0000891554-95-000124.txt : 19950825
0000891554-95-000124.hdr.sgml : 19950825
ACCESSION NUMBER: 0000891554-95-000124
CONFORMED SUBMISSION TYPE: S-3
PUBLIC DOCUMENT COUNT: 3
FILED AS OF DATE: 19950824
SROS: NASD
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: ZYGO CORP
CENTRAL INDEX KEY: 0000730716
STANDARD INDUSTRIAL CLASSIFICATION: OPTICAL INSTRUMENTS & LENSES [3827]
IRS NUMBER: 060864500
STATE OF INCORPORATION: DE
FISCAL YEAR END: 0630
FILING VALUES:
FORM TYPE: S-3
SEC ACT: 1933 Act
SEC FILE NUMBER: 033-62089
FILM NUMBER: 95566501
BUSINESS ADDRESS:
STREET 1: LAUREL BROOK RD
CITY: MIDDLEFIELD
STATE: CT
ZIP: 06455
BUSINESS PHONE: 2033478506
MAIL ADDRESS:
STREET 1: LAUREL BROOK ROAD
CITY: MIDDLEFIELD
STATE: CT
ZIP: 06455
S-3
1
REGISTRATION STATEMENT ON FORM S-3
As filed with the Securities and Exchange Commission on August 24, 1995
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
----------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------
ZYGO CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 06-0864500
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
Laurel Brook Road
Middlefield, Connecticut 06455-0448
(203) 347-8506
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
----------
GARY K. WILLIS
Chief Executive Officer
ZYGO CORPORATION
Laurel Brook Road
Middlefield, Connecticut 06455-0448
(203) 347-8506
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------
Copies of all communications, including all communications sent to
the agent for service, should be sent to:
PAUL JACOBS, ESQ.
FULBRIGHT & JAWORSKI L.L.P.
666 Fifth Avenue
New York, New York 10103
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: /_/
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: /X/
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. /_/
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: /_/
------------
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Title of each class of Proposed maximum Proposed maximum
securities to be offering price per aggregate offering Amount of
registered Amount to be registered unit(1) price registration fee
====================================================================================================================================
Common Stock,
$.10 par value per
share 615,000 shares $26.875 $16,528,125 $5,700
====================================================================================================================================
(1) Calculated in accordance with Rule 457(c) under the Securities Act of
1933, as amended, solely for the purposes of calculating the
registration fee. The calculation of the registration fee is based on
the average of the high and low prices of the Common Stock as reported
on the Nasdaq National Market on August 22, 1995 ($26 and $27.75,
respectively).
=======================================================================
The registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said section 8(a),
may determine.
Subject to Completion
Preliminary Prospectus dated August 24, 1995
615,000 Shares
ZYGO CORPORATION
COMMON STOCK
This Prospectus relates to 615,000 shares (the "Shares") of Common Stock,
par value $0.10 per share (the "Common Stock"), of Zygo Corporation ("Zygo" or
the "Company") which are being offered for sale by certain selling stockholders
(the "Selling Stockholders"). See "Selling Stockholders." The Company's Common
Stock is traded on the Nasdaq Stock Market's National Market (the "National
Market") under the symbol "ZIGO." On August 22, 1995, the closing sale price of
the Common Stock, as listed on the National Market and reported by the National
Quotation Bureau Incorporated, was $27 per share. On July 20, 1995, the
Company's Board of Directors declared a 3 for 2 stock split effected in the form
of a 50% stock dividend, payable on August 21, 1995 to stockholders of record at
the close of business on August 1, 1995. Unless otherwise indicated, the number
of shares being offered for sale hereunder and all share and option information
included in this Prospectus under the headings "Selling Stockholders" and "Legal
Matters" has been adjusted to reflect such stock split as if it had occurred
prior to the date as of which the information is given.
The Company will not receive any of the proceeds from sales of the Shares
by the Selling Stockholders. The Shares may be offered from time to time by the
Selling Stockholders through ordinary brokerage transactions, in negotiated
transactions or otherwise, at market prices prevailing at the time of sale or at
negotiated prices. See "Plan of Distribution."
