As filed with the Securities and Exchange Commission
on November 1, 1996
Registration No.33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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.)
1921 Gallows Road
Suite 200
Vienna, Virginia 22182
703-761-3700
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
Excalibur Technologies Corporation 1989 Incentive Plan
Excalibur Technologies Corporation 1996 Employee Stock Purchase Plan
(Full Title of plan)
Patrick C. Condo
1921 Gallows Road
Suite 200
Vienna, Virginia 22182
703-761-3700
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
<PAGE>
Copies to:
Jay H. Diamond, Esq.
Tenzer Greenblatt LLP
405 Lexington Avenue
New York, New York 10174
(212) 885-5000
This registration statement shall hereafter become effective in accordance
with Rule 462 promulgated under the Securities Act of 1933, as amended.
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
Proposed Proposed
maximum maximum
Title of each class offering aggregate Amount of
of securities to Amount to be price per offering registration
be registered registered unit price fee
- -------------------------------------------------------------------------------
Common Stock, $.01 1,250,000 $13.75(1) $17,187,500 $5,208.33
par value
- -------------------------------------------------------------------------------
(1) Calculated in accordance with Rule 457(h) under the Securities Act of
1993, based upon the last sale price of the registrant's Common Stock as
reported by NASDAQ on October 30, 1996, with respect to shares which may be
issued upon exercise of options not yet granted under the Excalibur Technologies
Corporation 1989 Incentive Plan or the Excalibur Technologies Corporation 1996
Employee Stock Purchase Plan.
- 2 -
<PAGE>
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. 0-9747) 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, 1996.
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
April 30 and July 31, 1996.
3. The Company's proxy statement dated May 28, 1996.
4. 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.
<PAGE>
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 Tenzer Greenblatt LLP.
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.
- II-2 -
<PAGE>
Item 8. Exhibits.
Exhibit Description
Number
4.01 Certificate of Incorporation of the Company, as
amended. Incorporated herein by reference to Form
10-K for the year ended January 31, 1990, filed May
1, 1990; amendment filed herewith.
4.02 Bylaws of the Company. Incorporated herein by
reference to Form 10-K for the year ended January
31, 1990, filed May 1, 1990.
4.03 1989 Incentive Plan. Incorporated
herein by reference to Form 10-K for the year
ended January 31, 1990, filed April 22, 1991.
4.04 Employee Stock Purchase Plan
5.01 Opinion re: Legality
24.01 Consent of Tenzer Greenblatt LLP (included in
Exhibit 5.01)
24.02 Consent of Arthur Andersen LLP, Independent Public
Accountants
24.03 Consent of Price Waterhouse LLP, Independent
Accountants
25 Power of Attorney (included in signature
pages to this Registration Statement)
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;
- II-3 -
<PAGE>
(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 Patrick C. Condo, James H. Buchanan 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.
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<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 on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Vienna, Commonwealth of Virginia, on the 31st day of
October, 1996.
EXCALIBUR TECHNOLOGIES CORPORATION
By:/s/Patrick C. Condo
------------------------------------
Patrick C. Condo
President and Chief Executive Officer
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
--------- ----- ----
/s/Patrick C. Condo President, Chief Executive October 31, 1996
- ------------------------ Officer and Director
Patrick C. Condo (Principal Executive Officer)
Chairman of the Board October __, 1996
- ------------------------- of Directors
Donald R. Keough
/s/James H. Buchanan Chief Financial Officer October 31, 1996
- ------------------------- and Treasurer (Principal
James H. Buchanan Financial and Accounting Officer)
/s/Richard M. Crooks, Jr. Director October 31, 1996
- -------------------------
Richard M. Crooks, Jr.
Director October __, 1996
- -------------------------
W. Frank King III
- II-5 -
<PAGE>
/s/Paul E. Nelson Director October 31, 1996
- -------------------------
Paul E. Nelson
Director October __, 1996
- -------------------------
John G. McMillian
/s/Philip J. O'Reilly Director October 31, 1996
- -------------------------
Philip J. O'Reilly
/s/Shaun C. Viguerie Director October 31, 1996
- ------------------------
Shaun C. Viguerie
- II-6 -
<PAGE>
Exhibits
Exhibit
Number Description
------- -----------
4.01 Certificate of Incorporation of the Company, as
amended. Incorporated herein by reference to Form
10-K for the year ended January 31, 1990, filed May
1, 1990; amendment filed herewith.
