-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HpZKsaoc/QN/nMmGhGeJrH5V7a+ScKOAV+WaptMYSkCVFEnCKVRnMN24oltXMz92 3Y308MtyfnUe+LbxvlR6gw== 0000950110-98-000059.txt : 19980116 0000950110-98-000059.hdr.sgml : 19980116 ACCESSION NUMBER: 0000950110-98-000059 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19980115 EFFECTIVENESS DATE: 19980115 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-8 SEC ACT: SEC FILE NUMBER: 333-44333 FILM NUMBER: 98507818 BUSINESS ADDRESS: STREET 1: LAUREL BROOK RD CITY: MIDDLEFIELD STATE: CT ZIP: 06455 BUSINESS PHONE: 8603478506 MAIL ADDRESS: STREET 1: LAUREL BROOK ROAD CITY: MIDDLEFIELD STATE: CT ZIP: 06455 S-8 1 FORM S-8 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 15, 1998 REGISTRATION NO. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------- FORM S-8 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 of (I.R.S. Employer incorporation or organization) Identification Number) LAUREL BROOK ROAD MIDDLEFIELD, CONNECTICUT 06455 (860) 347-8506 ------------------------------------------------------------------------ (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) ZYGO CORPORATION AMENDED AND RESTATED NON-QUALIFIED STOCK OPTION PLAN ------------------------------- (full title of the plan) ---------- GARY K. WILLIS PRESIDENT AND CHIEF EXECUTIVE OFFICER ZYGO CORPORATION LAUREL BROOK ROAD MIDDLEFIELD, CONNECTICUT 06455 (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 (212) 318-3000 ---------- CALCULATION OF REGISTRATION FEE
======================================================================================================= | | Proposed maximum | Proposed maximum | Amount of Title of Securities to be | Amount to be | offering price per | aggregate offering | registration registered | registered(1) | unit(2) | price(2) | fee - ---------------------------|------------------|--------------------|--------------------|-------------- Common Stock $.10 par | | | | value per share......... | 1,400,000 shares | $16.375 | $22,925,000 | $6763.00 =======================================================================================================
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan described herein. (2) The price is estimated in accordance with Rule 457(h)(1) under the Securities Act of 1933, as amended, solely for the purpose of calculating the registration fee, based on the average of the high and low prices of the Common Stock as reported on the Nasdaq National Market on January 12, 1998. ---------- PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, THIS REGISTRATION STATEMENT ALSO CONSTITUTES (i) POST-EFFECTIVE AMENDMENT NO. 2 TO THE REGISTRATION STATEMENT ON FORM S-8 (NO. 33-57060), (ii) POST-EFFECTIVE AMENDMENT NO. 3 TO THE REGISTRATION STATEMENT ON FORM S-8 (NO. 33-34619) AND (iii) POST-EFFECTIVE AMENDMENT NO. 4 TO THE REGISTRATION STATEMENT ON FORM S-8 (NO. 33-20880), ALL OF WHICH ALSO RELATE TO THE ZYGO CORPORATION NON-QUALIFIED STOCK OPTION PLAN. ================================================================================ PART I INFORMATION REQUIRED IN THE PROSPECTUS The document(s) containing the information called for in Part I of Form S-8 will be sent or given to individuals awarded options under the Zygo Corporation Amended and Restated Non-Qualified Stock Option Plan adopted by Zygo Corporation and is not being filed with or included in this Form S-8 in accordance with the rules and regulations of the Securities and Exchange Commission. 1 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents filed by Zygo Corporation (the "Company") are incorporated herein by reference: (i) The Company's Annual Report on Form 10-K for the fiscal year ended June 30, 1997. (ii) The Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1997. (iii) The Company's Current Reports on Form 8-K, dated July 28, 1997, August 19, 1997 and October 20, 1997. (iv) 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. In addition to the foregoing, all documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment indicating that all of the securities offered hereunder have been sold or deregistering all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents. Any statement contained in a document incorporated by reference in this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document that is also incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not applicable. II-1 ITEM 6. 