As filed with the Securities and Exchange Commission on August 24, 1995
Registration No. 33-_____________
================================================================================
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 juris- (I.R.S. Employer
diction of incorporation Identification
or organization) Number)
Laurel Brook Road
Middlefield, Connecticut 06455
(203) 347-8506
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
ZYGO CORPORATION
NON-EMPLOYEE DIRECTOR
STOCK OPTION PLAN
(full title of the plan)
________________________
GARY K. WILLIS
President and Chief Operating 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
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=============================================================================================================================
Proposed maximum Proposed maximum Amount of
Title of Securities to be Amount to be offering price per aggregate offering registration fee
registered registered(1) unit(2) price (3)
================================ ====================== ====================== ====================== ========================
<S> <C> <C> <C> <C>
Common Stock, $.10 par value
per share........... 300,000 shares $26.875 $8,062,500 $2,781
================================ ====================== ====================== ====================== ========================
</TABLE>
(1) An additional indeterminable number of shares are also being registered to
cover any adjustments required by anti-dilution provisions in the number of
shares issuable upon the exercise of options granted under the Zygo
Corporation Non-Employee Director Stock Option Plan.
(2) Calculated by dividing the proposed maximum offering price by the amount of
shares to be registered.
(3) 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 and is the product resulting from multiplying 300,000,
the number of shares of Common Stock registered by the Registration
Statement as to which options may be granted under the Zygo Corporation
Non-Employee Director Stock Option Plan by $26.875, the average of the high
and low prices of the Common Stock as reported on the Nasdaq National
Market on August 22, 1995.
================================================================================
<PAGE>
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
Non-Employee Director Stock Option Plan (the "Plan") adopted by Zygo Corporation
(the "Company" or the "Registrant") 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 (the "Commission").
1
<PAGE>
187,500 Shares
ZYGO CORPORATION
COMMON STOCK
This Prospectus relates to the offer and sale of up to 187,500 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 distribution of the Shares by the Selling Stockholders may be
effected from time to time in one or more transactions for their own accounts
(which may include block transactions) in the over-the-counter market, on the
National Association of Securities Dealers Automated Quotation System
("NASDAQ"), or on any exchange on which the Common Stock may then be listed, in
negotiated transactions, through the writing of options on shares (whether such
options are listed on an options exchange or otherwise), or a combination of
such methods of sale, at fixed prices which may be changed, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices. The Selling Stockholders may effect such
transactions by selling Shares to or through broker-dealers, and such
broker-dealers may receive compensation in the form of discounts, concessions or
commissions from the Selling Stockholders and/or the purchasers of Shares for
whom such broker-dealers may act as agent or to whom they sell as principal, or
both (which compensation as to a particular broker-dealer might be in excess of
customary commissions). The Selling Stockholders may also pledge Shares as
collateral for margin accounts and such Shares could be resold pursuant to the
terms of such accounts. The Selling Stockholders and any participating brokers
and dealers may be deemed to be "underwriters" as defined in the Securities Act
of 1933, as amended (the "Securities Act"). See "Selling Stockholders" and "Plan
of Distribution."
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.
None of the proceeds from the sale of the Shares by the Selling
Stockholders will be received by the Company. The Company has agreed to bear all
expenses in connection with the registration of the Shares being offered by the
Selling Stockholders. See "Plan of Distribution." 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.
<PAGE>
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
-2-
<PAGE>
No person is authorized in connection with the offering made hereby to give
any information or to make any representation not contained or incorporated by
reference in this Prospectus or a supplement to this Prospectus, and any
information or representation not contained or incorporated herein or in a
supplement to this Prospectus must not be relied upon as having been authorized
by the Company or the Selling Stockholders. This Prospectus or any supplement to
this Prospectus does not constitute an offer to sell or a solicitation of an
offer to buy by any person in any jurisdiction in which it is unlawful for such
person to make such offer or solicitation. Neither the delivery of this
Prospectus or a supplement to this Prospectus at any time nor any sale made
hereunder or thereunder shall under any circumstance imply that information
contained herein is correct as of any date subsequent to its date.