4.02 Bylaws of the Company. Incorporated herein by
reference to Form 10-K for the year ended January
31, 1990, filed May 1, 1990.
4.03 1989 Incentive Plan. Incorporated
herein by reference to Form 10-K for the year
ended January 31, 1990, filed April 22, 1991.
4.04 Employee Stock Purchase Plan
5.01 Opinion re: Legality
24.01 Consent of Tenzer Greenblatt LLP (included in
Exhibit 5.01)
24.02 Consent of Arthur Andersen LLP, Independent Public
Accountants
24.03 Consent of Price Waterhouse LLP, Independent
Accountants
25 Power of Attorney (included in signature
pages to this Registration Statement)
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
EXCALIBUR TECHNOLOGIES CORPORATION
----------------------------------------
Adopted in accordance with the provisions
of Section 242 of the General Corporation
Law of the State of Delaware
-----------------------------------------
The undersigned, being the President of EXCALIBUR TECHNOLOGIES
CORPORATION (the "Corporation"), a corporation existing under the laws of the
State of Delaware, does hereby certify as follows:
FIRST: That the Certificate of Incorporation of the Corporation has
been amended as follows by striking out the opening paragraph of ARTICLE FOURTH
thereof as it now exists and inserting in lieu and instead thereof a new opening
paragraph of Article FOURTH, reading as follows:
"FOURTH: The Corporation will have authority to issue Forty-One
Million (41,000,000) shares of Capital Stock of which Forty Million
(40,000,000) shares are Common Stock, $.01 par value per share (the
"Common Stock") and One Million (1,000,000) shares are Preferred Stock,
par value $.01 per share (the "Preferred Stock"), of which 49,587 shares
are designated as Cumulative Convertible Preferred Stock (the "Convertible
Preferred Stock")."
<PAGE>
SECOND: That such amendment has been duly adopted in
accordance with the provisions of Section 242 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, I have signed this Certificate this 28th day of
June, 1996.
EXCALIBUR TECHNOLOGIES CORPORATION
By:/s/Patrick C. Condo, President
-------------------------------
Patrick C. Condo, President
-2-
EXCALIBUR TECHNOLOGIES CORPORATION
1996 EMPLOYEE STOCK PURCHASE PLAN
Excalibur Technologies Corporation, a Delaware corporation, hereby
adopts this Excalibur 1996 Employee Stock Purchase Plan (the "Plan") as of the
Effective Date. The purposes of this Plan are as follows:
(1) To assist employees of the Company in acquiring a stock
ownership interest in the Company pursuant to a plan which is intended to
qualify as an "employee stock purchase plan" under section 423 of the
Internal Revenue Code of 1986, as amended.
(2) To help employees provide for their future security and to
encourage them to remain in the employment of the Company.
1. Definitions
Whenever any of the following terms is used in the Plan with the
first letter or letters capitalized, it shall have the following meaning unless
the context clearly indicates to the contrary (such definitions to be equally
applicable to both the singular and plural forms of the terms defined):
(a) "Code" means the Internal Revenue Code of 1986, as
amended.
(b) "Committee" means the committee appointed to
administer the Plan pursuant to paragraph 10.
(c) "Company" means Excalibur Technologies Corporation, a
Delaware corporation.
(d) "Dates of Exercise" means the dates as of which an Option
is exercised and the Stock subject to that Option is purchased. With respect to
any Option, the Dates of Exercise are the last day of each three month period
ending January 31, April 30, July 31 and October 31 in which Stock is traded in
the over-the-counter market during the Option Period in which that Option was
granted.
(e) "Date of Grant" means the date as of which an Option is
granted, as set forth in paragraph 3(a).
