As filed with the Securities and Exchange Commission on May 24,1996
Registration No. 33-
_________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________________
EXCEL TECHNOLOGY, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 11-2780242
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
J. DONALD HILL, PRESIDENT
Excel Technology, Inc.
45 Adams Avenue 45 Adams Avenue
Hauppauge, New York 11788 Hauppauge, New York 11788
(516) 273-6900 (516) 273-6900
(Address, including zip code, (Name, address, including zip
and telephone number, including and telephone number,
area code, of Registrant's including area code, of
principal executive offices) agent for service)
Copies of all communications, including all communications
sent to the agent for service, should be sent to:
LEONARD J. BRESLOW, ESQ.
Breslow & Walker
875 Third Avenue
New York, New York 10022
(212) 832-1930
Approximate date of commencement of proposed sale to the public:
As soon as practicable after this
Registration Statement becomes effective.
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. []
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number
of the earlier effective registration statement for the same offering. []
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. []
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 becomes effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed Proposed
Maximum Maximum Amount of
Title of Each Class of Securities Amount to Offering Price Aggregate Regisration
to be Registered be Registered Per Share Offering Price Fee
______________________________________________________________________________________________________
<S> <C> <C> <C> <C>
Common Stock, par value $.001 per share <F1> 37,100 $ 4.00 $148,400 $ 51.17
Common Stock, par value $.001 per share <F1> 2,000 $ 4.25 $ 8,500 $ 2.93
Common Stock, par value $1.00 per share <F1> 160,000 $ 5.00 $800,000 $275.86
Common Stock, par value $1.00 per share <F1> 50,000 $ 5.25 $262,500 $ 90.52
Common Stock, par value $1.00 per share <F1> 12,000 $ 6.375 $ 76,500 $ 26.38
Common Stock, par value $1.00 per share <F2> 1,000 $10.438 <F3> $ 10,438 $ 3.60
Total Registration Fee $450.46
<FN>
<F1>
Represents shares of Common Stock issuable upon exercise of currently outstanding warrants.
<F2>
Represents shares of Common Stock issued pursuant to the exercise of warrants.
<F3>
Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule
457(c) under the Securities Act of 1933, as amended. Represents the average of the high and low prices
of the Common Stock as quoted on NASDAQ on May 17, 1996.
</FN>
</TABLE>
Pursuant to Rule 416 of the Securities Act of 1933, this Registration
Statement also relates to such additional indeterminate number of shares
of Common Stock as may become issuable by reason of stock splits,
dividends and similar adjustments, in accordance with the anti-dilution
provisions of the warrants.
Subject to Completion, Dated May 24, 1996
EXCEL TECHNOLOGY, INC.
262,100 Shares of Common Stock
______________________
This Prospectus covers 261,100 shares of common stock, par value $.001
per share (the "Common Stock"), of Excel Technology, Inc. (the
"Company"), issuable upon the exercise of outstanding warrants (the
"Warrants") of the Company issued to various product consultants and
financial consultants to the Company. Each Warrant entitles the holder
thereof to purchase one share of Common Stock at exercise prices ranging
from $4.00 to $6.375 per share, subject to adjustment, for a period of
five years from the date of issuance of the Warrant.
This Prospectus also covers 1,000 shares of Common Stock acquired by a
consultant to the Company pursuant to the exercise of warrants previously
granted to him.
The Common Stock is traded on the NASDAQ National Market System (the
"NASDAQ/NMS") under the symbol XLTC, and on May 20, 1996, the last sale
price of the Common Stock was $11.00 per share.
SEE "RISK FACTORS" COMMENCING ON PAGE 6 OF THE PROSPECTUS FOR CERTAIN
CONSIDERATIONS RELEVANT TO AN INVESTMENT IN THE COMMON STOCK.
THE SECURITIES TO BE ISSUED PURSUANT TO THIS PROSPECTUS HAVE NOT BEEN
APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR BY
ANY STATE SECURITIES COMMISSION NOR HAS THE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
In the event all of the Warrants are exercised, the proceeds to the
Company would be $1,295,900, before deduction of expenses, including
legal, accounting and miscellaneous expenses payable by the Company,
which are estimated to be $10,451. See "Use of Proceeds" and "Plan of
Distribution".
The date of this Prospectus is _________, 1996
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements, and other
information with the Securities and Exchange Commission (the
"Commission"). Reports, proxy statements and other information filed by
the Company can be inspected and copied at the public reference
facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 and at the following Regional Offices of the
Commission: Chicago Regional Office, 219 South Dearborn Street, Chicago,
Illinois 60604 and New York Regional Office, 14th Floor, 75 Park Place,
New York, New York 10007. Copies of such material can be obtained from
the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents are incorporated by reference herein:
1. Annual Report on Form 10-K for the year ended
December 31, 1995.
2. Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996.
3. Registration Statement on Form 8-A, declared effective by
the Commission on June 11, 1991.
Each document filed by the Company subsequent to the date of this
Prospectus pursuant to Section 13(a), 13(c), 14, or 15(d) of the Exchange
Act prior to the termination of this offering shall be deemed to be
incorporated by reference in this Prospectus and shall be a part hereof
from the date of filing for such document.
