As filed with the Securities and Exchange Commission
on December __, 1996
Registration No.33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------
EXCALIBUR TECHNOLOGIES CORPORATION
[Exact name of issuer as specified in its charter]
Delaware 85-0278207
(State or other jurisdiction or (I.R.S. Employer
of incorporation 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)
Patrick C. Condo
President and
Chief Executive Officer
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)
Copies to:
Robert H. Werbel, Esq.
Werbel & Carnelutti
A Professional Corporation
711 Fifth Avenue
New York, New York 10022
(212) 832-8300
Approximate date of commencement of proposed sale to public:
From time to time after the effective date of this
Registration Statement
<PAGE>
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|
CALCULATION OF REGISTRATION FEE
================================================================================
Title of Each Proposed
Class Proposed Maximum
of Securities Amount Maximum Aggregate Amount of
to to be Offering Price Offering Registration
be Registered Registered Per Unit (1) Price (1) Fee (1)
- --------------------------------------------------------------------------------
Common stock, 920,478
$.01 par value shares $16.50 $15,187,887 $4,602.39
- --------------------------------------------------------------------------------
(1) Pursuant to Rule 457(c), the offering price and amount of registration
fee have been calculated based upon the last sale price of the registrant's
Common Stock as reported by NASDAQ on December 3, 1996.
--------------------------
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.
<PAGE>
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 Inside Front and Outside
Back Cover Pages of Back Cover Pages of
Prospectus Prospectus; Available
Information
3. Summary Information, Risk Prospectus Summary; The
Factors and Ratio of Company; Risk Factors
Earnings to Fixed Charges
4. Use of Proceeds Use of Proceeds
5. Determination of Offering Not Applicable
Price
6. Dilution Dilution
7. Selling Security Holders Selling Shareholders
8. Plan of Distribution Cover Page; Plan of
Distribution; Selling
Shareholders
9. Description of Securities to Cover Page; Description
be Registered of Capital Stock
10. Interests of Named Experts Legal Matters
and 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 December __, 1996
PROSPECTUS
EXCALIBUR TECHNOLOGIES CORPORATION
920,478 SHARES OF COMMON STOCK
This Prospectus relates to 920,478 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
persons and 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. A number of the shares, however, are
issuable upon exercise of options. In the event that all of the options are
exercised, the Company will receive $143,282 in cash proceeds. See "Plan of
Distribution."
The Company will pay all the expenses, estimated to be approximately
$25,000, 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 December 3, 1996 was $16.50 per share.
The date of this Prospectus is December __, 1996.
<PAGE>
TABLE OF CONTENTS
Page
Available Information................................................... 3
Incorporation of Certain Information by Reference........................ 3
The Company............................................................. 4
Risk Factors............................................................ 5
Plan of Distribution.................................................... 7
Use of Proceeds......................................................... 8
Dilution................................................................ 9
Selling Shareholders.................................................... 10
Description of Capital Stock............................................. 15
Experts................................................................. 17
Legal Matters............................................................ 17
- ------------------------------------------------------------------------------
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.
- 2 -
<PAGE>
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, 1996.
2. The Company's Quarterly Reports on Form 10-Q for the quarters
ended April 30, July 31 and October 31, 1996.
3. The Company's proxy statement dated May 28, 1996.
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.
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, 1921 Gallows Road, Suite 200, Vienna, Virginia 22182,
telephone number (703) 761-3700. Please specify the information desired when
making such request.
- 3 -
<PAGE>
THE COMPANY
Excalibur Technologies Corporation ("Excalibur") is a leader in the
development and sale of software solutions for information retrieval.
Excalibur's software products combine two complementary technologies: Adaptive
Pattern Recognition Processing (APRP(TM)) and semantic networks. The APRP(TM)
technology identifies and indexes the underlying binary patterns in digital
data, providing the capability to build content-based retrieval applications for
any type of digital information, including text, images, video and sounds.
Semantic networks leverage lexical knowledge, offering a system with build-in
knowledgebases to search for specific word meanings enriched by related terms
and concepts. Integration of these two approaches provides complete and powerful
information retrieval capabilities with accuracy and speed. Excalibur's core
technologies enable high fault-tolerant fuzzy searching and natural
language-based searching for text, as well as powerful query-by-example
capabilities which can be applied to words, pictures, video clips, fingerprints,
facial images and many other types of multi-media data.
