As filed with the Securities and Exchange Commission
on November 24, 1997
Registration No.333-_____
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 (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)
Excalibur Technologies Corporation 1995 Incentive Plan
(Full title of plan)
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)
<PAGE>
Copies to:
Robert H. Werbel, Esq.
Werbel & Carnelutti
A Professional Corporation
711 Fifth Avenue
New York, New York 10022
(212) 832-8300
This Registration Statement shall hereafter become effective in accordance
with Rule 462 promulgated under the Securities Act of 1933, as amended (the
"1933 Act").
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 par 193,950 $ 4.75(1) $ 921,263 $279.17
value
- -------------------------------------------------------------------------------
Common Stock, $.01 par 206,050 $11.25(2) $2,318,063 $702.44
value
- -------------------------------------------------------------------------------
Totals 400,000 $3,239,326 $981.61
- -------------------------------------------------------------------------------
(1) Calculated in accordance with Rule 457(h) under the 1933 Act, based upon the
price at which options to purchase shares of common stock have been granted
under the Excalibur Technologies Corporation 1995 Incentive Plan.
(2) Calculated in accordance with Rule 457(h) under the 1933 Act, based upon the
last sale price of the registrant's Common Stock as reported by NASDAQ on
November 20, 1997, with respect to shares which may be issued upon the exercise
of options not yet granted under the Excalibur Technologies Corporation 1995
Incentive Plan.
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<PAGE>
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Item 2. Registrant Information and Employee Plan Annual Information.
The document(s) containing the information specified in this Part I will
be sent or given to participating employees as specified by Rule 428(b)(1)
promulgated under the 1933 Act. Such documents are not being filed as part of
this Registration Statement in accordance with the rules and regulations of the
Securities and Exchange Commission (the "Commission"). These documents and the
documents incorporated by reference into this Registration Statement pursuant to
Item 3 of Part II of this Registration Statement, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the 1933 Act.
Part II
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
Item 3. Incorporation of Documents by Reference.
The following documents which heretofore have been filed by Excalibur
Technologies Corporation (the "Company") (File No. 0-9747) with 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, 1997.
2. The Company's Quarterly Reports on Form 10-Q for the quarters
ended April 30, and July 31, 1997.
3. The Company's proxy statement dated May 29, 1997.
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 1934
Act.
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<PAGE>
All documents subsequently filed by the Company with the Commission
pursuant to Sections 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. 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 Registration Statement 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 Registration Statement.
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.
Item 4. Description of Securities.
The class of securities to be offered is registered under Section 12 of
the 1934 Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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<PAGE>
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.
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<PAGE>
Item 8. Exhibits.
Exhibit
Number Description
------ -----------
4.01(a) Certificate of Incorporation of the Company. Incorporated
by reference to Form 10-K for the fiscal ended January 31,
1990, filed May 1, 1990.
4.01(b) Amendment to Certificate of Incorporation of the Company.
Incorporated by reference to Form 10-K for the fiscal year
ended January 31, 1997, filed April 28, 1997.
4.02 Bylaws of the Company. Incorporated by reference to Form
10-K for the fiscal year ended January 31, 1990, filed
May 1, 1990.
4.03 1995 Incentive Plan. Incorporated by reference to the Proxy
Statement for the 1995 Annual Meeting of Shareholders, dated
October 16, 1995.
5.01 Opinion re: Legality.
23.01 Consent of Werbel & Carnelutti, A Professional Corporation
(included in Exhibit 5.01).
23.02 Consent of Arthur Andersen LLP, Independent Public
Accountants.
24.01 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 1933 Act;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of this 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 this Registration Statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
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<PAGE>
provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) do not apply
if this 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 1934 Act that are
incorporated by reference in this Registration Statement;
(b) that, for the purpose of determining any liability under the
1933 Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof; 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 1933 Act, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the 1934 Act) that is incorporated by reference in
this 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 1933 Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the 1933 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 1933 Act and will be governed by the final
adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the 1933 Act, 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 20th day of November, 1997.
