As filed with the Securities and Exchange Commission
on September 21, 1995
Registration No.33-90734
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EXCALIBUR TECHNOLOGIES CORPORATION
[Exact name of issuer as specified in its charter]
Delaware 85-0278207
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
9255 Towne Centre 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)
J.M. Kennedy
Chief Executive Officer
9255 Towne Centre Drive
San Diego, California 92121
619-625-7900
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
<PAGE>
Copies to:
Jay H. Diamond, Esq.
Holtzmann, Wise & Shepard
45th Floor
1271 Avenue of the Americas
New York, New York 10020
(212) 554-8000
Approximate date of commencement of proposed sale to public:
From time to time after the effective date of this
Registration Statement
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [x]
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The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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EXCALIBUR TECHNOLOGIES CORPORATION
Cross-Reference Sheet Pursuant to Rule 404(a)
and Item 501(b) of Regulation S-K
Form S-3 Item Number and Caption Caption in Prospectus
---------------------------- --------------------------------
1. Forepart of the Registration Cover Page
Statement and Outside Front
Cover Page of Prospectus
2 Inside Front and Outside Back Inside Front and Outside Back
Cover Pages of Prospectus Cover Pages of Prospectus;
Available Information
3. Summary Information, Risk Prospectus Summary; The Company;
Factors and Ratio of Earnings Risk Factors
to Fixed Charges
4. Use of Proceeds Use of Proceeds
5. Determination of Offering Price Not Applicable
6. Dilution Dilution
7. Selling Security Holders Selling Shareholder
8. Plan of Distribution Cover Page; Plan of
Distribution; Selling
Shareholder
9. Description of Securities to be Cover Page; Description of
Registered Common Stock
10. Interests of Named Experts and Legal Matters
Counsel
11. Material Changes Not Applicable
12. Incorporation of Certain Incorporation of Certain
Information by Reference Information by Reference
13. Disclosure of Commission Not Applicable
Position on Indemnification
<PAGE>
Subject to Completion, dated September --, 1995
PROSPECTUS
EXCALIBUR TECHNOLOGIES CORPORATION
625,000 SHARES OF COMMON STOCK
This Prospectus relates to 625,000 shares of Common Stock, par value $.01
per share (the "Shares"), of Excalibur Technologies Corporation, a Delaware
corporation (the "Company"), which may be sold from time to time by the entities
listed as Selling Shareholders herein (the "Selling Shareholders"). The Company
will not receive any proceeds from the sale of the Shares by the Selling
Shareholders. See "Plan of Distribution."
The Company will pay all the expenses, estimated to be approximately
$15,000, in connection with this offering, other than underwriting commissions
and discounts and counsel fees and expenses of the Selling Shareholders.
------------------------------------------------
AN INVESTMENT IN THE SECURITIES OFFERED HEREBY INVOLVES A
HIGH DEGREE OF RISK. SEE "RISK FACTORS."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------------------------------
The Company's Common Stock is traded in the over-the-counter market and
included in the NASDAQ National Market System under the symbol EXCA. The last
reported sale price of the Common Stock reported in the NASDAQ National Market
System on September 18, 1995 was $16.50 per share.
The date of this Prospectus is September --, 1995.
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TABLE OF CONTENTS
Page
Available Information....................................... 3
Incorporation of Certain Information by Reference........... 3
The Company................................................. 5
Risk Factors................................................ 6
Plan of Distribution........................................ 9
Use of Proceeds............................................. 10
Dilution.................................................... 10
Selling Shareholder......................................... 11
Description of Capital Stock................................ 12
Legal Matters............................................... 14
------------------------------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS IN CONNECTION WITH
THE OFFERING DESCRIBED HEREIN AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFERING IN ANY JURISDICTION TO ANY
PERSON TO WHOM SUCH OFFER WOULD BE UNLAWFUL OR AN OFFERING OF ANY SECURITIES
OTHER THAN THE REGISTERED SECURITIES TO WHICH IT RELATES. NEITHER THE DELIVERY
OF THIS PROSPECTUS NOR ANY OFFER OR SALE MADE HEREUNDER AT ANY TIME SHALL IMPLY
THAT THE INFORMATION PROVIDED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS
DATE.