The Company hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom a Prospectus is delivered, upon
written or oral request of such person, a copy of any and all of the
information that has been incorporated by reference in the Prospectus
(not including exhibits to the information that is incorporated by
reference unless such exhibits are specifically incorporated by reference
into the information that the Prospectus incorporates). Requests may be
made to Excel Technology, Inc. 45 Adams Avenue, Hauppauge, New York
11788, Attn: Mr. Antoine Dominic, (516) 273-6900.
THE COMPANY
Excel Technology, Inc. designs, develops, manufactures and markets laser
systems and electro-optical components for electronics, semiconductors,
and other industrial and dental applications. The word laser is an
acronym for "Light Amplification by Stimulated Emission of Radiation".
The essence of the laser is the ability of a photon (light energy) to
stimulate the emission of other photons, each having the same wavelength
(color) and direction of travel. The laser beam is so concentrated and
powerful that it can produce power densities millions of times more
intense than that found on the surface of the sun, capable of cutting,
welding and marking industrial products, yet can be precisely controlled
and directed, capable of performing delicate surgery on humans.
Excel is a leader in systems and components for beam-steered laser
marking, scientific, semiconductor and other industrial laser
applications, including automated environments. Optical components for
quality control and on-line test equipment serve many of the same
internationally known entities. The Company also manufactures and
markets lasers for dentists. Superior customer service is vital in each
operating facility and has greatly contributed to Excel's revenue growth.
Moreover, the Company hopes to enhance its growth via additional
acquisitions and alliances.
In October 1992, the Company acquired Quantronix Corporation, a Delaware
corporation (subsequently renamed Excel/Quantronix, Inc., "Quantronix"),
for Common Stock and warrants of the Company valued at approximately $9
million, in a transaction pursuant to which Quantronix became a wholly-
owned subsidiary of the Company. The acquisition of Quantronix and its
wholly-owned subsidiaries, Control Laser Corporation, located in Orlando,
Florida (subsequently renamed Excel/Control Laser, Inc. and currently a
wholly-owned subsidiary of Excel, "Control Laser"), Quantronix GmbH,
located in Germany ("Quantronix GmbH") and The Optical Corporation,
located in Oxnard, California ("Optical"), provided the Company with its
industrial, scientific and semiconductor product lines, supplemented the
Company's dental products, and provided the Company with a significant
revenue base as well as established manufacturing, engineering, marketing
and customer service capabilities.
In May 1994, the Company received net proceeds of approximately $6.6
million as a result of calling for redemption its then outstanding Class
A warrants. Approximately 1.24 million Class A warrants were exercised
to acquire Common Stock at $6.00 per share. The successful completion of
the exercise of the Class A warrants improved the Company's balance sheet
and cash position.
On February 14, 1995, the Company acquired Cambridge Technology, Inc.
("Cambridge"), located in Watertown, Massachusetts. Cambridge is engaged
primarily in the manufacture of scanners which move a laser beam with
speed and precision. Systems using these scanners have applications in
laser marking and etching, high density laser printing and writing,
digitized x-ray imaging, and entertainment laser light shows and
displays. The Company believes that this acquisition should allow it to
expand into new markets as well as enhance its present market position in
the industrial marketplace. The Company acquired all of the outstanding
shares of capital stock of Cambridge in exchange for $4,750,000,
consisting of $4,500,000 in cash (of which $3,500,000 was paid on
February 14, 1995) and $250,000 in shares of Common Stock (valued as of
February 14, 1995). An additional $600,000 due to be paid on the first
anniversary date of the acquisition was paid on March 5, 1996, and
$400,000 will be paid on the second anniversary date of the acquisition.
Pursuant to the acquisition agreement, additional payments, up to a
maximum of $1,200,000 (subject to adjustment based upon Cambridge's gross
margins), are to be made if Cambridge meets certain performance goals
during the first two fiscal years after the acquisition. In connection
therewith, the Company has so far paid $731,000 based on the attainment
of performance goals as defined in the acquisition agreement. The
Company utilized its own cash to finance these payments.
On October 2, 1995, the Company acquired the Photo Research Division
("The Photo Research Division") of Kollmorgen Instruments Corporation
("Kollmorgen"). The Photo Research Division is engaged primarily in the
business of developing, manufacturing, and marketing photometric and
spectroradiometer instruments and systems (the "Business"). In
accordance with an Asset Purchase Agreement, dated as of September 29,
1995, by and between Kollmorgen and Photo Research Inc. ("Photo
Research"), a wholly-owned subsidiary of the Company formed for the
purpose of effecting the acquisition, Photo Research purchased from
Kollmorgen substantially all of the net assets and properties utilized in
connection with the Business, in consideration of $3,525,000 in cash.
The Company utilized its own cash to finance the acquisition.
Subsequently, the Company obtained a $3,500,000 five year term loan, from
U.S.Trust, (the "Bank"), the proceeds of which have been utilized by the
Company to replenish its own cash used in financing the acquisition.