(f) "Eligible Compensation" means total cash compensation
received from the Company as regular compensation during an Option Period. By
way of illustration, and not by way of limitation, Eligible Compensation
includes regular compensation such as salary, wages, overtime, bonuses,
commissions, and incentive compensation, but excludes relocation expense
reimbursements, other reimbursements and income realized as a result of
participation in any stock option, stock purchase, or similar plan of the
Company.
(g) "Effective Date" means August 1, 1996.
(h) "Eligible Employee" means any employee of the Company who
does not, immediately after the Option is granted, own (within the meaning Code
Sections 423(b)(3) and 424(d)) stock possessing five percent or more of the
total combined voting power or value of all classes of stock of the company.
(i) "Option" means an option granted under the Plan to an
Eligible Employee to purchase shares of Stock.
(j) "Option Period" means with respect to any Option the
period beginning upon the Date of Grant and ending on the July 31 or January 31
immediately following the Date of Grant, whichever is earlier, or ending on such
other date as the Committee shall determine. No Option Period may exceed 5 years
from the Date of Grant.
(k) "Option Price" with respect to any Option has the
meaning set forth in paragraph 4(b).
(l) "Participant" means an Eligible Employee who has
complied with the provisions of paragraph 3(b).
(m) "Periodic Deposit Account" means the account established
and maintained by the Company to which shall be credited pursuant to Section
3(c) amounts received from Participants for the purchase of Stock under the
Plan.
(n) "Plan" means this Excalibur Technologies Corporation
1996 Employee Stock Purchase Plan.
(o) "Plan Year" means the fiscal year of the Company which
begins on February 1.
(p) "Stock" means shares of common stock, par value $.01
per share, of the Company.
(q) "Stock Purchase Account" means the account established and
maintained by the Company for each Participant at a securities brokerage firm to
be designated by the Company to which Stock purchased upon exercise of an Option
under the Plan shall be credited pursuant to Section 4(c).
(r) Subsidiary means any corporation other than the Company in
an unbroken chain of corporations beginning with the Company if at the time of
the granting of the Option each of the corporations other than the last
corporation, in the unbroken chain owns stock possessing 50% or more of the
total combined voting power of all classes of stock in one of the other
corporations in such chain.
2. Stock Subject to Plan
Subject to the provisions of paragraph 8 (relating to adjustment
upon changes in the Stock) the Stock which may be sold pursuant to Options
granted under the Plan shall not exceed in the aggregate 250,000 shares, and may
be newly issued shares or treasury shares or shares bought in the market or
otherwise for purposes of the Plan.
3. Grant of Options
(a) General Statement
The Company may grant Options under the Plan to all Eligible
Employees on February 1 and/or August 1 of each Plan Year or on such other date
as the Committee shall designate. The term of each Option shall end on the last
day of the Option Period with respect to which the Option is granted. With
respect to each Offering Period each Eligible Employee shall be granted an
Option on the Date of Grant for as many full shares of Stock as the Eligible
Employee may purchase with up to 10% of the Compensation he or she receives
during the Option Period (or during any portion of the Option Period as the
Eligible Employee may elect to participate).
(b) Election to Participate
Each Eligible Employee who elects to participate in the Plan
shall communicate to the Company in accordance with procedures established by
the Committee an election to participate in the Plan whereby the Eligible
Employee designates a stated whole percentage equaling at least 1% but no more
than 10% of his or her Eligible Compensation during the Option Period to be
deposited periodically in his or her Periodic Deposit Account under subparagraph
(c). The cumulative amount deposited in the Periodic Deposit Account during a
Plan Year with respect to any Eligible Employee may not exceed the limitation
stated in subparagraph (d). A Participant's election to participate in the Plan
shall continue in effect during the current and subsequent Option Periods until
changed pursuant to subparagraph 3(c).
(c) Periodic Deposit Accounts
The Company shall maintain a Periodic Deposit Account for each
Participant and shall credit to that account in U.S. dollars all amounts
received under the Plan from the Participant. No interest will be paid to any
Participant or credited to his or her Periodic Deposit Account under the Plan
with respect to such funds. All amounts credited to a Participant's Periodic
Deposit Account shall be used to purchase Stock under subparagraph 4(c) and no
portion of a Participant's Periodic Deposit Account shall be refunded to him or
her, subject to Paragraph 5.
