As Filed With the Securities and Exchange Commission On January 18, 2002
Registration Statement No. 333-15369
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Convera Corporation
(Exact name of registrant as specified in its charter)
1921 Gallows Road, Suite 200
Vienna, Virginia 22182
Delaware (703) 761-3700 54-1987541
(State or other (Address, including zip code, and (I.R.S. Employer
jurisdiction of telephone number, including Identification
incorporation area code, of registrant's Number)
or organization) principal executive offices)
Amended and Restated 1996 Employee Stock Purchase Plan
(Full title of the plan)
Marc Martin
Vice President, General Counsel and Secretary
Convera 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:
Peter DiIorio, Esq.
Heller Ehrman White & McAuliffe LLP
120 West 45th Street
New York, New York 10036
(212) 832-8300
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(2) Aggregate Offering Price Registration Fee
- --------------------------------- ----------------- --------------------------- ------------------------ ----------------
- --------------------------------- ----------------- --------------------------- ------------------------ ----------------
Class A Common Stock, par value
$.01 per share............... 1,000,000 $4.34 $4,340,000 $399
- --------------------------------- ----------------- --------------------------- ------------------------ ----------------
(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(h) 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 $4.34 on January 14, 2002.
PART I
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
INCORPORATION OF PREVIOUS REGISTRATION STATEMENT
Pursuant to General Instruction E to Form S-8, Convera Corporation (the
successor registrant to Excalibur Technologies Corporation), a Delaware
corporation (the "Company"), is filing this registration statement to include an
additional 1,000,000 shares under the Company's Amended and Restated 1996
Employee Stock Purchase Plan. 250,000 shares were previously registered by the
Company's Registration Statement on Form S-8, File No. 333-15369. Pursuant to
General Instruction E, the contents of Registration Statement No. 333-15369 are
hereby incorporated by reference.
PART II
Item 3. Incorporation of Documents by Reference
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") are incorporated in this Registration
Statement by reference:
1. The Annual Report of the Company on Form 10-K, for the fiscal year
ended January 31, 2001;
2. The Quarterly Reports of the Company on Form 10-Q, for the fiscal
quarters ended April 30, 2001, July 31, 2001 and October 31, 2001;
3. The Current Reports of the Company on Form 8-K dated February 9, 2001,
March 5, 2001, July 3, 2001 August 8, 2001, September 21, 2001 and
December 5, 2001; and January 7, 2002.
4. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed under the
Securities Exchange Act of 1934 (the "Exchange Act") on November 21,
2000.
5. The Company's Amended and Restated 1996 Employee Stock Purchase Plan
contained in the Company's Information Statement Schedule 14C filed
on December 18, 2001.
All documents subsequently filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents.
We will undertake to provide without charge to each person, including any
beneficial owner, to whom a copy of this prospectus has been delivered, upon the
written or oral request of such person, a copy of any or all of the documents
referred to above which have been or may be incorporated in this prospectus by
reference, other than exhibits to such documents which are not specifically
incorporated by reference into the information that this prospectus
incorporates. Requests for such copies should be directed to: Convera
Corporation, 1921 Gallows Road, Suite 200, Vienna, Virginia 22182 (telephone
number (703) 761-3700), Attention: Investor Relations.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. 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 the 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 his 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 Bylaws
provide, pursuant to Section 145 of the GCL, 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.
Additionally, the Bylaws provide for such indemnification to continue as to such
persons even after they have ceased holding their position with the Registrant.
Item 7. Exemption From Registration Claimed
Not applicable.
Item 8. Exhibits
The following exhibits are filed as part of this Registration
Statement:
Exhibit Number Description
- ------- -----------
5.1 Opinion of Heller Ehrman White & McAuliffe LLP, counsel to the Registrant.
23.1 Consent of Ernst & Young LLP, Independent Public Accountants.
23.2 Consent of PricewaterhouseCoopers LLP, Independent Public Accountants.
23.3 Consent of Heller Ehrman White & McAuliffe LLP (included in Exhibit 5.1).
24.1 Powers of Attorney (included as part of signature page of this Registration Statement).
Item 9. 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 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 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 of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Vienna, Commonwealth of Virginia, on the 18th day of
January, 2002.