The Selling Stockholders may be deemed to be "Underwriters" as defined in
the Securities Act of 1933, as amended (the "Securities Act"). If any
broker-dealers are used to effect sales, any commissions paid to broker-dealers
and, if broker-dealers purchase any of the Shares as principals, any profits
received by such broker-dealers on the resale of the Shares may be deemed to be
underwriting discounts or commissions under the Securities Act. In addition, any
profits realized by the Selling Stockholders may be deemed to be underwriting
commissions. All costs, expenses and fees in connection with the registration of
the Shares will be borne by the Company. Brokerage commissions, if any,
attributable to the sale of the Shares will be borne by the Selling
Stockholders.
--------------
See "Risk Factors" for certain information that should be considered by
prospective investors.
--------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is August 24, 1995
-1-
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 periodic reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed with the Commission may be inspected and
copied at the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549 and at the regional offices of the Commission
located at 500 West Madison Street, Chicago, Illinois 60661, and Seven World
Trade Center, New York, New York 10048. Copies of such material can be obtained
from the Public Reference Section of the Commission at prescribed rates by
writing to the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549.
Copies may also be inspected at the reading room of the library of the National
Association of Securities Dealers, Inc., 1735 K Street, Washington, D.C. 20006.
This Prospectus constitutes a part of a Registration Statement on Form S-3
(herein, together with all amendments and exhibits, referred to as the
"Registration Statement") filed by the Company with the Commission under the
Securities Act. This Prospectus does not contain all of the information set
forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. For further
information with respect to the Company and the Common Stock, reference is
hereby made to the Registration Statement. Statements contained herein
concerning the provisions of any document are not necessarily complete, and in
each instance reference is made to the copy of such document filed as an exhibit
to the Registration Statement or otherwise filed with the Commission. Each such
statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which are on file with the Commission (File No.
0-12944), are incorporated in this Prospectus by reference and made a part
hereof:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended June
30, 1994, filed on September 28, 1994.
(b) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended September 30, 1994, filed on November 4, 1994.
(c) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended December 31, 1994, filed on February 7, 1995.
(d) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1995, filed on May 11, 1995.
-2-
(e) The Company's Current Report on Form 8-K, dated July 20, 1995, filed on
July 20, 1995.
(f) The Company's Current Report on Form 8-K, dated August 22, 1995, filed
on August 23, 1995.
(g) The description of the Company's Common Stock contained in Item 1 of
the Company's Registration Statement on Form 8-A dated October 26, 1984.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of this offering shall be deemed to be incorporated by reference
into this Prospectus and to be a part hereof from the respective dates of filing
of such documents. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for all purposes to the extent that a statement contained in this
Prospectus or any other subsequently filed document that is also incorporated by
reference herein modifies or supersedes such statement. Any such statements so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon written or oral request of such person, a copy of
any or all of the foregoing documents incorporated herein by reference (other
than exhibits to such documents, unless such exhibits are specifically
incorporated by reference into such documents). Written or telephone requests
should be directed to Zygo Corporation, Laurel Brook Road, Middlefield,
Connecticut 06455-0448, Attention: Mark J. Bonney, Vice President, Finance and
Administration, (203) 347-8506.
The Company furnishes its stockholders with an annual report containing
audited financial statements. In addition, the Company may furnish such other
reports as may be authorized, from time to time, by the Board of Directors.
-3-
RISK FACTORS
In addition to the other information in this Prospectus, the following
factors should be considered carefully in evaluating the Company and its
business before purchasing the shares of Common Stock offered hereby.
Dependence on Cyclical Industries. The Company's business is significantly
dependent on capital expenditures by manufacturers of semiconductors and
components for the computer disk drive industry. These industries are cyclical
and have historically experienced periods of oversupply, resulting in
significantly reduced demand for capital equipment, including the products
manufactured and marketed by the Company. The Company's net sales and operating
results may be materially adversely affected if downturns or slowdowns in the
semiconductor or computer disk drive markets occur in the future.