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-8 under the Securities Act of
1933, as amended (the "Securities Act"), with respect to the Common Stock
offered hereby. This Prospectus does not contain all the information set forth
in the Registration Statement and in the exhibits and schedules thereto. For
further information about the Company and the securities offered hereby,
reference is hereby made to the Registration Statement and to the exhibits and
schedules thereto. Statements contained in this Prospectus as to the contents of
any contract or any other document are not necessarily complete and in each
instance reference is made to the copy of such contract or document filed as an
exhibit to the Registration Statement, each such statement being qualified in
all respects by such reference. Additionally, 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 Commission. The Registration
Statement, including the exhibits and schedules thereto, as well as such
reports, proxy statements and other information filed with the Commission may be
inspected and copied at the Commission's Public Reference Room, Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, and at the following Regional
Offices of the Commission: New York Regional Office, 75 Park Place, 14th Floor,
New York, New York 10007, and Chicago Regional Office, Northwestern Atrium
Center, 500 West Madison Street (Suite 1400), Chicago, Illinois 60601. Copies of
such material may be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. Copies may also be inspected at the reading room of the library of the
National Association of Securities Dealers, Inc., 1735 K Street, Washington, DC
20006.
The Company furnishes its stockholders with annual reports containing
financial statements certified by independent accountants (prepared in
accordance with accounting principles generally accepted in the United States)
and quarterly reports containing unaudited financial data for the first three
quarters of its fiscal year, and intends to continue this policy.
-3-
<PAGE>
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.
(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.
-4-
<PAGE>
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,
-5-
<PAGE>
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.
-6-
<PAGE>
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 the 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.
-7-
<PAGE>
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.
-8-
<PAGE>
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. The
shares of Common Stock being sold by the Selling Stockholders in this offering
will be acquired upon the exercise of stock options presently held by the
Selling Stockholders.
<TABLE>
<CAPTION>
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
----------- ---------- -------- --------
<S> <C> <C> <C> <C>
Michael R. Corboy(1) 51,000 37,500 13,500 * %
Seymour E. Liebman(2) 37,500 37,500 0 * %
Robert C. McKelvey(3) 83,100 37,500 45,600 1.2%
Paul W. Murrill(4) 44,250 37,500 6,750 * %
Robert B. Taylor(5) 39,750 37,500 2,250 * %
</TABLE>
________________
* Less than one percent
(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 includes 6,000 shares of common stock which may be acquired upon
the exercise of options within 60 days which are not the subject of this
prospectus. Shares of common stock beneficially owned prior to the offering
also includes 37,500 shares of Common Stock which may be acquired by Mr.
Corboy upon the exercise of options which are covered by this prospectus.
Such options to purchase 37,500 shares were granted on August 25, 1994 and
become exercisable as to 7,500 shares on each of August 25, 1995, 1996,
1997, 1998 and 1999. Mr. Corboy has been a director of the Company since
1993.
(2) Shares of common stock beneficially owned prior to the offering consists of
37,500 shares of Common Stock which may be acquired by Mr. Liebman upon the
exercise of options which are covered by this prospectus. Such options were
granted on August 25, 1994 and become exercisable as to 7,500 shares on
each of August 25, 1995, 1996, 1997, 1998 and 1999. 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 owned by Canon Inc., an affiliate of an
entity of which Mr. Liebman is an officer. Mr. Liebman has been a director
of the Company since 1993.
(3) Shares of common stock beneficially owned prior to the offering includes
37,500 shares of Common Stock which may be acquired by Mr. McKelvey upon
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<PAGE>
the exercise of options which are covered by this prospectus. Such options
were granted on August 25, 1994 and become exercisable as to 7,500 shares
on each of August 25, 1995, 1996, 1997, 1998 and 1999. Mr. McKelvey has
been a director of the Company since 1983.
(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 6,000 shares of common stock which may be acquired upon
the exercise of options within 60 days which are not the subject of this
prospectus. Shares of common stock beneficially owned prior to the offering
also includes 37,500 shares of Common Stock which may be acquired by Mr.
