As filed with the Securities and Exchange Commission
on June 9, 1995
Registration No.33-89144
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1 TO
REGISTRATION STATEMENT
on
FORM S-8
UNDER
THE SECURITIES ACT OF 1933
EXCALIBUR TECHNOLOGIES CORPORATION
[Exact name of issuer as specified in its charter]
Delaware 85-0278207
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
9255 Towne Center Drive
9th Floor
San Diego, California 92121
619-625-7900
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Stock Option Agreement with Richard Crooks
Stock Option Agreement with Douglas Johnson
Stock Option Agreement with Karl Minor
Stock Option Agreements with James W. Dowe III
(Full Title of plan)
J.M. Kennedy
9255 Towne Centre Drive
9th Floor
San Diego, California 92121
619-625-7900
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Jay H. Diamond, Esq.
Holtzmann, Wise & Shepard
1271 Avenue of the Americas
New York, New York 10020
(212) 554-8000
This registration statement shall hereafter become effective in accordance
with Rule 462 promulgated under the Securities Act of 1933, as amended.
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed Proposed
Title of each class maximum maximum Amount of
of securities to Amount to be offering aggregate registration
be registered registered price per offering fee
unit price
- -------------------- ----------- ------------ ---------- ------------
<S> <C> <C> <C> <C> <C>
Common Stock, $.01 120,000 $8.125<F1> $975,000 $336.21
par value
- -------------------- ----------- ------------ ---------- ------------
Common Stock, $.01 30,000 $9.54<F1> $286,200 $98.69
par value
- -------------------- ----------- ------------ ---------- ------------
Common Stock, $.01 43,050 $10.88<F1> $468,384 $161.51
par value
- -------------------- ----------- ------------ ---------- ------------
Common Stock, $.01 50,000 $15.95<F1> $797,500 $275.00
par value
- -------------------- ----------- ------------ ---------- ------------
Common Stock, $.01 50,000 $16.10<F1> $805,000 $277.59
par value
- -------------------- ----------- ------------ ---------- ------------
293,050 $3,332,084 $1,149.00
- -------------------- ----------- ------------ ---------- ------------
<FN>
<F1> Calculated in accordance with Rule 457(h) under the Securities Act,
based upon the price at which options to purchase shares of common stock have
been granted under the Agreements referenced in this Amendment.
</FN>
</TABLE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS(1)
Item 1. Plan Information.
Item 2. Registrant Information and Employee Plan Annual
Information
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have heretofore been filed by
Excalibur Technologies Corporation (the "Company") (File No. 0-
977) with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as
amended (the "1934 Act"), are incorporated by reference herein
and shall be deemed to be a part hereof:
1. The Company's Annual Report on Form 10-K for the fiscal
year ended January 31, 1995.
2. The description of the Company's Common Stock contained
in the Company's Registration Statement on Form 8-A filed under
Section 12 of the Securities Exchange Act of 1934 (the "Exchange
Act").
All documents subsequently filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 and 15(d) of the
1934 Act prior to the filing of a post-effective amendment to
this Registration Statement which indicates that all securities
offered have been sold or which reregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference
in this Registration Statement and made a part hereof from their
respective dates of filing such documents.
_______________________________
(1) This information is not required to be included in, and is not
incorporated by reference in, this Registration Statement.
Item 4. Description of Securities.
The class of securities to be offered is registered
under Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
The validity of Shares of Common Stock to be offered
hereunder has been passed upon for the Company by Holtzmann, Wise
& Shepard. As of May 30, 1995, attorneys of Holtzmann, Wise &
Shepard beneficially owned 25,000 shares of Common Stock
(including shares subject to options) of the Company.
Item 6. 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.
The Company has an insurance policy covering the
liability and expenses which might be incurred in connection with
lawful indemnification of directors and officers of the Company
for certain liabilities and expenses of such directors and
officers for acts in those capacities. Such directors and
officers are also insured against certain liabilities and
expenses incurred for acts in such capacities and for which they
are not entitled to indemnification by the Company.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Description
Number
4.04 Form of Stock Option Agreement with Richard Crooks
4.05 Form of Stock Option Agreement with Douglas Johnson
4.06 Form of Stock Option Agreement with Karl Minor
4.07 Form of Stock Option Agreements with James Dowe III
24.02 Consent of Independent Auditors
Item 9. Undertakings.
(1) The undersigned registrant hereby undertakes:
(a) 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 (1)(a)(i) and (1)(a)(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;
(b) that, for the purpose of determining any
liability under the Securities Act of 1933, each such post-
effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof; and
(c) 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.
(2) The undersigned registrant hereby undertakes that,
for the purpose 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
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
POWER OF ATTORNEY
Know all men by these presents, that each officer or
director of Excalibur Technologies Corporation whose signature
appears below constitutes and appoints J.M. Kennedy, David
Lambert and Jay H. Diamond and each of them severally her/his
true and lawful attorney-in-fact and agent, with full and several
power of substitution, for her/him and in her/his name, place and
stead, in any and all capacities, to sign any or all amendments,
including post-effective amendments and supplements to this
Registration Statement, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-
in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as they
or she/he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or her/his or
their substitute or substitutes may lawfully do or cause to be
done by virtue thereof.
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 Post-Effective Amendment No. 1 to
this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of San Diego,
State of California, on the 9th day of June, 1995.
EXCALIBUR TECHNOLOGIES CORPORATION
By:/s/David Lambert
David Lambert
Executive Vice President
Chief Financial Officer,
Treasurer
and Secretary
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed below by the
following persons in the capacities indicated.
Signature Title Date
* Chief Executive Officer and June __, 1995
J.M. Kennedy Director (Principal
Executive Officer)
* Chairman of June __, 1995
Richard M. Crooks, the Board of Directors
Jr.
/s/David Lambert Chief Financial Officer June 9, 1995
David Lambert and Treasurer (Principal
Financial and Accounting
Officer)
* Chief Scientist June __, 1995
James W. Dowe III and Director
/s/Jay H. Diamond Director June 9, 1995
Jay H. Diamond
* Director June __, 1995
W. Frank King III
* Director June __, 1995
Philip J. O'Reilly
/s/ Jay H. Diamond* June 9, 1995
Jay H. Diamond as
Attorney-in-Fact
Exhibits
Exhibit Description
Number
4.04 Form of Stock Option Agreement with Richard Crooks
4.05 Form of Stock Option Agreement with Douglas Johnson
4.06 Form of Stock Option Agreement with Karl Minor
4.07 Form of Stock Option Agreements with James Dowe III
24.02 Consent of Independent Auditors
FORM OF
EXCALIBUR TECHNOLOGIES CORPORATION
STOCK OPTION AGREEMENT
THIS AGREEMENT, made and entered into as of June 28, 1990,
(the "Date of Grant") between EXCALIBUR TECHNOLOGIES
CORPORATION, a Delaware corporation (the "Corporation"), and
Richard M. Crooks (the "Optionee").
WHEREAS, under the terms and conditions hereinafter stated,
the Corporation hereby grants to the Optionee an option (the
"Option") to purchase 50,000 shares of Common Stock $.01 par
value per share ("Common Stock"), at an exercise price of $16.10
per share, subject to adjustment as provided in Paragraph 8
hereof (the "Exercise Price").
NOW, THEREFORE, the Corporation and the Optionee agree as
follows:
1. Term. The term of the Option shall commence on
June 28, 1990, and shall terminate at 5:00 P.M., E.S.T., on
June 28, 2000. Except as provided in Paragraph 4 hereof, this
Option shall be exercisable as to 50,000 shares on the Date of
Grant.
2. Exercise. The Option may be exercised in whole or in
part. The method for exercise described in this Paragraph shall
be the sole method of such exercise. The Optionee may exercise
the Option by delivery to the Corporation of written notice in
1
the form attached as Exhibit A providing: (i) the name of the
Optionee; (ii) the address to which Common Stock certificates are
to be mailed; (iii) an identification of the Option being
exercised by reference to the date first written above; and (iv)
the number of shares of Common Stock subject to such Option.
