ZYGO CORP - FORM 10-K/A - December 23, 2009

Attached files

file filename
EX-32.1 - ZYGO CORPc59763_ex32-1.htm
EX-31.2 - ZYGO CORPc59763_ex31-2.htm
EX-32.2 - ZYGO CORPc59763_ex32-2.htm
EX-31.1 - ZYGO CORPc59763_ex31-1.htm
EX-10.31 - ZYGO CORPc59763_ex10-31.htm
EX-10.30 - ZYGO CORPc59763_ex10-30.htm

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

FORM 10-K/A
AMENDMENT No. 2

(Mark One)

 

 

x

Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

For the fiscal year ended June 30, 2009

Or

 

o

Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

For the transition period from ______________________________ to ______________________________

 

 

Commission file number 0-12944

 

ZYGO CORPORATION

(Exact name of registrant as specified in its charter)

 

 

 

 

Delaware

 

06-0864500

 

 

 

(State or other jurisdiction of

 

(IRS Employer Identification Number)

 

incorporation or organization)

 

 

 

 

 

 

 

Laurel Brook Road, Middlefield, Connecticut 06455-1291

 

 

 

 

(Address of principal executive offices) (Zip Code)

 

 

 

 

 

(860) 347-8506

 

 

 

 

(Registrant’s telephone number, including area code:)

 

 

 

 

 

Securities registered pursuant to Section 12(b) of the Act:

 

 

 

 

None

 

 

 

 

 

Securities registered pursuant to Section 12(g) of the Act:

 

 

 

 

Common Stock, $.10 Par Value

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.
YES o    NO x

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.
YES o    NO x

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
YES o    NO x

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 229.405 of this chapter) during the preceeding 12 months (or for such shorter period that the registrant was required to submit and post such files).
YES o    NO o

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K(229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.
x

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in rule 12b-2 of the Exchange act. (Check one):

 

 

 

 

 

Large accelerated filer   

o

 

Accelerated filer   x

Non-accelerated filer

o

    (Do not check if a smaller reporting company)

Smaller reporting company  o

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).
YES o    NO x

The aggregate market value of the registrant’s Common Stock held by non-affiliates, based upon the closing price of the Common Stock on December 31, 2008, as reported by the NASDAQ National Market, was $64,026,111. Shares of Common Stock held by each executive officer and director and by each person who owns 5% or more of the outstanding Common Stock, based on filings with the Securities and Exchange Commission, have been excluded since such persons may be deemed affiliates. This determination of affiliate status is not necessarily a conclusive determination for other purposes.

Indicate the number of shares outstanding of each of the registrant’s classes of Common Stock, as of the latest practicable date.

16,988,156 Shares of Common Stock, $.10 Par Value, at September 1, 2009

EXPLANATORY NOTE

The purpose of this Amendment No. 2 (this "Form 10-K/A") to our Annual Report on Form 10-K for the fiscal year ended June 30, 2009, which was filed with the Securities and Exchange Commission (the "SEC") on September 14, 2009 and amended on October 26, 2009 (the "Annual Report"), is to include revised versions of Exhibits 10.30 and 10.31. The versions of Exhibits 10.30 and 10.31 filed herewith have been revised in response to comments of the Staff of the SEC relating to ZYGO's request for confidential treatment.

In addition, pursuant to the rules of the SEC, Item 15 of Part IV of the Annual Report has been amended to contain currently dated certifications from our Chief Executive Officer and Chief Financial Officer, as required by Sections 302 and 906 of the Sarbanes-Oxley Act of 2002 with respect to this Form 10-K/A. The currently dated certifications of our Chief Executive Officer and Chief Financial Officer are attached to this Form 10-K/A as Exhibits 31.1, 31.2, 32.1 and 32.2. Except as described above, no other changes are made to the Annual Report, and this Form 10-K/A does not amend, update or change any other Item or the disclosures in the Annual Report in any way. This Form 10-K/A does not reflect events occurring after the filing of the Annual Report or modify or update those disclosures, including any exhibits to the Annual Report, affected by subsequent events.

PART IV

Item 15. Exhibits, Financial Statement Schedules

 

 

 

(a)

The following documents are filed as part of this report:

 

 

 

1. and 2. Consolidated Financial Statements and Financial Statement Schedule:

 

 

 

 

 

Consolidated Financial Statements and Financial Statement Schedule (previously filed with the Company’s Annual Report on Form 10-K for the fiscal year ended June 30, 2009, as filed with the Securities and Exchange Commission on September 14, 2009)

 

 

 

 

3.