Murrill upon the exercise of options which are covered by this prospectus.
Such options to purchase 37,500 shares were granted on August 25, 1994 and
become exercisable as to 7,500 shares on each of August 25, 1995, 1996,
1997, 1998 and 1999. Mr. Murrill has been a director of the Company since
1993.
(5) Shares of common stock beneficially owned prior to the offering includes
37,500 shares of Common Stock which may be acquired by Mr. Taylor upon the
exercise of options which are covered by this prospectus. Such options were
granted on August 25, 1994 and become exercisable as to 7,500 shares on
each of August 25, 1995, 1996, 1997, 1998 and 1999. 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 owned by Wesleyan University, of which Mr.
Taylor is an officer. Mr. Taylor has been a director of the Company since
1988.
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.
The distribution of the Shares by the Selling Stockholders may be effected
from time to time in one or more transactions for their own accounts (which may
include block transactions) in the over-the-counter market, on NASDAQ, or on any
exchange on which the Common Stock may then be listed, in negotiated
transactions, through the writing of options on shares (whether such options are
listed on an options exchange or otherwise), or a combination of such methods of
sale, at fixed prices which may be changed, at market prices prevailing at the
time of sale, at prices related to such prevailing market prices or at
negotiated prices. The Selling Stockholders may effect such transactions by
selling Shares to or through broker-dealers, and such broker-dealers may receive
compensation in the form of discounts, concessions or commissions from the
Selling Stockholders and/or the purchasers of Shares for whom such
broker-dealers may act as agent or to whom they sell as principal, or both
(which compensation as to a particular broker-dealer might be in excess of
customary commissions). The Selling Stockholders may also pledge Shares as
collateral for margin accounts and such Shares could be resold pursuant to the
terms of such accounts. The Selling Stockholders and any participating brokers
and dealers may be deemed to be "underwriters" as defined in the Securities Act.
-10-
<PAGE>
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.
In order to comply with certain state securities laws, if applicable, the
Common Stock will not be sold in a particular state unless such securities have
been registered or qualified for sale in such state or any exemption from
registration or qualification is available and complied with.
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.
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<PAGE>
================================================================================
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 ............................................... 3
Incorporation of Certain
Documents by Reference ............................................. 4
Risk Factors......................................................... 5
The Company ......................................................... 8
Selling Stockholders ................................................ 9
Plan of Distribution ................................................ 10
Legal Matters ....................................................... 11
Experts ............................................................. 11
================================================================================
================================================================================
187,500
Shares
ZYGO CORPORATION
Common Stock
----------
PROSPECTUS
----------
August 24, 1995
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Company with the Commission are
incorporated herein by reference:
(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.
(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.
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.
II-1
<PAGE>
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
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, 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 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
4(a) -- Zygo Corporation Non-Employee Director Stock Option Plan.
(b) -- Form of Zygo Corporation Non-Employee Director 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).
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
II-2
<PAGE>
(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 date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(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 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference herein.
(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 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
II-3
<PAGE>
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
<PAGE>
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 August 21, 1995.
ZYGO CORPORATION
By:/s/ Gary K. Willis
---------------------------------------
Gary K. Willis
President and Chief Operating 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 of 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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Paul F. Forman Chairman of the Board August 21, 1995
------------------ of Directors
Paul F. Forman
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Gary K. Willis President, Chief August 21, 1995
---------------------- Executive Officer
Gary K. Willis and Director
(Principal Executive Officer)
/s/ Carl A. Zanoni Vice President, Research, August 21, 1995
---------------------- Development and Engineering
Carl A. Zanoni and Director
/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/ Mark J. Bonney Vice President, Finance August 21, 1995
---------------------- and Administration,
Mark J. Bonney Treasurer and Chief
Financial Officer
(Principal Financial and
Accounting Officer)
</TABLE>
II-6
<PAGE>
INDEX TO EXHIBITS
Exhibit
No. Description Page No.
--- ----------- -------
4(a) Zygo Corporation Non-Employee Director Stock Option Plan. 1
(b) Form of Zygo Corporation Non-Employee Director Stock Option 10
Agreement.