Unless the context requires otherwise, as used herein the terms "Company"
and "Excel" refer to Excel Technology, Inc., its wholly-owned
subsidiaries, and the wholly-owned subsidiaries of Quantronix. The
Company's principal executive offices are located at 45 Adams Avenue,
Hauppauge, New York 11788, and its telephone number is (516) 273-6900.
THE OFFERING
Securities Offered........262,100 shares of Common Stock.
Shares of Common Stock Outstanding
Before Offering...........8,743,634 (1)
After Offering............9,004,734 (1)(2)
Estimated Net Proceeds....$1,285,449 (2)
Use of Proceeds...........Working capital and general corporate purposes.
Risk Factors..............Investment in the securities offered hereby
involves certain risks. See "Risk Factors."
NASDAQ Symbol of
Common Stock.............XLTC
(1) Does not include (i) an aggregate of 1,801,515 shares of Common
Stock issuable under the Company's 1990 Stock Option Plan, as amended;
(ii) 1,648,158 shares of Common Stock issuable upon the exercise of
outstanding warrants; or (iii) 359,942 shares of Common Stock issuable
upon the conversion of outstanding shares of Series 1 redeemable
convertible preferred stock.
(2) Assumes the exercise of all of the Warrants.
RISK FACTORS
The following factors, in addition to those discussed elsewhere in this
Prospectus, should be carefully considered in evaluating the Company and
its business.
UNCERTAIN MARKET ACCEPTANCE. The Company's overall marketing objective
is to strengthen its presence in existing markets, and establish its
market presence in other industrial markets. With any laser technology,
there is the substantial risk that the market may not appreciate the
benefits or recognize the potential applications of the technology.
Market acceptance of the Company's laser products will depend, in large
part, upon the ability of the Company to demonstrate the potential
advantages of its laser products over other types of laser products and
over similar products manufactured by other companies. There can be no
assurance that the Company will be able to achieve all or any of its
marketing objectives, or that the Company's products will be accepted in
their intended marketplaces on any significant basis.
INTENSE COMPETITION. The laser and electro-optical component industry
generally is subject to intense competition. The Company's current and
proposed laser products will compete with existing and proposed products
marketed by other laser manufacturers. Some of the Company's competitors
are substantially larger in size and have substantially greater
financial, managerial, technical and other resources than the Company.
There can be no assurance that the Company will successfully
differentiate its current and proposed products from the products of its
competitors or that the marketplace will consider the Company's products
to be superior to competing products.
TECHNOLOGICAL OBSOLESCENCE. The laser industry is characterized by
extensive research and rapid technological change. The development by
others of new or improved products, processes or technologies may make
the Company's current or proposed products obsolete or less competitive.
Accordingly, the Company will be required to devote continued efforts and
financial resources to further develop and enhance its existing products
and conduct research to develop new products.
COMPLIANCE WITH GOVERNMENT REGULATIONS. The Company currently is subject
to the laser radiation safety regulations of the Radiation Control for
Health and Safety Act administered by the National Center for Devices and
Radiological Health of the United States Food and Drug Administration
(the "FDA"). The National Center for Devices and Radiological Health is
empowered to seek fines and other remedies for violations of these
regulatory requirements. The Company believes it has taken all necessary
action to comply with these regulations. Moreover, the Company's dental
laser products are subject to extensive FDA regulations governing the use
and marketing of such devices, including the requirement that the FDA
grant marketing approval of each device for use in the treatment of
humans.
PATENT PROTECTION. The Company's ability to effectively compete with
other manufactures of laser products may depend upon the proprietary
nature of its technologies. The Company owns several patents and has
other applications pending. The Company expects to file additional
patent applications in the future. While the Company believes that
certain of its technology is distinct from any technology currently
claimed by other companies, there can be no assurance that other
companies are not investigating or developing other technologies that are
similar to the Company's technology, or that any additional patents will
be issued to the Company or that such patents will afford the Company
sufficiently broad patent coverage to provide any significant deterrent
to competitive products. Even if a competitor's products were to
infringe products owned by the Company, it could be very costly for the
Company to enforce its rights in an infringement action. The validity
and enforceability of such patents may be significant to the Company and
may be important to the success of the Company. The Company, however,
believes that the best protection of proprietary technology in the laser
industry comes from market position, technical innovation and product
performance. There can be no assurance that any of these will be
realized or maintained by the Company.
The Company has not conducted any patent searches regarding
its products
and has not obtained an opinion of counsel as to the validity of its
patents or patent applications. The Company has obtained licenses under
certain patents covering lasers and related technology incorporated into
the Company's products. However, there may be other patents covering the
Company's current or proposed products. If valid patents are infringed,
the patent owner will be able to prevent the future use, sale and
manufacture of the subject products by the Company and also will be
entitled to damages for past infringement. Alternatively, the Company may
be required to pay damages for past infringement and license fees or
royalties on future sales of the infringing components of its systems.