Ability to Respond to Technological Change. The Company's future success
will depend upon its ability to enhance its current products and to develop and
introduce new products that keep pace with technological developments and
evolving industry standards, respond to changes in customer requirements and
achieve market acceptance. Any failure by the Company to anticipate or respond
adequately to technological developments and customer requirements, or any
significant delays in product development or introduction, could have a material
adverse effect on the Company's business, operating results, financial condition
and liquidity. There can be no assurance that Zygo will be successful in
developing and marketing new products and services or product and service
enhancements on a timely basis or that the Company will not experience
significant delays in the introduction of new products and services. In
addition, there can be no assurance the new products and services or product and
service enhancements developed by the Company will achieve market acceptance.
Dependence on Proprietary Technology. The Company's success is heavily
dependent upon its proprietary technology. There can be no assurance that the
steps taken by the Company to protect its proprietary technology will be
adequate to prevent misappropriation of its technology by third parties or will
be adequate under the laws of some foreign countries, which may not protect the
Company's proprietary rights to the same extent as do laws of the United States.
In addition, there can be no assurance that third parties will not assert
successfully technology infringement claims against the Company.
Risks Associated with Potential Acquisitions. The Company's business
strategy includes the expansion of its products and services, which may be
effected through acquisitions. Acquisitions involve numerous risks, including
difficulties in the assimilation of the operations and products of the acquired
companies, the ability to manage effectively geographically remote units, the
diversion of management's attention from other business concerns, risks of
entering markets in which the Company has limited or no direct experience and
the potential loss of key employees of the acquired companies. In addition,
-4-
acquisitions may involve the immediate expenditure of significant funds or the
issuance of significant shares of Common Stock, or any combination thereof.
Although management expects to carefully analyze any such opportunity before
committing the Company's resources, there can be no assurance that any
acquisition will result in long-term benefits to the Company or that Zygo's
management will be able to manage effectively the resulting businesses.
Management of Growth. The Company is currently experiencing a period of
rapid growth and expansion, which would be further intensified in the event the
Company is involved in a significant acquisition. This growth expansion has
placed and could continue to place a significant strain on the Company's
personnel and other resources. The Company's growth has resulted in an increase
in the level of responsibility for the Company's management personnel. Certain
of the Company's management personnel have had limited or no experience in
managing companies as large as or larger than the Company. The Company's ability
to manage growth effectively will require the Company to continue to improve its
operational, management and financial systems and controls and to successfully
train, motivate and manage its employees. If the Company's management is unable
to manage growth effectively, the Company's business, results of operations,
financial condition and liquidity could be materially and adversely affected.
Dependence on Key Personnel. Zygo's success depends in large part upon the
continued services of many of its highly skilled personnel involved in
management, research and development and sales and marketing, and upon its
ability to attract and retain additional highly qualified employees. The
Company's employees may voluntarily terminate their employment with the Company
at any time. Competition for such personnel is intense, and there can be no
assurance that the Company will be successful in retaining its existing
personnel or attracting and retaining additional personnel.
Dependence on Third-Party Suppliers. Certain of the components and
subassemblies included in the Company's systems are obtained from a single
source or a limited group of suppliers. Although the Company seeks to reduce
dependence on sole and limited source suppliers in some cases, the partial or
complete loss of certain of these sources could have at least a temporary
adverse effect on the Company's results of operations and damage customer
relationships.
Relationship With Canon Inc. and Canon Sales Co., Inc. Prior to this
offering, Canon Inc. ("Canon") owns approximately 20% of the Company's Common
Stock. In addition, one executive officer of Canon's U.S. subsidiary is a member
of the Company's Board of Directors. Canon and Canon Sales Co., Inc. is a
significant customer of the Company, with aggregate sales by the Company to
these entities amounting to $9,550,000 and $7,740,000 for the fiscal years ended
June 30, 1995 and 1994, respectively. In addition, Canon Sales Co., Inc. is the
Company's exclusive distributor for sales of the Company's products in the
Japanese market.