5 Opinion of Fulbright & Jaworski L.L.P. 17
23(a) Consent of KPMG Peat Marwick LLP. 19
(b) Consent of Fulbright & Jaworski L.L.P. (included in Exhibit 5).
24 Power of Attorney (see signature page).
EXHIBIT 4(a)
ZYGO CORPORATION
Non-Employee Director Stock Option Plan
A. Purpose. The purpose of the Zygo Corporation Non-Employee Director Stock
Option Plan (the "Plan") is to enable Zygo Corporation (the "Company") to
provide stock options to members of its Board of Directors (the "Board") who are
not also employees of, or consultants to, the Company ("Non-Employee
Directors"). It is intended that the Plan will constitute a "formula plan"
within the meaning and for the purposes of Rule 16b-3 issued by the Securities
and Exchange Commission under Section 16 of the Securities Exchange Act of 1934.
The provisions of the Plan and of any option agreement made pursuant to the Plan
will be interpreted and applied accordingly.
B. Stock Subject to the Plan. Except as otherwise permitted by paragraph 6
hereof, the Company may issue and sell a total of [200,000] shares of its common
stock, $.10 par value (the "Common Stock"), pursuant to the Plan. Such shares
may be either authorized and unissued or held by the Company in its treasury.
New options may be granted under the Plan with respect to shares of Common Stock
which are covered by the unexercised portion of an option which terminates or
expires.
C. Administration. The Plan will be administered by the Board. Subject to
the provisions of the Plan and applicable law, the Board, acting in its sole and
absolute discretion, shall have full power and authority to interpret the
provisions of the Plan and option agreements made under the Plan, to supervise
the administration of the Plan, and to take such other action as may be
necessary or desirable in order to carry out the provisions of the Plan. The
<PAGE>
decision of the Board as to any disputed question, including questions of
construction, interpretation and administration, shall be final and conclusive
on all persons.
D. Automatic Option Grants. Options to purchase shares of Common Stock will
automatically be granted under the Plan to Non-Employee Directors as follows:
(a) an option to purchase 25,000 shares of Common Stock will be granted on
the date this Plan is adopted by the Board, subject, however, to the approval of
the Plan by the Company's stockholders at their next annual meeting, to each
individual who is then serving as a Non-Employee Director;
(b) an option to purchase 25,000 shares of Common Stock will automatically
be granted to each new Non-Employee Director on the date of his or her initial
election or appointment subsequent to the date the Plan is adopted by the Board;
and
(c) an option to purchase 25,000 shares of Common Stock will automatically
be granted to each Non-Employee Director on the fifth anniversary of the date on
which an option was previously granted to such Non-Employee Director, provided
that he or she shall have continuously served as a director of the Company
through such fifth anniversary;
provided, however, that no option shall be granted under this Plan to an
individual who previously received an option granted under the Company's
Non-Qualified Stock Option Plan in his capacity as a Non-Employee Director
unless such individual shall have agreed to the termination of that portion of
the prior option which would otherwise first become exercisable after December
31, 1994.
2
<PAGE>
E. Terms and Conditions of Options. Each option granted under the Plan
shall be evidenced by a written agreement containing the following terms and
conditions:
1. Option Price. The purchase price per share shall be equal to the fair
market value of a share of Common Stock on the date the option is granted. For
this purpose, the fair market value of a share of Common Stock on any date will
be equal to the closing sale price per share as published by a national
securities exchange on which shares of the Common Stock are traded on such date
or, if there is no sale of Common Stock on such date, the average of the bid and
asked prices on such exchange at the closing of trading on such date.
2. Option Period. Subject to the provisions hereof, the period during which
an option may be exercised shall be ten years from the date the option is
granted.