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AVAILABLE INFORMATION
This Prospectus does not contain all of the information set forth in the
Registration Statement of which this Prospectus is a part and which is filed
with the Securities and Exchange Commission (the "Commission"). The Company is
subject to the informational requirements of the Securities Exchange Act of 1934
(the "Exchange Act") and, in accordance therewith, files, reports, proxy
statements and other information with the Commission. For further information
with respect to the Company, reference is made to such Registration Statement
and the exhibits thereto, and to such reports, proxy statements and other
information filed with the Commission. Such Registration Statement, reports,
proxy statements and other information can be inspected and copied at the public
reference facilities of the Commission at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the Commission's Regional Offices
located at Room 1400, 75 Park Place, New York, New York 10007 and Suite 1400,
Northwestern Atrium Center, 500 West Madison Street, Chicago, Illinois 60661.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by the Company with the Commission (File
No. 0-9747) are incorporated by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended January 31, 1995.
2. The Company's Quarterly Reports on Form 10-Q for the three months ended
April 30 and July 31, 1995.
3. The Company's Current Reports on Form 8-K filed June 7, July 7 and
August 4, 1995.
4. The Company's report on Form 8-K/A filed September 12, 1995 amending
its Current Report on Form 8-K, filed August 4, 1995.
All documents filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Shares shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the date of filing of
such documents. Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
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Copies of any and all documents that have been incorporated by reference
herein, other than exhibits to such documents, may be obtained upon request
without charge from the Company's Corporate Secretary, Excalibur Technologies
Corporation, 9255 Towne Centre Drive, 9th Floor, San Diego, California 92121,
telephone number (619) 625-7900. Please specify the information desired when
making such request.
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THE COMPANY
The Company is a leader in the development and sale of document imaging
and multimedia information retrieval software, based on adaptive pattern
recognition ("APRP(TM)) technology. This technology, which identifies patterns
in the binary representations of data, permits information storage with
automatic indexing and content-based retrieval, or "fuzzy searching," with
accuracy and speed. Using this technology, the Company has developed a family of
software retrieval products, including libraries, servers and applications,
which index, search and retrieve multimedia data -- text, image, signal and full
motion video. The libraries and servers are suitable to be used by Value Added
Revelers (VARs"), System Integrators ("SIs"), Original Equipment Manufactures
("OEMs") end-user customers, and systems and software companies to index, search
and retrieve multimedia data in software applications and systems. The Company's
principal application software product, an off-the-shelf, commercially available
document imaging and information retrieval system, has been developed using the
Company's text library, and is sold primarily through VARs and relationships
with other software vendors.
The Company markets and distributes its products through VARs, SIs, OEMs,
direct sales, a distribution agreement with Digital, and a marketing agreement
with IBM. As of January 31, 1995, more than 500 customers were using the
Company's document imaging and information retrieval products.
The Company has established a wholly-owned subsidiary in the United
Kingdom, Excalibur Technologies International, Ltd. ("ETIL"), which began
operations in July 1992. Except as otherwise indicate, the term "Company" refers
to Excalibur Technologies Corporation and its subsidiary.
On July 20, 1995 Excalibur acquired all of the outstanding shares of stock
of ConQuest Software, Inc. ("ConQuest"), a private company located in Columbia,
Maryland engaged in the business of providing natural language text management
software tools. Excalibur issued approximately 1,427,000 restricted shares of
Excalibur common stock and options to acquire approximately 576,000 restricted
shares of Excalibur common stock to the former ConQuest shareholders and
optionholders. The transaction will be accounted for as a pooling of interests.
The results of operations reported herein for Excalibur for the six months ended
July 31, 1995 and the fiscal years ended January 31, 1995 and 1994 include
respectively the ConQuest results of operation for the seven months ended July
31, 1995 and the years ended December 31, 1994 and 1993. Information included
herein does not include results of operations for ConQuest for the year ended
December 31, 1992, because such amounts were not material to the consolidated
financial results of operations for Excalibur.