<PAGE>
Credits to an Eligible Employee's Periodic Deposit Account
shall be made by payroll deduction or by other alternate payment arrangements in
accordance with rules and procedures established by the Committee. An Eligible
Employee may increase, decrease or eliminate the periodic credits to his or her
Periodic Deposit Account for future periods by filing a new election amount at
any time during an Option Period. The change shall become effective in
accordance with the Committee's rules and procedures as soon as practicable
after the Company receives the election but the change will not affect the
amounts deposited with respect to Eligible Compensation sooner than the Eligible
Compensation payable with respect to the next pay period after the Company
receives the authorization.
(d) $25,000 Limitation
No Eligible Employee shall be permitted to purchase Stock
under the Plan or under any other employee stock purchase plan of the Company or
of any Subsidiary which is intended to qualify under Code Section 423, at a rate
which exceeds $25,000 in fair market value of Stock (determined at the time the
Option is granted) for each calendar year in which any such Option granted to
such Participant is outstanding at any time.
4. Exercise of Options
(a) General Statement
On each Date of Exercise the entire Periodic Deposit Account
of each Participant shall be used to purchase at the Option Price whole shares
of Stock subject to the Option. No fractional shares shall be issued. Each
Participant automatically and without any act on his or her part will be deemed
to have exercised his or her Option on each such Date of Exercise to the extent
that the amounts then credited to the Participant's Periodic Deposit Account
under the Plan are used to purchase Stock.
(b) Option Price Defined
The Option Price per share of Stock to be paid by each
Participant on each exercise of his or her Option shall be an amount in U.S.
dollars equal to 85% of the fair market value of a share of Stock as of the
applicable Date of Exercise. The fair market value of a share of Stock as of an
applicable Date of Exercise shall be the closing sale price of a share of Stock
traded in the over-the-counter market on such date.
(c) Stock Purchase Accounts; Stock Certificates
The Company shall maintain a Stock Purchase Account for each
Participant at a securities brokerage firm to be designated by the Company to
hold the Stock purchased under the Plan by the Participant. Upon exercise of an
Option by a Participant pursuant to subparagraph 4(a), the Company shall credit
to the Participant's Stock Purchase Account at such brokerage firm the whole
shares of Stock purchased at that time.
-2-
<PAGE>
Except as provided in paragraph 5, certificates with respect
to Stock credited to a Participant's Stock Purchase Account shall be issued only
on request by the Participant for a distribution of whole shares or when
necessary to comply with the transaction requirements outside the United States.
Upon issuance of such a Stock certificate to a Participant, the Participant's
Stock Purchase Account shall be adjusted to reflect the number of shares of
Stock distributed to the Participant.
5. Rights on Retirement, Death, Termination of Employment
If a Participant retires, dies, or otherwise terminates employment,
then to the extent practicable, no further amounts shall be credited to the
Participant's Periodic Deposit Account from any pay due and owing with respect
to the Participant after such retirement, death, or other termination of
employment. All amounts credited to such a Participant's Periodic Deposit
Account shall be used on the next Date of Exercise in that Option Period to
purchase whole shares of Stock under paragraph 4. Such a Participant's Stock
Purchase Account shall be terminated, and Stock certificates with respect to
whole shares of Stock and cash with respect to fractional shares of Stock shall
be distributed as soon as practicable after such Date of Exercise.
Notwithstanding anything in this Plan to the contrary and except to
the extent permitted under Code Section 423(a), a Participant's Option shall not
be exercisable more than three months after the Participant retires or otherwise
ceases to be employed by the Company.
6. Restriction Upon Assignment
An Option granted under the Plan shall not be transferable otherwise
than by will or the laws of descent and distribution, and is exercisable during
the Participant's lifetime only by the Participant. The Company will not
recognize and shall be under no duty to recognize any assignment or purported
assignment by a Participant, other than by will or the laws of descent and
distribution, of the Participant's interest in the Plan or of his or her Option
or of any rights under his or her Option.
