AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 23, 1999
REGISTRATION STATEMENT NO.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
EXCALIBUR TECHNOLOGIES CORPORATION
(Exact name of registrant as specified in its charter)
1921 Gallows Road, Suite 200
Vienna, Virginia 22182
Delaware (703) 761-3700 85-0278207
(State or other jurisdiction (Adress, including zip (I.R.S. Employer
of incorporation or code, and telephone Indentification
organization) number, including area Number)
code, of registrant's
principal executive offices)
1999 Incentive Stock Option Plan
(Full title of the plan)
James H. Buchanan
Chief Financial Officer, Secretary and Treasurer
Excalibur Technologies Corporation
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)
Copy to:
Robert H. Werbel, Esq.
Heller Ehrman White & McAuliffe
711 Fifth Avenue
New York, New York 10022
(212) 832-8300
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
- ---------------------------------- --------------------- ------------------------- ----------------------------- -----------------
Title of Each Class of Securities Amount to Proposed Maximum Proposed Maximum Amount of
to be Registered be Registered(1) Offering Price per Share Aggregate Offering Price Registration Fee
- ----------------------------------- --------------------- ------------------------- ---------------------------- ------------------
- ----------------------------------- --------------------- ------------------------- ----------------------------- -----------------
Common Stock, par value
$.01 per share 1,000,000 Shares $8.09 (2) $8,090,000 $2,250
- ----------------------------------- --------------------- ------------------------- ----------------------------- -----------------
(1) Pursuant to Rule 416 under the Securities Act, this registration statement also covers an indeterminate
number of additional shares as may be issued as a result of adjustments by reason of any stock split, stock
dividend or similar transaction.
(2) Estimated pursuant to Rule 457(h) solely for the purpose of calculating the amount of the registration fee.
The average of the high and low prices reported on The Nasdaq National Market System was $8.09 on September 21,
1999.
</TABLE>
<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 participants in the Excalibur Technologies Corporation 1999
Incentive Stock Option Plan to which this Registration Statement relates, as
specified by Rule 428(b) promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), and are not filed as part of this Registration
Statement.
2
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") are incorporated in this Registration
Statement by reference:
1. The Company's Annual Report on Form 10-K, for the fiscal year ended
January 31, 1999.
2. The Company's Quarterly Reports on Form 10-Q for the periods ended
April 30, 1999 and July 31, 1999.
3. The Company proxy statement dated July 9, 1999.
4. The Company's Registration Statement on Form 8-A filed under the
Securities Exchange Act of 1934 (the"Exchange Act") which contains
a description of the Company's Common Stock.
All documents subsequently filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be part hereof from the date of filing of such documents.
Item 4. Description of Securities
Not applicable
Item 5. Interests of Named Experts and Counsel
Not applicable
Item 6. Indemnification of Directors and Officers
Delaware General Corporation Law. Section 145(a) of the Delaware
General Corporation Law (the "GCL") provides that a Delaware corporation may
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, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation or enterprise, against expenses, judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, had no cause to believe his or her conduct was unlawful.
<PAGE>
Section 145(b) of the GCL provides that a Delaware corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses actually
and reasonably incurred by such person in connection with the defense or
settlement of such action or suit if he or she acted under similar standards,
except that 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 or her duty to the
corporation unless and only to the extent that the court in which such action
or suit was brought shall determine that, despite the adjudication of liability
but in view of all the circumstances of the case, such person is fairly and
reasonably entitled to be indemnified for such expenses which the court shall
deem proper.
Section 145 of GCL further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action, suit
or proceeding referred to in subsection (a) and (b) or in the defense of any
claim, issue or matter therein, such officer or director shall be indemnified
against expenses actually and reasonably incurred by him or her in connection
therewith; that indemnification provided for by Section 145 shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled
and that the corporation may purchase and maintain insurance on behalf of a
director or officer of the corporation against any liability asserted against
such officer or director and incurred by him or her in any such capacity
or arising out of is or her status as such, whether or not the corporation would
have the power to indemnify him or her against such liabilities under
Section 145.
Certificate of Incorporation and Bylaws. The Registrant'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 Registrant and persons serving at the request of the Registrant in such
capacities within other business organizations against certain losses, costs,
liabilities and expenses incurred by reason of their position with the
Registrant or such other business organizations.
Item 7. Exemption From Registration Claimed
Not applicable
Item 8. Exhibits
The following exhibits are filed as part of this Registration Statement.
Exhibit
Number Description
4.1 1999 Incentive Stock Option Plan (1)
5.1 Opinion of Heller Ehrman White & McAuliffe, counsel to the Registrant.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.2 Consent of Arthur Andersen LLP, Independent Accountants.
23.3 Consent of Heller Ehrman White & McAuliffe (included in Exhibit 5.1).
24.1 Powers of Attorney (included as part of signature page of this
Registration Statement).
____________________________________
(1) Incorporated herein by reference to the Company's Definitive Proxy
Statement on Schedule 14A for the Company's 1999 Annual Meeting of
Stockholders filed on July 9, 1999.
<PAGE>
Item 9 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;
(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, Form S-8 or Form F-3, and
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13
or 15(d) of the Exchange Act that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the Securities
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.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act 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.
(c) Insofar as indemnification for liabilities arising under the Securities 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 Securities 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 Securities Act and will be governed by
the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act or 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 15th day of
September, 1999.