Such notice shall be accompanied by a certified check payable to
the Corporation in the amount of the product of the Exercise
Price times the number of shares with respect to which the Option
is being executed, and shall be delivered in person or shall be
sent by registered mail, return receipt requested, to the
President of the Corporation. The Option shall be considered
exercised on the date the notice and payment are delivered to the
President of the Corporation or deposited in the mail, as the
case may be. As promptly as practicable after receipt of such
notice and payment, the Corporation shall deliver to the Optionee
a certificate or certificates for the number of shares of Common
Stock with respect to which the Option has been so executed,
issued in the Optionee's name. Such delivery shall be deemed
effected for all purposes when a stock transfer agent of the
Corporation shall have deposited such certificate or certificates
in the United States mail, addressed to the Optionee, at the
address specified in the notice.
2
3. Transferability of Options. The Option shall not be
transferable by the Optionee otherwise than by will or under the
laws of descent and distribution. The Option shall be
exercisable during the lifetime of the Optionee only by the
Optionee, the Optionee's guardian or the Optionee's legal
representative.
4. Termination. (a) Termination by Death. If the
Optionee's employment by the Corporation terminates by reason of
death, this Option may thereafter be exercised to the extent
exercisable at the time of death or on such accelerated basis as
the Corporation may determine after grant (or as may be
determined in accordance with procedures established by the
Corporation), by the legal representative of the estate or by the
legatee of the Optionee under the will of the Optionee, for a
period of one year from the date of such death or until the
expiration of the stated term of this Option, whichever period is
shorter.
(b) Termination by Reason of Disability. If the
Optionee's employment by the Corporation terminates by reason of
disability as determined by the Corporation ("Disability"), this
Option may thereafter be exercised by the Optionee, to the extent
it was exercisable at the time of termination or on such
accelerated basis as the Corporation may determine after grant
3
(or as may be determined in accordance with procedures
established by the Corporation), for a period of one year from
the date of such termination of employment or until the
expiration of the stated term of this Option, whichever period is
the shorter, provided, however, that, if the Optionee dies within
such one-year period, any unexercised part of the Option held by
the Optionee shall thereafter be exercisable to the extent to
which it was exercisable at the time of death for a period of one
year from the date of such death or until the expiration of the
stated term of this Option, whichever period is the shorter.
(c) Other Termination. Unless otherwise determined by
the Corporation (or pursuant to procedures established by the
Corporation) after grant, if the Optionee's employment by the
Corporation terminates for any reason other than death or
Disability, this Option shall thereupon terminate, except that
this Option may be exercised, to the extent otherwise then
exercisable, for the lesser of three months or the balance of
this Option's term if the Optionee is involuntarily terminated by
the Corporation without cause. For purposes of this Agreement,
"Cause" means a felony conviction of the Optionee or the failure
of the Optionee to contest prosecution for a felony, or the
Optionee's willful misconduct or dishonesty, any of which is
directly and materially harmful to the business or reputation of
the Corporation. Notwithstanding anything herein to the
contrary, in the event that the Optionee's employment by the
4
Corporation terminates prior to six months after the Date of
Grant, the Option shall immediately terminate and shall not be
exercisable.
5. Requirements of Law. The Corporation shall not be
required to sell or issue Common Stock under the Option if the
issuance of such Common Stock would constitute a violation by the
Optionee or the Corporation of any provisions of any state or
federal law, rule or regulation. In addition, in connection with
the Securities Act of 1933 (as now in effect or hereafter
amended), upon exercise of the Option, the Corporation shall be
required to issue such Common Stock unless the Corporation has
received evidence satisfactory to it to the effect that the
Optionee will not transfer such shares except pursuant to a
registration statement in effect under such Act, or unless an
opinion of counsel to the Corporation has been received by the
Corporation to the effect that such registration is not required.
Any determination in this connection by the Corporation shall be
final, binding and conclusive. In the event the shares issuable
upon exercise of the Option are not registered under the
Securities Act of 1933, the Corporation may imprint the following
legend or any other legend which counsel for the Corporation
considers necessary or advisable to comply with the Securities
Act of 1933.
"The shares of stock represented by this
certificate have not been registered under the
5
Securities Act of 1933 or under the securities laws of
any state and may not be sold or transferred except
upon such registration or upon receipt by the
Corporation of an opinion of counsel satisfactory to
the Corporation, in form and substance satisfactory to
the Corporation, that registration is not required for
such sale or transfer."
The Corporation may, but shall in no event be obligated to,
register any securities covered hereby pursuant to the Securities
Act of 1933 (as now in effect or as hereafter amended); and in
the event any shares are so registered the Corporation may remove
any legend on certificates representing such shares. The
Corporation shall not be obligated to take any other affirmative
action in order to cause the exercise of the Option or the
issuance of shares pursuant thereto to comply with any state or
federal law, rule or regulation.
6. No Rights as Stockholder. The Optionee shall have no
rights as a stockholder with respect to Common Stock covered by
the Option until the date of issuance to the Optionee of a stock
certificate for such Common Stock; and, except as otherwise
provided in Paragraph 9 hereof, no adjustment for dividends or
otherwise shall be made if the record date thereof is prior to
the date of issuance of such certificate.
7. Employment Obligation. The granting of the Option
shall not impose upon the Corporation any obligation to employ or
6
become affiliated with or continue to employ or be affiliated
with the Optionee. The right of the Corporation to terminate the
employment of or its affiliation with the Optionee or any other
person shall not be diminished or affected by reason of the fact
that the Option has been granted to the Optionee.
8. Changes in the Corporation's Capital Structure. The
existence of the Option shall not affect in any way the right or
power of the Corporation or its stockholders to make or authorize
any or all adjustments, recapitalizations, reorganizations or
other changes in the Corporation's capital structure or its
business, or any merger or consolidation of the Company, or any
issue of bonds, debentures, preferred or prior preference stock
ahead of or affecting Common Stock or the rights thereof, or the
dissolution or liquidation of the Corporation, or any sale or
transfer of all or any part of its assets or business or any
other corporate act or proceeding, whether of a similar character
or otherwise. Except as hereinafter expressly provided, the
issuance by the Corporation of shares of Common Stock of any
class, for cash or property, or for labor or services, either
upon direct sale or upon the exercise of rights or warrants to
subscribe therefor, or upon conversion of shares or obligations
of the Corporation convertible into such shares or other
securities, shall not affect, and no adjustment by reason thereof
shall be made with respect to, the number, class or price of
shares of Common stock then subject to the Option.
7
(a) Capital Readjustments. If the Corporation effects
a subdivision or consolidation of shares or other capital
readjustment, the payment of a stock dividend, or other increase
or reduction of the number of shares of Common Stock outstanding,
without receiving compensation therefor in money, services or
property, the number, class and per share option price of shares
of Common stock subject to the Option hereunder shall be
appropriately adjusted in such a manner as to entitle the
Optionee to receive upon exercise of the Option, for the same
aggregate cash consideration, the same total number and class of
shares of the Optionee would have received had the Optionee
exercised the Option in full immediately prior to the event
requiring the adjustment.
(b) Mergers, Etc. If (i) the Corporation is a party
to a merger, consolidation or similar transaction (whether or not
the Corporation is the surviving corporation), or the Corporation
is liquidated, or the Corporation sells or otherwise disposes of
substantially all its assets, and (ii) in such transaction the
holders of Common Stock exchange their Common Stock for shares of
stock or for other securities (the "Transaction Securities") of
the Corporation or another corporation, receive additional Common
Stock or other securities, or surrender a portion of their Common
Stock, then:
(l) Except as provided in Paragraph 8(b)(2)
hereof, the Optionee shall be entitled, in lieu of the Option, to
8
an Option or Options to purchase Transaction Securities in an
amount (if any) equal to the Transaction Securities that the
Optionee would have received if the Optionee had exercised the
Option in full and held the shares of Common Stock to which the
Option related at the time of such transaction. The Option price
per share or other unit of such Transaction Securities shall be
determined by dividing the Option price per share of Common Stock
subject to the Option by the number of shares or other units (or
the fraction of a share or other unit) of Transaction Securities
into which each share of Common Stock is converted or for which
Common Stock is exchanged in such transaction.
