stock was $14.75
per share.
-------------------------
You should carefully consider the Risk Factors beginning on Page 5 of this
Prospectus.
-------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined
that this Prospectus is truthful or complete. Any representation to the
contrary is a criminal offense.
-------------------------
The date of this Prospectus is____________________, 1999.
TABLE OF CONTENTS
Page
Where You Can Find More Information..........................................3
Our Business.................................................................4
Risk Factors................................ ................................5
Use Of Proceeds..............................................................9
Selling Stockholders........................................................10
Plan of Distribution........................................................11
Description of Capital Stock................................................13
Legal Matters...............................................................14
Experts.....................................................................14
Where You Can Find More Information
We file annual, quarterly and current reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our SEC filings are also available to the public
from the SEC's web site at http://www.sec.gov. The SEC allows us to "incorporate
by reference" the information we file with them, which means that we can
disclose important information to you by referring you to our filed SEC
documents. The information incorporated by reference is part of this Prospectus.
Information we file with the SEC after we file this document will update and
supersede this information. We incorporate by reference the documents listed
below and any future filings made with the SEC under Section 13(a), 13(c), 14,
or 15(d) of the Securities Exchange Act of 1934 until our offering is completed.
(a) Our Annual Report on Form 10-K for the year ended January 31, 1999;
(b) Our Current Report on Form 8-K filed February 19, 1999; and
(c) Our Current Report on Form 8-K filed March 26, 1999.
You may request a copy of these filings, at no cost, by writing or
telephoning James H. Buchanan, Chief Financial Officer, Secretary and Treasurer
at:
Excalibur Technologies Corporation
1921 Gallows Road
Vienna, Virginia 22182
(703) 761-3700
You should rely only on the information incorporated by reference or
provided in this Prospectus and any prospectus supplement. We have authorized no
one to provide you with different information. The Selling Stockholders are not
authorized to make an offer of these securities in any state where the offer is
not permitted. You should not assume that the information in this Prospectus or
any prospectus supplement is accurate as of any date other than the date on the
front of this Prospectus or the applicable prospectus supplement.
Our Business
Excalibur Technologies Corporation designs, develops, markets and
supports enterprise-wide, accurate, scalable and secure knowledge-retrieval and
digital asset management software solutions. Our comprehensive suite of products
includes Excalibur RetrievalWare, Excalibur RetrievalWare WebExpress, Excalibur
RetrievalWare FileRoom, Excalibur Internet Spider, Excalibur EFS, Excalibur
Visual RetrievalWare, Excalibur Screening Room and Excalibur Video Analysis
Engine. Our products enable users to quickly capture, analyze, index, catalog,
browse, access, search, retrieve and use relevant information residing on an
enterprise's networks, intranets, extranets and the Internet. Our software
delivers capabilities for real-time profiling and retrospective search, 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
RetrievalWare, our flagship product, has a modular architecture that 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. It offers users a web-based unified view of all information assets and
enables highly accurate search and retrieval over these assets. We offer our
software to information systems for workgroups, enterprises and distributed wide
area networks, including the Internet and World Wide Web. We also offer
training, consulting and maintenance services to facilitate implementation and
use of our technology.
We license our software products directly to commercial businesses and
government agencies throughout North America, Europe and other parts of the
world and also distribute our software products to end users through license
agreements with value-added resellers, system integrators, original equipment
manufacturers and other strategic partners.
On May 5, 1997, we acquired Interpix Software Corporation, 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 shareholders of
Interpix received 275,000 shares of our common stock in exchange for all of the
outstanding common stock of Interpix.
In July 1995, we acquired ConQuest Software, Inc., a private company
engaged in the business of providing natural language text management software
tools. The acquisition was effected through our issuance of common stock and
options to purchase common stock to the former ConQuest shareholders and option
holders in exchange for all of the outstanding common stock of ConQuest.
Our wholly owned subsidiary located in the United Kingdom, Excalibur
Technologies International, Ltd conducts international sales activities.
Excalibur was incorporated on February 11, 1980 as a New Mexico
corporation and reincorporated on September 26, 1989 as a Delaware corporation.