3. Exercise of Options.
(1) An option will become exercisable at the rate of 20% for each year of
the optionee's continuous service as a director from the date the option is
granted; provided, however, that, if an optionee completes more than six months
(but less than one year) of service as a director in the year in which his or
her service as a director terminates, then he or she will be credited with a
year of continuous service for such last year in determining the portion of the
option which is exercisable at the time of such termination of service. All or
part of the exercisable portion of an option may be exercised at any time during
the option period, except that, without the consent of the Board, no partial
exercise of an option shall be made for less than [1,000] shares. An option may
be exercised by transmitting to the Company (1) a written notice specifying the
number of shares to be purchased, and (2) payment in full of the purchase price,
3
<PAGE>
together with the amount, if any, deemed necessary to enable the Company to
satisfy its income tax withholding obligations with respect to such exercise
(unless other arrangements acceptable to the Board are made with respect to the
satisfaction of such withholding obligations).
(2) The Company's obligation to sell and deliver shares upon exercise of an
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. If at the time of any exercise of this
option a Registration Statement under the Securities Act of 1933, as amended
(the "Act") shall not be effective with respect to the shares to be acquired on
such exercise, then, as a condition to such exercise and the delivery of the
shares, the optionee shall deliver to the Company a written statement,
satisfactory in form and substance to counsel for the Company, confirming (a)
the financial information pertaining to the Company as to which the optionee had
access and (b) that any shares acquired by the optionee upon exercise of this
option will be acquired by the optionee for his or her own account for
investment and not with a view to the distribution or resale of any such shares.
Any certificate for shares issued upon the exercise of this option may at the
Company's option, bear a legend stating that the shares represented by such
certificate were purchased only for investment and may be transferred only if
counsel for the Company is satisfied that no violation of the Act is involved.
The Company shall be entitled to further postpone the time of delivery of
certificates for shares of its Common Stock for such additional time as the
Company shall deem necessary or desirable to enable it (i) to file a
Registration Statement under the Act with the Securities and Exchange Commission
with respect, among others, to the shares of Common Stock which may be purchased
4
<PAGE>
under this option, or (ii) to comply with the listing requirements of any
securities exchange upon which the Common Stock of the Company may be listed.
4. Payment of Option Price. The purchase price of shares of Common Stock
acquired pursuant to the exercise of an option granted under the Plan shall be
payable in cash or check and/or previously-owned shares of Common Stock. If the
shares of Common Stock are tendered as payment of the option exercise price, the
value of such shares shall be the fair market value as of the date of exercise.
If such tender would result in the issuance of fractional shares of Common
Stock, the Company shall instead return the difference in cash or by check to
the optionee.
5. Rights as a Shareholder. No shares of Common Stock shall be issued in
respect of the exercise of an option granted under the Plan until full payment
therefor has been made. The holder of an option shall have no rights as a
shareholder with respect to any shares covered by an option until the date a
stock certificate for such shares is issued to him or her. Except as otherwise
provided herein, no adjustments shall be made for dividends or distributions of
other rights for which the record date is prior to the date such stock
certificate is issued.
6. Nontransferability of Options. No option shall be assignable or
transferrable except upon the optionee's death to a beneficiary designated by
the optionee in accordance with procedures established by the Board or, if no
designated beneficiary shall survive the optionee, pursuant to the optionee's
will or by the laws of descent and distribution. During an optionee's lifetime,
options may be exercised only by the optionee or the optionee's guardian or
legal representative.
7. Termination of Service. If an optionee ceases to serve as a director of
the Company for any reason, then each outstanding option granted to him or her
5
<PAGE>
under the Plan shall terminate on the date three months after the date of such
termination of service.
8. Other Provisions. The Board may impose such other conditions with
respect to the exercise of options, including, without limitation, any
conditions relating to the application of federal or state securities laws, as
it may deem necessary or advisable.
F. Capital Changes, Reorganization, Sale. If (a) 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, (b) the
Company shall declare a stock dividend or subdivide or combine its Common Stock,
or (c) any other event shall occur which in the judgment of the Board
necessitates action by way of adjusting the terms of the option, then the Board
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 (i.e., all vested and otherwise nonvested options will be and become
exercisable until such effective date). 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
6
<PAGE>
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 or her.