Infringement of any patents also may render the Company liable to
purchasers and end-users of the infringing products. If a patent
infringement claim is asserted against the Company, then, whether or not
the Company is successful in defending such claim, the defense of such
claim may be very costly. While the Company is unable to predict what
such costs, if any, will be incurred if the Company is obligated to
devote substantial financial or management resources to patent
litigation, its ability to fund its operations and to pursue its business
goals may be substantially impaired.
POTENTIAL PRODUCT LIABILITY. The testing and use of human health care
products entails an inherent risk of physical injury to patients and
resultant product liability litigation. While the Company has obtained
product liability insurance in the amount of $2,000,000, there can be no
assurance that any damages assessed against the Company in the event of
suit will not exceed its coverage. In addition, the costs of defending
or settling a product liability action and the negative publicity arising
therefrom could have a material adverse impact on the Company, even if
the Company were ultimately to prevail.
DEPENDENCE ON SUPPLIERS. The Company relies on outside suppliers for all
of its manufacturing supplies, parts and components. Most parts and
components used by the Company currently are available from multiple
sources. While the Company has not encountered any difficulty in
obtaining these materials, there can be no assurance that, in the future,
its current or alternative sources will be able to meet all of the
Company's demands on a timely basis. Unavailability of necessary parts
or components could require the Company to re-engineer its products to
accommodate available substitutions which would increase costs to the
Company and/or have a material adverse effect on manufacturing schedules,
product performance and market acceptance.
DEPENDENCE ON FOREIGN SALES. A significant amount of the Company's
product sales are made to customers outside the United States.
Consequently, the Company's business is subject to the effects of any
restrictions on foreign trade or investment imposed by either the United
States or foreign governments. The Company's sales also may be adversely
affected by increases in the strength of the dollar relative to foreign
currencies, which could have the effect of increasing the costs of the
Company's products to foreign purchasers.
ADVERSE CONSEQUENCES ASSOCIATED WITH RESERVATION OF SUBSTANTIAL SHARES OF
COMMON STOCK. The Company has reserved 1,648,158 shares of Common Stock
for issuance upon the exercise of outstanding warrants (including the
Warrants), and has reserved 1,801,515 shares for issuance to employees,
officers, directors, and consultants pursuant to the Company's 1990 Stock
Option Plan, as amended. The price which the Company may receive for the
Common Stock issuable upon exercise of such options and warrants, in all
likelihood, will be less than the market price of the Common Stock at the
time of such exercise. Consequently, for the life of such options and
warrants the holders thereof are given, at little or no cost, the
opportunity to profit from a rise in the market price of the Common
Stock. The existence of all of the aforementioned securities may also
adversely affect the terms under which the Company could obtain
additional equity capital. In all likelihood, the Company would be able
to obtain additional equity capital on terms more favorable to the
Company at the time the holders of such securities choose to exercise
them. In addition, should all or substantially all of these securities
be exercised, the resulting increase in the amount of the Common Stock in
the public market may reduce the market price of the Common Stock.
NON-REGISTRATION IN CERTAIN JURISDICTIONS OF SHARES UNDERLYING THE
WARRANTS. The Company would be unable to issue the shares underlying the
Warrants unless, at the time of exercise, (i) the Company has a current
prospectus covering the shares of Common Stock issuable upon the exercise
of the Warrants and (ii) such shares of Common Stock have been
registered, qualified, or deemed to be exempt under the securities laws
of the state of residence of the holders of such Warrants. Although the
Company will use its best efforts to have all such shares so registered
or qualified on or before the exercise date and to maintain a current
prospectus relating thereto until the expiration date of the Warrants,
there is no assurance that it will be able to do so.
DIVIDENDS ON COMMON STOCK NOT LIKELY. The Company has never paid any
cash dividends on its Common Stock. For the foreseeable future it is
anticipated that earnings, if any, which may be generated from the
Company's operations will be used to finance the growth of the Company
and that cash dividends will not be paid to holders of shares of Common
Stock.
USE OF PROCEEDS
In the event that all of the Warrants are exercised, the net proceeds to
the Company pursuant to the offering hereby are estimated at
approximately $1,285,449, after deducting expenses estimated at $10,451.
Such net proceeds are expected to be expended for working capital and
general corporate purposes.
The foregoing allocation of net proceeds of this offering is based upon
the Company's present plans and estimates regarding general economic and
industry conditions and the Company's future revenues and expenditures.
If these factors change, the Company may find it necessary or advisable
to use portions thereof for other purposes.
The Company will not receive any of the proceeds from the resale of the
shares of Common Stock by the holders who exercise their Warrants.
SELLING STOCKHOLDERS
The following table sets forth (i) the name of the selling stockholder
("Selling Stockholder"), (ii) the number of shares of Common Stock owned
of record by such Selling Stockholder prior to the offering, (iii) the
number of shares of Common Stock offered for such Selling Stockholder's
account, and (iv) the number of shares of Common Stock owned of record by
such Selling Stockholder after completion of the offering, assuming all
Shares offered pursuant to this Prospectus are sold.
Number of Number of Number of
Securities Owned Securities Securities Owned
Name of Selling of Record Prior Offered for Selling of Record After
Stockholder to Offering Stockholder's Account Offering
Dr. Daniel Bida 1,000 1,000 0
The Selling Stockholder shall be entitled to receive all of the proceeds
from the sale of his shares of Common Stock.