The Company was incorporated on February 11, 1980 as a New Mexico
corporation and reincorporated on September 26, 1989 as a Delaware corporation.
The Company's principal executive offices are located at 9255 Towne Centre
Drive, 9th Floor, San Diego, California 92121, telephone number
(619) 625-7900.
<PAGE>
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RISK FACTORS
A prospective investor should carefully consider all of the information
contained in this Prospectus and, in particular, the following:
Marketing Acceptance of Products and Historical Operating Losses. The
Company believes that its future profitability will depend on its ability to
effectively market existing and newly-developed software products through a
balanced multi-channel distribution network. There can be no assurance that the
expenses incurred in connection with the development, introduction and promotion
of enhanced or new products will not exceed the Company's expectations, or that
these products will generate revenues sufficient to offset these expenses. The
Company has operated at a loss for each of the past three fiscal years. The
Company reported a net loss of approximately $1,285,000 on revenue of
approximately $8,036,000 for the six months ended July 31, 1995 as compared to a
net loss of approximately $6,004,000 on revenue of approximately $5,711,000 for
the six months ended July 31, 1994. In addition, the Company reported a net loss
of approximately $9,388,000 on revenue of approximately $12,638,000 for the
fiscal year ended January 31, 1995, a net loss of approximately $8,319,000 on
revenue of approximately $12,285,000 for the fiscal year ended January 31, 1994
and a net loss of approximately $7,548,000 on revenue of approximately
$7,943,000 for the fiscal year ended January 31, 1993. These losses reflect the
Company's expenditures associated with building a marketing organization to sell
software products released in 1993 and 1994 and further developing software
products during such years. The Company will continue to invest in these
programs and, accordingly, operating losses are expected to continue for at
least the next 12 months.
Relationship with Digital Equipment Corporation. Since entering into a
distribution agreement with Digital Equipment Corporation ("Digital") in April
1990, the Company has been highly dependent on sales of its software products
through Digital to its customers, although the percentage of the Company's total
revenues from Digital has declined dramatically in fiscal 1994. During fiscal
1995, 1994 and 1993, revenues from Digital represented approximately 3%, 8% and
32%, respectively, of the Company's total revenues. A decision by Digital to
discontinue or further limit its relationship with the Company could result in a
significant loss of revenue to the Company.
Relationship with Nikkei Information Systems Co., Ltd. A portion of the
Company's revenue is earned in connection with its research and development
arrangement with Nikkei Information Systems Co., Ltd. ("NIS"). During fiscal
1995, 1994 and 1993 revenues attributable to NIS represented approximately 3%,
6% and 13%, respectively, of the Company's total revenues. Revenue from NIS is
expected to continue to decline as a percentage of the Company's total revenues.
A decision by NIS to discontinue or limit its relationship with the Company
could result in a significant loss of revenue to the Company.
<PAGE>
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Relationship with PRC, Inc. The Company signed an agreement with PRC, Inc.
("PRC"), a systems integrator, in February 1993 providing for a minimum of $2
million in revenues from PRC, payable periodically over two and a half years.
For the fiscal years ended January 31, 1995 and 1994, the revenue recognized by
the Company under this contract represented 3% and 9%, respectively, of total
revenues. A decision by PRC to limit or discontinue its relationship with the
Company could result in a significant loss of revenue to the Company.
Relationship with IBM. In July and August 1993, the Company entered into
Cooperative Marketing Agreements with IBM under which IBM made a guaranteed
sales commitment to the Company for fiscal 1994, and has made another guaranteed
sales commitment for fiscal 1995. Revenues in fiscal 1995 and 1994 from sales
generated by IBM represented 12% and 7%, respectively, of total revenues. A
decision by IBM to limit or discontinue its relationship with the Company could
result in a significant loss of revenue to the Company.