Using these technologies, Excalibur has developed a
comprehensive suite of knowledge retrieval software products, including
libraries, services and applications, called Excalibur RetrievalWare. Excalibur
RetrievalWare is a unified family of applications and software components for
building knowledge retrieval solutions capable of supporting both text and image
information assets. Its flexible and modular architecture supports the full
range of Excalibur development tools for value added resellers ("VARs"),
original equipment manufacturers ("OEMs"), systems integrators ("Sis") and
corporate and government information technology departments. Excalibur's
RetrievalWare is a complete software component architecture, enabling developers
to build information retrieval applications for workgroup, enterprises and
across the internet. Excalibur RetrievalWare platforms include all major UNIX
and Windows/NT servers, with PC and UNIX clients.
In July 1995, Excalibur acquired ConQuest Software, Inc.
("ConQuest"), a private company located in Columbia, Maryland, engaged in the
business of providing natural language text management software tools, through
the issuance of approximately 1,427,000 restricted shares of Excalibur common
stock and options to purchase approximately 573,000 restricted shares of
Excalibur common stock to the former ConQuest shareholders and option holders in
exchange for all of the outstanding common stock of ConQuest. The transaction
has been accounted for as a pooling of interests. The consolidated results of
operations and the discussion thereof that are presented herein reflect the
combined results of the pooled business for the respective periods presented.
The Company established a wholly-owned subsidiary in the
United Kingdom, Excalibur Technologies International, Ltd. ("ETIL"), which began
operations in July 1992. Except as otherwise noted, Excalibur, ConQuest (the
acquired company) and ETIL are collectively referred to hereinafter as the
"Company."
The Company markets and distributes its products through VARs, Sis,
OEMs, direct sales, distribution agreements, and a marketing agreement with IBM.
As of January 31, 1996, more than 600 customers were using the Company's
information retrieval products.
Excalibur 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 1921 Gallows Road,
Suite 200, Vienna, Virginia 22182, telephone (703) 761-3700.
- 4 -
<PAGE>
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 $5,762,000 on revenues of
approximately $14,131,000 for the nine months ended October 31, 1996, a net loss
of approximately $884,000 on revenues of approximately $18,675,000 for the
fiscal year ended January 31, 1996, a net loss of approximately $9,388,000 on
revenues of approximately $12,638,000 for the fiscal year ended January 31, 1995
and a net loss of approximately $8,319,000 on revenues of approximately
$12,285,000 for the fiscal year ended January 31, 1994. These losses reflect the
Company's expenditures associated with building a marketing organization to sell
new software products and further developing software products during such
years. The Company will continue to invest in these programs and, accordingly,
operating losses may continue for at least the next 12 months.
Relationship with IBM. In July and August 1993, the Company entered
into Cooperative Marketing Agreements with IBM under which IBM made guaranteed
sales commitments to the Company for fiscal 1994 and fiscal 1995. Revenues from
sales generated by IBM in fiscal years 1996, 1995 and 1994 represented 2%, 12%
and 7%, respectively, of total revenues. A decision by IBM to limit or
discontinue its relationship with the Company could have a significant impact on
future revenues of the Company.
Lack of Patent Protection. The Company has not obtained patents on
any 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.
- 5 -
<PAGE>
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 Patrick Condo, its Chief Executive Officer and James W.
Dowe III, the Company's chief scientist.
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 37% 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, Donald R. Keough, the Chairman
of the Board of Directors of the Company is the Chairman of the Board of
Directors of Allen, and Richard M. Crooks, Jr., the Chairman of the Executive
Committee 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 Plans 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 23,064,000 unreserved shares of Common Stock and
approximately 950,000 shares of Preferred Stock available for future issuance
without shareholder approval as of October 31, 1996. 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 Plans, as amended (the
"Plans"), 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 Plans 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."