-5-
Customer Concentration. Sales to the Company's two largest customers in
fiscal 1995 and fiscal 1994 accounted for 47% and 41% of net sales,
respectively. During these fiscal years, sales to Canon and Canon Sales Co.,
Inc., the Company's largest customer in those periods, accounted for
approximately 30% and 32%, respectively, of the Company's net sales. The Company
expects that sales to Canon and Canon Sales Co., Inc. will continue to represent
a significant percentage of the Company's net sales for the foreseeable future.
During fiscal 1995, sales to a manufacturer of computer disk drives and related
hardware and software accounted for approximately 17% of the Company's net
sales. The Company's customers generally do not enter into long-term agreements
obligating them to purchase the Company's products. A reduction or delay in
orders from either of these two customers, including reductions or delays due to
market, economic, or competitive conditions in the semiconductor or computer
disk drive industries, could have a material adverse effect upon the Company's
result of operations.
Revenues Derived from International Sales and Foreign Operations. The
company's products are sold internationally by the Company primarily to
customers in Japan. Revenues from sales to customers outside the United States
accounted for 47% and 46% of the Company's total revenues in the fiscal years
ended June 30, 1995 and 1994, respectively. International sales and foreign
operations are subject to inherent risks, including longer payment cycles,
greater difficulty in accounts receivable collection, compliance with foreign
laws, changes in regulatory requirements, tariffs or other barriers,
difficulties in obtaining export licenses and in staffing and managing foreign
operations, exposure to currency exchange fluctuations and political
instability. Although substantially all the Company's sales and costs are
negotiated and paid in US dollars, changes in the values of foreign currencies
relative to the value of the US dollar can negatively impact international sales
of the Company's products and the Company's foreign operations, as would changes
in the general economic conditions in those markets. Although these risks,
including the risks associated with currency exchange fluctuations, have not had
any material adverse effect on the Company to date, there can be no assurance
that risks inherent in international sales and foreign operations will not have
a material adverse effect on the Company in the future.
Control of Company. Upon completion of this offering, the Company's
executive officers and directors, through their affiliation with certain
stockholders, may be deemed to beneficially own approximately 39% of the
outstanding shares of Common Stock. As a result, these individuals will
effectively have the ability to control the Company and direct its affairs and
business, including the election of all of directors.
Dividend Policy. The Company has never declared or paid cash dividends on
its capital stock. The Company currently intends to retain all its earnings to
finance the expansion and development of its business and, therefore, does not
anticipate paying any cash dividends in the foreseeable future.
-6-
THE COMPANY
The Company was incorporated in 1970 under the laws of the State of
Delaware. The Company's principal offices are located at Laurel Brook Road,
Middlefield, Connecticut 06455-0448, and its telephone number is (203) 347-8506.
-7-
SELLING STOCKHOLDERS
The following table sets forth certain information as of July 1, 1995
(except as otherwise indicated) and as adjusted to reflect the sale of the
Common Stock in the offering, as to the security ownership of the Selling
Stockholders. The position, office or other material relationship which a
Selling Stockholder has had within the past three years with the Company or any
of its predecessors or affiliates is indicated in the footnotes or otherwise
under the subheading "Transactions Involving Selling Stockholders" below.
Percentage of
Shares of Shares of Class of
Common Stock Common Stock Common Stock
Beneficially Beneficially Beneficially
Owned Prior Shares Owned After Owned After
to Offering Being Sold Offering Offering
----------- ---------- -------- --------
Canon, Inc.(1) 786,000 300,000 486,000 12.4%
Wesleyan University(2) 397,500 112,500 285,000 7.3%
Paul F. Forman(3) 273,060 75,000 198,060 5.0%
Sol F. Laufer(4) 213,810 52,500 161,310 4.1%
Carl A. Zanoni(5) 289,110 60,000 229,110 5.8%
Robert G. McKelvey(6) 53,100 15,000 38,100 1.0%
---------------------
(1) Shares of common stock beneficially owned prior to and after the offering
and the percentage of class of common stock beneficially owned after the
offering does not include shares of Common Stock beneficially owned by
Seymour E. Liebman, Senior Vice President Finance and General Counsel of
Canon U.S.A., Inc., an affiliate of Canon Inc., and a director of the
Company.