Lack of Patent Protection. The Company has not applied for patents on most
of its technology. The Company regards its software as proprietary and relies
primarily on a combination of copyright, trademark and trade secret laws of
general applicability, employee confidentiality and invention assignment
agreements, distribution and OEM software protection agreements and other
intellectual property protection methods to safeguard its technology and
software products. The Company also relies upon its efforts to design and
produce new products, and upon improvements to existing products, to maintain a
competitive position in the marketplace. The Company has no assurance that its
technology will remain proprietary.
Competition. Competition in the computer and communications industry in
general, and the computer software industry in particular, is intense. The
Company's competitors include many companies which are larger and more
established and have substantially more resources than the Company.
Dependence on Computer Manufacturers. The Company's computer software
products are designed to work specifically with manufacturers' computer systems;
however, the Company has no agreement with the manufacturers of those computers
by which it may ensure that the computers will not be redesigned in a manner
incompatible with the Company's products.
Dependence on Key Personnel. The Company's business is substantially
dependent upon the active participation and technical expertise of its executive
officers and key personnel. The Company's ability to maintain a competitive
position in light of technological developments will depend, in large part, on
its ability to attract and retain highly qualified personnel, of which there can
be no assurance. The Company has acquired $1 million life insurance policies on
the lives of each of J. M. Kennedy, its Chief Executive Officer, Patrick Condo,
its President, James W. Dowe III, the Company's chief scientist, and the
Company's chief engineer. In August, 1995 the Company reported that Mr. Kennedy
was temporarily unable to fulfill his duties due to what has been reported to
the Company as a stroke. During Mr. Kennedy's absence, Mr. Condo will assume his
responsibilities.
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Voting Control by Principal Shareholder. Allen & Company Incorporated
("Allen"), certain officers and shareholders of Allen and certain persons who
might be deemed to be related persons of Allen together beneficially own
approximately 39.4% of the outstanding shares of Common Stock of the Company.
Accordingly, Allen may be deemed to be an "affiliate" of the Company within the
meaning of the Securities Act of 1933. As a result of such ownership interest,
Allen and such other persons may be able to effectively control the outcome of
certain matters requiring a shareholder vote, including offers to acquire the
Company and election of directors. In addition, Richard M. Crooks, Jr., the
Chairman of the Board of Directors of the Company, is a director of and
consultant to Allen.
Authorization of Preferred Stock. The Company's Certificate of
Incorporation authorizes the issuance of one million shares of Preferred Stock
with such designations, rights and preferences as may be determined from time to
time by the Company's Board of Directors. Accordingly, the Board of Directors is
empowered, without shareholder approval, to issue Preferred Stock with dividend,
liquidation, conversion, voting, or other rights that could adversely affect the
voting power or other rights of the holders of the Company's Common Stock.
Although the Company has no present intention of issuing any shares of Preferred
Stock, it can give no assurance that it will not issue Preferred Stock in
future. See "Description of Capital Stock - Preferred Stock".
Certain Anti-Takeover Provisions. Certain provisions of the Company's
Certificate of Incorporation, its Stock Option Plan and Delaware law could have
the effect, either alone or in combination with each other, of making more
difficult, or discouraging an acquisition of the Company deemed undesirable by
its Board of Directors. Under the Company's Certificate of Incorporation there
are approximately 5,700,000 unreserved shares of Common Stock and 950,000 shares
of Preferred Stock available for future issuance without shareholder approval as
of September 19, 1995. The existence of authorized but unissued capital stock,
together with the continued voting control of the Company by Allen could have
the foregoing effect of discouraging an acquisition of the Company. Under the
Company's Stock Option Plan, as amended (the "Plan"), in the event of a change
in control, stock appreciation rights ("SAR's") and limited SARs outstanding for
at least six months and any stock options which are not then exercisable will
become fully exercisable and vested. The Plan may have the effect of
significantly increasing the costs of acquiring the Company in a hostile
takeover. The Company is subject to Section 203 of the Delaware General
Corporation Law, which prohibits a Delaware corporation, such as the Company,
from engaging in a wide range of specified transactions with any person who
becomes a 15% stockholder, under certain circumstances, within three years after
such person became an "interested shareholder."