7. No Rights of Stockholder Until Exercise of Option
A Participant shall not be deemed to be a stockholder of the
Company, nor have any rights or privileges of a stockholder, with respect to the
number of shares of Stock subject to an Option. A Participant shall have the
rights and privileges of a stockholder of the Company when, but not until, the
Participant's Option is exercised pursuant to paragraph 4(a) and the Stock
purchased by the Participant at that time has been credited to the Participant's
Stock Purchase Account.
-3-
<PAGE>
8. Changes in the Stock; Adjustments of an Option
If, while any Options are outstanding, the outstanding shares of
Stock have increased, decreased, changed into, or been exchanged for a different
number or kind of shares or securities of the Company, or there has been any
other change in the capitalization of the Company, through reorganization,
merger, recapitalization, reclassification, stock split, reverse stock split,
spinoff or similar transaction, appropriate and proportionate adjustments may be
made by the Committee in the number and/or kind of shares which are subject to
purchase under outstanding Options and to the Option Exercise Price or prices
applicable to such outstanding Options, including, if the Committee deems
appropriate, the substitution of similar options to purchase shares of another
company (with such other company's consent). In addition, in any such event, the
number and/or kind of shares which may be offered in the Options shall also be
proportionately adjusted. No adjustments to outstanding Options shall be made
for dividends paid in the form of stock.
9. Use of Funds; Repurchase of Stock
All funds received or held by the Company under the Plan will be
included in the general funds of the Company free of any trust or other
restriction and may be used for any corporate purpose. The Company shall not be
required to repurchase from any Eligible Employee shares of Stock which such
Eligible Employee acquires under the Plan.
10. Administration by Committee
(a) Appointment of Committee
The board of directors of the Company, or its delegate, shall
appoint a Committee, which shall be composed of one or more members, to
administer the Plan on behalf of the Company. Each member of the Committee shall
serve for a term commencing on the date specified by the board of directors of
the Company, or its delegate, and continuing until he or she dies or resigns or
is removed from office by such board of directors, or its delegate.
(b) Duties and Powers of Committee
It shall be the duty of the Committee to conduct the
general administration of the Plan in accordance with its provisions. The
Committee shall have the power to:
(1) determine when the initial and subsequent Option
Periods will commence;
(2) interpret the Plan and the Options;
-4-
<PAGE>
(3) adopt such rules for the administration,
interpretation, and application of the Plan as are
consistent with the Plan and Code Section 423; and
(4) interpret, amend, or revoke any such rules.
In its absolute discretion, the board of the directors of the
Company may at any time and from time to time exercise any and all rights and
duties of the Committee under the Plan. The Committee may delegate any of its
responsibilities under the Plan by designating in writing other persons to carry
out any or all of such responsibilities.
(c) Majority Rule
The Committee shall act by a majority of its members in
office. The Committee may act either by vote at a meeting or by a memorandum or
other written instrument signed by a majority of the Committee.
(d) Compensation; Professional Assistance; Good Faith
Actions
Each member of the Committee who is an employee of the Company
or a Subsidiary shall receive no additional compensation for his or her services
under the Plan. Each Committee member who is not an employee of the Company or a
Subsidiary shall receive such compensation for his or her services under the
Plan as may be determined by the board of directors of the Company, or its
delegate. All expenses and liabilities incurred by members of the Committee in
connection with the administration of the Plan shall be borne by the Company.
The Committee may employ attorneys, consultants, accountants, appraisers,
brokers or other persons. The Committee, the Company, and its officers and
directors shall be entitled to rely upon the advice, opinions, or valuations of
any such persons. All actions taken and all interpretations and determinations
made by the Committee in good faith shall be final and binding upon all
Participants, the Company and all other interested persons. No member of the
Committee shall be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan or the Options, and
all members of the Committee shall be fully protected by the Company in respect
to any such action, determination or interpretation.
11. No Rights as an Employee
Nothing in the Plan nor any Option shall be construed to give any
person (including any Eligible Employee or Participant) the right to remain in
the employ of the Company or to affect the right of the Company to terminate the
employment of any person (including any Eligible Employee or Participant) at any
time with or without cause, to the extent otherwise permitted under law.