(2) Shares of common stock beneficially owned prior to and after the offering
and the percentage of class of common stock beneficially owned after the
offering does not include shares of Common Stock beneficially owned by
Robert B. Taylor, Vice President and Treasurer of Wesleyan University and a
director of the Company.
(3) Shares of common stock beneficially owned prior to and after the offering
and the percentage of class of common stock beneficially owned after the
offering includes 39,000 shares of Common Stock which may be acquired by
Mr. Forman within 60 days of July 1, 1995 upon the exercise of options. Mr.
Forman has been a director of the Company since 1970, and was Chief
Executive Officer from June 1970 to November 1993 and acting President from
June 1991 to February 1992.
(4) Shares of common stock beneficially owned prior to and after the offering
and the percentage of class of common stock beneficially owned after the
offering includes 45,750 shares of Common Stock which may be acquired by
Mr. Laufer within 60 days of July 1, 1995 upon the exercise of options. Mr.
Laufer was Vice President, Optics Group through June 1994.
(5) Shares of common stock beneficially owned prior to and after the offering
and the percentage of class of common stock beneficially owned after the
offering includes 36,450 shares of Common Stock which may be acquired by
Mr. Zanoni within 60 days of
-8-
July 1, 1995 upon the exercise of options. Mr. Zanoni has been a director
of the Company since 1970 and Vice President, Research, Development and
Engineering since April 1992.
(6) Shares of common stock beneficially owned prior to and after the offering
and the percentage of class of common stock beneficially owned after the
offering includes 7,500 shares of Common Stock which may be acquired by Mr.
McKelvey within 60 days of July 1, 1995 upon the exercise of options. Mr.
McKelvey has been a director of the Company since 1983.
Transactions Involving Selling Stockholders
Canon Sales Co., Inc., a subsidiary of Canon, serves as the exclusive
distributor of the Company's products in Japan. Sales to Canon and Canon Sales
Co., Inc. aggregated $9,550,000 and $7,740,000 for the fiscal years ended 1995
and 1994, respectively. Selling prices were based, generally, on the normal
terms given to domestic distributors. In addition, the Company and Canon have
entered into agreements providing for confidential exchanges of certain
technology. The Company has received royalty payments from Canon under certain
of those agreements, which payments, in the aggregate, are not material. In
addition, the Company has entered into certain research and development
contracts with Canon, pursuant to which the Company has received funding.
On June 23, 1995, the Company's Board of Directors approved the purchase of
approximately 22 acres of land adjacent to the Company's facility in
Middlefield, Connecticut, for a purchase price of $440,000. This land, which is
jointly owned by Paul F. Forman, Sol F. Laufer and Carl A. Zanoni, will
facilitate expansion of the Company's buildings and/or parking facilities in the
future. The purchase is expected to occur during the quarter ended March 31,
1996.
Canon, Wesleyan, and the group consisting of Paul F. Forman, Carl A.
Zanoni, and Sol F. Laufer, entered into a Stockholders' Agreement under which
they agreed to vote their shares for the election to the Board of two directors
designated by each of Canon, Wesleyan University, and the foregoing individuals
as a group, and up to five additional directors who were to be independent of
the foregoing stockholders. On November 30, 1993, the Stockholders' Agreement
was terminated.
At the time of the termination of the Stockholders' Agreement, a
Registration Rights Agreement was entered into by Canon, Wesleyan University,
Paul F. Forman, Carl A. Zanoni, Sol F. Laufer, and the Company. In general, the
Registration Rights Agreement grants to each of these stockholders the right,
until November 30, 1998, to have his or its shares of Common Stock included in
any registered public offering of the Company's securities. Each of the parties
to the Registration Rights Agreement has waived all rights to include any
additional shares of Common Stock owned by such person in the Registration
Statement of which this Prospectus is a part.
In August 1993, the Company entered into a Services Agreement with each of
Messrs. Forman and Laufer providing for the retention of Mr. Forman or Mr.