Our common stock is listed on The Nasdaq National Market System under the symbol
"EXCA." Our principal executive offices are located at 1921 Gallows Road, Suite
200, Vienna, Virginia 22182, telephone (703) 761-3700.
Risk Factors
Before you invest in shares of our common stock, you should be aware
that there are various risks, including those described below. We urge you to
carefully consider these risk factors together with all of the other information
included in this Prospectus and the information incorporated in this Prospectus
by reference before you decide to invest in shares of common stock.
Some of the information in this Prospectus and the materials
incorporated by reference into this Prospectus may contain forward-looking
statements. Such statements can be identified by the use of forward-looking
terminology such as "may," "will," "expect," "anticipate," "estimate,"
"continue" or other similar words. These statements discuss future expectations,
contain projections of results of operations or of financial condition or state
other "forward-looking" information. When considering such forward-looking
statements, you should keep in mind the risk factors and other cautionary
statements in this Prospectus. The risk factors noted in this section and other
factors noted throughout this Prospectus, including certain known and unknown
risks and uncertainties, could cause our actual results to differ materially
from those contained in any forward-looking statement.
Marketing acceptance of products and historical operating losses. We
believe that our future profitability will depend on our ability to effectively
market existing and newly-developed software products through a balanced
multi-channel distribution network. We cannot assure you that our costs to
develop, introduce and promote enhanced or new products will not exceed our
expectations, or that these products will generate revenues sufficient to offset
these expenses. We have operated at a loss for each of the past three fiscal
years. These losses reflect our expenditures associated with building a sales
and marketing organization to sell new software products and further developing
software products during these years. We plan to continue to invest in these
programs and, accordingly, we cannot assure you that our operating losses will
not continue in the future.
Variability of Operating Results. Our quarterly operating results have
varied substantially in the past and are likely to vary substantially from
quarter to quarter in the future, due to a variety of factors. In particular,
our period-to-period operating results are significantly dependent upon the
timing of the closing of large license agreements. Because purchasing our
products often requires significant capital investment, our customers may defer
or cancel their purchases. This means our sales can involve long sales cycles of
six months or more. We have generally recorded a significant portion of our
total quarterly license fee revenues in the third month of a quarter, with a
concentration of these revenues occurring in the last half of that third month.
This is in part because our customers tend to make significant capital
expenditures at the end of a fiscal quarter. We expect these revenue patterns to
continue. Despite these uncertainties in our revenue patterns, our operating
expenses are based upon anticipated revenue levels and are incurred on an
approximately ratable basis throughout a quarter. As a result, if expected
revenues are deferred or otherwise not realized in a quarter for any reason, our
business, operating results and financial condition would be materially
adversely affected.
Use of Net Operating Loss Carryforwards. As of January 31, 1999, we had
net operating loss carryforwards of approximately $67,957,000. The deferred tax
assets representing the benefits of these carryforwards have been offset
completely by a valuation allowance due to our lack of an earnings history. We
incurred a net loss of $3,854,000 for the fiscal year ended January 31, 1999.
Our accumulated deficit at January 31, 1999 was $55,798,000. The realization of
the benefits of these carryforwards is dependent on sufficient taxable income in
future fiscal years. Lack of future earnings or a change in our ownership could
adversely affect our ability to utilize these carryforwards. Further, because
there was a change in the ownership of ConQuest in fiscal year 1996, our ability
to utilize carryforwards of approximately $3,233,000 relating to ConQuest may be
limited. Despite the carryforwards, we may have income tax liability in future
years due to the application of the alternative minimum tax rules of the United
States Internal Revenue Code.
Lack of patent protection. Although on August 24, 1998 we filed an
application to obtain a patent on our multimedia document retrieval system, we
have not yet obtained patents on any of our technology. We regard our software
as proprietary, and we rely primarily on a combination of copyright, trademark
and trade secret laws, employee confidentiality and invention assignment
agreements, distribution and OEM software protection agreements and other
intellectual property protection methods to safeguard our technology and
software products. We also rely on our efforts to design and produce new
products, and upon improvements to existing products, to maintain a competitive
position in the marketplace. We cannot assure you that our technology will
remain proprietary.