(2) Notwithstanding any other provision hereof,
the Board of Directors of the Corporation may cancel the Option
as of the effective date of any transaction described in clause
(i) of this Paragraph 8(b); provided that (A) notice of such
cancellation shall have been given to the Optionee at least
thirty (30) days before the effective date of such transaction,
and (b) the Optionee shall have the right to exercise the Option
in full during the thirty (30) day period immediately preceding
the effective date of such transaction.
9. Withholding and Reporting. The Corporation's
obligation to deliver shares of Common Stock or to make any
payment upon the exercise of the Option shall be subject to
applicable federal, state and local tax withholding and reporting
requirements.
9
10. Interpretation of Agreement; Governing Law. The Option
granted pursuant hereto is not intended to be an "incentive stock
option" within the meaning of the Internal Revenue Code of 1986,
as amended. This Agreement shall be construed and enforced in
accordance with, and governed by, the laws of the State of New
York.
EXCALIBUR TECHNOLOGIES CORPORATION
By: ________________________________
Richard H. Duddy
President
________________________________
Optionee hereby accepts and
agrees to be bound by all the
terms and conditions hereof.
________________________________
Richard M. Crooks
10
EXHIBIT A
OPTION EXERCISE FORM
1. Name of Optionee Richard M. Crooks
2. Address ______________________________
______________________________
______________________________
3. Date Option was
granted June 28, 1990
4. Number of shares as to
which Option was
originally granted 50,000
5. Number of shares as to
which Optionee is eligible
to exercise option 50,000
6. Exercise price ______________________________
7. Number of shares as
to which Optionee is
exercising Option (may
not exceed #5) ______________________________
8. Aggregate Option Exercise
Price (Multiply #6 x #7) a
check equal to this amount
drawn to the order of
Excalibur Technologies
Corporation must
accompany this form ______________________________
Optionee hereby accepts and agrees to be bound by all the terms
and conditions hereof:
__________________________________ Date: _______________
Signature of Optionee
Accepted:
EXCALIBUR TECHNOLOGIES CORPORATION
By:_______________________________ Date: ________________
President
11
FORM OF
EXCALIBUR TECHNOLOGIES CORPORATION
INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT, made and entered into as of October 23, 1992
(the "Date of Grant") between EXCALIBUR TECHNOLOGIES CORPORATION,
a Delaware corporation (the "Corporation"), and Douglas Johnson
(the "Optionee").
W I T N E S S E T H :
WHEREAS, the Board of Directors and Shareholders of the
Corporation have duly adopted a Stock Option Plan under which
incentive stock options may be granted (the "Plan"), a copy of
which is attached; and
WHEREAS, the Board of Directors of the Corporation is of the
opinion that the interests of the Corporation will be advanced by
granting an incentive to the employees of the Corporation to
acquire stock ownership in the Corporation, to take a greater
personal interest in the success of the Corporation and to
advance in their employment; and
WHEREAS, under the terms and conditions of this Agreement,
the Corporation hereby grants to the Optionee an option (the
"Option") to purchase 30,000 shares of Common Stock, par value
$.01 ("Common Stock"), at an exercise price of $9.54 per share,
subject to adjustment as provided in Paragraph 8 hereof (the
"Exercise Price").
NOW, THEREFORE, the Corporation and the Optionee agree as
follows:
1. Term. The term of the Option shall commence on October
23, 1992, and shall terminate at 5:00 P.M., E.S.T., on October
23, 1997. Except as provided in Paragraph 4 hereof, this Option
shall be exercisable as to 30,000 shares upon and after the Date
of Grant.
2. Exercise. The Option may be exercised in whole or in
part. The method for exercise described in this Paragraph shall
be the sole method of such exercise. The Optionee may exercise
the Option by delivery to the Corporation of written notice in
the form attached as Exhibit A providing: (i) the name of the
Optionee; (ii) the address to which Common Stock certificates are
to be mailed; (iii) an identification of the Option being
exercised by reference to the date first written above; and (iv)
the number of shares of Common Stock subject to such Option.
Such notice shall be accompanied by a certified check payable to
the Corporation in the amount equal to the product of the
Exercise Price times the number of shares with respect to which
the Option is being exercised, and shall be delivered in person
or shall be sent by registered mail, return receipt requested, to
the President of the Corporation. The Option shall be considered
exercised on the date the notice and payment are delivered to the
President of the Corporation or deposited in the mail, as the
case may be. As promptly as practicable after receipt of such
notice and payment, the Corporation shall deliver to the Optionee
a certificate or certificates for the number of shares of Common
Stock for which the Option has been so exercised, issued in the
Optionee's name. Such delivery shall be deemed to have been made
for all purposes when a stock transfer agent of the Corporation
shall have deposited such certificate or certificates in the
United States mail, addressed to the Optionee, at the address
specified in the notice.
3. Transferability of Options. The Option shall not be
transferable by the Optionee otherwise than by will or under the
laws of descent and distribution. The Option shall be
exercisable during the lifetime of the Optionee only by the
Optionee, the Optionee's guardian or the Optionee's legal
representative.
4. Death of Optionee. If the Optionee dies, this Option
may thereafter be exercised to the extent exercisable at the time
of death or on such accelerated basis as the Corporation may
determine after grant (or as may be determined in accordance with
procedures established by the Corporation), by the legal
representative of the estate or by the legatee of the Optionee
under the will of the Optionee, for a period of one year from the
date of such death or until the expiration of the stated term of
this Option, whichever period is shorter.
5. Requirements of Law. The Corporation shall not be
required to sell or issue Common Stock under the Option if the
issuance of such Common Stock would constitute a violation by the
Optionee or the Corporation of any provisions of any state or
federal law, rule or regulation. In addition, in connection with
the Securities Act of 1933 (as now in effect or amended in the
future), upon exercise of the Option, the Corporation shall not
be required to issue such Common Stock unless the Corporation has
received evidence satisfactory to it that the Optionee will not
transfer such shares except pursuant to a registration statement
in effect under such Act, or unless an opinion of counsel to the
Corporation has been received by the Corporation to the effect
that such registration is not required. Any determination in
this connection by the Corporation shall be final, binding and
conclusive. In the event the shares issuable upon exercise of
the Option are not registered under the Securities Act of 1933,
the Corporation may imprint the following legend or any other
legend which counsel for the Corporation considers necessary or
advisable to comply with the Securities Act of 1933:
"The shares of stock represented by this
certificate have not been registered under the
Securities Act of 1933 or under the securities laws of
any state and may not be sold or transferred except
upon such registration or upon receipt by the
Corporation of an opinion of counsel satisfactory to
the Corporation, in form and substance satisfactory to
the Corporation, that registration is not required for
such sale or transfer."
The Corporation may, but shall in no event be obligated to,
register any securities covered under this Agreement pursuant to
the Securities Act of 1933 (as now in effect or as amended in the
future); and in the event any shares are so registered, the
Corporation may remove any legend on certificates representing
such shares. The Corporation shall not be obligated to take any
other affirmative action in order to cause the exercise of the
Option or the issuance of shares under such exercise to comply
with any state or federal law, rule or regulation.
6. No Rights as Stockholder. The Optionee shall have no
rights as a stockholder with respect to Common Stock covered by
the Option until the date of issuance to the Optionee of a stock
certificate for such Common Stock; and, except as otherwise
provided in Paragraph 9 of this Agreement, no adjustment for
dividends or otherwise shall be made if the record date of any
dividends or otherwise is prior to the date of issuance of such
certificate.