Laufer, respectively, as an executive officer of the Company through the end of
the 1994 fiscal year and thereafter as a consultant to the Company for an
additional five years, in the case of Mr. Forman, and an additional four years
in the case of Mr. Laufer. Pursuant to his Agreement, Mr. Forman received salary
payments of $148,271 for the year of employment, a one-time payment of $149,500
upon his termination from active employment, and will continue to receive a
$20,000 retainer for board service for each of the five years of his consultancy
-9-
plus 80%, 60%, 40%, and 20% of his salary at June 30, 1994, for each of the
first through fourth years of his consultancy, respectively. Pursuant to his
Agreement, Mr. Laufer received salary payments of $133,586 for the year of
employment, a one-time payment of $135,000 upon his termination of employment,
and will continue to receive payments of 80%, 60%, 40%, and 20% of his salary at
June 30, 1994, for each of the four years of his consultancy, respectively. Each
of the Services Agreements further provides that Mr. Forman or Mr. Laufer, as
the case may be, would have all his outstanding unvested stock options from the
Company vested effective at the conclusion of the fiscal year ended June 30,
1994 (options for 20,475 shares of Common Stock in the case of Mr. Forman and
24,487 shares of Common Stock in the case of Mr. Laufer, as of June 30, 1994).
The Agreements are terminable (with all payment obligations thereunder
terminating) by Mr. Forman or Mr. Laufer, as the case may be, at any time, and
by the Company upon the death or disability of Mr. Forman or Mr. Laufer or for
justifiable cause (as defined in the Agreements); except that if an Agreement
terminates as a result of the death or disability of Mr. Forman or Mr. Laufer,
he (or his estate) will be entitled to receive the lesser of twice his June 30,
1994 salary or the aggregate remaining compensation payments otherwise required
to be made under the Agreement.
PLAN OF DISTRIBUTION
The Company is registering the Shares on behalf of the Selling
Stockholders. All costs, expenses and fees in connection with the registration
of the Shares offered hereby will be borne by the Company. Brokerage
commissions, if any, attributable to the sale of Shares will be borne by the
Selling Stockholders.
Sales of Shares may be effected from time to time in transactions (which
may include block transactions) on the National Market, in negotiated
transactions, or a combination of such methods of sale, at fixed prices which
may be changed, at market prices prevailing at the time of sale, or at
negotiated prices. The Selling Stockholders have advised the Company that they
have not entered into any agreements, understandings or arrangements with any
underwriters or broker-dealers regarding the sale of their securities. The
Selling Stockholders may effect such transactions by selling Common Stock
directly to purchasers or to or through broker-dealers which may act as agents
or principals. Such broker-dealers may receive compensation in the form of
discounts, concessions, or commissions from the Selling Stockholder and/or the
purchasers of Common Stock for whom such broker-dealers may act as agents 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 Selling
Stockholders and any broker-dealers that act in connection with the sale of the
Common Stock might be deemed to be "underwriters" within the meaning of Section
2(11) of the Securities Act and any commission received by them and any profit
on the resale of the shares of Common Stock as principal might be deemed to be
underwriting discounts and commissions under the Securities Act. The Selling
Stockholders may agree to indemnify any agent, dealer or broker-dealer that
participates in transactions involving sales of the shares against certain
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liabilities, including liabilities arising under the Securities Act.
Because the Selling Stockholders may be deemed to be "underwriters" within
the meaning of Section 2(11) of the Securities Act, the Selling Stockholders
will be subject to prospectus delivery requirements under the Securities Act.
Furthermore, in the event of a "distribution" of the shares, such Selling
Stockholder, any selling broker or dealer and any "affiliated purchasers" may be
subject to Rule 10b-6 under the Securities Exchange Act of 1934, as amended,
which Rule would prohibit, with certain exceptions, any such person from bidding
for or purchasing any security which is the subject of such distribution until
his participation in that distribution is completed. In addition, Rule 10b-7
under the Exchange Act prohibits any "stabilizing bid" or "stabilizing purchase"
for the purpose of pegging, fixing or stabilizing the price of Common Stock in
connection with this offering.
