UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
...........
FORM 10-K/A
Amendment No. 2
(Mark One)
[ X ] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2006
..................
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
..................... ................
Commission File Number 0-19306
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 No.)
41 Research Way (631) 784-6175
E. Setauket, NY 11733 (Registrant's Telephone Number)
(Address of Principal Executive Offices)
Securities registered pursuant to Section 12(b) of the Act:
None.
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.001 per share
Indicate by check mark if the registrant is a well-known seasoned issuer,
as defined in Rule 405 of the Securities Act. [ ] Yes [X] No
Indicate by check mark if the registrant is not required to file reports
pursuant to Section 13 or Section 15(d) of the Act. [ ] Yes [X] No
Indicate by check mark whether the registrant (1) has filed all reports
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject
to such filing requirements for the past 90 days. [X] Yes [ ] No
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be
contained, to the best of registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form
10-K or any amendment to this Form 10-K. [ ]
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, or a non-accelerated filer. See definition
of "accelerated filer and large accelerated filer" in Rule 12b-2 of the
Exchange Act (Check one):
Large Accelerated filer [ ] Accelerated filer [X]
Non-accelerated filer [ ]
Indicate by check mark whether the registrant is a shell company (as
defined in Rule 12b-2 of the Act. [ ] Yes [X] No
The aggregate market value of the common stock held by non-affiliates of
the Registrant was $354,077,170 based on the last sale price of the
common stock as reported by NASDAQ on June 30, 2006. Shares held by each
officer and director and by each person who owns 10% or more of the
outstanding common stock have been excluded in that such persons may be
deemed to be affiliates. The determination of affiliate status is not
necessarily a conclusive determination for other purposes.
The number of shares of the Registrant's common stock outstanding as of
April 23, 2007 was: 12,161,589.
Explanatory Note
This Amendment No. 2 on Form 10-K/A (Amendment No. 2") is being
filed by Excel Technology, Inc. to amend our Annual Report on Form 10-K
for the fiscal year ended December 31, 2006 filed with the Securities and
Exchange Commission ("SEC") on February 20, 2007, (the "Initial Report"),
to amend the Initial Report to include the information originally
intended to be incorporated by reference from our Definitive Proxy
Statement for our next annual meeting of stockholders pursuant to
Regulation 14A of the Securities Act of 1934, as amended, that we would
file with the SEC no later than 120 days after our fiscal year end.
Since we will not be filing our Definitive Proxy Statement by the end of
120 days after our fiscal year end as originally intended, we are hereby
filing this Amendment No. 2, in part, to provide the information we
originally intended to incorporate by reference. Such information is the
information required by Part III for our Annual Report on Form 10-K.
Pursuant to Rule 12b-15 under the Securities Exchange Act of 1934, as
amended, Part III of the Initial Report is hereby deleted in its entirety
and replaced with the following Part III as set forth below, and Part IV
is amended to add the exhibits set forth in the exhibit list to be filed
herewith. The Amendment No. 2 does not change our previously reported
financial statements and other financial disclosures contained in our
Initial Report.
PART III
.........
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Set forth below are the name, age and position of each director and
executive officer of Excel Technology, Inc., as of April 26, 2007.
Name Age Position
......................... ... .........................................
J. Donald Hill 75 Chairman of the Board of Directors
Antoine Dominic 46 Chief Executive Officer, President, Chief
Operating Officer & Director
Steven Georgiev (1) 73 Director
Ira J. Lamel (1) 60 Director
Donald E. Weeden (1) 77 Director
Alice Varisano 53 Chief Financial Officer
(1) Member of the Audit, Compensation and Nominating Committees.
The following information is submitted based upon information
received by the Company from such persons:
Mr. Hill has been Chairman of the Board of Directors since January
1996. He served as Chief Executive Officer of the Company from January
1996 to October 2000, President of the Company from August 1994 until
February 1998, and Chief Financial Officer of the Company from January
1994 until March 1995. In addition, he was President of Quantronix
Corporation ("Quantronix"), a subsidiary of the Company, from November
1992 until January 1996, and was a business consultant to Quantronix from
February 1992 to November 1992. From January 1991 to October 1991, Mr.
Hill was Chief Executive Officer of Medstone International, Inc., a
company engaged in the manufacture, marketing and sale of shock wave
therapy devices. From 1988 to 1990, he was Director of Corporate Finance
at Weeden & Co., an investment firm and member of the New York Stock
Exchange. Mr. Hill served as Vice Chairman of First Affiliated
Securities, Inc. from 1978 to 1988, and from 1966 to 1977 he was a
General Partner of Loeb, Rhoades & Company.
Mr. Dominic has been Chief Executive Officer since October 2000 and
President and Chief Operating Officer of the Company since February 1998.
He served as Chief Financial Officer of the Company from March 1995 until
December 26, 2004 and as a director of the Company from January 1996
through April 2004 and from December 2006 to present. In addition, Mr.