G. Amendment and Termination of the Plan. The Board may amend or terminate
the Plan. Except as otherwise provided in the 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 Plan, materially
increase the benefits under the Plan, or modify the class of persons eligible to
receive options under the Plan shall be subject to the approval of the
stockholders of the Company. No amendment or termination may adversely affect
any outstanding option without the written consent of the optionee.
Notwithstanding anything to the contrary contained herein or in any option
agreement made hereunder, the provisions of paragraphs 4 and 5(a) of the Plan
and any other provision of the Plan or of an option agreement relating to the
timing of option grants, the amount of shares covered thereby and the exercise
price thereunder may not be amended more than once every six months, and no
amendment may be made to the Plan or an option agreement if, as a result of such
amendment, the Plan would no longer qualify as a "formula plan" under Rule 16b-3
issued by the Securities and Exchange Commission under Section 16 of the
Securities Exchange Act of 1934
H. No Rights Conferred. Nothing contained herein will be deemed to give any
individual any right to be retained or elected or re-elected as a member of the
Board.
I. Governing Law. The Plan and each option agreement shall be governed in
all respects by the laws of the State of Delaware without giving effect to the
provisions relating to conflicts of law.
7
<PAGE>
J. Term of the Plan. The Plan shall be effective as of the date on which it
is adopted by the Board, subject to the approval of the stockholders of the
Company within one year from the date of adoption by the Board. The Plan will
terminate on the date ten years after the date of adoption, unless sooner
terminated by the Board. The rights of optionees under options outstanding at
the time of the termination of the Plan shall not be affected solely by reason
of the termination of the Plan and shall continue in accordance with the terms
of the option (as then in effect or thereafter amended) and the Plan.
8
EXHIBIT 4(b)
ZYGO CORPORATION
NON-EMPLOYEE DIRECTOR
STOCK OPTION AGREEMENT
AGREEMENT made as of the __________ day of ________________ by and between
ZYGO CORPORATION, a Delaware corporation (the "Company"), and
_______________________ (the "Optionee").
WHEREAS, pursuant to the Zygo Corporation Non-Employee Director Stock
Option Plan (the "Plan"), the Company desires to grant to the Optionee and the
Optionee desires to accept an option to purchase shares of common stock, $.10
par value, of the Company (the "Common Stock") upon the terms and conditions set
forth in this agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. Subject to the stockholder approval requirement set forth in Section
4(a) of the Plan, the Company hereby grants to the Optionee an option to
purchase 25,000 shares of Common Stock at a purchase price per share of $______.
Except as specifically provided otherwise herein, the option will become
exercisable in accordance with the following schedule based upon the period of
the Optionee's continuous service as a director of the Company following the
date hereof (provided, however, that, if an optionee completes more than six
months (but less than one year) of service as a director in the year in which
his or her service as a director terminates, then he or she will be credited
<PAGE>
with a year of continuous service for such last year in determining the portion
of the option which is exercisable at the time of such termination of service):
Period Incremental Cumulative
of Continuous Percentage of Percentage of
Employment/ Option Option
Service Exercisable Exercisable
------- ----------- -----------
Less than 1 year 0% 0%
1 year 20% 20%
2 years 20% 40%
3 years 20% 60%
4 years 20% 80%
5 years or more 20% 100%
Unless sooner terminated, the option will expire if and to the extent it is not
exercised within ten years from the date hereof.
2. This option may be exercised by written notice to the Company stating
the number of full shares with respect to which it is being exercised, and
accompanied by payment of the option price for the number of shares so purchased
and payment or arrangement for payment of any federal, state or local income or
other taxes incurred by reason of the exercise and required to be withheld by
the Company. This option is not an incentive stock option within the meaning of
Section 422 of the Internal Revenue Code of 1986. The exercise price shall be
payable by cash or check or, if the Company in its sole and absolute discretion
so permits, by the delivery of previously-owned shares of Common Stock.