Each of the Selling Stockholders has agreed with the Company not to,
directly or indirectly, offer, sell, grant any option to buy, or otherwise
dispose of any shares of Common Stock owned by such Selling Stockholder (other
than shares of Common Stock included herein), for a period of 180 days from the
date of the Registration Statement of which this Prospectus is a part is filed
with the Commission, without the prior written consent of the Company.
The Company will not receive any of the proceeds from the sale of shares of
Common Stock by the Selling Stockholders.
LEGAL MATTERS
Certain legal matters with respect to the validity of the Common Stock
offered hereby have been passed upon for the Company by Fulbright & Jaworski
L.L.P., New York, New York. Paul Jacobs, a partner in the firm of Fulbright &
Jaworski L.L.P., is Secretary of the Company and, as of July 1, 1995,
beneficially owned less than one percent of the outstanding shares of Common
Stock.
EXPERTS
The consolidated financial statements and schedules of the Company as of
June 30, 1994 and 1993 and for each of the years in the three-year period ended
June 30, 1994, have been incorporated by reference in this Prospectus and in the
Registration Statement in reliance upon the reports 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. Our
reports refer to a change in the Company's method of accounting for investments
in 1994 and a change in the Company's method of accounting for income taxes in
1993.
-11-
================================================================================
No person is authorized in connection with any offering made hereby to give
any information or to make any representation not contained in this Prospectus,
and, if given or made, such information or representation must not be relied
upon as having been authorized by the Company, any Selling Stockholder or any
other person. This Prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any security other than the Common Stock offered
hereby, nor does it constitute an offer to sell or a solicitation of an offer to
buy any of the securities offered hereby to any person in any jurisdiction in
which it is unlawful to make such an offer or solicitation. Neither the delivery
of this Prospectus nor any sale made hereunder shall under any circumstances
create any implication that the information contained herein is correct as of
any date subsequent to the date hereof.
TABLE OF CONTENTS
Page
----
Available Information ....................................................... 2
Incorporation of Certain
Documents by Reference ..................................................... 2
Risk Factors................................................................. 4
The Company.................................................................. 7
Selling Stockholders......................................................... 8
Plan of Distribution......................................................... 10
Legal Matters ............................................................... 11
Experts ..................................................................... 11
================================================================================
================================================================================
615,000
Shares
ZYGO CORPORATION
Common Stock
----------
PROSPECTUS
----------
August 24, 1995
================================================================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution.
The following is an itemized statement of the estimated amounts of all
expenses payable by the Registrant in connection with the registration of the
Shares:
Registration Fee--Securities and Exchange Commission.......... $ 5,700
Legal and Accounting fees and expenses........................ $17,000*
Printing and offset expenses.................................. $ 1,000*
Miscellaneous................................................. $ 1,300*
-------
Total............................................ $25,000*
=======
-------------------
*estimate
ITEM 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware permits
indemnification of directors, officers and employees of a corporation under
certain conditions and subject to certain limitations. Article Eighth of the
Company's Articles of Incorporation and Section 4 of the By-laws of the Company
contain provisions for the indemnification of directors, officers and employees
within the limitations permitted by Section 145. In addition, subject to
receiving stockholder approval, the Company proposes to enter into Indemnity
Agreements with its directors and officers providing for the maximum
indemnification allowed by Section 145.
ITEM 16. Exhibits.
5 - Opinion of Fulbright & Jaworski L.L.P.
23.1 - Consent of KPMG Peat Marwick LLP
23.2 - Consent of Fulbright & Jaworski L.L.P. (included in Exhibit 5).
24 - Power of Attorney (included on signature page).
ITEM 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment of this registration statement:
II-1
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement of any
material change to such information in the registration statement;
Provided, however, that paragraphs (a)(l)(i) and (a)(l)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions described under Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 City of Middlefield, State of Connecticut on August 21, 1995.
Zygo Corporation
By: /s/ Gary K. Willis
-----------------------------------------
(Gary K. Willis, President and Chief
Executive Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below and on the following page constitutes and appoints each of Gary K.