Dominic served as President of Quantronix from January 1996 until October
2000. From June 1992 to January 1995, Mr. Dominic was Executive Vice
President, Chief Financial Officer and Director of CompuDyne Corporation,
a manufacturer of data acquisition equipment and access control systems,
and Corcap Inc., a holding company (both are related publicly-held
companies). From March 1990 to June 1992, Mr. Dominic was the Chief
Financial Officer for CompuDyne Corporation and Corcap, Inc. From August
1987 to March 1990, Mr. Dominic was Chief Financial Officer of Quanta
Systems Corporation, a division of CompuDyne Corporation. Mr. Dominic
holds a B.S. in accounting, an M.B.A., and is a non-practicing CPA.
Mr. Georgiev has been a director of the Company since December 1991.
From 1993 to 1997, he served as Chairman and CEO of Palomar Medical
Technologies, Inc. ("Palomar"), a biotechnology company. Since 1988, he
has acted as a business and management consultant to several high
technology companies, including EG&G, Inc., Cybernetics Products, Inc.,
Camber, Inc., Dynatrend, Inc. and Palomar. From 1972 to 1975, and later
from 1978 to 1988, Mr. Georgiev was Chairman, President and Treasurer of
Dynatrend, Inc., which specialize in providing engineering and program
management services primarily to the United States Government. From 1961
to 1972, and later from 1975 to 1978, Mr. Georgiev held a variety of
positions with Avco Systems, a high technology aerospace business,
including Project Director - Missile Systems; Director of Engineering;
Director of Advanced Programs; and Vice President - Marketing and
Planning. Since 1980, Mr. Georgiev also has been involved in the start-
up and subsequent development of several companies. Mr. Georgiev has a
B.S. degree in engineering physics and an M.S. degree in management.
Mr. Lamel has been a director of the Company since April 2004. He
has been Executive Vice President, Chief Financial Officer and Treasurer
of Hain Celestial Group since October 2001, and he has served as
Corporate Secretary since January 2003. From June 1973 to September
2001, Mr. Lamel, a certified public accountant, was at Ernst & Young LLP
where he served in various capacities including partner. Ernst & Young
LLP served as the Company's independent registered public accounting firm
for the year ended December 31, 2000, and Mr. Lamel directed the
Company's audit that year. In addition, Mr. Lamel currently serves as
director of Harvey Electronics, Inc., a publicly held company engaged in
the retail sale, service and custom installation of audio, video and home
theater equipment.
Mr. Weeden has been a director of the Company since May 2003. Since
1987, Mr. Weeden has been Chairman of Weeden Securities Corporation, the
General Partner of Weeden & Co., L.P., a New York Stock Exchange member
firm, and a member of the National Association of Securities Dealers.
Over the years, Mr. Weeden has participated as an early venture investor
in a number of companies involved in the semiconductor industry. Mr.
Weeden graduated from Stanford University with a B.A. in economics.
Alice Varisano, a certified public accountant, has been the Chief
Financial Officer since December 27, 2004. From 1987 through 2004 she
was a principal at Ernst & Young LLP where she coordinated services for
many multinational public companies. Ms. Varisano holds a B.S. in
Accounting and M.S. in Taxation.
Audit Committee and Audit Committee Financial Expert. The Board of
Directors has an Audit Committee comprised of Messrs. Georgiev, Lamel,
and Weeden. Mr. Georgiev, Mr. Weeden and Mr. Lamel are "independent
directors" as defined under NASDAQ rules. Mr. Lamel serves as the
Chairman of the Audit Committee. Mr. Georgiev and Mr. Lamel are
qualified as audit committee financial experts within the meaning of the
SEC regulations.
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Securities Exchange Act of 1934, as amended,
requires the Company's executive officers and directors, and persons who
own more than 10% of the Common Stock (collectively, the "Reporting
Persons"), to file reports of ownership and changes in ownership with the
SEC, and to furnish a copy of such reports to the Company. Based solely
on review of the copies of such forms furnished to the Company, the
Company believes that during the year ended December 31, 2006, the
Reporting Persons complied with all applicable Section 16(a) filing
requirements.
CODE OF ETHICS
The Company has a Code of Ethics that is applicable to all employees
of the Company, including the Company's executive officers. The Code of
Ethics has been filed with the SEC as an exhibit to its Form 10-K dated
and filed on March 15, 2005. The Company will provide an electronic or
paper copy of the Code of Ethics free of charge upon request. Requests
may be made by calling Investor Relations at (631) 784-6175, or by
writing to Investor Relations at 41 Research Way, East Setauket, New York
11733.
ITEM 11. EXECUTIVE COMPENSATION
Compensation Discussion and Analysis
The Compensation Committee
The Compensation Committee of the Excel Board (the "Compensation
Committee") reviews and determines the compensation to be paid to the
Company's named executive officers, which also includes the
implementation and administration of Excel's stock plans, cash bonus
plans and similar programs.
The Compensation Committee works directly with the compensation and
benefits professionals in Excel's human resources organization, who
evaluate and present the Committee with information gathered from public
sources for officers at other public companies. The Committee ensures
that the total compensation paid to the named executive officers is fair,
reasonable and competitive. Generally, the types of compensation and
benefits provided to the named executive officers are similar to those
provided to executive officers at other public companies.
The Committee also considers the performance of the Company's named
executive officers on an individual basis before determining the
compensation arrangement for each of them. Since members of our
Compensation Committee also serve as members of our Audit Committee these
members have frequent interaction with and open access to these officers,
and considerable opportunity to evaluate the performance of the named
executive officers of the Company.
