AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 15, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ZYGO CORPORATION
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(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
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(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)
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GARY K. WILLIS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ZYGO CORPORATION
LAUREL BROOK ROAD
MIDDLEFIELD, CONNECTICUT 06455
(203) 347-8506
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(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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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
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<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
=======================================================================================================
| | 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
- ---------------------------|------------------|--------------------|--------------------|--------------
<S> <C> <C> <C> <C>
Common Stock $.10 par | | | |
value per share......... | 1,400,000 shares | $16.375 | $22,925,000 | $6763.00
=======================================================================================================
</TABLE>
(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.
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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.
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<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
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<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 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)
<PAGE>
/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
<PAGE>
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).
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:
<PAGE>
(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.
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.
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