7. Employment Obligation. The granting of the Option shall
not impose upon the Corporation any obligation to employ or
become affiliated with or continue to employ or be affiliated
with the Optionee. The right of the Corporation to terminate the
employment of or its affiliation with the Optionee or any other
person shall not be diminished or affected by reason of the fact
that the Option has been granted to the Optionee.
8. Changes in the Corporation's Capital Structure. The
existence of the Option shall not affect in any way the right or
power of the Corporation or its stockholders to make or authorize
any or all adjustments, recapitalizations, reorganizations or
other changes in the Corporation's capital structure or its
business, or any merger or consolidation of the Company, or any
issue of bonds, debentures, preferred or prior preference stock
ahead of or affecting Common Stock or the rights of Common Stock
shareholders, or the dissolution or liquidation of the
Corporation, or any sale or transfer of all or any part of its
assets or business or any other corporate act or proceeding,
whether of a similar character or otherwise. Except as expressly
provided in this Agreement, the issuance by the Corporation of
shares of Common Stock of any class, for cash or property, or for
labor or services, either upon direct sale or upon the exercise
of rights or warrants to subscribe for shares of Common Stock, or
upon conversion of shares or obligations of the Corporation
convertible into such shares or other securities, shall not
affect, and no adjustment for any reason shall be made with
respect to, the number, class or price of shares of Common Stock
then subject to the Option.
(a) Capital Readjustments. If the Corporation effects
a subdivision or consolidation of shares or other capital
readjustment, the payment of a stock dividend, or other increase
or reduction of the number of shares of Common Stock outstanding,
without receiving compensation therefor in money, services or
property, the number, class and per share option price of shares
of Common Stock subject to the Option hereunder shall be
appropriately adjusted in such a manner as to entitle the
Optionee to receive upon exercise of the Option, for the same
aggregate cash consideration, the same total number and class of
shares of the Optionee would have received had the Optionee
exercised the Option in full immediately propr to the event
requiring the adjustment.
(b) Mergers, Etc. If (i) the Corporation is a party
to a merger, consolidation or similar transaction (whether or not
the Corporation is the surviving corporation), or the Corporation
is liquidated, or the Corporation sells or otherwise disposes of
substantially all its assets, and (ii) in such transaction the
holders of Common Stock exchange their Common Stock for shares of
stock or for other securities (the "Transaction Securities") of
the Corporation or another corporation, receive additional Common
Stock or other securities, or surrender a portion of their Common
Stock, then:
(1) Except as provided in Paragraph 8(b)(2) of
this Agreement, the Optionee shall be entitled, in lieu of the
Option, to an Option or Options to purchase Transaction
Securities in an amount (if any) equal to the Transaction
Securities that the Optionee would have received if the Optionee
had exercised the Option in full and held the shares of Common
Stock to which the Option related at the time of such
transaction. The Option price per share or other unit of such
Transaction Securities shall be determined by dividing the Option
price per share of Common Stock subject to the Option by the
number of shares or other units (or the fraction of a share or
other unit) of Transaction Securities into which each share of
Common Stock is converted or for which Common Stock is exchanged
in such transaction.
(2) Notwithstanding any other provision in this
Agreement, the Board of Directors of the Corporation may cancel
the Option as of the effective date of any transaction described
in clause (i) of this Paragraph 8(b); provided that (a) notice of
such cancellation shall have been given to the Optionee at least
thirty (30) days before the effective date of such transaction,
and (b) the Optionee shall have the right to exercise the Option
in full during the thirty (30) day period immediately preceding
the effective date of such transaction.
9. Withholding and Reporting. The Corporation's
obligation to deliver shares of Common Stock or to make any
payment upon the exercise of the Option shall be subject to
applicable federal, state and local tax withholding and reporting
requirements.
11. Interpretation of Agreement; Governing Law. The Option
granted pursuant hereto is not intended to be an "qualified stock
option" within the meaning of the Internal Revenue Code of 1986,
as amended. This Agreement shall be construed and enforced in
accordance with, and governed by, the laws of the State of New
York.
EXCALIBUR TECHNOLOGIES CORPORATION
By:_______________________________
David Lambert
Chief Financial Officer, Secretary
and Treasurer
__________________________________
Optionee hereby accepts and agrees
to be bound by all the terms and
conditions hereof.
__________________________________
Douglas Johnson
EXHIBIT A
OPTION EXERCISE FORM
1. Name of Optionee Douglas Johnson
2. Address
3. Date Option was
granted October 23, 1992
4. Number of shares as to
which Option was
originally granted 30,000
5. Number of shares as to
which Optionee is eligible
to exercise option
6. Exercise price 9.54
7. Number of shares as
to which Optionee is
exercising Option
(may not exceed #5)
8. Aggregate Option Exercise
Price (Multiply #6 x #7) a
check equal to this amount
drawn to the order of
Excalibur Technologies
Corporation must
accompany this form
Optionee accepts and agrees to be bound by all the terms and
conditions of the Incentive Stock Option Agreement and the Stock
Option Plan:
_________ Date:
Signature of Optionee
Accepted:
EXCALIBUR TECHNOLOGIES CORPORATION
By: ________ Date:
President
FORM OF
EXCALIBUR TECHNOLOGIES CORPORATION
INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT, made and entered into as of May 2, 1994 (the "Date of
Grant") between EXCALIBUR TECHNOLOGIES CORPORATION, a Delaware corporation
(the "Corporation"), and Karl Minor (the "Optionee").
W I T N E S S E T H :
WHEREAS, the Board of Directors and Shareholders of the Corporation
have duly adopted a Stock Option Plan under which incentive stock options
may be granted (the "Plan"), a copy of which is attached; and
WHEREAS, under the terms and conditions of this Agreement, the
Corporation grants to the Optionee an option (the "Option") to purchase
43,050 shares of Common Stock, par value $.01 ("Common Stock"), at an
exercise price of $10.88 per share, subject to adjustment as provided in
Paragraph 7 of this Agreement (the "Exercise Price");
NOW, THEREFORE, the Corporation and the Optionee agree as follows:
1. Term. The term of the Option shall commence on May 2, 1994, and
shall terminate at 5:00 P.M., E.S.T., on May 2, 1999. This Option shall be
exercisable according to the vesting schedule below:
Date Vested Total # Qualified # Non-Qualified
as of # Shares Shares Shares
----------- -------- ------------ ---------------
05/02/94 43,050 43,050
The designation of all or part of this option as a "qualified option" is in
accordance with the Internal Revenue Code and the rules and regulation
issued under the Code by the Internal Revenue Service. This designation is
subject to changes in the Code or rules and regulations.
2. Exercise. The Option may be exercised in whole or in part. The
method for exercise described in this Paragraph shall be the sole method of
such exercise. The Optionee may exercise the Option by delivery to the
Corporation of written notice in the form attached as Exhibit A providing:
(i) the name of the Optionee; (ii) the address to which Common Stock
certificates are to be mailed; (iii) an identification of the Option being
exercised by reference to the date first written above; and (iv) the number
of shares of Common Stock subject to such Option. Such notice shall be
accompanied by a certified check payable to the Corporation in the amount
equal to the product of the Exercise Price times the number of shares with
respect to which the Option is being exercised, and shall be delivered in
person or shall be sent by registered mail, return receipt requested, to
the President of the Corporation. The Option shall be considered exercised
on the date the notice and payment are delivered to the President of the
Corporation or deposited in the mail, as the case may be. As promptly as
practicable after receipt of such notice and payment, the Corporation shall
deliver to the Optionee a certificate or certificates for the number of
shares of Common Stock for which the Option has been so exercised, issued
in the Optionee's name. Such delivery shall be deemed to have been made
for all purposes when a stock transfer agent of the Corporation shall have
deposited such certificate or certificates in the United States mail,
addressed to the Optionee, at the address specified in the notice.