All members of the Company's Compensation Committee are independent
(as independence is currently defined in Rule 4200(a)(15) of the NASDAQ
listing standards).
The individuals who served as the Company's Chief Executive Officer
and Chief Financial Officer during fiscal 2006 are referred to as the
"named executive officers".
Compensation Philosophy and Objectives
The Committee believes that the most effective executive
compensation program is one that is designed to reward the achievement of
specific quarterly, long-term and strategic goals by the Company, and
which aligns the named executive officers' interests with those of the
stockholders. The Committee evaluates both performance and compensation
to ensure that the Company maintains its ability to attract and retain
superior employees in key positions and that compensation provided to key
employees remains competitive relative to the compensation paid to
executives in similar positions in peer companies. To that end, the
Committee believes executive compensation packages provided by the
Company to it's named executive officers, should include both cash and
stock-based compensation that reward performance as measured against
established goals.
Components of Executive Compensation Program
The primary elements of the Company's executive compensation program
are:
- Base salary
- Performance Cash Bonus
- Cash Bonus
- Equity-Based Compensation
- Defined Contribution Pension
- Deferred Compensation
- Other benefits
- Perquisites
Each year, the Committee reviews each named executive officer's
total compensation and compares it with market data for similar positions
at other public companies, market data and other relevant sources.
Base Compensation
The Committee typically reviews and determines the base salaries of
all named executive officers in January of each year. As described
above, the Committee reviews compensation paid to executives in similar
positions at other public companies. In addition the Committee takes
into account the scope of responsibilities, experience, performance
rating and internal equity within the Company. Base salaries may be
adjusted upward or downward at the Committee's discretion.
The salaries the Company paid to the CEO and CFO during fiscal 2006
are shown in the Summary Compensation Table on page 8.
Performance Cash Bonus
As part of Excel's compensation program and in order to maintain an
appropriate pay-for-performance incentive program, the Company's named
executive officers are eligible for cash compensation under the terms of
the Company's Incentive Compensation Plan for Key Executives (the "Bonus
Plan"). At the beginning of each quarter, the Committee reviews and
determines the performance goals applicable to each Participant, the
terms and conditions of each Award under the "Bonus Plan", and the amount
that each Participant shall have the opportunity to receive under the
Award based upon the actual level of performance measured against the
performance goal or goals. The entitlement of the named executive
officer to payment under an Award is contingent upon attainment the
objective performance goals established by the Committee.
The bonuses the Company paid to the CEO and CFO during fiscal 2006
are shown in the Summary Compensation Table on page 8.
Cash Bonus
As part of Excel's compensation program in order to maintain an
appropriate incentive program, the Company's named executive officers are
eligible for cash bonuses. The CEO bonuses, except under unusual
situations, for example, the sign- on bonus paid during 2006 during the
renewal of his contract, is covered under the Company's Incentive
Compensation Plan for Key Executives (the "Bonus Plan"). The CFO's bonus
reflects the belief that a significant portion of the compensation should
be in the form of variable compensation linked to performance. The CFO's
cash bonus is determined by the CEO and is discussed with the
Compensation Committee.
Equity-Based Compensation
The Company's equity-based compensation program rewards the
Company's named executive officers for Company performance over a period
of more than one fiscal year. The Committee believes that equity-based
compensation performs an essential role in retaining and motivating named
executive officers and that, by providing them with long-term incentives,
their decisions affecting the operation of the business will be aimed at
maximizing stockholder value. The Compensation Committee reviews and
determines the performance goals applicable to each Participant, the
terms and conditions of each Award under the Stock Option/Stock Issuance
Plan.
Due to a pending merger with Coherent, Inc. during most of 2006, no
long-term equity-based incentive awards were granted.
Defined Contribution Pension Plans
The Company maintains a tax qualified defined contribution plan for
the benefit of all its employees. Named executive officers participate
in this plan on the same basis as all other employees. This plan
provides for Company matching contributions of 50% of the first six
percent of compensation up to the maximum amount allowed under the
Internal Revenue Code.
Deferred Compensation
The Company's Chief Executive Officer is entitled to participate in
the Company's 409A Nonqualified Deferred Compensation Plan (the "Deferred
Compensation Plan"). Pursuant to the Deferred Compensation Plan, the
participant may elect to defer up to $31,250 on a quarterly basis.
Other Benefits
The Company maintains medical, disability, and life insurance for
all of its employees, as well as customary vacation, leave of absence,
and other similar policies. Other than the vacation policy, named
executive officers are eligible to participate in these programs on the
same basis as the rest of the Company's employees. For purposes of the
vacation policy, the named executive officers receive a minimum of four
weeks vacation annually irrespective of service.
Perquisites
The Company provides its named executive officers with perquisites
that we believe are reasonable, competitive and consistent with the
Company's overall executive compensation program. We believe that our
perquisites help us to retain the best leaders and allow them to operate
more effectively. These perquisites include: use of a Company car and
reimbursement for insurance premiums. Neither of the named executive
officers receive any additional compensation to reimburse them for any
income tax liability that may arise and become due and payable as a
result of their receipt of these items. The Company does not pay any
additional cash compensation to named executive officers to reimburse
them for any income taxes that become due and payable in connection with
equity awards, including any taxes that become due as a result of the
exercise or vesting of such awards.