Competition. Our business environment, and the computer software
industry in general, are characterized by intense competition, rapid
technological changes, changes in customer requirements and emerging new market
segments. Our competitors include many companies which are larger and more
established and have substantially more resources than we do. To compete
effectively, we must make frequent new product introductions and enhancements
while deploying our resources to take advantage of new business opportunities.
We cannot assure you that we will be able to do this effectively in the future.
Need to manage growth. Our future operating results will be affected by
our ability to expand our product distribution channels and to manage our
expected growth. Our future results may also be impacted by our ability to
execute future acquisitions and integrate the operations of acquired companies
with ours. Failure to meet any of these challenges could materially and
adversely affect our future operating results.
Dependence on Computer Manufacturers. Our software products are
designed to work specifically with manufacturers' computer systems. We have no
agreement, however, with any manufacturers of computers by which we may ensure
that the computers will not be redesigned in a manner incompatible with our
products.
Dependence on Key Personnel. Our business is substantially dependent
upon the active participation and technical expertise of our executive officers
and key personnel. Our ability to maintain a competitive position in light of
technological developments will depend, in large part, on our ability to attract
and retain highly qualified personnel, of which there can be no assurance. We
hold a $1 million life insurance policy on the life of Patrick C. Condo, our
President and Chief Executive Officer.
Need for Additional Capital. In order to finance our business
operations, meet our debt obligations and continue our expansion strategy, we
may need to obtain additional capital on a regular basis. We believe we can
obtain additional capital by selling debt or equity securities and/or by
borrowing money. If we cannot obtain additional capital when it is needed, then
our financial condition and results of operations could be adversely affected.
Voting Control by Principal Shareholder. Allen & Company Incorporated,
certain of its officers and shareholders and certain persons who might be deemed
to be related persons of Allen together beneficially owned approximately 27% of
the outstanding shares of our common stock as of January 31, 1999. 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 their ownership interest, Allen and
these other persons may be able to effectively control the outcome of certain
matters requiring a shareholder vote, including offers to acquire Excalibur and
election of directors. In addition, Donald R. Keough, Chairman of our Board of
Directors, is Chairman of the Board of Directors of Allen, and Richard M.
Crooks, Jr., Chairman of the Executive Committee of our Board of Directors, is a
director of and consultant to Allen.
Authorization of Preferred Stock. Our Certificate of Incorporation
authorizes the issuance of 1,000,000 shares of preferred stock with such
designations, rights and preferences as may be determined from time to time by
our Board of Directors. Accordingly, our 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 our Common Stock. Although we
have no present intention of issuing preferred stock, we cannot assure you that
we will not issue any preferred stock in future.
Certain Anti-Takeover Provisions. Certain provisions of our Certificate
of Incorporation, our Stock Option Plans and Delaware law could have the effect,
either alone or together, of making more difficult or discouraging an
acquisition of Excalibur deemed undesirable by our Board of Directors. The
existence of our authorized but unissued capital stock, together with Allen's
possible continued voting control, could discourage an acquisition of Excalibur
that is deemed undesirable by our Board of Directors. Under our stock option
plans, in the event of a change in control, stock appreciation rights and
limited stock appreciation rights outstanding for at least six months, as well
any stock options which are not then exercisable, would become fully exercisable
and vested. Our option plans may have the effect of significantly increasing the
costs of acquiring Excalibur in a hostile takeover. We are subject to Section
203 of the Delaware General Corporation Law, which prohibits Delaware
corporations 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."
Future Sales of Common Stock. A substantial number of our outstanding
shares of common stock are "restricted securities" as that term is defined under
Rule 144 under the Securities Act of 1933, which, under certain circumstances,
may be sold without registration with the Securities and Exchange Commission
under the Securities Act. As of April 30, 1999, a total of 2,975,744 shares of
our common stock were reserved for issuance and registered for sale under our
stock option plans. Although our 1989 Incentive Plan expired on April 26, 1999,
we expect that it will be renewed by our stockholders at our 1999 annual meeting
of stockholders on August 24, 1999 on substantially the same terms. Of these
shares, 1,724,682 were exercisable as of April 30, 1999. In addition, as of
April 30, 1999 183,834 shares of common stock were reserved for issuance under
our employee stock purchase plan, which allows our employees to apply up to 10%
of their paychecks to purchase shares of our common stock at 85% of current
market value. We cannot predict the effect that sales of Common Stock made under
Rule 144 or pursuant to these stock option and purchase plans or otherwise may
have on the then-prevailing market price of our common stock.