PLAN OF DISTRIBUTION
261,100 of the shares of Common Stock covered by this Prospectus are
issuable upon the exercise of the Warrants. Each Warrant entitles the
holder thereof to purchase one share of Common Stock at exercise prices
ranging from $4.00 to $6.375 per share, subject to adjustment, for a
period of five years from the date of issuance of the Warrant.
The Selling Stockholder may offer and sell the shares of Common Stock
acquired upon the exercise of the Warrants from time to time as market
conditions permit, on the NASDAQ/NMS or otherwise, through ordinary
brokerage transactions, in negotiated transactions, at fixed prices which
may be changed, at market prices prevailing at the time of sale, at
prices related to such prevailing market prices, or at negotiated prices.
The Selling Stockholder may effect such transactions by selling shares to
or through broker-dealers, and all such broker-dealers may receive
compensation in the form of discounts, concessions or commissions from
the Selling Stockholder and/or the purchasers of the securities for whom
such broker-dealers may act as agent or to whom they sell as principal,
or both (which compensation as to a particular broker-dealer might be in
excess of customary commissions). The aforementioned methods of sale
described above may not be all-inclusive.
Any broker-dealer acquiring securities in the over-the-counter market
from the Selling Stockholder may sell the securities either directly, in
its normal market-making activities, through or to other brokers on a
principal or agency basis, or to its customers. Any such sales may be at
prices then prevailing in the over-the-counter market, at prices related
to such prevailing market prices or at negotiated prices to its customers
or a combination of such methods. Such broker-dealers that act in
connection with the sale of the shares hereunder might be deemed to be
"underwriters" within the meaning of Section 2(11) of the Securities Act
of 1933, as amended (the "Securities Act"); any commissions received by
them and any profit on the resale of shares as principal might be deemed
to be underwriting discounts and commissions under the Securities Act.
Any such commissions, as well as other expenses of the holders and
applicable transfer taxes, are payable by such parties, as the case may
be.
LEGAL MATTERS
Legal matters in connection with the securities offered hereby will be
passed upon for the Company by Breslow & Walker, 875 Third Avenue, New
York, N.Y. 10022. As of the date hereof, Howard S. Breslow, Joel M.
Walker, and Gary T. Moomjian, each of whom are partners of Breslow &
Walker, own 64,000, 9,000, and 12,000 shares of Common Stock,
respectively. Howard S. Breslow is a director of the Company.
EXPERTS
The financial statements and schedule of Excel Technology, Inc., as of
December 31, 1995 and 1994 and for each of the years in the three-year
period ended December 31, 1995, have been incorporated by reference
herein and elsewhere in this Registration Statement in reliance upon the
report of KPMG Peat Marwick LLP, independent certified public
accountants, incorporated by reference herein, and upon the authority of
said firm as experts in accounting and auditing. The report of KPMG Peat
Marwick LLP covering the December 31, 1995 financial statements refers to
a change in the method of accounting for investments in 1994.
ADDITIONAL INFORMATION
The Company has filed with the Securities and Exchange Commission, 450
Fifth Street, N.W., Washington, D.C., a Registration Statement on Form S-
3 under the Securities Act of 1933, as amended, for the registration of
the securities offered hereby. This Prospectus, which is part of the
Registration Statement, does not contain all of the information contained
in the Registration Statement. For further information with respect to
the Company and the securities offered hereby, reference is made to the
Registration Statement, including the exhibits thereto, which may be
inspected, without charge, at the Office of the Securities and Exchange
Commission, or copies of which may be obtained from the Commission in
Washington, D.C., upon payment of the requisite fees. Statements
contained in this Prospectus as to the content of any contract or other
document referred to are not necessarily complete, and in each instance
reference is made to the copy of such contract or other document filed as
an exhibit to the Registration Statement, each such statement being
qualified in all respects by such reference.
No dealer, salesperson, or other person has been authorized
in connection
with this offering to give any information or to make any representations
other than those contained in this Prospectus. This Prospectus does not
constitute an offer or a solicitation in any jurisdiction to anyone to
whom it is unlawful to make such offer or solicitation. Neither the
delivery of this Prospectus, nor any sale made hereunder shall, under any
circumstances, create an implication that there has been no change in the
circumstances or the facts herein set forth since the date hereof.
EXCEL TECHNOLOGY, INC.
TABLE OF CONTENTS
Page
Available Information.................. 2
Documents Incorporated by Reference.... 2
The Company............................ 3
The Offering........................... 5
Risk Factors........................... 6
Use of Proceeds........................ 9 PROSPECTUS
Selling Stockholders................... 10
Plan of Distribution................... 11 May --, 1996
Legal Matters.......................... 11
Experts................................ 11
Additional Information................. 12
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses of the Registrant in connection with the issuance
and distribution of the securities being registered hereby are as
follows:
Registration Fee $ 451
Accounting Fees and Expenses $ 3,000
Legal fees and expenses $ 6,000
Miscellaneous Expenses $ 1,000
.......