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. The Certificate of Incorporation of the Company provides that the Company shall, to the fullest extent permitted by Section 145, indemnify any and all persons whom it shall have power to indemnify under said Section. Article 4 of the By-laws of the Company also contains provisions for the indemnification of directors, officers and employees in accordance with Section 145. In addition, the Company has entered into Indemnity Agreements with its directors and officers providing for the maximum indemnification allowed by Section 145. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not Applicable. ITEM 8. EXHIBITS 4(a) -- Zygo Corporation Amended and Restated Non-Qualified Stock Option Plan. (b) -- Form of Non-Qualified Stock Option Agreement.* 5 -- Opinion of Fulbright & Jaworski L.L.P. 23(a) -- Consent of KPMG Peat Marwick LLP. (b) -- Consent of Fulbright & Jaworski L.L.P. (included in Exhibit 5). 24 -- Power of Attorney (included in signature page). - ---------- * Incorporated by reference from the Company's Registration Statement on Form S-8, dated January 15, 1993 (No. 33-57060). II-2 ITEM 9. UNDERTAKINGS (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective dates of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or 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 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities II-3 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 foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event 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 of the registrant in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. II-4 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-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Town of Middlefield, State of Connecticut on December 31, 1997. 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 person whose signature appears below and on the following page constitutes and appoints Gary K. Willis and Mark J. Bonney as his true and lawful attorneys-in-fact and agents, 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 said attorneys-in-fact and agents, and each of them, 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 said attorneys-in-fact and agents, each acting alone, or their 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 December 31, 1997 Gary K. Willis Executive Officer and Director (Principal Executive Officer) /s/ MARK J. BONNEY - --------------------------- Vice President, Finance December 31, 1997 Mark J. Bonney and Administration, Treasurer and Chief Financial Officer (Principal Financial and Accounting Officer) /s/ PAUL F. FORMAN - --------------------------- Chairman of the Board December 31, 1997 Paul F. Forman of Directors /s/ MICHAEL R. CORBOY - --------------------------- Director December 31, 1997 Michael R. Corboy /s/ SEYMOUR E. LIEBMAN - --------------------------- Director December 31, 1997 Seymour E. Liebman /s/ ROBERT G. McKELVEY - --------------------------- Director December 31, 1997 Robert G. McKelvey /s/ PAUL W. MURRILL - --------------------------- Director December 31, 1997 Paul W. Murrill /s/ JOHN R. ROCKWELL - --------------------------- Director December 31, 1997 John R. Rockwell /s/ ROBERT B. TAYLOR - --------------------------- Director December 31, 1997 Robert B. Taylor /s/ CARL A. ZANONI - --------------------------- Director December 31, 1997 Carl A. Zanoni INDEX TO EXHIBITS Exhibit No. Description Page No. - ------- ----------- -------- 4(a) Zygo Corporation Amended and Restated Non-Qualified Stock Option Plan. (b) Form of Non-Qualified Stock Option Agreement.* 5 Opinion of Fulbright & Jaworski L.L.P. 23(a) Consent of KPMG Peat Marwick LLP. (b) Consent of Fulbright & Jaworski L.L.P. (included in Exhibit 5). 24 Power of Attorney (see signature page). - ---------- * Incorporated by reference from the Company's Registration Statement on Form S-8, dated January 15, 1993 (No. 33-57060). EX-4.(A) 2 NON-QUALIFIED STOCK OPTION PLAN EXHIBIT 4(a) ZYGO CORPORATION AMENDED AND RESTATED NON-QUALIFIED STOCK OPTION PLAN 1. Purpose The purpose of the Zygo Corporation Amended and Restated Non-Qualified Stock Option Plan (the "Non-Qualified Plan") is to aid Zygo Corporation and its subsidiaries (the "Company") in attracting and retaining people of exceptional ability by enabling selected individuals to purchase a proprietary interest in the business, thereby stimulating in such individuals an increased desire to render greater service, which will contribute to the continued growth and success of the Company. 