Year 2000 Compliance. We are currently working to ensure that all of
our proprietary business systems and the third-party business systems we use
will not fail or make miscalculations as a result of the Year 2000 date change.
The failure of such systems, however, could directly and adversely affect our
ability to provide our services or otherwise affect revenues, safety or
reliability for such a period of time as to lead to serious or unrecoverable
consequences. At the current time, our Year 2000 readiness plan anticipates that
both our information technology and non-information technology systems and
applications will be Year 2000 compliant in all material respects by early in
the fourth quarter of fiscal year 2000. This assessment is based on our analysis
to date and detailed findings at our Vienna, Virginia and Columbia, Maryland
locations. We cannot assure you, however, that we will be able to achieve
complete compliance based on our status to date. Since we are not dependent upon
any single information technology or non-information technology system for the
majority of our revenue, we do not believe that any single system's failure to
be Year 2000 compliant would have a material adverse effect on our business.
Contingency plans will involve the procurement of newer platforms for
non-information technology systems and the temporary use of standardized
commercial off-the-shelf replacement modules for information technology
applications and business functions. While at present there are no indications
that any contingency plans will be necessary or that there will be revenue
disruptions, we cannot assure you that this will be the case. For a more
complete discussion of the Year 2000 issue, see "Management's Discussion and
Analysis of Financial Condition and Results of Operations--Factors that May
Affect Future Results--Other Factors" in our Annual Report on Form 10-K for the
fiscal year ended January 31, 1999, which is incorporated by reference into this
Prospectus.
Use Of Proceeds
All of the net proceeds from the sale of the Shares covered by this
Prospectus will go to the Selling Stockholders who offer and sell the Shares. We
will not receive any proceeds from the sale of the common stock offered by the
Selling Stockholders pursuant to this Prospectus.
Selling Stockholders
On March 30, 1999 the Company sold 500,000 shares of its Common Stock
to the investors listed below in a private placement at a price of $10 per
share. The Company agreed as part of that transaction to file a registration
statement with respect to such shares as soon as practicable after April 30,
1999.
The following table sets forth the number of shares of outstanding
common stock beneficially owned by the Selling Stockholders as of the date of
this Prospectus, the aggregate number of shares of common stock that each
Selling Stockholder may offer and sell pursuant to this Prospectus and the
aggregate number of shares of common stock to be beneficially owned by each
Selling Stockholder upon completion of the offering made hereby. Because the
Selling Stockholders may sell all or a portion of the Shares at any time and
from time to time after the date hereof, no estimate can be made of the number
of shares of common stock that each Selling Stockholder may retain upon
completion of the offering made hereby. To our knowledge, none of the Selling
Stockholders has had within the past three years any material relationship with
us or any of our predecessors or affiliates.
Number of Shares Number of Shares
Beneficially Number of Beneficially Owned
Owned Shares Offered after Sale
Selling Stockholders Hereby
Number %
Robert D. Antolini 30,500 25,000 5,500 *
Michael Vecchio 20,000 20,000 0 ----
Joseph Vecchio 30,000 30,000 0 ----
John F. Northway, Sr. Trust 7-23-83 20,000 10,000 10,000 *
Gary R. Kaiser TTEE 7,000 5,000 2,000 *
Gary R. Kaiser Revocable TR DTD
11-19-97 as amended
Peter Douglas Wierenga 10,000 10,000 0 ----
Thomas M. Hyatt and 2,500 2,500 0 ----
Patti L. Hyatt JT Ten
William A. Lawson 5,000 5,000 0 ----
Peter Noor and Marcia A. Noor JT Ten 2,500 2,500 0 ----
Edward D. Stuursma Trust dtd 12-2-93 2,500 2,500 0 ----
Craig T. Newhof and Susan J. Newhof 2,500 2,500 0 ----
Annette Provenzano 2,500 2,500 0 ----
Nordruk Partners Inv Co. 24,800 20,000 4,800 *
F. Jack Meyering TTEE 5,000 5,000 0 ----
F. Jack Meyering Trust DTD 11-27-89
Paul C. Drueke and MaryJo Drueke 5,000 5,000 0 ----
The Clifford Dirkes Trust 1995 35,000 10,000 25,000 *
Dr. Mohamed M. Haque 15,000 10,000 5,000 *
Charles H. Campbell Family Partnership, Ltd. 15,000 15,000 0 ----
Robert Gordon Granchildren's Trust 24,700 10,000 14,700 *
Richard A. Levy and Susan Cohen Levy 38,000 10,000 28,000 *
Richard Hoving Jr. and Darlene Hoving Joint 2,500 2,500 0 ----
Warburg Pincus Emerging Growth Fund 200,000 200,000 0 ----
Teleos Fund, LP (Dan Plager) 11,500 9,100 2,400 *
Teleos Strategies, Ltd 108,500 85,900 22,600 *
------
500,000
- ----------------------------------
* Less than 1%.