3. Transferability of Options. The Option shall not be transferable
by the Optionee otherwise than by will or under the laws of descent and
distribution. The Option shall be exercisable during the lifetime of the
Optionee only by the Optionee, the Optionee's guardian or the Optionee's
legal representative.
4. Requirements of Law. The Corporation shall not be required to
sell or issue Common Stock under the Option if the issuance of such Common
Stock would constitute a violation by the Optionee or the Corporation of
any provisions of any state or federal law, rule or regulation. In
addition, in connection with the Securities Act of 1933 (as now in effect
or amended in the future), upon exercise of the Option, the Corporation
shall not be required to issue such Common Stock unless the Corporation has
received evidence satisfactory to it that the Optionee will not transfer
such shares except pursuant to a registration statement in effect under
such Act, or unless an opinion of counsel to the Corporation has been
received by the Corporation to the effect that such registration is not
required. Any determination in this connection by the Corporation shall be
final, binding and conclusive. In the event the shares issuable upon
exercise of the Option are not registered under the Securities Act of 1933,
the Corporation may imprint the following legend or any other legend which
counsel for the Corporation considers necessary or advisable to comply with
the Securities Act of 1933:
"The shares of stock represented by this certificate have
not been registered under the Securities Act of 1933 or under the
securities laws of any state and may not be sold or transferred
except upon such registration or upon receipt by the Corporation
of an opinion of counsel satisfactory to the Corporation, in form
and substance satisfactory to the Corporation, that registration
is not required for such sale or transfer."
The Corporation may, but shall in no event be obligated to, register any
securities covered under this Agreement pursuant to the Securities Act of
1933 (as now in effect or as amended in the future); and in the event any
shares are so registered, the Corporation may remove any legend on
certificates representing such shares. The Corporation shall not be
obligated to take any other affirmative action in order to cause the
exercise of the Option or the issuance of shares under such exercise to
comply with any state or federal law, rule or regulation.
5. No Rights as Stockholder. The Optionee shall have no rights as a
stockholder with respect to Common Stock covered by the Option until the
date of issuance to the Optionee of a stock certificate for such Common
Stock; and, except as otherwise provided in Paragraph 9 of this Agreement,
no adjustment for dividends or otherwise shall be made if the record date
of any dividends or otherwise is prior to the date of issuance of such
certificate.
6. Employment Obligation. The granting of the Option shall not
impose upon the Corporation any obligation to employ or become affiliated
with or continue to employ or be affiliated with the Optionee. The right
of the Corporation to terminate the employment of or its affiliation with
the Optionee or any other person shall not be diminished or affected by
reason of the fact that the Option has been granted to the Optionee.
7. Changes in the Corporation's Capital Structure. The existence of
the Option shall not affect in any way the right or power of the
Corporation or its stockholders to make or authorize any or all
adjustments, recapitalizations, reorganizations or other changes in the
Corporation's capital structure or its business, or any merger or
consolidation of the Company, or any issue of bonds, debentures, preferred
or prior preference stock ahead of or affecting Common Stock or the rights
of Common Stock shareholders, or the dissolution or liquidation of the
Corporation, or any sale or transfer of all or any part of its assets or
business or any other corporate act or proceeding, whether of a similar
character or otherwise. Except as expressly provided in this Agreement,
the issuance by the Corporation of shares of Common Stock of any class, for
cash or property, or for labor or services, either upon direct sale or upon
the exercise of rights or warrants to subscribe for shares of Common Stock,
or upon conversion of shares or obligations of the Corporation convertible
into such shares or other securities, shall not affect, and no adjustment
for any reason shall be made with respect to, the number, class or price of
shares of Common Stock then subject to the Option.
(a) Capital Readjustments. If the Corporation effects a
subdivision or consolidation of shares or other capital readjustment, the
payment of a stock dividend, or other increase or reduction of the number
of shares of Common Stock outstanding, without receiving compensation for
any such increase or reduction in money, services or property, the number,
class and per share option price of shares of Common Stock subject to the
Option under this Agreement shall be appropriately adjusted in such a
manner as to entitle the Optionee to receive upon exercise of the Option,
for the same aggregate cash consideration, the same total number and class
of shares that the Optionee would have received had the Optionee exercised
the Option in full immediately prior to the event requiring the adjustment.
The Option, after adjustment, shall be subject to the same vesting schedule
as specified in this Agreement.
(b) Mergers, Etc. If (i) the Corporation is a party to a
merger, consolidation or similar transaction (whether or not the
Corporation is the surviving corporation), or the Corporation is
liquidated, or the Corporation sells or otherwise disposes of substantially
all its assets, and (ii) in such transaction the holders of Common Stock
exchange their Common Stock for shares of stock or for other securities
(the "Transaction Securities") of the Corporation or another corporation,
receive additional Common Stock or other securities, or surrender a portion
of their Common Stock, then:
(1) Except as provided in Paragraph 8(b)(2) of this
Agreement, the Optionee shall be entitled, in lieu of the Option, to an
Option or Options to purchase Transaction Securities in an amount (if any)
equal to the Transaction Securities that the Optionee would have received
if the Optionee had exercised the Option in full and held the shares of
Common Stock to which the Option related at the time of such transaction.
The Option price per share or other unit of such Transaction Securities
shall be determined by dividing the Option price per share of Common Stock
subject to the Option by the number of shares or other units (or the
fraction of a share or other unit) of Transaction Securities into which
each share of Common Stock is converted or for which Common Stock is
exchanged in such transaction.
(2) Notwithstanding any other provision in this Agreement,
the Board of Directors of the Corporation may cancel the Option as of the
effective date of any transaction described in clause (i) of this Paragraph
8(b); provided that (a) notice of such cancellation shall have been given
to the Optionee at least thirty (30) days before the effective date of such
transaction, and (b) the Optionee shall have the right to exercise the
Option in full during the thirty (30) day period immediately preceding the
effective date of such transaction.
8. Withholding and Reporting. The Corporation's obligation to
deliver shares of Common Stock or to make any payment upon the exercise of
the Option shall be subject to applicable federal, state and local tax
withholding and reporting requirements.
9. Subject to Plan. This Option is subject to all the terms,
conditions, limitations and restrictions contained in the Plan, which shall
be controlling in the event of any conflicting or inconsistent provisions.
10. Interpretation of Agreement; Governing Law. This Agreement shall
be construed and enforced in accordance with, and governed by, the laws of
the State of New York.
EXCALIBUR TECHNOLOGIES CORPORATION Optionee accepts and agrees to be
bound by all the terms and
conditions hereof
By:
David LambertSignature Optionee
Chief Financial Officer,
Secretary and Treasurer
EXHIBIT A
OPTION EXERCISE FORM
1. Name of Optionee Karl Minor
2. Address
3. Date Option was
granted 5/2/94
4. Number of shares as to
which Option was
originally granted 43,050
5. Number of shares as to
which Optionee is eligible
to exercise option
6. Exercise price 10.88
7. Number of shares as
to which Optionee is
exercising Option
(may not exceed #5)
8. Aggregate Option Exercise
Price (Multiply #6 x #7) a
check equal to this amount
drawn to the order of
Excalibur Technologies
Corporation must
accompany this form
Optionee accepts and agrees to be bound by all the terms and conditions of
the Incentive Stock Option Agreement and the Stock Option Plan:
Date:
Signature of Optionee
Accepted:
EXCALIBUR TECHNOLOGIES CORPORATION
By: Date:
Title: ______________________________
FORM OF
EXCALIBUR TECHNOLOGIES CORPORATION
INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT, made and entered into as of March 17, 1989
(the "Date of Grant") between EXCALIBUR TECHNOLOGIES
CORPORATION, a New Mexico corporation (the "Corporation"), and
James W. Dowe III (the "Optionee").