Accounting and Tax Implications of Executive Compensation
Current federal tax law imposes an annual individual limit of $1
million on the deductibility of the Company's compensation payments to
the CEO and its four other most highly compensated executive officers.
Performance-based compensation that satisfies the conditions of Section
162(m) of the Internal Revenue Code of 1986, as amended ("Section
162(m)") is excluded for purposes of this limitation. In designing
compensation arrangements, the Committee seeks to mitigate the expense
and dilution related to such arrangements and to ensure, to the maximum
extent practicable, the deductibility of all compensation payments
pursuant to Section 162(m).
Compensation Committee Report
The Compensation Committee has reviewed and discussed with
management the Company's Compensation Discussion and Analysis required by
Item 402(b) of Regulation S-K promulgated by the SEC. Based on such
review and discussions, the Committee recommended to the Board, and the
Board approved, the inclusion of the Compensation Discussion and Analysis
in the Company's Annual Report on Form 10-K for the year ended December
31, 2006, for filing with the SEC.
April 15, 2007
Compensation Committee
Steven Georgiev
Donald Weeden
Ira Lamel
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
Management compensation for 2006 was determined by the non-employee
directors of the Company. None of these outside directors was at any
time during 2006 or at any other time an officer or employee of the
Company, and none of them had any relationship with the Company requiring
disclosure under SEC rules.
Summary Compensation Table 2006
The following table shows compensation information for our Chief
Executive Officer and our Chief Financial Officer as of the end of our
last fiscal year.
Name and Principal Non-Equity All Other Total
Position Year Salary Bonus Incentive Plan Compensation Compensation
................... .... ........ ............. ............... ............ ............
Antoine Dominic 2006 $625,000 $280,000,<F1> $3,147,594<F2> $1,620,890<F3> $5,673,484
Alice Varisano 2006 $275,769 $141,000 0 $48,067<F4> $464,836
<F1> The Company paid a retention bonus to Mr. Dominic of $280,000.
<F2> Represents cash awards earned under the "Excel Technology Bonus Plan", the provisions of which are described on page 6.
The Compensation Committee factored into the bonus that Mr. Dominic did not receive any equity awards since February 7,
2005 due to the proposed merger with Coherent, Inc. precluding the issuance of any equity awards.
<F3> Amount includes deferred compensation of $1,375,000. The deferred compensation amount was determined based upon
$125,000 per year of service. The deferred compensation has been funded in a Rabbi Trust and is subject to the general
creditors of the Company. Also included is an amount related to accrued vacation and personal time paid during 2006.
<F4> Amount relates to accrued vacation and personal time paid during 2006.
</FN>
Grants of Plan-Based Awards
There were no grants of Plan-Based Awards to Named Executive
Officers in fiscal 2006.
Employment Agreements
In October 2006, the Company entered into a two-year employment
agreement with Antoine Dominic, which automatically renews for additional
one-year periods unless employment is terminated as provided in the
agreement. Pursuant to such agreement, Mr. Dominic's base salary is
subject to annual review and was increased to $625,000 retroactive to
January 1, 2006. Mr. Dominic is eligible to receive bonus compensation
in accordance with the Company's Annual Incentive Compensation Plan for
Key Executives (the "Key Executive Bonus Plan"). The agreement provides
that in the event the Company terminates Mr. Dominic's employment without
cause or the employee terminates for Good Reason, he is entitled to a
lump sum payment equal to (i) two times the Employee's Base Salary plus
(ii) an amount equal to the sum of the bonuses paid or payable by the
Company for each of the performance periods ending with the two calendar
years immediately preceding the calendar year of termination of the
Employee's employment. In the event of a Change of Control the employee
shall be entitled to a payment equal to the product of (A) 2.99 and (B)
the Employee's "annualized includible compensation", plus a gross-up of
any excise tax payable by him with respect to any portion of such payment
constituting an excess parachute payment under Section 280G of the
Internal Revenue Code. The employee is entitled to a deferred
compensation benefit based upon the employee's years of service.
In December 2004, the Company entered into a four-year employment
agreement with Alice Varisano. The agreement provides for a base salary
of $275,000, a non-accountable expense allowance of $25,000, and a yearly
bonus as determined by the Board which bonus shall not be less than
$50,000. Base salary was increased to $290,000 on August 4, 2006. The
Agreement also provides that (a) in the event the Company terminates Ms.
Varisano's employment without cause or if she resigns for Good Reason (as
defined in the employment agreement), she is entitled to receive a
severance payment equal to one year of compensation (including base
salary, expense allowance and minimum bonus),and (b) if her employment is
terminated due to a Change in Control (as defined in the employment
agreement), she is entitled to receive (i) a severance payment equal to
two years compensation (including base salary, expense allowance and
minimum bonus), and (ii) a payment of $300,000, plus a gross-up of any
excise tax payable by her with respect to any portion of such payment
constituting an excess parachute payment under Section 280G of the
Internal Revenue Code.
Outstanding Equity Awards at December 31, 2006
The following table provides information related to outstanding
equity awards for each of the named executive officers as of December 31,
2006.
OPTION AWARDS STOCK AWARDS
................................................................... ..............................................