Stock Options Outstanding. As of September 19, 1995, the Company had
outstanding stock options to purchase an aggregate of 2,471,276 shares of Common
Stock at exercise prices ranging from $1.00 to $17.02 per share. These options
are likely to be exercised, if at all, at a time when the Company otherwise
could obtain a price for the sale of shares of Common Stock which is higher than
the option exercise price per share. Such exercise or the possibility of such
exercise may impede the Company if it later seeks financing through the sale of
additional securities.
Future Sales of Common Stock. Of the Company's shares of Common Stock
currently outstanding, a substantial number of such shares are "restricted
securities" as that term is defined under Rule 144 under the Securities Act,
which, under certain circumstances, may be sold without registration with the
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Commission under the Securities Act. An aggregate of approximately 1,572,000
shares of the Company's Common Stock issuable upon exercise of stock options are
presently being offered for sale under the Company's registered stock option
plan. The Company is unable to predict the effect that sales of Common Stock
made under Rule 144 or pursuant to the stock options described above, or
otherwise, may have on the then prevailing market price of Common Stock.
Increased Accounts Receivable. Historically, the Company has generated the
majority of its revenue in the last month of a quarter, which creates a higher
receivable at the end of a reporting period, as measured by the average sales
per day in accounts receivable. Consequently, the amount reported as accounts
receivable has always declined as the following quarter unfolds. The average
days sales outstanding at July 31, 1995 was 84 days, down from 96 days at
January 31, 1995. The average days sales outstanding may be overstated due to
annual maintenance contracts sold, which are booked to accounts receivable and
deferred revenue and are recognized ratably over the twelve-month period.
Maintenance revenues represented 20% of total revenues at January 31, 1995 up
from 11% of total revenues at January 31, 1994. The Company's normal payment
terms are net 30 days, but the average collection time is about 60 days,
including international receivables, which tend to have longer payment cycles.
The Company has not had any significant bad debt expense charges. However, in
the event that the Company were unable to collect its outstanding accounts
receivable, the amount of bad debt expense could increase.
PLAN OF DISTRIBUTION
This Prospectus relates to the sale by the Selling Shareholders of
625,000 fully paid and non-assessable shares of the Company's Common Stock, par
value $.01 per share. The Shares may be sold from time to time by the Selling
Shareholders in the over-the-counter market at then prevailing market prices or
in privately negotiated transactions. Although the Company ultimately expects
that all 625,000 Shares may be sold, the actual number of Shares that will be
sold cannot be determined.
In offering the Shares, the Selling Shareholders and any selling broker or
dealer may be deemed to be statutory "underwriters" within the meaning of
Section 2(11) of the Securities Act in connection with such sales.
The Company has advised the Selling Shareholders that they, because they
may be deemed to be statutory underwriters, will be subject to the Prospectus
delivery requirements under the Securities Act. The Company has also advised the
Selling Shareholders that in the event of a "distribution" of their shares, such
Selling Shareholders, any selling broker or dealer and any "affiliated
purchasers" may be subject to Rule 10b-6 under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), until its participation in that
distribution is completed. A "distribution" is defined in Rule 10b-6(c)(5) as an
offering of securities "that is distinguished from ordinary trading transactions
by the magnitude of the offering and the presence of special selling efforts and
selling methods." The Company has also advised the Selling Shareholders that
Rule 10b-7 under the Exchange Act prohibits any "stabilizing bid" or
<PAGE>
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"stabilizing purchase" for the purpose of pegging, fixing or stabilizing the
price of Common Stock in connection with this offering.
Any shares covered by this Prospectus which qualify for sale pursuant to
Rule 144 may be sold under Rule 144 rather than pursuant to this Prospectus.
The Company will pay all the expenses, estimated to be $15,000 in
connection with this offering, other than underwriting commissions and discounts
and counsel fees and expenses of the Selling Shareholders.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Shares by
the Selling Shareholders.