- 6 -
<PAGE>
Stock Options Outstanding. As of October 31, 1996, the Company had
outstanding stock options to purchase an aggregate of 2,602,878 shares of Common
Stock at exercise prices ranging from $1.04 to $29.64 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
Commission under the Securities Act. An aggregate of approximately 1,022,169
shares of the Company's Common Stock subject to exercisable 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. Net accounts receivable increased
by $881,000 in the nine-month period ended October 31, 1996 to a balance of
$7,823,000. Accounts receivable increased by approximately $3,292,000, or 90%,
in fiscal year 1996. The increases were due to several factors including the
overall increase in the Company's revenues, an increase in the amount of sales
negotiated with extended customer payment terms, and an increase in the
percentage of sales booked close to the end of the period. The effect of these
factors has been to increase the amount of days sales outstanding. The average
days sales outstanding at October 31, 1996, January 31, 1996 and January 31,
1995 were 132, 118 and 89, respectively.
In the nine-month period ended October 31, 1996, the Company added
$132,000 to the allowance for doubtful accounts. Management believes that the
allowance was adequate at October 31, 1996. However, in the event that the
Company would be unable to collect its outstanding accounts receivable, the
amount of bad debt expense could increase in the future.
PLAN OF DISTRIBUTION
This Prospectus relates to the sale by the Selling Shareholders of
920,478 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 920,478 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.
- 7 -
<PAGE>
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 "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 $25,000 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. However, 540,446 of the shares are issuable
upon the exercise of stock options. If all of the stock options are exercised
the Company will receive $143,282 in cash proceeds. This amount is net of the
aggregate amount, $883,989, of certain deferred compensation balances payable by
the Company to certain Selling Shareholders who arranged to defer a portion of
compensation earned by them for use in the exercise of stock options.
- 8 -
<PAGE>
DILUTION
The net tangible book value of the Company as of October 31, 1996
was approximately $18,732,000 or $1.51 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 October
31, 1996 or shares issued after that date, the Company had as of that date an
aggregate of approximately 12,418,000 shares of Common Stock outstanding with a
net tangible book value of $1.51 per share. Assuming a sale at the anticipated
offering price set forth below, this will represent an immediate dilution of
$14.99 per share to new shareholders. The following table illustrates this
dilution per share:
Anticipated offering price per share...............................$16.50
Net tangible book value per common share before offering(1)........$ 1.51
Net tangible book value per common share after offering............$ 1.51
Dilution per share to new shareholders(2)..........................$14.99
The calculations above do not take into account the exercise of
outstanding stock options. On October 31, 1996, there were outstanding options
to purchase an aggregate of 2,602,878 shares of Common Stock at exercise prices
ranging from $1.04 to $29.64 per share. To the extent that these stock options
are exercised, there may be further dilution to new shareholders.
- ----------------------
(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.
- 9 -
<PAGE>
SELLING SHAREHOLDERS
Excalibur acquired ConQuest Software, Inc. on July 20, 1995. This
Registration Statement is being filed pursuant to certain provisions of the
agreement pursuant to which Excalibur acquired ConQuest and of termination
agreements negotiated by the Company with two former employees of ConQuest. The
three financial institutions named as Selling Shareholders below acquired the
shares of Common Stock being sold hereunder from former shareholders of
ConQuest.
The following table sets forth the number of shares of Common Stock
of the Company beneficially owned by the Selling Shareholders as of December 4,
1996, 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. Other than the ownership of shares of Common Stock, none of the
Selling Shareholders has had any material relationship with the Company during
the past three years except that Paul Nelson is a director of the Company,
Edward Addison was a director of the Company until September 1996 and those
persons identified below with an asterisk (*) are presently employees of the
Company.