Equity
Incentive
Plan
Equity Equity Awards:
Incentive Incentive Market or
Plan Plan Awards: Payout Value
Awards: Number Market Number of of Unearned
Number of Number of Number of of Shares Value of Unearned Shares,
Securities Securities Securities or Units Shares or Shares, Units Units
Underlying Underlying Underlying that Units of or Other or Other
Unexercised Option Unexercised Unexercised Option Option Have Stock that Rights that Rights that
Options (#) Grant Options (#) Unearned Exercise Expiry Not Have not Have not Have Not
Name Exercisable Date Unexercisable Options(#) Price($) Date Vested(#) Vested($) Vested(#) Vested ($)
................ ........... .......... ............. .......... ........ ........ ......... ......... ........... ...........
<C
Antoine Dominic 77,750 3/21/2000 0 0 $24.63 03/21/10 0 0 0 0
10,000 5/30/2000 0 0 $29.00 05/30/10 0 0 0 0
10,000 4/16/2001 0 0 $19.71 04/16/11 0 0 0 0
162,042 2/15/2002 0 0 $15.15 02/15/12 0 0 0 0
10,000 2/15/2002 0 0 $15.15 02/15/12 0 0 0 0
20,000 4/16/2004 0 0 $34.68 04/26/14 0 0 0 0
200,000 2/07/2005 0 0 $22.59 02/07/15 0 0 0 0
Alice Varisano 40,000 12/27/2004 0 0 $26.51 12/27/14 0 0 0 0
Option Exercises and Stock Vested
There were no options exercised by, or stock awards made to or
vesting in the named executive officers during fiscal 2006.
Non-Qualified Deferred Compensation
The following table provides information related to deferral of
compensation on a nonqualified basis during 2006.
Executive Registrant Aggregate Aggregate Aggregate
Name Contributions Contributions Earnings Withdrawals Balance
................ ............. ............. ........ ........... ...........
Antoine Dominic 0 $1,375,000 0 0 $1,375,000
The non-qualified deferred compensation plans allows the participant
to defer up to $31,250 quarterly. The non-qualified deferred
compensation plan has been funded in a Rabbi Trust and the assets held
therein are subject to the general creditors of the Company. The
earnings on the plan are calculated based upon the actual earnings of
certain bonds and bond funds that the trustee has selected. The Plan
allows for a payout, withdrawals and other distributions to comply with
the rules under Internal Revenue Code 409A.
Potential Payments upon Termination and/or Change of Control
Payments Made Upon Termination
Regardless of the manner in which the named executive officer's
employment terminates, he or she may be entitled to receive amounts
earned during his or her term of employment. Such amounts include:
- Performance cash bonus earned during the fiscal year;
- Amounts contributed under the Non Qualified Deferred Compensation
Plan;
- Unused vacation pay;
Payments Made Upon Death or Disability
In the event of death or disability of a named executive officer, in
addition to the benefits listed under the headings "Payments Made Upon
Termination" above, the named executive officer will receive benefits
under the Company's disability plan or payments under the Company's life
insurance plan, as appropriate.
Payments Made Upon Termination without Cause or
Named Executive Officer Leaves for Good Reason
In the event that the Company terminates the named executive
officer's employment without Cause or the Employee leaves the employ of
the Company for Good Reason, in addition to the benefits listed under the
heading "Payments Made Upon Termination" above, the CEO shall be entitled
to a lump sum payment equal to two times Base Salary and an amount equal
to the sum of the bonuses paid or payable by the Company for each of the
performance periods ending with the two calendar years immediately
preceding the calendar year of termination, and the CFO shall be entitled
to a lump sum payment equal to one times her base salary and an amount
equal to the sum of the minimum yearly bonus plus expense allowance.
Payments Made Upon a Change of Control
The Company has entered into an employment contract with Chief
Executive Officer. Pursuant to this agreement, if there is a change of
control, whether or not the CEO is terminated or leaves the employ of the
Company,
The Chief Executive Officer will receive:
- a payment equal to the product of 2.99 and his annualized
includible compensation as defined under the Internal Revenue
Code Section 280G and the regulations thereunder for the
period consisting of the most recent five (5) taxable years
ending before the Change of Control
- medical and dental benefits for a period of 60 months
following the Change of Control
- an amount equal to the gross up of excise tax charged to the
named executive officer as a result of the receipt of any
change of control payments;
and all stock options or restricted stock will automatically vest.
The Company has entered into an employment contract with the Chief
Financial Officer. Pursuant to this agreement, if there is a change of
control, whether or not the CFO is terminated or leaves the employ of the
Company,
The Chief Financial Officer will receive:
- A payment of $300,000 plus a payment equal to two years of
compensation (which includes base salary, expense
reimbursement and minimum bonus)
- An amount equal to the gross up of excise tax charged to the
named executive officer as a result of the receipt of any
change of control payments
and all stock options or restricted stock will automatically vest.
The tables below reflect the amount of compensation payable to each
of the named executive officers of the Company in the event of voluntary
termination, for cause termination, early retirement, disability, death,
termination without cause or with Good Reason, termination without cause
or with good reason with a change of control and when there is just a
change of control. The amounts shown assume that such event was
effective as of December 31, 2006, and thus includes amounts earned
through such time and are estimates of the amounts which would be paid
out to the named executive. The actual amounts to be paid can only be
determined at the time of such named executive's separation from the
Company
Antoine Dominic, CEO
.....................