2. Amount and Source of Stock Except as otherwise permitted pursuant to paragraph 6 hereof, the total number of shares of the Company's Common Stock, par value $.10 per share, which may be issued under the Non-Qualified Plan shall not exceed 3,350,000 (after giving effect to stock split previously authorized by the Board of Directors), and may be authorized and unissued shares, or issued and reacquired shares, as the Board of Directors may from time to time determine. If an option shall expire or terminate for any reason without having been exercised in full, the unpurchased shares covered thereby shall be added to the shares otherwise available for options under the Non-Qualified Plan. 3 Effective Date and Term of Plan The Non-Qualified Plan became effective on September 3, 1987, the date on which it was initially approved by affirmative vote of the Board of Directors of the Company. The term during which options may be granted under the Non-Qualified Plan commenced on its effective date and, subject to the approval of the stockholders of the Company, shall continue as hereby amended and restated until the tenth anniversary of such date. 4. Administration and Eligibility (a) The Non-Qualified Plan will be administered by a committee (the "Committee") consisting of at least two directors appointed by and serving at the pleasure of the Board. If a Committee is not so established, the Board will perform the duties and functions ascribed herein to the Committee. Each member of the Committee shall be a "disinterested person" in accordance with the applicable provisions of Rule 16b-3 under the Securities Exchange Act of 1934. Subject to the provisions of the Non-Qualified Plan, the Committee, acting in its sole and absolute discretion, will have full power and authority to grant options under the Non-Qualified Plan, to interpret the provisions of the Non-Qualified Plan and option agreements under the Non-Qualified Plan, to supervise the administration of the Non-Qualified Plan, and to take such other action as may be necessary or desirable in order to carry out the provisions of the Non-Qualified Plan. A majority of the members of the Committee will constitute a quorum. The Committee may act by the vote of a majority of its members present at a meeting at which there is a quorum or by unanimous written consent. The decision of the Committee as to any disputed question, including questions of construction, interpretation and administration, will be final and conclusive on all persons. The Committee will keep a record of its proceedings and acts and will keep or cause to be kept such books and records as may be necessary in connection with the proper administration of the Non-Qualified Plan. (b) Options may be granted under the Non-Qualified Plan to present or future key employees of the Company or a subsidiary of the Company and to directors of the Company, whether or not they are employees of the Company. A "key employee" is an officer or employee who has substantial responsibility in the direction and management of the Company or any division, branch or subsidiary. 5. Options The terms and conditions of each option granted under the Non-Qualified Plan shall be set forth in a Stock Option Agreement issued by the Company to the optionee. Such terms and conditions shall include the following as well as such other provisions, not inconsistent with the provisions of the Non-Qualified Plan, as may be deemed advisable: (a) The number of shares subject to the option. (b) The purchase price per share. (c) A provision that the full purchase price of shares purchased under the option shall be paid upon exercise thereof. (d) A provision permitting exercise of the option either in whole or from time to time in part, but only for full shares. (e) The dates after which the option may be exercised, in whole or in part. (f) A provision for the termination of the option, not later than ten years from the date the option is granted, or prior thereto, if the optionee ceases to be a director of the Company or employed by the Company or a subsidiary thereof (otherwise than by reason of the optionee's death) unless extended by the Committee acting in its sole discretion (provided that no such extension shall result in an option having a term greater than ten years). (g) A provision that the option shall not be transferrable other than by will or by the laws of descent and distribution and is exercisable during the lifetime of the optionee, only by him or her. (h) A provision that the Company's obligation to sell and deliver stock under the option is subject to such compliance with federal and state laws, rules and regulations applying to the authorization, issuance or sale of securities as the Company deems necessary or advisable. 