Plan of Distribution
The Selling Stockholders or their pledgees may sell or distribute some
or all of their Shares from time to time through underwriters or dealers or
brokers or other agents or directly to one or more purchasers, including
pledgees, in transactions (which may involve crosses and block transactions) on
the Nasdaq National Market System, privately negotiated transactions (including
sales pursuant to pledges) or in the over-the-counter market, or in a
combination of such transactions or by any other legally available means. Such
transactions may be effected by the Selling Stockholders at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices, at negotiated prices, or at fixed prices, which may be changed. Brokers,
dealers, agents or underwriters participating in such transactions as agent may
receive compensation in the form of discounts, concessions or commissions from
the Selling Stockholders (and, if they act as agent for the purchaser of such
shares, from such purchaser). Such discounts, concessions or commissions as to a
particular broker, dealer, agent or underwriter might be in excess of those
customary in the type of transaction involved. This Prospectus also may be used,
with our consent, by donees of the Selling Stockholders, or by other persons
acquiring the Shares and who wish to offer and sell such Shares under
circumstances requiring or making desirable its use. To the extent required, we
will file, during any period in which offers or sales are being made, one or
more supplements to this Prospectus to set forth the names of donees of Selling
Stockholders and any other material information with respect to the plan of
distribution not previously disclosed.
The Selling Stockholders and any such underwriters, brokers, dealers or
agents that participate in such distribution may be deemed to be "underwriters"
within the meaning of the Securities Act, and any discounts, commissions or
concessions received by any such underwriters, brokers, dealers or agents might
be deemed to be underwriting discounts and commissions under the Securities Act.
Neither we nor the Selling Stockholders can presently estimate the amount of
such compensation. We know of no existing arrangements between the Selling
Stockholders and any underwriter, broker, dealer or other agent relating to the
sale or distribution of the Shares.
Under applicable rules and regulations under the Exchange Act, any
person engaged in a distribution of any of the Shares may not simultaneously
engage in market activities with respect to the common stock for a period of up
to five business days prior to the commencement of such distribution. In
addition and without limiting the foregoing, the Selling Stockholders will be
subject to applicable provisions of the Securities Exchange Act of 1934 and the
rules and regulations thereunder, including without limitation Rule 10b-5 and
Regulation M, which provisions may limit the timing of purchases and sales of
any of the Shares by the Selling Stockholders. All of the foregoing may affect
the marketability of the common stock.
We will pay substantially all of the expenses incident to the offering
of the Shares by the Selling Stockholders to the public other than commissions
and discounts of underwriters, brokers, dealers or agents. The Selling
Stockholders may indemnify any broker, dealer, agent or underwriter that
participates in transactions involving sales of the Shares against certain
liabilities, including liabilities arising under the Securities Act. We have
agreed to indemnify the Selling Stockholders and any such underwriters and
controlling persons of such underwriters against certain liabilities, including
certain liabilities under the Securities Act.