The following table shows the potential payments upon termination
and/or a change of control of the Company for Antoine Dominic, the
Company's Chief Executive Officer, Chief Operating Officer and President.
Termination
Without
Voluntary/ Cause or
For Cause Termination With Good
Executive Benefit Termination/ Without Cause Reason
Payments Upon Early or With Good With Change Change
Certain Events Retirement Disability Death Reason Of Control of Control
..................... ........... ........... .......... ............. ........... ..........
Compensation:
Incentive Compensation $1,400,000 $1,400,000 $1,400,000 $1,400,000 $1,400,000 $1,400,000
Termination Payment 0 0 0 $3,506,264 $3,506,264 0
Stock Options
(unvested and accelerated) 0 0 0 0 0 0
Performance Shares
(unvested and accelerated) 0 0 0 0 0 0
Benefits & Perquisites:
Health & Welfare <F1> 0 $27,516 0 $27,516 $27,516 $27,516
Disability Income <F2> 0 $2,492,442 0 0 0 0
Life Insurance <F3> 0 0 $500,000 0 0 0
Excise Tax & Gross up 0 0 0 0 $3,713,882 0
Change of Control 0 0 0 0 $5,478,364 $5,478,364
Accrued Vacation $8,010 $8,010 $8,010 $8,010 $8,010 0
<F1> Reflects the estimated lump-sum present value of future premiums Mr. Dominic would be entitled to
receive under the Company's health and welfare benefit for 5 years.
<F2> Reflects the estimated lump-sum present value of all future payments, which Mr. Dominic would be
entitled to receive under the Company's disability program. Mr. Dominic would be entitled to
receive such benefits until he reaches age 65.
<F3> Reflects the cash surrender value payable to Mr. Dominic's beneficiaries upon his death.
</FN>
Alice Varisano
...............
The following table shows the potential payments upon termination
and/or a change of control of the Company for Alice Varisano, the
Company's Chief Financial Officer.
Termination
Without
Voluntary/ Cause or
For Cause Termination With Good
Executive Benefit Termination/ Without Cause Reason
Payments Upon Early or With Good With Change Change
Certain Events Retirement Disability Death Reason Of Control of Control
..................... ........... ........... .......... ............. ........... ..........
Compensation:
Incentive Compensation $12,500 0 0 $12,500 $12,500 $12,500
Termination Payment 0 0 0 $365,000 $730,000 0
Stock Options
(unvested and accelerated) 0 0 0 0 0 0
Performance Shares
(unvested and accelerated) 0 0 0 0 0 0
Benefits & Perquisites:
Disability Income <F1> 0 $1,619,750 0 0 0 0
Life Insurance <F2> 0 0 $435,000 0 0 0
Excise Tax & Gross up 0 0 0 0 $54,994 0
Change of Control 0 0 0 0 $300,000 $300,000
Accrued Vacation $5,575 $5,575 $5,575 $5,575 $5,575 0
<F1> Reflects the estimated lump-sum present value of all future payments, which Ms. Varisano would be
entitled to receive under the Company's disability program. Ms. Varisano would be entitled to receive
such benefits until she reaches age 65.
<F2> Reflects the cash surrender value payable to Ms. Varisano's beneficiaries upon her death.
</FN>
Director Compensation
The following table shows the cash amounts and the value of other
compensation paid to the Chairman of the Board and each Director for
their service as a director in 2006:
Fees Earned or Option Other
Name Paid in Cash ($) Awards ($)(1) Compensation ($)
................ ............... ............. ................
Donald Weeden $ 50,000 0 0
Ira Lamel $ 50,000 0 0
Steven Georgiev $ 50,000 0 0
J. Donald Hill $ 50,000 0 0
(1) During 2006 there were no equity awards granted to directors. At
the end of fiscal 2006, the aggregate number of options held by the
directors listed in the above table were: Donald Weeden (50,000), Ira
Lamel (60,000), Steven Georgiev (20,000) and J. Donald Hill (326,667).
Item 12. Security Ownership of Certain Beneficial Owners and Management
and Related Stockholder Matters.
SECURITY OWNERSHIP OF
CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information based upon
publicly available filings or information provided to the Company, as of
April 23, 2007, with respect to the beneficial ownership of our common
stock by (i) each director of the Company, (ii) each of our named
executive officers, (iii) all of our directors and executive officers as
a group and (iv) each person known by us to own more than five percent of
our common stock.
Name Number
(and Address of 5% Holders) Owned (1) Percentage of Class**
..................................... ............. .....................
ClearBridge Advisors, LLC, 1,630,706 (2) 13.4%
Smith Barney Fund Management LLC &
ClearBridge Asset Management LLC
399 Park Avenue
New York, NY 10022
Columbia Wanger Asset Management, L.P., 734,000 (3) 6.1%
WAM Acquisition GP, Inc. &
Columbia Acorn Trust
227 West Monroe Street, Suite 3000
Chicago, IL 60606
Antoine Dominic 599,308 (4) 4.9%
Alice Varisano 40,000 (5) *
Steven Georgiev 20,000 (6) *
Donald E. Weeden 50,000 (7) *
J. Donald Hill 482,100 (8) 4.0%
Ira Lamel 60,000 (9) *
Executive officers and directors
as a group (six persons) 1,251,408(10) 10.3%
..........................................................................