Total $10,451
Item 15. Indemnification of Director's and Officers.
Under Section 145 of the Delaware General Corporation Law the registrant
may or shall, subject to various exceptions and limitations, indemnify
its directors or officers and may purchase and maintain insurance
therefor.
Pursuant to Section 102(b)(7) of the Delaware General Corporation Law,
the Company has included in its Certificate of Incorporation a provision
eliminating the personal liability of directors to the Company or its
stockholders for damages for breach of fiduciary duty. The principal
effect of this provision in the Company's Certificate of Incorporation is
to eliminate potential monetary damage actions against any director for
breach of his duties as a director except (a) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (b)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (c) under section 174 of the
Delaware General Corporation Law, which relates to a willful or negligent
violation of section 160 (regarding the illegal purchase or redemption of
stock by a corporation) or 173 (regarding a corporations illegal
declaration or payment of dividends) of the Delaware General Corporation
Law, or (d) for any transaction from which the director for acts or
omissions occurring prior to the date of adoption of this provision. In
addition, section 145 of the Delaware General Corporation Law empowers a
corporation (a) to grant indemnification to any officer or director where
it is determined that he acted in good faith and in a manner he
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 reasonable cause to believe his conduct was unlawful and (b) to
advance to an officer or director the expenses of defending claims upon
receipt of his undertaking to repay any amount to which it is later
determined he is not entitled. The Company's By-laws provide that the
Company will indemnify and advance expenses of defense to its officers
and directors substantially to the full extent authorized by the Delaware
General Corporation Law.
The foregoing statement is subject to the detailed provisions of Sections
102 and 145 of the Delaware General Corporation Law.
Item 16. EXHIBITS.
Exhibit
Number Documents
............. .........
4 Form of Warrant
5 Opinion of Counsel
23 Independent Auditors' Consent
24 Consent of Counsel is contained in
the Opinion of Counsel, filed as part
hereof as Exhibit 5
Item 17. Undertakings.
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 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; (2) that, for the purpose of
determining any liability under the 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 (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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
Insofar as indemnification for liabilities arising under the 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 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 payment
by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
the Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the Town of Hauppauge, State of
New York, on May 24, 1996.
EXCEL TECHNOLOGY, INC.
By: /s/ J. Donald Hill
..................
J. Donald Hill, Chairman of the Board,
President and Chief Executive Officer
(Principal Executive Officer)
By: /s/ Antoine Dominic
....................
Antoine Dominic, Chief Financial Officer
(Principal Financial and Accounting Officer)
Pursuant to the requirements of the Securities Act of 1933, the
Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
/s/ J. Donald Hill Director May 24, 1996
..................
J. Donald Hill
.................. Director
Steven Georgiev
/s/ Howard S. Breslow Director May 24, 1996
.....................
Howard S. Breslow
/s/ Antoine Dominic Director May 24, 1996
....................
Antoine Dominic
.................... Director
Parham Pouladdej
EXHIBIT 4
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND
THE SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED, OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM
UNDER SUCH ACT AND THE RULES AND REGULATIONS THEREUNDER.
COMMON STOCK PURCHASE WARRANT
WARRANT TO PURCHASE ______ SHARES OF
COMMON STOCK, PAR VALUE $.001 PER SHARE,
OF EXCEL TECHNOLOGY, INC.
THIS CERTIFIES THAT, for value received, ______________, with an
address at ______________________________ ("Warrant Holder"), is entitled
pursuant to this Common Stock Purchase Warrant (the "Warrant"), subject
to the terms and conditions set forth herein, to purchase from Excel
Technology, Inc. (the "Company") ________ fully paid and non-assessable
shares (the "Warrant Shares"), of Common Stock, par value $.001 per share
("Common Stock"), of the Company for a period of five years from the date
hereof at a purchase price of $_____ per share. The initial purchase
price and the number of shares purchaseable hereunder are subject to
adjustment in certain events, as more fully described herein. The term
"Exercise Price" as used herein shall mean the initial purchase price,
subject however, to any such adjustments.
1. EXERCISE OF WARRANTS.
The purchase rights represented by this Warrant Certificate may be
exercised by the Warrant Holder during the period commencing the date
hereof and expiring at the close of business five years from the date
hereof, or if such day is a day on which banks in the City of New York
are authorized by law to close, then on the next succeeding day on which
banks are open for the transaction of business in such City, as follows:
on a cumulative basis as to __% of the shares of Common Stock on and
after the date of this Warrant; and an additional __% of the shares on
________________, by surrender of the Warrant Certificate with the
exercise form annexed hereto duly executed by the holder, or by an
attorney-in-fact duly authorized in writing, to the Company at the
principal office of the Company (currently at 45 Adams Avenue, Hauppauge,
New York 11788), together with payment of the Exercise Price in full, by
cash, certified check or bank draft. The Company agrees that the Warrant
Holder shall be deemed to be the record owner of such shares of Common
Stock purchased as of the close of business on the date on which this
Warrant Certificate shall have been presented and payment made for such
shares as aforesaid. Certificates for the shares of Common Stock so
purchased shall be delivered to the Warrant Holder within a reasonable
time after the purchase rights represented by this Warrant Certificate
shall have been exercised, not to exceed 10 business days following the
date of such exercise.