EXCALIBUR TECHNOLOGIES CORPORATION
By /s/ Patrick C. Condo
Patrick C. Condo
Chief Executive Officer and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
hereby constitutes and appoints Patrick C. Condo his/her true and lawful
attorneys-in-fact, each acting alone, with full powers of substitution and
resubstitution, for him/her and in his/her name, place and stead, in any and all
capacities to sign any or all amendments, including any post-effective
amendments, to this registration statement, and any subsequent registration
statement filed pursuant to Rule 462(b) under the Securities Act of 1933, and to
file the same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorneys-in-fact or their substitutes, each acting
alone, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement
on Form S-8 has been signed by the following persons in the capacities and on
the dates indicated.
<TABLE>
<S> <C> <C>
SIGNATURE CAPACITY DATE
/s/ Patrick C. Condo President, Chief Executive Officer and September 15, 1999
Patrick C. Condo Director (Principal Executive Officer)
/s/ Donald R. Keough Chairman of the Board September 20, 1999
Donald R. Keough
/s/ James H. Buchanan Chief Financial Officer, Secretary and September 15, 1999
James H. Buchanan Treasurer (Principal Financial Officer
and Principal Accounting Officer)
/s/ Richard M. Crooks, Jr. Director September 21, 1999
Richard M. Crooks, Jr.
/s/ John S. Hendricks Director September 20, 1999
John S. Hendricks
/s/ W. Frank King III Director September 16, 1999
W. Frank King III
/s/ John G. McMillian Director September 17, 1999
John G. McMillian
/s/ Philip J. O'Reilly Director September 17, 1999
Philip J. O'Reilly
/s/ Harry C. Payne Director September 16, 1999
Harry C. Payne
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
4.1 1999 Incentive Stock Option Plan (1)
5.1 Opinion of Heller Ehrman White & McAuliffe, counsel to the Registrant.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.2 Consent of Arthur Andersen LLP, Independent Accountants.
23.3 Consent of Heller Ehrman White & McAuliffe (included in Exhibit 5.1).
24.1 Powers of Attorney (included as part of signature page of this
Registration Statement).
____________________________________
(1) Incorporated herein by reference to the Company's Definitive Proxy
Statement on Schedule 14A for the Company's 1999 Annual Meeting of
Stockholders filed on July 9, 1999.
<PAGE>
EXHIBIT 5.1
OPINION OF HELLER EHRMAN WHITE & MCAULIFFE
September 23, 1999
Excalibur Technologies Corporation
1921 Gallows Road, Suite 200
Vienna, VA 22182
Re: Registration Statement on Form S-8
Ladies and 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 (the "Registration Statement") to be filed with the Securities
and Exchange Commission on or about September 23, 1999, for the purpose of
registering under the Securities Act of 1933, as amended, 1,000,000 shares
of its Common Stock, $.01 par value (the "Shares"), issuable pursuant to
the Company's 1999 Incentive Stock Option Plan (the "Plan").
In connection with this opinion, we have assumed the authenticity of all
records, documents and instruments submitted to us as originals, the
genuineness of all signatures, the legal capacity of natural persons and
the conformity to the originals of all records, documents and instruments
submitted to us as copies. We have based our opinion upon our review of the
following records, documents and instruments:
(a) The Certificate of Incorporation of the Company, as amended as
of the date hereof;
(b) The By-laws of the Company, as amended as of the date hereof;
(c) Records certified to us by an officer of the Company as
constituting the records of proceedings and actions of the
Board of Directors of the Company relating to the issuance of
the Shares;
(d) The Registration Statement; and
(e) The Plan.
This opinion is limited to the federal law of the United States of
America and the General Corporation Law of the State of Delaware. We disclaim
any opinion as to any other statute, rule, regulation, ordinance, order or other
promulgation of any other jurisdiction or any regional or local governmental
body.
<PAGE>
Based upon the foregoing and our examination of such questions of law
as we have deemed necessary or appropriate for the purpose of this opinion and
assuming that (i) the Registration Statement becomes and remains effective
during the period when the Shares are offered and sold; (ii) the Shares are
issued and paid for in accordance with the terms of the Plan; (iii) appropriate
stock certificates evidencing the Shares are executed and delivered; and (iv)
all applicable securities laws are complied with, it is our opinion that the
Shares will be duly authorized and validly issued, and fully paid and
nonassessable.
This opinion is rendered to you in connection with the Registration
Statement and is solely for your benefit. This opinion may not be relied upon
by you for any other purpose, or relied upon by any other person, firm,
corporation or other entity for any purpose, without our prior written consent.
We disclaim any obligation to advise you of any change of law that occurs,
or any facts which we become aware after the date of this opinion.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Heller Ehrman White & McAuliffe
HELLER EHRMAN WHITE & MCAULIFFE
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 30, 1999 relating to the
financial statements and financial statement schedules of Excalibur Technologies
Corporation, which appears in Excalibur Technologies Corporation's Annual Report
on Form 10-K for the year ended January 31, 1999.
PricewaterhouseCoopers LLP
McLean, Virginia
September 22, 1999
<PAGE>
EXHIBIT 23.2
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 reports dated
February 27, 1998 included in Excalibur Technologies Corporation's Form 10-K for
the year ended January 31, 1999.
ARTHUR ANDERSEN LLP
Vienna, Virginia
September 22, 1999
263538