-5-
<PAGE>
12. Term of Plan
No Option may be granted during any period of suspension of the Plan
or after termination of the Plan, and in no event may any Option be granted
under the Plan after five years from the commencement of the initial Option
Period.
13. Amendment of the Plan
The board of directors cf the Company, or its delegate, may amend,
suspend, or terminate the Plan at any time; provided that approval by the vote
of the holders of more than 50% of the outstanding shares of the Stock entitled
to vote shall be required to amend the Plan to reduce the Exercise Price or
increase the number of shares of Stock reserved for the Options under the Plan.
14. Effect Upon Other Plans
The adoption of the Plan shall not affect any other compensation or
incentive plans in effect for the Company, except to the extent required by law.
Nothing in this Plan shall be construed to limit the right of the Company (a) to
establish any other forms of incentives or compensation for employees of the
Company or (b) to grant or assume options otherwise than under this Plan in
connection with any proper corporate purpose, including, but not by way of
limitation, the grant or assumption of options in connection with the
acquisition, by purchase, lease, merger, consolidation or otherwise, of the
business, stock or assets of any corporation, firm or association.
15. Notices
Any notice to be given under the terms of the Plan to the Company
shall be addressed to the Company in care of the Committee and any notice to be
given to the Eligible Employee shall be addressed to the Eligible Employee at
his or her last address as reflected in the Company's records. By a notice given
pursuant to this paragraph, either party may hereafter designate a different
address for notices to be given to it or the Eligible Employee. Any notice which
is required to be given to the Eligible Employee shall, if the Eligible Employee
is then deceased, be given to the Eligible Employee's personal representative if
such representative has previously informed the Company of his or her status and
address by written notice under this paragraph. Any notice shall have been
deemed duly given when enclosed in a properly sealed envelope or wrapper
addressed as aforesaid, deposited (with postage prepaid) in a post office,
branch post office, or other depository regularly maintained by the United
States Postal Services.
16. Titles
Titles are provided herein for convenience only and are not to serve
as a basis for interpretation or construction of the Plan.
-6-
OPINION OF TENZER GREENBLATT LLP
October 31, 1996
Excalibur Technologies Corporation
1921 Gallows Road, Suite 200
Vienna, VA 22182
Dear Sirs:
We are acting as counsel to Excalibur Technologies Corporation (the
"Company") in connection with the Registration Statement on Form S-8, to be
filed on or about November 1, 1996 (the "Registration Statement"), under the
Securities Act of 1933, as amended (the "Act"), covering 1,250,000 shares of the
Company's Common Stock, par value $.01 per share (the "Shares"), which are being
offered pursuant to certain compensation plans of the Company.
We have examined the originals, or certified, conformed or
reproduction copies, of all such records, agreements, instruments and documents
as we have deemed relevant or necessary as the basis for the opinion hereinafter
expressed. In all such examinations, we have assumed the genuineness of all
signatures on original or certified copies and the conformity to original or
certified copies of all copies submitted to us as conformed ore reproduction
copies. As to various questions of fact relevant to such opinion, we have relied
upon, and assumed the accuracy of, certificates and oral or written statements
and other information of or from public officials, officers or representatives
of the Company, and others.
Based upon the foregoing, we are of the opinion that upon issuance
the Shares will have been validly issued and fully paid and will be
non-assessable shares of Common Stock of the Company.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
TENZER GREENBLATT LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated March 22, 1996
included in the Company's Form 10-K for the year ended January 31, 1996.
ARTHUR ANDERSEN LLP
Washington, D.C.,
October 30, 1996
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Excalibur Technologies Corporation of our report dated
April 15, 1994, relating to the financial statements of ConQuest Software, Inc.
for the year ended December 31, 1993, which appears on page F-2 of the Annual
Report on Form 10-K of Excalibur Technologies Corporation for the year ended
January 31, 1996.
PRICE WATERHOUSE LLP
Falls Church, Virginia
October 30, 1996