DILUTION
The net tangible book value of the Company as of July 31, 1995 was
approximately $10,999,885 or $0.96 per common share. Since the shares are being
offered by the Selling Shareholders, there is no increase in net tangible book
value per common share to existing shareholders by virtue of the sale. Without
taking into account any changes in net tangible book value after July 31, 1995
or shares issued after that date, the Company had as of that date an aggregate
of 11,505,441 shares of Common Stock outstanding with a net tangible book value
of $0.96 per share. Assuming a sale at the anticipated offering price set forth
below, this will represent an immediate dilution of $15.54 per share to new
shareholders. The following table illustrates this dilution per share:
Anticipated offering price per share $16.50
Net tangible book value per common
share before offering(1)......... $0.96
Net tangible book value per common
share after offering............. $0.96
-----
Dilution per share to new shareholders(2) $15.54
=====
The calculations above do not take into account the exercise of
outstanding stock options. On September 19, 1995, there were outstanding stock
options to purchase an aggregate of 2,471,276 shares of Common Stock at exercise
prices ranging from $1.00 to $17.02 per share. To the extent that these stock
options are exercised, there will be further dilution to new shareholders.
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(1) Net tangible book value per common share represents the amount of total
tangible assets less total liabilities and preferred stock, divided by the
number of shares of Common Stock outstanding at that date.
(2) Dilution is determined by subtracting net tangible book value per common
share after the offering from the amount paid by an investor for a share
of Common Stock.
SELLING SHAREHOLDERS
On April 25, 1994, the Company sold 625,000 of its shares of Common Stock
to six institutional investors in a private placement in consideration for the
payment of $5,000,000. The Company agreed as part of that transaction to file a
Registration Statement covering the Shares which the Company would use its best
efforts to cause to become effective within one year after the closing of the
private placement.
The following table sets forth the number of shares of Common Stock of the
Company beneficially owned by the Selling Shareholders on September 1, 1995, the
number of Shares covered by this Prospectus and the amount and percentage
ownership by the Selling Shareholder after the offering. All shares are
beneficially owned and the sole voting and investment power is held by the
person named. None of the Selling Shareholders has had any material relationship
with the Company during the past three years other than the ownership of shares
of Common Stock.
Number of
Shares of
Common Stock Number of
Beneficially Shares Percentage of
Owned on Covered by Number of Class of
June 29, 1995 this Shares to be Beneficial
Name Prospectus Retained Ownership
- --------------------------------------------------------------------------------
GT Global America 365,000 365,000 None 3.6%
Growth Fund
GT Global Variable 11,000 11,000 None Less than 1%
America Growth Fund
Strathclyde 64,000 64,000 None Less than 1%
Superannuation Fund
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GT American Special 18,000 18,000 None Less than 1%
Situations Fund
GT U.S. Small 79,000 79,000 None Less than 1%
Companies Fund
GT Technology Fund 88,000 88,000 None Less than 1%
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 20,000,000 shares
of Common Stock, par value $.01 per share, and 1,000,000 shares of Preferred
Stock, par value $.01 per share, of which 49,587 shares are designated as
Cumulative Convertible Preferred Stock. At September 19, 1995, 11,549,541 shares
of Common Stock were issued and outstanding and no shares of Preferred Stock
were issued or outstanding, except for 27,180 shares of Cumulative Convertible
Preferred Stock.
Common Stock
The issued and outstanding shares of Common Stock are, and the Shares
being offered hereby by the Selling Shareholders are, validly issued, fully paid
and non-assessable. The holders of outstanding shares of Common Stock are
entitled to receive dividends out of assets legally available therefor at such
times and in such amounts as the Board of Directors may from time to time
determine. The Company has not paid any dividends and does not expect to pay
cash dividends on its Common Stock in the foreseeable future.
All shares of Common Stock have equal voting rights and, when validly
issued and outstanding, have one vote per share in all matters to be voted upon
by the shareholders. Cumulative voting in the election of directors is not
allowed, which means that the holders of more than 50% of the outstanding shares
can elect all the directors if they choose to do so and, in such event, the
holders of the remaining shares will not be able to elect any directors.
The shares have no pre-emptive, subscription, conversion or redemption
rights. Upon liquidation, dissolution or winding-up of the Company, the holders
of Common Stock are entitled to receive pro rata the assets of the Company which
are legally available for distribution to shareholders.