W I T N E S S E T H :
WHEREAS, under the terms and conditions hereinafter
stated, the Corporation hereby grants to the Optionee an
option (the "Option") to purchase 120,000 shares of Common
Stock, par value $.01 ("Common Stock"), at an exercise price
of $8.125 per share, subject to adjustment as provided in
Paragraph 8 of this Agreement (the "Exercise Price");
NOW, THEREFORE, the Corporation and the Optionee agree as
follows:
1. Term. The term of the Option shall commence on March
17, 1989, and shall terminate at 5:00 P.M., E.S.T., on March
17, 1999. Except as provided in Paragraph 4 hereof, this
Option shall be exercisable in full upon and after May 17,
1990.
2. Exercise. The Option may be exercised in whole or in
part. The method for exercise described in this Paragraph
shall be the sole method of such exercise. The Optionee may
exercise the Option by delivery to the Corporation of written
notice in the form attached as Exhibit A providing: (i) the
name of the Optionee; (ii) the address to which Common Stock
certificates are to be mailed; (iii) an identification of the
Option being exercised by reference to the date first written
above; and (iv) the number of shares of Common Stock subject
to such Option. Such notice shall be accompanied by a
certified check payable to the Corporation in the amount equal
to the product of the Exercise Price times the number of
shares with respect to which the Option is being exercised,
and shall be delivered in person or shall be sent by
registered mail, return receipt requested, to the President of
the Corporation. The Option shall be considered exercised on
the date the notice and payment are delivered to the President
of the Corporation or deposited in the mail, as the case may
be. As promptly as practicable after receipt of such notice
and payment, the Corporation shall deliver to the Optionee a
certificate or certificates for the number of shares of Common
Stock for which the Option has been so exercised, issued in
the Optionee's name. Such delivery shall be deemed to have
been made for all purposes when a stock transfer agent of the
Corporation shall have deposited such certificate or
certificates in the United States mail, addressed to the
Optionee, at the address specified in the notice.
3. Transferability of Options. The Option shall not be
transferable by the Optionee otherwise than by will or under
the laws of descent and distribution. The Option shall be
exercisable during the lifetime of the Optionee only by the
Optionee, the Optionee's guardian or the Optionee's legal
representative.
4. Termination. (a) Termination by Death. If the
Optionee's employment by the Corporation terminates by reason
of death, this Option may then be exercised to the extent
exercisable at the time of death or on such accelerated basis
as the Corporation may determine after grant (or as may be
determined in accordance with procedures established by the
Corporation), by the legal representative of the estate or by
the legatee of the Optionee under the will of the Optionee,
for a period of one year from the date of such death or until
the expiration of the stated term of this Option, whichever
period is shorter.
(b) Termination by Reason of Disability. If the
Optionee's employment by the Corporation terminates by reason
of disability as determined by the Corporation ("Disability"),
this Option may then be exercised by the Optionee, to the
extent it was exercisable at the time of termination or on
such accelerated basis as the Corporation may determine after
grant (or as may be determined in accordance with procedures
established by the Corporation), for a period of one year from
the date of such termination of employment or until the
expiration of the stated term of this Option, whichever period
is shorter, provided that, if the Optionee dies within such
one-year period, any unexercised part of the Option held by
the Optionee shall then be exercisable to the extent to which
it was exercisable at the time of death for a period of one
year from the date of such death or until the expiration of
the stated term of this Option, whichever period is shorter.
(c) Other Termination. Unless otherwise determined
by the Corporation (or under procedures established by the
Corporation) after grant, if the Optionee's employment by the
Corporation terminates for any reason other than death or
Disability, this Option shall terminate upon such termination
of employment, except that this Option may be exercised, to
the extent otherwise then exercisable, for the lesser of three
months or the balance of this Option's term if the Optionee is
involuntarily terminated by the Corporation without cause.
For purposes of this Agreement, "Cause" means a felony
conviction of the Optionee or the failure of the Optionee to
contest prosecution for a felony, or the Optionee's willful
misconduct or dishonesty, any of which is directly and
materially harmful to the business or reputation of the
Corporation. Notwithstanding any other provision in this
Agreement to the contrary, in the event that the Optionee's
employment by the Corporation terminates prior to six months
after the Date of Grant, for any reason, the Option shall
immediately terminate and shall not be exercisable.
5. Requirements of Law. The Corporation shall not be
required to sell or issue Common Stock under the Option if the
issuance of such Common Stock would constitute a violation by
the Optionee or the Corporation of any provisions of any state
or federal law, rule or regulation. In addition, in
connection with the Securities Act of 1933 (as now in effect
or amended in the future), upon exercise of the Option, the
Corporation shall not be required to issue such Common Stock
unless the Corporation has received evidence satisfactory to
it that the Optionee will not transfer such shares except
pursuant to a registration statement in effect under such Act,
or unless an opinion of counsel to the Corporation has been
received by the Corporation to the effect that such
registration is not required. Any determination in this
connection by the Corporation shall be final, binding and
conclusive. In the event the shares issuable upon exercise of
the Option are not registered under the Securities Act of
1933, the Corporation may imprint the following legend or any
other legend which counsel for the Corporation considers
necessary or advisable to comply with the Securities Act of
1933:
"The shares of stock represented by this
certificate have not been registered under the
Securities Act of 1933 or under the securities laws
of any state and may not be sold or transferred
except upon such registration or upon receipt by the
Corporation of an opinion of counsel satisfactory to
the Corporation, in form and substance satisfactory
to the Corporation, that registration is not
required for such sale or transfer."
The Corporation may, but shall in no event be obligated to,
register any securities covered under this Agreement pursuant
to the Securities Act of 1933 (as now in effect or as amended
in the future); and in the event any shares are so registered,
the Corporation may remove any legend on certificates
representing such shares. The Corporation shall not be
obligated to take any other affirmative action in order to
cause the exercise of the Option or the issuance of shares
under such exercise to comply with any state or federal law,
rule or regulation.
6. No Rights as Stockholder. The Optionee shall have no
rights as a stockholder with respect to Common Stock covered
by the Option until the date of issuance to the Optionee of a
stock certificate for such Common Stock; and, except as
otherwise provided in Paragraph 9 of this Agreement, no
adjustment for dividends or otherwise shall be made if the
record date of any dividends or otherwise is prior to the date
of issuance of such certificate.
7. Employment Obligation. The granting of the Option
shall not impose upon the Corporation any obligation to employ
or become affiliated with or continue to employ or be
affiliated with the Optionee. The right of the Corporation to
terminate the employment of or its affiliation with the
Optionee or any other person shall not be diminished or
affected by reason of the fact that the Option has been
granted to the Optionee.
8. Changes in the Corporation's Capital Structure. The
existence of the Option shall not affect in any way the right
or power of the Corporation or its stockholders to make or
authorize any or all adjustments, recapitalizations,
reorganizations or other changes in the Corporation's capital
structure or its business, or any merger or consolidation of
the Company, or any issue of bonds, debentures, preferred or
prior preference stock ahead of or affecting Common Stock or
the rights of Common Stock shareholders, or the dissolution or
liquidation of the Corporation, or any sale or transfer of all
or any part of its assets or business or any other corporate
act or proceeding, whether of a similar character or
otherwise. Except as expressly provided in this Agreement,
the issuance by the Corporation of shares of Common Stock of
any class, for cash or property, or for labor or services,
either upon direct sale or upon the exercise of rights or
warrants to subscribe for shares of Common Stock, or upon
conversion of shares or obligations of the Corporation
convertible into such shares or other securities, shall not
affect, and no adjustment for any reason shall be made with
respect to, the number, class or price of shares of Common
Stock then subject to the Option.