If the Warrants represented by this Certificate shall be exercised
in part only, the Company shall, upon surrender of this Warrant
Certificate for cancellation, deliver a new Warrant Certificate
evidencing the Warrants not so exercised.
2. ADJUSTMENT OF THE EXERCISE PRICE.
The Exercise Price shall be adjusted from time to time as follows:
(a) If the Company shall declare and pay to the holders of Common
Stock a dividend in shares of Common Stock, the Exercise Price in effect
immediately prior to the record date fixed for the determination for
stockholders entitled to such dividend shall be proportionately
decreased, such adjustment to become effective immediately after the
opening of business on the date following such record date.
(b) If the Company shall subdivide the outstanding shares of
Common Stock into a greater number of shares of Common Stock or combine
the outstanding shares of Common Stock into a smaller number of shares of
Common Stock, the Exercise Price in effect immediately prior thereto
shall be adjusted so that the holder shall be entitled to receive the
number of shares which he would have owned or been entitled to receive
after the happening of any of the events described above had this Warrant
been exercised in full immediately prior to the happening of such event,
such adjustment to become effective immediately after the opening of
business of the day following the day upon which such subdivision or
combination, as the case may be, becomes effective.
(c) The number of shares purchasable upon the exercise of the
Warrant shall be that number determined by multiplying the number of
shares issuable upon exercise immediately prior to such adjustment by a
fraction, of which the numerator is the Exercise Price in effect
immediately prior to such adjustment and denominator is the Exercise
Price as so adjusted.
(d) In case of any capital reorganization, or the consolidation or
merger of the Company with or into another corporation (other than a
merger or consolidation in which the Company is the continuing
corporation and which does not result in any reclassification of the
outstanding shares of Common Stock or the conversion of the outstanding
shares of Common Stock into shares of other stock or other securities or
cash or other property), or the sale of the property of the Company as an
entirety or substantially as an entirety (collectively such actions being
hereinafter referred to as a "Reorganization"), any unexercised Warrants
granted hereby shall be deemed cancelled unless the surviving corporation
in any such Reorganization elects to assume the Warrants granted hereby
or to issue substitute warrants in place thereof; provided, however, that
notwithstanding the foregoing, if the Warrants granted hereby would
otherwise be cancelled in accordance with the foregoing, the holder shall
have the right, exercisable during a ten day period ending on the fifth
day prior to such Reorganization, to exercise this Warrant in whole or in
part; provided, further, however, that in the event such Reorganization
is not completed, such exercise of this Warrant by the holder shall be
deemed null and void and the holder hereof shall have all rights afforded
such holder as the owner of this warrant.
Anything in this Section 2 to the contrary notwithstanding, the
Company shall not be required, except as hereinafter provided, to make
any adjustment of the Exercise Price in any case in which the amount by
which such Exercise Price would be decreased or increased by less than
$.05 per share of Common Stock, but in such case any adjustment that
would otherwise be required then to be made will be carried forward and
made at the time and together with the next subsequent adjustment which,
together with any and all such adjustments so carried forward, shall
amount to $.05 per share of Common Stock. In the event of any subdivision
or combination of shares of Common Stock, said amount (as theretofore
decreased or increased) shall be proportionately decreased or increased.
All calculations hereunder shall be made to the nearest whole cent.
(f) No fraction of a share of Common Stock shall be issued upon
exercise but in lieu thereof the Company shall pay for such fraction in
cash at a price based upon the then market price per share of the Common
Stock.
(g) Whenever the Exercise Price is adjusted, the Company shall
file with any transfer agent, if one exists, of the Common Stock and with
the holder a statement signed by the chief financial officer of the
Company stating the adjusted Exercise Price and sufficient facts to show
the reason for such adjustment and the manner of computing the
adjustment. If as a result of any adjustment required to be made under
this Section 2, the holder shall have the right to receive other
securities of the Company, then such securities of the Company shall be
subject to adjustments which shall be as nearly equivalent as shall be
practicable to the adjustment provisions of this Section 2.
3. PRIOR NOTICE AS TO CERTAIN EVENTS.
The Company shall mail to the registered owner of this Warrant
Certificate, at his last known post office address, not less than 20 days
prior notice of the date on which (a) a record will be taken for the
purpose of determining the holders of shares of Common Stock entitled to
dividends (other than cash dividends) or subscription rights or (b) a
record will be taken (or in lieu thereof of the transfer books of the
Company will be closed) for the purposes of determining the holders of
shares of Common Stock entitled to notice of and to vote at a meeting of
shareholders at which any capital reorganization, reclassification of
Common Stock, consolidation, merger, dissolution, liquidation, winding up
or sale, transfer or other disposition of the Company's assets, property
or business shall be considered or acted upon, as the case may be.