If Shares are sold in an underwritten offering, the Shares may be
acquired by the underwriters for their own account and may be further resold
from time to time in one or more transactions, including negotiated
transactions, at market prices prevailing at the time of sale, at prices related
to such prevailing market prices, at negotiated prices, or at fixed prices. The
names of the underwriters with respect to any such offering and the terms of the
transactions, including any underwriting discounts, concessions or commissions
and other items constituting compensation of the underwriters and
broker-dealers, if any, will be set forth in a supplement to this Prospectus
relating to such offering. Any public offering price and any discounts,
concessions or commissions allowed or reallowed or paid to broker-dealers may be
changed from time to time. Unless otherwise set forth in a supplement to this
Prospectus, the obligations of the underwriters to purchase the Shares will be
subject to certain conditions precedent and the underwriters will be obligated
to purchase all of the shares specified in such supplement if any such Shares
are purchased.
In order to comply with certain states' securities laws, if applicable,
the Shares will be sold in such jurisdictions only through registered or
licensed brokers or dealers. In addition, in certain states the common stock may
not be sold unless the common stock has been registered or qualified for sale in
such state or an exemption from registration or qualification is available and
is complied with.
Description of Capital Stock
Our authorized capital stock 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 April 30, 1999, 14,336,684 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 our common stock
are, and the Shares being offered hereby are, validly issued, fully paid and
non-assessable. The holders of outstanding shares of our common stock are
entitled to receive dividends out of assets legally available therefor at such
times and in such amounts as our Board of Directors may from time to time
determine. We have not paid any dividends and do not expect to pay cash
dividends on our 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 our 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 Excalibur, the holders of common stock are
entitled to receive pro rata our assets which are legally available for
distribution to shareholders.
Preferred Stock. Our Board of Directors has the authority to issue
1,000,000 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 series, including, 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. Our 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 our Board of Directors, in cash or shares of common
stock (as 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 Excalibur, 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 Excalibur without
further action by our shareholders. We have no present plans to issue any shares
of preferred stock or additional Cumulative Convertible Preferred Stock.
Certain Anti-Takeover Provisions. As of April 30, 1999, we had
approximately 22,503,738 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 further shareholder approval. The
existence of our authorized but unissued capital stock, together with the
possible continued voting control by Allen & Company (see "Risk Factors - Voting
Control by Principal Shareholder"), could discourage an acquisition of Excalibur
that is deemed undesirable by our Board of Directors. Under our stock option
plans, as amended, in the event of a change in control, stock appreciation
rights and limited stock appreciation rights outstanding for at least six
months, as well as any stock options which are not then exercisable, would
become fully exercisable and vested. Our option plans may have the effect of
significantly increasing the costs of acquiring Excalibur in a hostile takeover.
We are subject to Section 203 of the Delaware General Corporation Law, which
prohibits Delaware corporations 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,"
predates 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 our common
stock is American Securities Transfer, Inc. of Denver, Colorado.
Legal Matters
The validity of the issuance of the shares of common stock offered
hereby and certain other matters will be passed upon for us by Heller Ehrman
White & McAuliffe, New York, New York.
Experts
The financial statements as of and for the year ended January 31, 1999
incorporated in this Prospectus by reference to the Annual Report on Form 10-K
for the year ended January 31, 1999 have been so incorporated in reliance on the
report of PricewaterhouseCoopers LLP, independent accountants, given on the
authority of said firm as experts in auditing and accounting.
The audited financial statements of Excalibur Technologies Corporation
as of January 31, 1998 and for each of the two years in the period ended January
31, 1998 incorporated by reference in this Prospectus and registration statement
have been audited by Arthur Andersen LLP, independent certified public
accountants, as indicated in their reports with respect thereto, and are
included herein in reliance upon the authority of said firm as experts in giving
said reports.
II-5
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses in connection with the issuance of the securities being
registered, all of which will be paid by the Registrant pursuant to contractual
obligations, are as follows:
SEC Registration Fee................................................ $2,093
Printing Expenses................................................... 5,000
Accounting Fees and Expenses........................................ 10,000
Legal Fees and Expenses............................................. 15,000
Miscellaneous....................................................... 5,000
------
Total.................................................. $37,093
====== =======
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Delaware General Corporation Law. Section 145(a) of the Delaware
General Corporation Law (the "GCL") provides that a Delaware corporation may
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, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation or enterprise, against expenses, judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, had no cause to believe his or her conduct was unlawful.