EXHIBITS

 

 

 

 

3.(i)

Restated Certificate of Incorporation of the Company and amendments thereto (Exhibit 3.(i) to the Company’s Annual Report on Form 10-K for its year ended June 30, 1993)*

 

 

 

 

3.(ii)

Certificate of Amendment of Certificate of Incorporation, filed June 3, 1996 (Exhibit 3.(ii) to the Company’s Annual Report on Form 10-K 405 for its year ended June 30, 1996)*

 

 

 

 

3.(iii)

By-laws of the Company (Exhibit (3)(b) to Registration No. 2-87253 on Form S-1 hereinafter “Registration No. 2-87253”)*

 

 

 

 

4.1

Zygo Corporation Code of Ethics (Exhibit 14.1 to the Company’s Quarterly Report on Form 10-Q for its quarterly period ended March 26, 2004)*

 

 

 

 

10.1

Confidentiality and Non-Competition Agreement dated October 25, 1983, between the Company and Carl A. Zanoni (Exhibit (10)(b) to Registration No. 2-87253)*

 

 

 

 

10.2

Agreement dated November 20, 1980, between the Company and Canon Inc. regarding exchange of information (Exhibit (10)(y) to Registration No. 2-87253)*

 

 

 

 

10.3

Amended and Restated Zygo Corporation Profit Sharing Plan (Exhibit 10.15 to the Company’s Annual Report on Form 10-K 405 for its year ended June 30, 1995)*

 

 

 

 

10.4

Canon/ZYGO Confidentiality Agreement dated March 7, 1990, between the Company and Canon Inc. regarding confidential technical information received from each other (Exhibit 10.42 to the Company’s Annual Report on Form 10-K for its year ended June 30, 1991)*

 

 

 

 

10.5

Zygo Corporation Amended and Restated Non-Qualified Stock Option Plan ratified and approved by the Company’s Stockholders on November 19, 1992 (Exhibit 10.30 to the Company’s Annual Report on Form 10-K for its year ended June 30, 1993)*

 

 

 

 

10.6

Zygo Corporation Non-Employee Director Stock Option Plan ratified and approved by the Company’s Stockholders on November 17, 1994 (Exhibit 10.30 to the Company’s Annual Report on Form 10-K 405 for its year ended June 30, 1996)*

 

 

 

 

10.7

Employment Agreement dated January 15, 1999, between Zygo Corporation and J. Bruce Robinson (Exhibit 10.34 to the Company’s Annual Report on Form 10-K 405 for its year ended June 30, 1999)*

 

 

 

 

10.8

Zygo Corporation Amended and Restated Non-Employee Director Stock Option Plan ratified and approved by the Company’s Stockholders on November 17, 1999 (Exhibit to the Company’s Definitive Proxy Statement for its year ended June 30, 1999)*

 

 

 

 

10.9

Employment agreement dated July 1, 1999, between Zygo Corporation and Brian J. Monti (Exhibit 10.22 to the Company’s Annual Report on Form 10-K 405 for its year ended June 30, 2000)*

 


 

 

 

 

10.10

Subcontract B519044 between The Regents of The University of California Lawrence Livermore National Laboratory and Zygo Corporation dated January 14, 2002 (Exhibit 10.25 to the Company’s Annual Report on Form 10-K for its year ended June 30, 2002)*

 

 

 

 

10.11

Development Agreement dated September 11, 2002, between Zygo Corporation and Canon, Inc. (Exhibit 99.2 to the Company’s Current Reports on Form 8-K dated September 17, 2002)*

 

 

 

 

10.12

Development and Manufacturing Support Services Agreement effective December 1, 2001, between Zygo Corporation and Philips Electronics North America Corporation. (Exhibit 99.1 to the Company’s Current Report on Form 8-K dated October 22, 2002)*

 

 

 

 

10.13

Development Agreement Amendment dated December 20, 2004, between Zygo Corporation and Canon Inc. (Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q for its quarterly period ended December 31, 2004)*

 

 

 

 

10.14

Development Agreement Amendment dated February 26, 2005, between Zygo Corporation and Canon Inc. (Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q for its quarterly period ended March 31, 2005)*

 

 

 

 

10.15

Development Agreement dated February 23, 2005, between Zygo Corporation and Canon Inc. (Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q for its quarterly period ended March 31, 2005)*

 

 

 

 

10.16

Zygo Corporation 2002 Equity Incentive Plan Restricted Stock Agreement. (Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q for its quarterly period ended September 30, 2005)*

 

 

 

 

10.17

Zygo Corporation 2002 Equity Incentive Plan Stock Option Agreement. (Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q for its quarterly period ended September 30, 2005)*

 

 

 

 

10.18

Employment contract dated October 23, 2006 between Zygo Corporation and James Northup. (Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q for its quarterly period ended December 31, 2006)*

 

 

 

 

10.19

Employment contract dated November 20, 2006 between Zygo Corporation and John Stack. (Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q for its quarterly period ended December 31, 2006)*

 

 

 

 

10.20

Agreement dated February 8, 2007 between Zygo Corporation and Carl A. Zanoni. (Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q for its quarterly period ended March 31, 2007)*