<TABLE>
<CAPTION>
Number of
Shares of
Common Stock Number of
Beneficially Shares Percentage of
Owned as of Covered by Number of Class of
December 4, this Shares to Beneficial
Name 1996 Prospectus be Retained Ownership
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Acree, George 5,858 5,858 0 0%
Addison,*
Edward R 185,518 (2) 152,526 32,992 less than 1%
Anderson, Chris* 11,242 (3) 4,042 7,200 less than 1%
Bajzik, John* 9,547 (4) 7,147 2,400 less than 1%
Blair, Arden* 88,435 (5) 49,356 39,079 less than 1%
Blair, George* 3,823 (6) 1,423 2,400 less than 1%
Carlson, Ed 105,017 (7) 12,065 92,952 less than 1%
Clark, Ken* 190,264 (8) 78,256 112,008 less than 1%
D&G Partners 6,905 1,085 5,820 less than 1%
Dahm, Bob* 8,253 (10) 6,571 1,682 less than 1%
David, Mark* 7,691 (11) 2,912 4,779 less than 1%
</TABLE>
- 10 -
<PAGE>
<TABLE>
<CAPTION>
Number of
Shares of
Common Stock Number of
Beneficially Shares Percentage of
Owned as of Covered by Number of Class of
December 4, this Shares to Beneficial
Name 1996 Prospectus be Retained Ownership
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Dearch, Ray 3,378 3,378 0 0%
Evers, Jon* 2,902 (13) 1,702 1,200 less than 1%
Feder, Judith* 10,004 (14) 8,204 1,800 less than 1%
Friedman,*Elizabeth
(Coyle) 5,445 (15) 2,895 2,550 less than 1%
Hobbs, Terry* 11,476 (16) 5,457 6,019 less than 1%
Hummel, Bob 8,333 (17) 6,307 2,026 less than 1%
Chase
Securities, Inc. 20,000 5,000 15,000 less than 1%
Kaminski, Bob 16,965 (19) 9,387 7,578 less than 1%
Khaksari,
Gholam* 21,662 (20) 19,980 1,682 less than 1%
King, Mary 33,353 (21) 29,975 3,378 less than 1%
McGrath, John* 33,863 (22) 26,663 7,200 less than 1%
Mellendick,
Karen 1,118 1,118 0 0%
Mesheid, Bill 1,085 (24) 1,085 0 0%
Moore, Cherle* 15,352 (25) 13,959 1,393 less than 1%
Nelson, Paul* 372,788 (26) 102,808 269,980 2.2%
Rice, William* 10,817 (27) 5,363 5,454 less than 1%
Schaech, Joan* 8,729 (28) 3,136 5,593 less than 1%
Schwaner,
Valerie* 1,205 (29) 530 675 less than 1%
</TABLE>
- 11 -
<PAGE>
<TABLE>
<CAPTION>
Number of
Shares of
Common Stock Number of
Beneficially Shares Percentage of
Owned as of Covered by Number of Class of
December 4, this Shares to Beneficial
Name 1996 Prospectus be Retained Ownership
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
State Street
Research &
Management Co.-
Metropolitan
Series Fund,Inc.
Aggressive Growth
Portfolio 319,600 225,900 93,700 less than 1%
State Street
Research &
Management Co.-
Metropolitan
Life Insurance
Company
Separate
Account 43 154,400 90,100 64,300 less than 1%
Whitman, Ron* 8,673 (30) 6,273 2,400 less than 1%
Wilson, H.
Donald* 82,733 (31) 30,000 52,733 less than 1%
-------------------------
<FN>
1. Not used.
2. Includes 167,526 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
3. Includes 11,242 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
4. Includes 9,547 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
5. Includes 51,118 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
6. Includes 3,823 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
7. Includes 12,065 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
</FN>
</TABLE>
- 12 -
<PAGE>
8. Includes 80,768 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
9. Not used.
10. Includes 7,771 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
11. Includes 7,112 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
12. Not used.
13. Includes 2,902 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
14. Includes 1,800 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
15. Includes 5,445 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
16. Includes 7,857 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
17. Includes 6,307 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
18. Not used.
19. Includes 7,500 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
20. Includes 21,180 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
21. Includes 29,975 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
22. Includes 33,863 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
23. Not used.
24. Includes 1,085 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
25. Includes 15,159 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
26. Includes 134,589 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
27. Includes 10,238 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
- 13 -
<PAGE>
28. Includes 8,536 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
29. Includes 1,205 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
30. Includes 8,673 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
31. Includes 1,875 shares issuable upon exercise of options which are
currently exercisable or exercisable within 60 days.
- 14 -
<PAGE>
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 40,000,000
shares of Common Stock, par value $.01 per share, and 1,000,000 shares of
Preferred Stock, par value $.01 per share, of which 49,587 shares are designated
as Cumulative Convertible Preferred Stock. At October 31, 1996, 12,418,237
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.
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.
- 15 -
<PAGE>
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 23,063,770 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 October 31,
1996. 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 Plans, as amended (the "Plans"), 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 Plans 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." 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 transfe agent and registrar fo the Common Stock is
American Securities Transfer, Inc. of Denver, Colorado.