*Less than 1%.
**Based on the number of shares outstanding on April 23, 2007
(1) Unless otherwise indicated below, all shares are owned beneficially
and of record.
(2) Information with respect to ClearBridge Advisors, LLC ("CBA"), Smith
Barney Fund Management LLC ("SBFM") and ClearBridge Asset Management
("CBAM") is based on the Schedule 13G, dated February 8, 2007, filed
jointly by those parties. Of the total shares reported, CBA has
shared voting and dispositive power with respect to 1,611,531
shares, SBFM has shared voting and dispositive power with respect to
4,600 shares and CBAM has shared voting and dispositive power with
respect to 14,575 shares.
(3) Information with respect to Columbia Wanger Asset Management, L.P.
("WAM") and WAM Acquisition GP, Inc., the general partner of WAM
("WAM GP") is based on the Schedule 13G, dated January 8, 2007,
filed by those parties. Of the total shares reported, WAM and WAM
GP have shared voting and dispositive power with respect to 734,000
shares.
(4) Includes 489,792 shares of Common Stock underlying exercisable stock
options.
(5) Includes 40,000 shares of Common Stock underlying exercisable stock
options.
(6) Consists of 20,000 shares of Common Stock underlying exercisable
stock options.
(7) Consists of 50,000 shares of Common Stock underlying exercisable
stock options.
(8) Includes 326,667 shares of Common Stock underlying exercisable stock
options.
(9) Consists of 60,000 shares of Common Stock underlying exercisable
stock options.
(10) Includes 984,459 shares of Common Stock underlying exercisable stock
options.
Equity Compensation Plans
The following table summarizes the Company's equity compensation
plans as of December 31, 2006:
Number of
securities to Number of
to be issued securities
upon exercise of remaining
outstanding Weighted average available for
options exercise price of future issuance
Plan category (In thousands) outstanding options (In thousands)
................... ................ ................... ...............
Equity compensation 1,299 $21.51 760*
plans approved
by security
holders
Equity compensation
plans not approved
by security
holders 0 0 0
................ ................... ...............
1,299 $21.51 760*
* Includes 750,000 shares which are available to be issued as restricted
stock pursuant to the Company's 2006 Stock Option / Stock Issuance Plan.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Howard S. Breslow, a director of the Company until December 6, 2006,
is a partner of the law firm Breslow & Walker, LLP, the Company's legal
counsel. In 2006, the Company paid Breslow & Walker, LLP approximately
$217,518 for legal services.
ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES
Audit and Non-Audit Fees
The Audit Committee of the Board of Directors has selected the
accounting firm of KPMG LLP ("KPMG") to serve as independent auditors of
the Company for the year ended December 31, 2006. KPMG has audited the
Company's financial statements since the year ended December 31, 2003.
The following table sets forth the aggregate fees billed by the Company's
independent registered public accounting firm for audit services rendered
in connection with the financial statements and reports for 2005 and
2006, and for other services normally rendered by such independent
registered public accounting firm during 2005 and 2006 on behalf of the
Company and its subsidiaries. The information in the table reflects
services provided by KPMG. The Audit Committee approved all engagements
of the independent registered public accounting firm in 2006 in advance
of any such engagement.
Year ended December 31,
2006 2005
Audit Fees, Audit Related Fees and ......... ..........
Fees Related to Section 404 of
Sarbanes-Oxley Act $ 873,000 $ 666,300
PART IV
........
ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEUDULES
Part IV of our Initial Report is hereby amended solely to add the
following exhibits required to be filed in connection with this Amendment
No. 2. See Exhibit Index below for exhibits filed as part of this
Amendment No. 2 to our Initial Report.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this amendment to be
signed on behalf of the undersigned, thereunto duly authorized.
Excel Technology, Inc.
By: /s/ J. Donald Hill
..........................................
J. Donald Hill, Chairman of the Board
By: /s/ Antoine Dominic
..........................................
Antoine Dominic, Chief Executive Officer
By: /s/ Alice H. Varisano
..........................................
Alice H. Varisano, Chief Financial Officer
Date: April 26, 2007
INDEX TO EXHIBITS
Exhibit Number Document
............... ......................................................