(a) Capital Readjustments. If the Corporation
effects a subdivision or consolidation of shares or other
capital readjustment, the payment of a stock dividend, or
other increase or reduction of the number of shares of Common
Stock outstanding, without receiving compensation for any such
increase or reduction in money, services or property, the
number, class and per share option price of shares of Common
Stock subject to the Option under this Agreement shall be
appropriately adjusted in such a manner as to entitle the
Optionee to receive upon exercise of the Option, for the same
aggregate cash consideration, the same total number and class
of shares that the Optionee would have received had the
Optionee exercised the Option in full immediately prior to the
event requiring the adjustment. The Option, after adjustment,
shall be subject to the same vesting schedule as specified in
this Agreement.
(b) Mergers, Etc. If (i) the Corporation is a party
to a merger, consolidation or similar transaction (whether or
not the Corporation is the surviving corporation), or the
Corporation is liquidated, or the Corporation sells or
otherwise disposes of substantially all its assets, and (ii)
in such transaction the holders of Common Stock exchange their
Common Stock for shares of stock or for other securities (the
"Transaction Securities") of the Corporation or another
corporation, receive additional Common Stock or other
securities, or surrender a portion of their Common Stock,
then:
(1) Except as provided in Paragraph 8(b)(2) of
this Agreement, the Optionee shall be entitled, in lieu of the
Option, to an Option or Options to purchase Transaction
Securities in an amount (if any) equal to the Transaction
Securities that the Optionee would have received if the
Optionee had exercised the Option in full and held the shares
of Common Stock to which the Option related at the time of
such transaction. The Option price per share or other unit of
such Transaction Securities shall be determined by dividing
the Option price per share of Common Stock subject to the
Option by the number of shares or other units (or the fraction
of a share or other unit) of Transaction Securities into
which each share of Common Stock is converted or for which
Common Stock is exchanged in such transaction.
(2) Notwithstanding any other provision in this
Agreement, the Board of Directors of the Corporation may
cancel the Option as of the effective date of any transaction
described in clause (i) of this Paragraph 8(b); provided that
(a) notice of such cancellation shall have been given to the
Optionee at least thirty (30) days before the effective date
of such transaction, and (b) the Optionee shall have the right
to exercise the Option in full during the thirty (30) day
period immediately preceding the effective date of such
transaction.
9. Withholding and Reporting. The Corporation's
obligation to deliver shares of Common Stock or to make any
payment upon the exercise of the Option shall be subject to
applicable federal, state and local tax withholding and
reporting requirements.
10. Interpretation of Agreement; Governing Law. The
Option granted pursuant hereto is not intended to be an
"incentive stock option" within the meaning of the Internal
Revenue Code of 1986, as amended. This Agreement shall be
construed and enforced in accordance with, and governed by,
the laws of the State of New York.
EXCALIBUR TECHNOLOGIES CORPORATION
By:_____________________________________
Richard H. Duddy
President
Exhibit A
FORM OF NOTICE
(to be signed only upon exercise of Option)
To: EXCALIBUR TECHNOLOGIES CORPORATION
The undersigned, the holder of the Option represented by the
Stock Option Agreement dated ______________, hereby irrevocably
elects to exercise the purchase right represented by such Option
for, and to purchase thereunder, * shares of Common Stock
of Excalibur Technologies Corporation, as provided for therein, and
herewith makes payment of $_________ therefor, together with all
applicable transfer taxes, if any, and requests that the
certificates for such shares be issued in the name of, and
delivered to:
______________________________
Name
______________________________
Address
______________________________
City, State, Zip Code
______________________________
Taxpayer Identification Number
______________________________
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of the
Option.)
______________________________
Dated
* Insert here the number of shares called for on the face of the
Option (or, in the case of a partial exercise, the portion thereof
as to which the Option is being exercised).
- -----------------------------------------------------------------------------
FORM OF
EXCALIBUR TECHNOLOGIES CORPORATION
STOCK OPTION AGREEMENT
THIS AGREEMENT, made and entered into as of July 1, 1990,
(the "Date of Grant") between EXCALIBUR TECHNOLOGIES CORPORATION,
a Delaware corporation (the "Corporation"), and James W. Dowe III
(the "Optionee").
W I T N E S S E T H :
- - - - - - - - - - -
WHEREAS, under the terms and conditions hereinafter stated,
the Corporation hereby grants to the Optionee an option (the
"Option") to purchase 50,000 shares of Common Stock $.01 par
value per share ("Common Stock"), at an exercise price of $15.95
per share, subject to adjustment as provided in Paragraph 8
hereof (the "Exercise Price").
NOW, THEREFORE, the Corporation and the Optionee agree as
follows:
1. Term. The term of the Option shall commence on
July 1, 1990, and shall terminate at 5:00 P.M., E.S.T., on
July 1, 2000. Except as provided in Paragraph 4 hereof, this
Option shall be exercisable as to 50,000 shares on July 1, 1991.
2. Exercise. The Option may be exercised in whole or in part.
The method for exercise described in this Paragraph shall be the
sole method of such exercise. The Optionee may exercise the
Option by delivery to the Corporation of written notice in the
form attached as Exhibit A providing: (i) the name of the
Optionee; (ii) the address to which Common Stock certificates are
1
to be mailed; (iii) an identification of the Option being
exercised by reference to the date first written above; and (iv)
the number of shares of Common Stock subject to such Option.
Such notice shall be accompanied by a certified check payable to
the Corporation in the amount of the product of the Exercise
Price times the number of shares with respect to which the Option
is being executed, and shall be delivered in person or shall be
sent by registered mail, return receipt requested, to the
President of the Corporation. The Option shall be considered
exercised on the date the notice and payment are delivered to the
President of the Corporation or deposited in the mail, as the
case may be. As promptly as practicable after receipt of such
notice and payment, the Corporation shall deliver to the Optionee
a certificate or certificates for the number of shares of Common
Stock with respect to which the Option has been so executed,
issued in the Optionee's name. Such delivery shall be deemed
effected for all purposes when a stock transfer agent of the
Corporation shall have deposited such certificate or certificates
in the United States mail, addressed to the Optionee, at the
address specified in the notice.
2
3. Transferability of Options. The Option shall not be
transferable by the Optionee otherwise than by will or under the
laws of descent and distribution. The Option shall be
exercisable during the lifetime of the Optionee only by the
Optionee, the Optionee's guardian or the Optionee's legal
representative.
4. Termination. (a) Termination by Death. If the
Optionee's employment by the Corporation terminates by reason of
death, this Option may thereafter be exercised to the extent
exercisable at the time of death or on such accelerated basis as
the Corporation may determine after grant (or as may be
determined in accordance with procedures established by the
Corporation), by the legal representative of the estate or by the
legatee of the Optionee under the will of the Optionee, for a
period of one year from the date of such death or until the
expiration of the stated term of this Option, whichever period is
shorter.
(b) Termination by Reason of Disability. If the
Optionee's employment by the Corporation terminates by reason of
disability as determined by the Corporation ("Disability"), this
Option may thereafter be exercised by the Optionee, to the extent
it was exercisable at the time of termination or on such
accelerated basis as the Corporation may determine after grant
(or as may be determined in accordance with procedures
established by the Corporation), for a period of one year from
3
the date of such termination of employment or until the
expiration of the stated term of this Option, whichever period is
the shorter, provided, however, that, if the Optionee dies within
such one-year period, any unexercised part of the Option held by
the Optionee shall thereafter be exercisable to the extent to
which it was exercisable at the time of death for a period of one
year from the date of such death or until the expiration of the
stated term of this Option, whichever period is the shorter.