- 16 -
<PAGE>
EXPERTS
The audited consolidated financial statements and schedule of
Excalibur Technologies Corporation ("Excalibur") at January 31, 1996 and 1995,
and for each of the three years in the period ended January 31, 1996,
incorporated in this Prospectus by reference to Excalibur's Annual Report on
Form 10-K for the year ended January 31, 1996 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 report.
The financial statements of ConQuest Software, Inc. ("ConQuest") for
the year ended December 31, 1993, not separately presented in this Prospectus or
in the Annual Report on Form 10-K of Excalibur Technologies Corporation
("Excalibur") for the year ended January 31, 1996 (the "Form 10-K"), have been
audited by Price Waterhouse LLP, independent accountants, whose report (which
contains an explanatory paragraph relating to ConQuest's ability to continue as
a going concern as described in Note 2 to those financial statements) thereon
has been incorporated in this Prospectus by reference to the Form 10-K. The
financial statements of ConQuest for the year ended December 31, 1993, to the
extent they have been included in the consolidated financial statements of
Excalibur, have been so included in reliance on their report 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 Werbel & Carnelutti, A Professional Corporation, 711 Fifth
Avenue, New York, New York 10022.
- 17 -
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Securities and Exchange Commission
Registration Fee............
Legal Fees and Expenses*......
Accountants' Fees*............
Miscellaneous.................
Total Expenses.............. $25,000.00
==========
* 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, if any, 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.
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.
<PAGE>
Item 16. Exhibits.
5.1 Opinion re: Legality
23.1 Consent of Werbel & Carnelutti, A Professional Corporation
(included in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP, Independent Public
Accountants.
23.3 Consent of Price Waterhouse LLP, Independent Accountants.
25.1 Power of Attorney (included in signature pages to this
Registration Statement)
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.
(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.
II-2
<PAGE>
(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.
II-3
<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 Registration Statement 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 Town of Vienna, Commonwealth of
Virginia, on the 5th day of December, 1996.
EXCALIBUR TECHNOLOGIES CORPORATION
By:/s/ Patrick C. Condo
--------------------------
Patrick C. Condo
Chief Executive Officer and President
II-4
<PAGE>
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 and James H. Buchanan 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. 85774
II-5
<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.
SIGNATURES Title Date
/s/ Patrick C. Condo
- --------------------------- President, Chief Executive December 5, 1996
Patrick C. Condo Officer and Director
(Principal Executive Officer)
/s/ Donald R. Keough
- --------------------------- Chairman of the Board December 6, 1996
Donald R. Keough of Directors
/s/ James H. Buchanan
- --------------------------- Chief Financial Officer December 5, 1996
James H. Buchanan and Treasurer (Principal
Financial and Accounting Officer)
/s/ Richard M. Crooks, Jr.
- --------------------------- Director December 5, 1996
Richard M. Crooks, Jr.
/s/ W. Frank King III
- --------------------------- Director December 5, 1996
W. Frank King III
/s/ Paul E. Nelson
- --------------------------- Director December 6, 1996
Paul E. Nelson
/s/ John G. McMillian
- --------------------------- Director December 6, 1996
John G. McMillian
/s/ Philip J. O'Reilly
- --------------------------- Director December 5, 1996
Philip J. O'Reilly
/s/ Shaun C. Viguerie
- --------------------------- Director December 5, 1996
Shaun C. Viguerie
II-6
<PAGE>
EXHIBIT INDEX
5.1 Opinion re: Legality
23.1 Consent of Werbel & Carnelutti, A Professional Corporation
(included in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP, Independent Public Accountants.
23.3 Consent of Price Waterhouse LLP, Independent Accountants.
25.1 Power of Attorney (included in signature pages to this Registration
Statement)
II-7
FORM OF LEGAL OPINION
OF
WERBEL & CARNELUTTI
A Professional Corporation
December ___, 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-3, to be
filed on or about December 6, 1996 (the "Registration Statement"), under the
Securities Act of 1933, as amended (the "Act"), covering 920,478 shares of the
Company's Common Stock, par value $.01 per share (the "Shares").
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,
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, and to
all references to our Firm included in this Registration Statement.
ARTHUR ANDERSEN LLP
Washington, D.C.,
December 5, 1996
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 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. We also consent to
the reference to us under the heading "Experts" in such Prospectus.
PRICE WATERHOUSE LLP
Falls Church, Virginia
December 5, 1996