6. Adjustments Upon Changes in Stock If (i) the Company shall at any time be involved in a complete or partial liquidation or reorganization, including a merger, consolidation, or sale or distribution of assets, (ii) the Company shall declare a stock dividend or subdivide or combine its Common Stock, or (iii) any other event shall occur which in the judgment of the Board of Directors necessitates action by way of adjusting the terms of the option, the Board of Directors shall forthwith take any such action as in its judgment shall be necessary to preserve to the optionee rights substantially proportionate to the rights existing prior to such event or, in the case of a liquidation or reorganization, terminate the option upon notice given at least thirty (30) days prior to the effective date of the transaction, or provide for its assumption by any surviving, consolidated, or successor corporation; provided, that in the event that the option is terminated, the option shall be exercisable until the effective date of such liquidation or reorganization in whole or in part as to all shares then subject thereto, without regard to any installment exercise provisions. Notwithstanding the foregoing, the right to exercise options without regard to any installment exercise provisions shall not apply to any option holder who initiated the transaction resulting in the application of this paragraph 6 unless such person initiated the transaction pursuant to instructions or authority from the Company. For the purpose of the foregoing, actions taken by members of an option holder's family shall be deemed to have been taken by him. 7. Amendment and Termination of the Plan The Board may amend or terminate the Non-Qualified Plan. Except as otherwise provided in the Non-Qualified Plan with respect to equity changes, any amendment which would increase the aggregate number of shares of Common Stock as to which options may be granted under the Non-Qualified Plan, materially increase the benefits under the Non-Qualified Plan, or modify the class of persons eligible to receive options under the Non-Qualified Plan shall be subject to the approval of the stockholders. No amendment or termination may affect adversely any outstanding option without the written consent of the optionee. 8. Definition The term "parent" and "subsidiary" shall have the meaning ascribed to such terms by Section 424 of the Internal Revenue Code of 1986, as amended. EX-5 3 OPINION OF FULBRIGHT & JAWORSKI LETTERHEAD OF FULBRIGHT & JAWORSKI L.L.P. January 15, 1998 Zygo Corporation Laurel Brook Road Middlefield, Connecticut 06455 Dear Sirs: We refer to the Registration Statement on Form S-8 (the "Registration Statement") to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Act"), on behalf of Zygo Corporation (the "Company"), relating to 1,400,000 shares of the Company's Common Stock, $.10 par value per share (the "Shares"), to be issued under the Company's Amended and Restated Non-Qualified Stock Option Plan (the "Plan"). As counsel for the Company, we have examined such corporate records, other documents, and such questions of law as we have considered necessary or appropriate for the purposes of this opinion and, upon the basis of such examination, advise you that in our opinion, all necessary corporate proceedings by the Company have been duly taken to authorize the issuance of the Shares pursuant to the Plan and that the Shares being registered pursuant to the Registration Statement, when issued and paid for under the Plan in accordance with the terms of the Plan, will be duly authorized, validly issued, fully paid and non-assessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. This consent is not to be construed as an admission that we are a person whose consent is required to be filed with the Registration Statement under the provisions of the Act. Very truly yours, FULBRIGHT & JAWORSKI L.L.P. EX-23.(A) 4 CONSENT OF KPMG EXHIBIT 23(a) CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS To the Board of Directors Zygo Corporation We consent to incorporation by reference in the Registration Statement dated January 15, 1998, for the registration of shares for the Zygo Corporation Amended and Restated Non-Qualified Stock Option Plan on Form S-8 of Zygo Corporation of our reports dated August 12, 1997, relating to the consolidated balance sheets of Zygo Corporation and subsidiaries as of June 30, 1997 and 1996, and the related consolidated statements of earnings, stockholders' equity and cash flows for each of the years in the three-year period ended June 30, 1997, which report appears in or is incorporated by reference into the June 30, 1997 annual report on Form 10-K of Zygo Corporation. KPMG PEAT MARWICK LLP Hartford, Connecticut January 15, 1998 -----END PRIVACY-ENHANCED MESSAGE-----