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Preferred Stock
The Board of Directors of the Company has the authority to issue 950,413
shares of Preferred Stock in one or more series and to fix the designation,
relative powers, preferences and rights and qualifications, limitations or
restrictions of all shares of each such series, including, without limitation,
dividend rates, conversion rights, voting rights, redemption and sinking fund
provisions, liquidation preferences and the number of shares constituting each
such series, without any further vote or action by the shareholders.
The Company's 49,587 shares of Cumulative Convertible Preferred Stock are
convertible into shares of Common Stock at the rate of ten shares of Common
Stock per share of Cumulative Convertible Preferred Stock. Holders of the
Cumulative Convertible Preferred Stock are entitled to receive cumulative
dividends at $0.50 per share per annum payable annually on April 1, if declared
by the Board of Directors, in cash or shares of Common Stock (to be determined
by the Board), valued at the lower of $1.00 per share or the market price on the
date of declaration. In the event of voluntary liquidation, dissolution or
winding-up of the Company, or upon any distribution of assets, whether voluntary
or involuntary, holders of the Cumulative Convertible Preferred Stock would have
a liquidation preference of $10.00 per share, plus accrued and unpaid dividends.
The issuance of Preferred Stock could decrease the amount of earnings and
assets available for distribution to holders of Common Stock or adversely affect
the rights and powers, including voting rights, of the holders of Common Stock
and could, among other things, have the effect of delaying, deferring or
preventing a change in control of the Company without further action by the
shareholders. The Company has no present plans to issue any shares of Preferred
Stock or Cumulative Convertible Preferred Stock.
Certain Anti-Takeover Provisions
Under the Company's Certificate of Incorporation, there are approximately
5,700,000 unreserved shares of Common Stock, 950,413 shares of Preferred Stock
and 22,407 shares of Cumulative Convertible Preferred Stock available for future
issuance without shareholder approval, as of September 19, 1995. The existence
of authorized but unissued capital stock, together with the continued voting
control of the Company by Allen (see "Risk Factors -- Voting Control by
Principal Shareholder"), could have the effect, either alone or in combination
with each other, of making more difficult or discouraging an acquisition of the
Company deemed undesirable by its Board of Directors.
Under the Company's Stock Option Plan, as amended (the "Plan"), in the
event of a change in control, stock appreciation rights ("SAR's") and limited
SARs outstanding for at least six months and any stock options which are not
then exercisable will become fully exercisable and vested. The Plan may have the
effect of significantly increasing the costs of acquiring the Company in a
hostile takeover.
<PAGE>
- 14 -
The Company is subject to Section 203 of the Delaware General Corporation
Law, which prohibits a Delaware corporation, such as the Company, from engaging
in a wide range of specified transactions with any person who becomes a 15%
stockholder, under certain circumstances, within three years after such person
became an "interested shareholder." Because Allen & Company Incorporated's stock
ownership in the Company, which otherwise would cause it to be such an
"interested stockholder," antedates the 1987 effective date of Section 203,
Allen is not subject to the prohibitions of such Section.
Transfer Agent
The transfer agent and registrar for the Common Stock is American
Securities Transfer, Inc. of Denver, Colorado.
EXPERTS
The audited financial statements and schedules of Excalibur Technologies
Corporation incorporated by reference in this Prospectus and elsewhere in the
Registration Statement have been audited by Arthur Andersen LLP, independent
public accountants, as indicated in their report with respect thereto, and are
incorporated herein by reference in reliance upon the authority of said firm as
experts in giving said reports.
The financial statements of ConQuest Software, Inc. ("ConQuest") as of and
for the year ended December 31, 1993 incorporated in this Prospectus by
reference to the Company's Current Report on Form 8-K/A dated September 12,
1995, have been incorporated in reliance on the report (which contains an
explanatory paragraph relating to ConQuest's ability to continue as a going
concern as described in Note 1 to the financial statements) of Price Waterhouse
LLP, independent accountants, given on the authority of said firm as experts in
auditing and accounting.