EXCALIBUR TECHNOLOGIES CORPORATION
By: /s/ Patrick C. Condo
------------------------
Patrick C. Condo
President and Chief Executive Officer
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 his true and
lawful attorney-in-fact and agent, with full and several power of substitution,
for him and in 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 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 he might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or his or their substitute or substitutes may lawfully do or cause to be
done by virtue thereof.
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<PAGE>
Pursuant to the requirements of the 1933 Act, this Registration Statement
has been signed below by the following persons in the capacities and on the
dates indicated.
Signature Title Date
--------- ----- ----
/s/Patrick C. Condo President, Chief Executive November 20, 1997
- --------------------- Officer and Director
Patrick C. Condo (Principal Executive Officer)
/s/Donald R. Keough Chairman of the Board November 21, 1997
- --------------------- of Directors
Donald R. Keough
/s/James H. Buchanan Chief Financial Officer November 19, 1997
- --------------------- Secretary and Treasurer (Principal
James H. Buchanan Financial and Accounting Officer)
/s/Richard M. Crooks, Jr. Director November 21, 1997
- -------------------------
Richard M. Crooks, Jr.
/s/John S. Hendricks Director November 20, 1997
- -----------------------
John S. Hendricks
/s/John G. McMillian Director November 20, 1997
- ---------------------
John G. McMillian
/s/Philip J. O'Reilly Director November 21, 1997
- ---------------------
Philip J. O'Reilly
/s/Shaun C. Viguerie Director November 20, 1997
- ---------------------
Shaun C. Viguerie
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EXHIBIT INDEX
Exhibit
Number Description
4.01(a) Certificate of Incorporation of the Company.
Incorporated by reference to Form 10-K for the
fiscal ended January 31, 1990, filed May 1, 1990.
4.01(b) Amendment to Certificate of Incorporation of the
Company. Incorporated by reference to Form 10-K
for the fiscal year ended January 31, 1997, filed
April 28, 1997.
4.02 Bylaws of the Company. Incorporated by reference to
Form 10-K for the fiscal year ended January 31,
1990, filed May 1, 1990.
4.03 1995 Incentive Plan. Incorporated by reference to
the Proxy Statement for the 1995 Annual Meeting of
Shareholders, dated October 16, 1995.
5.01 Opinion re: Legality.
23.01 Consent of Werbel & Carnelutti, A Professional
Corporation (included in Exhibit 5.01).
23.02 Consent of Arthur Andersen LLP, Independent
Public Accountants.
24.01 Power of Attorney (included in signature pages of
this Registration Statement).
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Exhibit 5.01
OPINION RE: LEGALITY
November 24, 1997
Excalibur Technologies Corporation
1921 Gallows Road
Suite 200
Vienna, Virginia 22182
Re: Registration Statement on Form S-8
Excalibur Technologies Corporation
----------------------------------
Gentlemen:
We have acted as counsel to Excalibur Technologies Corporation, a Delaware
corporation (the "Company"), in connection with the Registration Statement on
Form S-8 under the Securities Act of 1933, as amended, of an aggregate of
400,000 shares of the Company's Common Stock, par value $.01 per share (the
"Common Stock"), reserved for issuance under the Company's 1995 Incentive Plan
(the "Plan").
We have examined the proceedings taken by you in connection with the sale
and issuance of the Common Stock under the Plan. In such examinations, we have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to the originals thereof of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents. As to any facts material
to our opinion, we have relied on the representations of executive officers and
other representatives of the Company.
It is our opinion that, when issued and sold in the manner referred to in
the Plan, the Common Stock will be legally and validly issued, fully paid and
non-assessable.
This opinion is rendered solely for your benefit in connection with the
transaction described above. This opinion may not be used or relied upon by any
other person without our prior written consent.
<PAGE>
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement, including any prospectus constituting a part thereof,
and any amendments thereto.
Very truly yours,
WERBEL & CARNELUTTI
A Professional Corporation
Exhibit 23.02
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement on Form S-8 of our report dated
February 28, 1997 included in the Company's Form 10-K for the year ended January
31, 1997.
Arthur Andersen LLP
Washington, D.C.,
November 19, 1997