(c) Other Termination. Unless otherwise determined by
the Corporation (or pursuant to procedures established by the
Corporation) after grant, if the Optionee's employment by the
Corporation terminates for any reason other than death or
Disability, this Option shall thereupon terminate, except that
this Option may be exercised, to the extent otherwise then
exercisable, for the lesser of three months or the balance of
this Option's term if the Optionee is involuntarily terminated by
the Corporation without cause. For purposes of this Agreement,
"Cause" means a felony conviction of the Optionee or the failure
of the Optionee to contest prosecution for a felony, or the
Optionee's willful misconduct or dishonesty, any of which is
directly and materially harmful to the business or reputation of
the Corporation. Notwithstanding anything herein to the
contrary, in the event that the Optionee's employment by the
Corporation terminates prior to six months after the Date of
Grant, the Option shall immediately terminate and shall not be
exercisable.
4
5. Requirements of Law. The Corporation shall not be
required to sell or issue Common Stock under the Option if the
issuance of such Common Stock would constitute a violation by the
Optionee or the Corporation of any provisions of any state or
federal law, rule or regulation. In addition, in connection with
the Securities Act of 1933 (as now in effect or hereafter
amended), upon exercise of the Option, the Corporation shall be
required to issue such Common Stock unless the Corporation has
received evidence satisfactory to it to the effect that the
Optionee will not transfer such shares except pursuant to a
registration statement in effect under such Act, or unless an
opinion of counsel to the Corporation has been received by the
Corporation to the effect that such registration is not required.
Any determination in this connection by the Corporation shall be
final, binding and conclusive. In the event the shares issuable
upon exercise of the Option are not registered under the
Securities Act of 1933, the Corporation may imprint the following
legend or any other legend which counsel for the Corporation
considers necessary or advisable to comply with the Securities
Act of 1933.
"The shares of stock represented by this
certificate have not been registered under the
Securities Act of 1933 or under the securities laws of
any state and may not be sold or transferred except
upon such registration or upon receipt by the
5
Corporation of an opinion of counsel satisfactory to
the Corporation, in form and substance satisfactory to
the Corporation, that registration is not required for
such sale or transfer."
The Corporation may, but shall in no event be obligated to,
register any securities covered hereby pursuant to the Securities
Act of 1933 (as now in effect or as hereafter amended); and in
the event any shares are so registered the Corporation may remove
any legend on certificates representing such shares. The
Corporation shall not be obligated to take any other affirmative
action in order to cause the exercise of the Option or the
issuance of shares pursuant thereto to comply with any state or
federal law, rule or regulation.
6. No Rights as Stockholder. The Optionee shall have no
rights as a stockholder with respect to Common Stock covered by
the Option until the date of issuance to the Optionee of a stock
certificate for such Common Stock; and, except as otherwise
provided in Paragraph 9 hereof, no adjustment for dividends or
otherwise shall be made if the record date thereof is prior to
the date of issuance of such certificate.
7. Employment Obligation. The granting of the Option
shall not impose upon the Corporation any obligation to employ or
become affiliated with or continue to employ or be affiliated
with the Optionee. The right of the Corporation to terminate the
6<PAGE>
employment of or its affiliation with the Optionee or any other
person shall not be diminished or affected by reason of the fact
that the Option has been granted to the Optionee.
8. Changes in the Corporation's Capital Structure. The
existence of the Option shall not affect in any way the right or
power of the Corporation or its stockholders to make or authorize
any or all adjustments, recapitalizations, reorganizations or
other changes in the Corporation's capital structure or its
business, or any merger or consolidation of the Company, or any
issue of bonds, debentures, preferred or prior preference stock
ahead of or affecting Common Stock or the rights thereof, or the
dissolution or liquidation of the Corporation, or any sale or
transfer of all or any part of its assets or business or any
other corporate act or proceeding, whether of a similar character
or otherwise. Except as hereinafter expressly provided, the
issuance by the Corporation of shares of Common Stock of any
class, for cash or property, or for labor or services, either
upon direct sale or upon the exercise of rights or warrants to
subscribe therefor, or upon conversion of shares or obligations
of the Corporation convertible into such shares or other
securities, shall not affect, and no adjustment by reason thereof
shall be made with respect to, the number, class or price of
shares of Common stock then subject to the Option.
(a) Capital Readjustments. If the Corporation effects
a subdivision or consolidation of shares or other capital
readjustment, the payment of a stock dividend, or other increase
7
or reduction of the number of shares of Common Stock outstanding,
without receiving compensation therefor in money, services or
property, the number, class and per share option price of shares
of Common stock subject to the Option hereunder shall be
appropriately adjusted in such a manner as to entitle the
Optionee to receive upon exercise of the Option, for the same
aggregate cash consideration, the same total number and class of
shares of the Optionee would have received had the Optionee
exercised the Option in full immediately prior to the event
requiring the adjustment.
(b) Mergers, Etc. If (i) the Corporation is a party
to a merger, consolidation or similar transaction (whether or not
the Corporation is the surviving corporation), or the Corporation
is liquidated, or the Corporation sells or otherwise disposes of
substantially all its assets, and (ii) in such transaction the
holders of Common Stock exchange their Common Stock for shares of
stock or for other securities (the "Transaction Securities") of
the Corporation or another corporation, receive additional Common
Stock or other securities, or surrender a portion of their Common
Stock, then:
(l) Except as provided in Paragraph 8(b)(2)
hereof, the Optionee shall be entitled, in lieu of the Option, to
an Option or Options to purchase Transaction Securities in an
amount (if any) equal to the Transaction Securities that the
Optionee would have received if the Optionee had exercised the
Option in full and held the shares of Common Stock to which the
8
Option related at the time of such transaction. The Option price
per share or other unit of such Transaction Securities shall be
determined by dividing the Option price per share of Common Stock
subject to the Option by the number of shares or other units (or
the fraction of a share or other unit) of Transaction Securities
into which each share of Common Stock is converted or for which
Common Stock is exchanged in such transaction.
(2) Notwithstanding any other provision hereof,
the Board of Directors of the Corporation may cancel the Option
as of the effective date of any transaction described in clause
(i) of this Paragraph 8(b); provided that (A) notice of such
cancellation shall have been given to the Optionee at least
thirty (30) days before the effective date of such transaction,
and (b) the Optionee shall have the right to exercise the Option
in full during the thirty (30) day period immediately preceding
the effective date of such transaction.
9. Withholding and Reporting. The Corporation's
obligation to deliver shares of Common Stock or to make any
payment upon the exercise of the Option shall be subject to
applicable federal, state and local tax withholding and reporting
requirements.
9
10. Interpretation of Agreement; Governing Law. The Option
granted pursuant hereto is not intended to be an "incentive stock
option" within the meaning of the Internal Revenue Code of 1986,
as amended. This Agreement shall be construed and enforced in
accordance with, and governed by, the laws of the State of New
York.
EXCALIBUR TECHNOLOGIES CORPORATION
By: _________________________________
Richard H. Duddy
President
_________________________________
Optionee hereby accepts and
agrees to be bound by all the
terms and conditions hereof.
_________________________________
James W. Dowe III
10
EXHIBIT A
OPTION EXERCISE FORM
1. Name of Optionee James W. Dowe III________
2. Address _______________________________
_______________________________
_______________________________
3. Date Option was
granted July 1, 1990_____________
4. Number of shares as to
which Option was
originally granted 50,000____________________
5. Number of shares as to
which Optionee is eligible
to exercise option _______________________________
6. Exercise price _______________________________
7. Number of shares as
to which Optionee is
exercising Option (may
not exceed #5) _______________________________
8. Aggregate Option Exercise
Price (Multiply #6 x #7) a
check equal to this amount
drawn to the order of
Excalibur Technologies
Corporation must
accompany this form _______________________________
Optionee hereby accepts and agrees to be bound by all the terms
and conditions hereof:
__________________________________ Date: ________________
Signature of Optionee
Accepted:
EXCALIBUR TECHNOLOGIES CORPORATION
By:_______________________________ Date: _________________
President
11
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement
(Registration Statement File No. 33-89144) of our reports
dated April 14, 1995, included in Excalibur Technologies
Corporation's Form 10-K for the year ended January 31, 1995,
included in this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
San Diego, California
June 5, 1995