4. COMMON STOCK.
(a) For the purposes of the Warrants represented by this
Certificate, the term "Common Stock," as used herein, shall include (i)
the class of stock designated as Common Stock, par value $.001 per share,
of the Company or (ii) any class of stock resulting from successive
changes or reclassifications of such Common Stock consisting solely of
changes in par value, or from par value to no par value, or from no par
value to par value.
(b) The Company covenants and agrees that the shares of Common
Stock issuable upon the exercise of this Warrant will, when issued (and
paid for in the manner set forth herein), be duly authorized, validly
issued, fully paid, non-assessable and free from all taxes, liens,
security interests, charges and other encumbrances with respect to the
issuance thereof.
(c) The Company covenants and agrees that during the period within
which the rights represented by this Warrant Certificate may be
exercised, the Company shall at all times have authorized and reserved
and keep available free from preemptive rights, solely for the issuance
or delivery upon the exercise of this Warrant, shares of Common Stock and
other securities and properties as shall be receivable upon the exercise
from time to time of the Warrants represented by this warrant
Certificate.
5. SECURITIES ACT OF 1933.
The Warrants represented by this Certificate and the shares of
Common Stock issuable upon the exercise of this Warrant may not be sold,
transferred, pledged, hypothecated, or otherwise disposed of unless the
holder is advised by the Company that said securities are effectively
registered under the Securities Act of 1933, as amended ("Securities
Act"), and applicable state securities laws or the Company is in receipt
of an opinion of counsel knowledgeable in securities law matters and
satisfactory to the Company and its counsel that such disposition may be
effected without filing under said Act, and a legend to such effect may
be placed on this Warrant Certificate and the certificates for all shares
of Common Stock issuable upon the exercise of this Warrant.
6. WARANT HOLDER NOT A SHAREEHOLDER.
Until exercised, the warrants represented by this Certificate shall
not entitle the Warrant Holder to any voting rights or other rights of a
shareholder of the Company; except that the Warrant Holder hereof shall
be entitled to all notices sent to or other communications by the Company
with shareholders of the Company.
7. APPLICABLE LAW.
The terms and provisions set forth in this Certificate shall be
governed by and construed in accordance with the laws of the State of New
York.
8. LOSS, ETC. OF WARRANT CERTIFICATE.
If this Certificate is lost, stolen, mutilated or destroyed, the
Company shall, on such terms as to indemnify or otherwise as the Company
may reasonably impose, issue a new Warrant Certificate of like
denomination, tenor and date. Any such new Warrant Certificate shall
constitute an original contractual obligation of the Company, whether or
not the allegedly lost, stolen, mutilated or destroyed certificate shall
be discovered.
9. ASSIGNMENT.
This Warrant Certificate may not be assigned, sold, transferred or
otherwise hypothecated. Title to this Warrant Certificate and all rights
hereunder are not transferable.
IN WITNESS WHEREOF, the Company has executed this Certificate as of the
____ day of _________, 199_ by its duly authorized officer.
EXCEL TECHNOLOGY, INC.
BY: .............................
Rama Rao, President
ATTEST:..........................
Triveni Srinivasan-Rao, Secretary
FORM OF EXERCISE
Form of Exercise to be executed by the holder
at the time of exercise)
The undersigned, holder of the within Warrant(s), hereby exercises
his right to purchase shares of Common Stock, par value $.001 per
share, of Excel Technology, Inc. which the undersigned is entitled to
purchase under the terms and conditions of the within Warrant, and makes
payment in full for the number of shares of Common Stock so purchased by
payment of $ , by certified or cashier's check.
Please issue the certificate of shares of Common Stock in the name of,
and pay any cash for any fractional share to:
.........................
Print or type name
.........................
Social Security or
Identifying Number
.........................
Street Address
......................... ..... ..........
City State Zip Code
and, if said number of shares is not all of the shares purchasable
hereunder, a new Warrant Certificate for the unexercised portion of the
within Warrant(s) to:
.........................
Print or type name
.........................
Social Security or
Identifying Number
.........................
Street Address
......................... ..... ..........
City State Zip Code
DATED:
.........................
Signature
(Signature must conform
in all respects to name
of holder as specified
on Certificate)
EXHIBIT 5
May 24, 1996
Board of Directors
Excel Technology, Inc.
45 Adams Avenue
Hauppauge, New York 11788
Gentlemen:
It is our opinion that the securities being registered with the
Securities and Exchange Commission pursuant to the Registration Statement
of Excel Technology, Inc. on Form S-3 will, when sold, be legally issued,
fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the
aforesaid Registration Statement and further consent to the reference
made to us under the caption "Legal Matters" in the Prospectus
constituting part of such Registration Statement.
Very truly yours,
Breslow & Walker
EXHIBIT 23
KPMG Peat Marwick LLP
Independent Accountants' Consent
................................
The Board of Directors
Excel Technology, Inc.:
We consent to the use of our report incorporated herein by reference and
to the reference to our firm under the heading "Experts" in the
prospectus.
Our report refers to a change in the method of accounting for investments
in 1994.
/s/ KPMG Peat Marwick
.....................
KPMG PEAT MARWICK
Jericho, New York
May 22, 1996