31.1 Certification Pursuant to Section 302 of the Sarbanes-
Oxley Act of 2002. *
31.2 Certification Pursuant to Section 302 of the Sarbanes-
Oxley Act of 2002 *
32.1 Certification Pursuant to Section 906 of the Sarbanes-
Oxley Act of 2002, 18 U.S.C. Section 1350 *
32.2 Certification Pursuant to Section 906 of the Sarbanes-
Oxley Act of 2002, 18 U.S.C. Section 1350.*
*Filed herewith
EXHIBIT 31.1
CERTIFICATION
I, Antoine Dominic, certify that:
1. I have reviewed this Amendment No. 2 to the annual report on Form 10-
K of Excel Technology, Inc.;
2. Based on my knowledge, this report does not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of the circumstances under which
such statements were made, not misleading with respect to the period
covered by this report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of
the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal
control over financial reporting (as defined in Exchange Act Rules 13a-
15(f) and 15d-15(f)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the
registrant, including its consolidated subsidiaries, is made
known to us by others within those entities, particularly during
the period in which this report is being prepared;
b) Designed such internal control over financial reporting, or
caused such internal control over financial reporting to be
designed under our supervision, to provide reasonable assurance
regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in
accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the registrant's disclosure
controls and procedures and presented in this report our
conclusions about the effectiveness of the disclosure controls
and procedures, as of the end of the period covered by this
report based on such evaluation; and
d) Disclosed in this report any change in the registrant's internal
control over financial reporting that occurred during the
registrant's most recent fiscal quarter (the registrant's fourth
fiscal quarter in the case of an annual report) that has
materially affected, or is reasonably likely to materially
affect, the registrant's internal control over financial
reporting; and
5. The registrant's other certifying officer and I have disclosed, based
on our most recent evaluation of internal control over financial
reporting, to the registrant's auditors and the audit committee of
registrant's board of directors (or persons performing the equivalent
functions):
a) All significant deficiencies and material weaknesses in the
design or operation of internal control over financial reporting
which are reasonably likely to adversely affect the registrant's
ability to record, process, summarize and report financial
information; and
b) Any fraud, whether or not material, that involves management or
other employees who have a significant role in the registrant's
internal control over financial reporting.
By: /s/ Antoine Dominic
...........................
Antoine Dominic, President,
Chief Executive Officer, and
Chief Operating Officer
Date: April 26, 2007
EXHIBIT 31.2
CERTIFICATION
I, Alice Varisano, certify that:
1. I have reviewed this Amendment No. 2 to the annual report on Form 10-
K of Excel Technology, Inc.;
2. Based on my knowledge, this report does not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of the circumstances under which
such statements were made, not misleading with respect to the period
covered by this report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of
the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal
control over financial reporting (as defined in Exchange Act Rules 13a-
15(f) and 15d-15(f)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the
registrant, including its consolidated subsidiaries, is made
known to us by others within those entities, particularly during
the period in which this report is being prepared;
b) Designed such internal control over financial reporting, or
caused such internal control over financial reporting to be
designed under our supervision, to provide reasonable assurance
regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in
accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the registrant's disclosure
controls and procedures and presented in this report our
conclusions about the effectiveness of the disclosure controls
and procedures, as of the end of the period covered by this
report based on such evaluation; and
d) Disclosed in this report any change in the registrant's internal
control over financial reporting that occurred during the
registrant's most recent fiscal quarter (the registrant's fourth
fiscal quarter in the case of an annual report) that has
materially affected, or is reasonably likely to materially
affect, the registrant's internal control over financial
reporting; and
5. The registrant's other certifying officer and I have disclosed, based
on our most recent evaluation of internal control over financial
reporting, to the registrant's auditors and the audit committee of
registrant's board of directors (or persons performing the equivalent
functions):
a) All significant deficiencies and material weaknesses in the
design or operation of internal control over financial reporting
which are reasonably likely to adversely affect the registrant's
ability to record, process, summarize and report financial
information; and
b) Any fraud, whether or not material, that involves management or
other employees who have a significant role in the registrant's
internal control over financial reporting.
By: /s/ Alice Varisano
...........................
Alice Varisano,
Chief Financial Officer
Date: April 26, 2007
EXHIBIT 32.1
CERTIFICATION OF PERIODIC REPORT
In connection with this Amendment No. 2 to the annual report on Form
10-K of Excel Technology, Inc., I, Antoine Dominic, Chief Executive
Officer of Excel Technology, Inc. (the "Company"), certify, pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350,
that, to my knowledge,:
(1) the Annual Report on Form 10-K of the Company for the year ended
December 31, 2006 (the "Report") fully complies with the requirements of
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15. U.S.C.
78m or 78o(d)); and
(2) the information contained in the Report fairly presents, in all
material respects, the financial condition and results of operations of
the Company.
Dated: April 26, 2007
/s/ Antoine Dominic
...........................
Antoine Dominic, President,
Chief Executive Officer, and
Chief Operating Officer
A signed original of this written statement required by Section 906
of the Sarbanes-Oxley Act of 2002 has been provided to the Company and
will be retained by the Company and furnished to the Securities and
Exchange Commission or its staff upon request.
EXHIBIT 32.2
CERTIFICATION OF PERIODIC REPORT
In connection with this Amendment No. 2 to the annual report on Form
10-K of Excel Technology, Inc., I, Alice Varisano, Chief Financial
Officer of Excel Technology, Inc. (the "Company"), certify, pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350,
that, to my knowledge,:
(1) the Annual Report on Form 10-K of the Company for the year ended
December 31, 2006 (the "Report") fully complies with the requirements of
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15. U.S.C.
78m or 78o(d)); and
(2) the information contained in the Report fairly presents, in all
material respects, the financial condition and results of operations of
the Company.
Dated: April 26, 2007
/s/ Alice Varisano
...........................
Alice Varisano,
Chief Financial Officer
A signed original of this written statement required by Section 906
of the Sarbanes-Oxley Act of 2002 has been provided to the Company and
will be retained by the Company and furnished to the Securities and
Exchange Commission or its staff upon request.