Section 145(b) of the GCL provides that a Delaware corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses actually
and reasonably incurred by such person in connection with the defense or
settlement of such action or suit if he or she acted under similar standards,
except that 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 or her duty to the
corporation unless and only to the extent that the court in which such action or
suit was brought shall determine that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to be indemnified for such expenses which the court shall
deem proper.
Section 145 of GCL further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action, suit
or proceeding referred to in subsection (a) and (b) or in the defense of any
claim, issue or matter therein, such officer or director shall be indemnified
against expenses actually and reasonably incurred by him or her in connection
therewith; that indemnification provided for by Section 145 shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled;
and that the corporation may purchase and maintain insurance on behalf of a
director or officer of the corporation against any liability asserted against
such officer or director and incurred by him or her in any such capacity or
arising out of is or her status as such, whether or not the corporation would
have the power to indemnify him or her against such liabilities under Section
145.
Certificate of Incorporation and Bylaws. The Registrant'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 Registrant and persons serving at the request of the Registrant in such
capacities within other business organizations against certain losses, costs,
liabilities and expenses incurred by reason of their position with the
Registrant or such other business organizations.
ITEM 16. EXHIBITS
The following exhibits are filed as part of this Registration Statement.
Exhibit
Number Description
2.1 Agreement and Plan of Merger Between Excalibur, Excalibur Acquisition
Corporation and ConQuest Software, Inc., dated July 5, 1995. (1)
2.2 Agreement of Merger Between Excalibur, EXCA Acquisition Corporation and
Interpix Software Corporation dated May 2, 1997. (2)
5.1 Opinion of Heller Ehrman White & McAuliffe, counsel to the Registrant.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.2 Consent of Arthur Andersen LLP, Independent Accountants.
23.3 Consent of Heller Ehrman White & McAuliffe (included in Exhibit 5.1).
24.1 Powers of Attorney (included as part of signature page of this
Registration Statement).
- ------------------------------------
(1) Incorporated herein by reference to Form 8-K, filed August 4, 1995.
(2) Incorporated herein by reference to Form 10-K for the year ended
January 31, 1998, filed April 23, 1998.
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;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information
set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(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, Form S-8 or
Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Exchange Act that
are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act 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 Commission such
indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by
the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant 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 3rd day of June, 1999.
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
hereby constitutes and appoints Patrick C. Condo his/her true and lawful
attorneys-in-fact, each acting alone, with full powers of substitution and
resubstitution, for him/her and in his/her name, place and stead, in any and all
capacities to sign any or all amendments, including any post-effective
amendments, to this registration statement, and any subsequent registration
statement filed pursuant to Rule 462(b) under the Securities Act of 1933, and to
file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorneys-in-fact or their substitutes, each acting
alone, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement
on Form S-3 has been signed by the following persons in the capacities and on
the dates indicated.
SIGNATURE CAPACITY DATE
/s/ Patrick C. Condo President, Chief Executive Officer and June 1, 1999
- ------------------------------
Patrick C. Condo Director (Principal Executive Officer)
/s/ Donald R. Keough Chairman of the Board June 2, 1999
- -------------------------------
Donald R. Keough
/s/ James H. Buchanan Chief Financial Officer, Secretary and June 1, 1999
- ------------------------------
James H. Buchanan Treasurer (Principal Financial Officer
and Principal Accounting Officer)
/s/ Richard M. Crooks, Jr. Director June 2, 1999
- ----------------------------------
Richard M. Crooks, Jr.
/s/ John S. Hendricks Director June 1, 1999
- --------------------------------
John S. Hendricks
Director June 3, 1999
W. Frank King III
Director June 3, 1999
John J. McMillian
/s/ Philip J. O'Reilly Director June 2, 1999
- -------------------------------
Philip J. O'Reilly
EXHIBIT INDEX
Exhibit
Number Description
2.1 Agreement and Plan of Merger Between Excalibur, Excalibur
Acquisition Corporation and ConQuest Software, Inc.,
dated July 5, 1995. (1)
2.2 Agreement of Merger Between Excalibur, EXCA Acquisition Corporation
and Interpix Software Corporation dated May 2, 1997. (2)
5.1 Opinion of Heller Ehrman White & McAuliffe, counsel to the
Registrant.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.2 Consent of Arthur Andersen LLP, Independent Accountants.