3. The Company's obligation to sell and deliver shares upon exercise of
this 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. If at the time of any exercise of this
option a Registration Statement under the Securities Act of 1933, as amended
(the "Act"), shall not be effective with respect to the shares to be acquired on
2
<PAGE>
such exercise, then, as a condition to such exercise and the delivery of the
shares, the Optionee shall deliver to the Company a written statement,
satisfactory in form and substance to counsel for the Company, confirming (a)
the financial information pertaining to the Company as to which the Optionee had
access and (b) that any shares acquired by the Optionee upon exercise of this
option will be acquired by the Optionee for his or her own account for
investment and not with a view to the distribution or resale of any such shares.
Any certificate for shares issued upon the exercise of this option, may at the
Company's option, bear a legend stating that the shares represented by such
certificate were purchased only for investment and may be transferred only if
counsel for the Company is satisfied that not violation of the Act is involved.
The Company shall be entitled to further postpone the time of delivery of
certificates for shares of its common stock for such additional time as the
Company shall deem necessary or desirable to enable it (i) to file a
Registration Statement under the Act with the Securities and Exchange Commission
with respect, among others, to the shares of common stock which may be purchased
under this option, or (ii) to comply with the listing requirements of any
securities exchange upon which the common stock of the Company may be listed.
4. This option is not assignable or transferable except upon the Optionee's
death to a beneficiary designated by the Optionee in a manner acceptable to the
Company, or, in the absence of a surviving designated beneficiary, pursuant to
the Optionee's will or by the laws of descent and distribution. This option is
exercisable during the Optionee's lifetime only by the Optionee. In the event of
any attempt by the Optionee to alienate, assign, pledge, hypothecate or
otherwise dispose of this option or any right hereunder, except as provided for
herein, or in the event of any levy of any attachment, execution or similar
3
<PAGE>
process upon the rights or interests hereby conferred, the Company may terminate
this option by notice to the Optionee and it shall thereupon become null and
void.
5. If the Optionee ceases to perform services as a director of the Company
for any reason, then, unless sooner terminated under the terms hereof, the
option will terminate on the date three months after the date of such cessation
of service.
6. If (a) 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, (b) the Company shall declare a stock dividend or
subdivide or combine its common stock, or (c) any other event shall occur which
necessitates actions by way of adjusting the terms of the option, the Board of
Directors shall forthwith take any such action as 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 a 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 (i.e., all vested
and otherwise nonvested options will be and become exercisable until such
effective date). 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
4
<PAGE>
instructions or authority from the Company. For the purpose of the foregoing,
actions taken by members of any option holder's family shall be deemed to have
been taken by him.
7. Neither the granting of this option nor the exercise thereof shall be
construed as granting to the Optionee any right with respect to continuance of
his or her service for the Company. Neither the Optionee nor any person entitled
to exercise his or her rights in the event of his or her death shall have any of
the rights of a stockholder with respect to the shares subject to this option,
except to the extent that certificates for such shares shall have been issued
upon the exercise of this option as provided for herein.
8. This option is granted pursuant to the Plan, and is governed by the
terms and conditions of that Plan. The Optionee agrees to be bound by the terms
and conditions of this agreement and the Plan (a copy of which the Optionee
acknowledges the Optionee has received) and any future amendments to the Plan
which do not alter or impair the Optionee's rights hereunder. In the event that
any controversy shall arise with respect to the nature, scope or extent of any
one or more rights conferred by this agreement, the determination of the Board
of Directors of the Company of the rights of the Optionee shall be final and
binding upon the Optionee and any other person who shall assert any right based
upon this agreement.
9 This agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
10. This agreement shall be governed by and construed in accordance with
the laws of the State of Delaware. This agreement constitutes the entire
5
<PAGE>
agreement between the parties with respect to the subject matter hereof and may
not be modified except by written instrument executed by the parties.
This option shall be wholly void and of no effect after the expiration date
or, if sooner, termination date.
IN WITNESS WHEREOF, this agreement has been executed as of the date first
above written.
ZYGO CORPORATION
By: ________________________________
____________________________________
Optionee
6
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-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 300,000 shares of the Company's Common Stock, $.10
par value per share (the "Shares"), to be issued under the Company's
Non-Employee Director 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 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,
/s/ Fulbright & Jaworski L.L.P.
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 on
Form S-8 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