Willis and Mark J. Bonney as his true and lawful attorney-in-fact and agent,
each acting alone, with full power of substitution and resubstitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all
amendments to this Registration Statement, including post-effective amendments,
and to file the same, with all exhibits thereto, and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto each said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, and hereby ratifies and confirms all that any said attorney-in-fact and
agent, each acting alone, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Gary K. Willis President, Chief August 21, 1995
------------------ Executive Officer and
(Gary K. Willis) Director (Principal
Executive Officer)
/s/ Mark J. Bonney Vice President, Finance August 21, 1995
------------------ & Administration (Principal
(Mark J. Bonney) Financial and Accounting Officer)
II-3
/s/ Paul F. Forman Chairman of the Board August 21, 1995
------------------
(Paul F. Forman)
/s/ Michael R. Corboy Director August 21, 1995
---------------------
(Michael R. Corboy)
/s/ Seymour E. Liebman Director August 21, 1995
----------------------
(Seymour E. Liebman)
/s/ Robert G. McKelvey Director August 21, 1995
----------------------
(Robert G. McKelvey)
Director August __, 1995
-------------------
(Paul W. Murrill)
/s/ Robert B. Taylor Director August 21, 1995
--------------------
(Robert B. Taylor)
/s/ Carl A. Zanoni Director August 21, 1995
------------------
(Carl A. Zanoni)
II-4
INDEX TO EXHIBITS
Exhibit No. Description Page No.
---------- ----------- --------
5 Opinion of Fulbright & Jaworski L.L.P. 1
23.1 Consent of KPMG Peat Marwick LLP 3
23.2 Consent of Fulbright & Jaworski L.L.P.
(included in Exhibit 5).
24 Power of Attorney (see signature page).
EX-5
2
OPINION OF FULBRIGHT & JAWORSKI L.L.P.
EXHIBIT 5
FULBRIGHT & JAWORSKI
L.L.P.
A Registered Limited Liability Partnership
666 Fifth Avenue
New York, New York 10103-3198
August 23, 1995
Zygo Corporation
Laurel Brook Road
Middlefield, Connecticut 06455
Dear Sirs:
We refer to the Registration Statement on Form S-3 (the "Registration
Statement"), filed by Zygo Corporation (the "Company") on behalf of certain
selling stockholders (the "Selling Stockholders") with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the "Act"),
relating to 615,000 shares of the Company's Common Stock, $0.10 par value (the
"Shares"), to be sold by the Selling Stockholders.
As counsel for the Company, we have examined such corporate records,
documents and such questions of law as we have considered necessary or
appropriate for the purpose of this opinion and, upon the basis of such
examination, advise you that in our opinion the Shares to be sold by the Selling
Stockholders have been duly and validly authorized, have been legally issued,
and are fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and the reference to this firm under the caption "Legal Matters" in
the prospectus contained therein and elsewhere in the Registration Statement and
prospectus. This consent is not to be construed as an admission that we are a
party whose consent is required to be filed with the Registration Statement
under the provisions of the Securities Act of 1933, as amended.
Very truly yours,
/s/Fulbright & Jaworski L.L.P.
EX-23.1
3
CONSENT KPMG PEAT MARWICK L.L.P.
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Board of Directors
Zygo Corporation
We consent to incorporation by reference in the Registration Statement on Form
S-3 of Zygo Corporation of our reports dated August 12, 1994, relating to the
consolidated balance sheets of Zygo Corporation and consolidated subsidiary as
of June 30, 1994 and 1993 and the related consolidated statements of earnings,
stockholders' equity and cash flows and related schedules for each of the years
in the three-year period ended June 30, 1994, which reports appear in or are
incorporated by reference into the June 30, 1994 annual report on Form 10-K of
Zygo Corporation and to the reference to our firm under the heading "Experts" in
the prospectus.
Our reports refer to a change in the Company's method of accounting for
investments in 1994 and a change in the Company's method of accounting for
income taxes in 1993.
KPMG PEAT MARWICK LLP
Hartford, Connecticut
August 23, 1995