23.3 Consent of Heller Ehrman White & McAuliffe
(included in Exhibit 5.1).
24.1 Powers of Attorney (included as part of signature page of this
Registration Statement).
- ------------------------------------
(1) Incorporated herein by reference to Form 8-K, filed August 4, 1995.
(2) Incorporated herein by reference to Form 10-K for the year ended
January 31, 1998, filed April 23, 1998.
EXHIBIT 5.1
OPINION OF HELLER EHRMAN WHITE & MCAULIFFE
June 3, 1999
Excalibur Technologies Corporation
1921 Gallows Road, Suite 200
Vienna, VA 22182
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Excalibur Technologies Corporation, a
Delaware corporation (the "Company"), in connection with the Registration
Statement on Form S-3 (the "Registration Statement") to be filed with the
Securities and Exchange Commission on or about June 3, 1999, for the purpose of
registering under the Securities Act of 1933, as amended, 500,000 shares of its
Common Stock, $.01 par value (the "Shares"). The Shares have been issued
pursuant to the Subscription Agreements, each dated March 30, 1999 (the
"Subscription Agreements"), among the Company and the subscribers named therein.
In connection with this opinion, we have assumed the authenticity of
all records, documents and instruments submitted to us as originals, the
genuineness of all signatures, the legal capacity of natural persons and the
conformity to the originals of all records, documents and instruments submitted
to us as copies. We have based our opinion upon our review of the following
records, documents and instruments:
(a) The Certificate of Incorporation of the Company, as amended as
of the date hereof;
(b) The By-laws of the Company, as amended as of the date hereof;;
(c) Records certified to us by an officer of the Company as
constituting the records of proceedings and actions of the Board of
Directors of the Company relating to the issuance of the Shares;
(d) The Registration Statement; and
(e) The Subscription Agreements.
This opinion is limited to the federal law of the United States of
America and the General Corporation Law of the State of Delaware. We disclaim
any opinion as to any other statute, rule, regulation, ordinance, order or other
promulgation of any other jurisdiction or any regional or local governmental
body.
Our opinion expressed herein assumes that the Subscription Agreements
were duly authorized, executed and delivered by the parties thereto in the form
that we have reviewed as of the date of this opinion, and that the full
consideration stated in the Subscription Agreements set by Board of Directors
when authorizing the issuance of the Shares has been paid and/or transferred.
Based upon the foregoing and our examination of such questions of law
as we have deemed necessary or appropriate for the purpose of this opinion and
assuming that (i) the Registration Statement becomes and remains effective
during the period when the Shares are offered and sold; (ii) the Shares were
issued in accordance with the terms of the Subscription Agreements and the
resolutions authorizing their issuance; (iii) appropriate stock certificates
evidencing the Shares were executed and delivered; and (iv) all applicable
securities laws are complied with, it is our opinion that the Shares are duly
authorized and validly issued, and are fully paid and nonassessable.
This opinion is rendered to you in connection with the Registration Statement
and is solely for your benefit. This opinion may not be relied upon by you for
any other purpose, or relied upon by any other person, firm, corporation or
other entity for any purpose, without our prior written consent. We disclaim any
obligation to advise you of any change of law that occurs, or any facts which we
become aware after the date of this opinion.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Heller Ehrman White & McAuliffe
HELLER EHRMAN WHITE & MCAULIFFE
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-3 of our report dated March 30, 1999 relating
to the financial statements and financial statement schedules, which appears in
Excalibur Technologies Corporation's Annual Report on Form 10-K for the year
ended January 31, 1999. We also consent to the references to us under the
heading "Experts" in such Registration Statement.
PricewaterhouseCoopers LLP
McLean, Virginia
June 3, 1999.
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
` As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-3 of our reports dated
February 27, 1998 included in Excalibur Technologies Corporation's Form10-K for
the year ended January 31, 1999, and to all references to our Firm included in
this Registration Statement.
ARTHUR ANDERSEN LLP
Washington, D.C., June 2, 1999.
258370