CONVERA CORPORATION
By /s/ Patrick C. Condo
--------------------------------------------
Name: Patrick C. Condo
Title: President and Chief Executive Officer
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
attorney-in-fact, 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 attorney-in-fact or his 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-8 has been signed by the following persons in the capacities and on
the dates indicated.
SIGNATURE CAPACITY DATE
/s/ Patrick C. Condo President and Chief Executive Officer January 18, 2002
- -------------------------------------------- (Principal Executive Officer)
Patrick C. Condo
/s/ Ronald J. Whittier Chairman January 18, 2002
- --------------------------------------------
Ronald J. Whittier
/s/ Christopher M. Mann Chief Financial Officer January 18, 2002
- -------------------------------------------- (Principal Financial and
Christopher M. Mann Accounting Officer)
/s/ Herbert A. Allen Director January 18, 2002
- --------------------------------------------
Herbert A. Allen
/s/ Herbert A. Allen III Director January 18, 2002
- --------------------------------------------
Herbert A. Allen III
/s/ Robert A. Burgelman Director January 18, 2002
- --------------------------------------------
Robert A. Burgelman
/s/ Stephen P. Greenberg Director January 18, 2002
- --------------------------------------------
Stephen P. Greenberg
/s/ Donald R. Keough Director January 18, 2002
- --------------------------------------------
Donald R. Keough
EXHIBIT INDEX
Exhibit Number Description
- ------- -----------
5.1 Opinion of Heller Ehrman White & McAuliffe LLP, counsel to the Registrant.
23.1 Consent of Ernst & Young LLP, Independent Public Accountants.
23.2 Consent of PricewaterhouseCoopers LLP, Independent Public Accountants.
23.3 Consent of Heller Ehrman White & McAuliffe LLP (included in Exhibit 5.1).
24.1 Powers of Attorney (included as part of signature page of this Registration Statement).
EXHIBIT 5.1
OPINION OF HELLER EHRMAN WHITE & MCAULIFFE LLP
January 18, 2002
Convera Corporation
1921 Gallows Road, Suite 200
Vienna, VA 22182
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Convera Corporation, a Delaware corporation
(the "Company"), in connection with the Registration Statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission on or about January 18, 2002, for the purpose of registering under
the Securities Act of 1933, as amended, 1,000,000 shares of its Common Stock,
$.01 par value (the "Shares"), issuable pursuant to the Company's employee
benefit plan listed on the cover of the Registration Statement (the "Plan").
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 Bylaws of the Company, as amended as of the date hereof;
(c) 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 Plan.
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.
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 are
issued and paid for in accordance with the terms of the Plan; (iii) appropriate
stock certificates evidencing the Shares are executed and delivered; (iv) there
is a sufficient number of authorized but unissued shares of the Company's Common
Stock reserved for issuance when the applicable Shares are offered and sold; and
(v) all applicable securities laws are complied with, it is our opinion that the
Shares will be duly authorized and validly issued, and 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 LLP
---------------------------------------
HELLER EHRMAN WHITE & MCAULIFFE LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333-15369) pertaining to the Amended and Restated 1996 Employee Stock
Purchase Plan of Convera Corporation of our report dated March 2, 2001 with
respect to the consolidated financial statements of Convera Corporation included
in its Annual Report (Form 10-K) for the year ended January 31, 2001, filed with
the Securities and Exchange Commission.
/s/ Ernst & Young LLP
McLean, Virginia
January 18, 2002
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Convera Corporation (No. 333-15369) of our report dated
March 8, 2000 relating to the financial statements of Excalibur Technologies
Corporation and its subsidiaries as of January 31, 2000 and for the years ended
January 31, 2000 and 1999, which appears in Convera Corporation's Annual Report
on Form 10-K for the year ended January 31, 2001.
/s/ PricewaterhouseCoopers LLP
McLean, Virginia
January 14, 2002