LEGAL MATTERS
The validity of the Common Stock offered hereby will be passed upon for
the Company by Holtzmann, Wise & Shepard, 45th Floor, 1271 Avenue of the
Americas, New York, New York 10020. Members of that firm beneficially own an
aggregate of 25,000 shares of the Company's Common Stock. Jay H. Diamond, a
partner in such law firm, is a Director of the Company.
<PAGE>
II-1
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Securities and Exchange Commission
Registration Fee......................$1,616.38
Legal Fees and Expenses*................$7,500.00
Accountants' Fees*......................$5,000.00
Miscellaneous...........................$ 883.62
Total Expenses.......................$15,000.00
* Estimated.
-------
All expenses incurred in connection with this registration will be borne
by the registrant. the Selling Shareholders shall be responsible for their
underwriting commissions and discounts and counsel fees and expenses.
Item 15 Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
empowers the Company to, and the By-laws of the Company provide that it shall,
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding by reason of
the fact that he is or was a director, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses, judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful; except that, in the case
of an action or suit by or in the right of the Company, no indemnification may
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable for negligence or misconduct in the performance
of his duty to the Company unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
that such person is fairly and reasonably entitled to indemnity for proper
expenses.
<PAGE>
II-2
The Company's By-laws provide, pursuant to Section 145 of the General
Corporation Law of the State of Delaware, for indemnification of officers,
directors, employees and agents of the Company and persons serving at the
request of the Company in such capacities within other business organizations
against certain losses, costs, liabilities and expenses incurred by reason of
their position with the Company or such other business organizations.
Item 16 Exhibits.
23.2 Consent of Arthur Andersen LLP,
Independent Public Accountants.
23.3 Consent of Price Waterhouse LLP,
Independent Public Accountants
Item 17 Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the registration statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
<PAGE>
II-3
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at the time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act will be
governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing this Amendment on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of McLean, State of Virginia, on the 21st
day of September, 1995.
EXCALIBUR TECHNOLOGIES CORPORATION
By:/s/ Patrick C. Condo
-------------------------------
Patrick C. Condo
President
POWER OF ATTORNEY
Know all men by these presents, that each officer or director of
Excalibur Technologies Corporation whose signature appears below constitutes and
appoints 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.
<PAGE>
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 September 21, 1995
J.M. Kennedy and Director (Principal
Executive Officer and
Principal Financial and
Accounting Officer)
*
- ---------------------------Chairman of September 21, 1995
Richard M. Crooks, Jr. the Board of Directors
President (Principal
/s/ Patrick C. Condo Executive Officer and
- ---------------------------Principal Financial September 21, 1995
Patrick C. Condo and Accounting Officer)
*
- ---------------------------Chief Scientist September 21, 1995
James W. Dowe III and Director
/s/ Jay H. Diamond
- ---------------------------Director September 21, 1995
Jay H. Diamond
* Director September 21, 1995
- ---------------------------
W. Frank King III
* Director September 21, 1995
- ---------------------------
Philip J. O'Reilly
/s/ Jay H. Diamond September 21, 1995
- ---------------------------
*Jay H. Diamond
Attorney-In-Fact
<PAGE>
EXHIBIT INDEX
23.2 Consent of Arthur Andersen LLP,
Independent Public Accountants.
23.3 Consent of Price Waterhouse LLP,
Independent Public Accountants
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.
33-90734) of our reports dated April 14, 1995, included in Excalibur
technologies Corporation's Form 10-K for the year ended January 31, 1995, and to
all references to our Firm included in this Registration Statement.
ARTHUR ANDERSEN LLP
San Diego, California
September 21, 1995
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement (No. 33-90734) on Form S-3 of
Excalibur Technologies Corporation of our report dated April 15, 1994, relating
to the financial statements of ConQuest Software, Inc. as of and for the year
ended December 31, 1993, which appears in the Current Report on Form 8-K/A of
Excalibur Technologies Corporation dated September 12, 1995. We also consent to
the reference to us under the heading "Experts" in such Prospectus.
PRICE WATERHOUSE LLP
Washington, DC
September 27, 1995