 

 

 

 

10.21

Employment contract dated June 15, 2007 between Zygo Corporation and Walter A. Shephard. (Exhibit 10.23 to the Company’s Annual Report on Form 10-K for its annual period ended June 31, 2007)*

 

 

 

 

10.22

Employment Agreement dated November 19, 2007 between Zygo Corporation and Mr. Douglas J. Eccleston (Exhibit 99.1 to the Company’s Current report on Form 8-K dated November 20, 2007)*

 

 

 

 

10.23

Press Release, dated February 28, 2008, issued by Zygo Corporation which announces that it acquired the assets of Solvision, Inc. (Exhibit 99.1 to the Company’s Current Reports on Form 8-K dated February 29, 2008)*

 

 

 

 

10.24

Restricted Stock Unit Agreement dated January 31, 2008 between ZYGO Corporation and J. Bruce Robinson (Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q for its quarterly period ended March 31, 2008)*

 

 

 

 

10.25

Entry into an agreement and plan of merger and reorganization (Exhibit 2.1 to the Company’s Current Reports on Form 8-K dated October 21, 2008)

 

 

 

 

10.26

Employment agreement amendments between Zygo Corporation and J. Bruce Robinson, James R. Northup, and John M. Stack, dated October 21, 2008 (Exhibit 10.1, 10.2, and 10.3, respectively, to the Company’s Current Reports on Form 8-K dated October 21, 2008)*

 


 

 

 

 

10.27

Audited consolidated financial statements of Solvision Inc. (Exhibit 99.1 to the Company’s Current Report on Form 8-K/A dated February 28, 2008)

 

 

 

 

10.28

Employment Agreement amendment, dated January 15, 2009, between Zygo Corporation and Brian M. Monti (Exhibit 99.1 to the Company’s Current Report on Form 8-K dated January 22, 2009)*

 

 

 

 

10.29

Settlement Agreement and Mutual Release, dated as of April 2, 2009, by and among Electro Scientific Industries, Inc., Zirkon Merger Sub, LLC, and Zygo Corporation (Exhibit 2.1 to the Company’s Current Report on Form 8-K dated April 3, 2009)

 

 

 

 

10.30

Asset Transfer Agreement, dated as of June 17, 2009, by and between Zygo Corporation and Nanometrics Corporation. **

 

 

 

 

10.31

Supply Agreement, dated as of June 17, 2009, by and between Zygo Corporation and Nanometrics Corporation. **

 

 

 

 

10.32

Employment contract dated November 16, 2007 between Zygo Corporation and David Person. Previously filed with the Company’s Annual Report on Form 10-K for the fiscal year ended June 30, 2009, as filed with the Securities and Exchange Commission on September 14, 2009.

 

 

 

 

21.

Subsidiaries of Registrant. Previously filed with the Company’s Annual Report on Form 10-K for the fiscal year ended June 30, 2009, as filed with the Securities and Exchange Commission on September 14, 2009.

 

 

 

 

23.1

Consent of Independent Registered Public Accounting Firm. Previously filed with the Company’s Annual Report on Form 10-K for the fiscal year ended June 30, 2009, as filed with the Securities and Exchange Commission on September 14, 2009.

 

 

 

 

24.

Power of Attorney (included in the signature page to the Company’s Annual Report on Form 10-K for the fiscal year ended June 30, 2009, as filed with the Securities and Exchange Commission on September 14, 2009)

 

 

 

 

31.1

Certification Pursuant to Rule 13A-14(a) or 15D-14(a) of the Securities Exchange Act of 1934, as adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

 

 

 

 

31.2

Certification Pursuant to Rule 13A-14(a) or 15D-14(a) of the Securities Exchange Act of 1934, as adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

 

 

 

 

32.1

Certification Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

 

 

 

 

32.2

Certification Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

 

 

 

Exhibit numbers 10.3, 10.5, 10.6, 10.7, 10.8, 10.9, 10.16, 10.17, 10.18, 10.19, 10.20, 10.21, 10.22, 10.24, 10.26, 10.28, and 10.32 are management contracts, compensatory plans or compensatory arrangements.

* Incorporated herein by reference.

** Confidential treatment has been requested for portions of this exhibit. Omitted portions have been filed separately with the Securities Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.

 

SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

 

 

 

 

 

ZYGO CORPORATION

 

 

 

 

 

 

Registrant

 

 

 

 

 

 

 

 

 

By

 

/s/ Walter A. Shephard

 

Date

December 23, 2009

 

 

 

 

Walter A. Shephard

 

 

 

 

 

Vice President, Finance, Chief
Financial Officer, and Treasurer

 

 

 

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.

 

 

 

 

 

/s/ J. Bruce Robinson

 

Chief Executive Officer (principal

 

December 23, 2009

 

executive officer) and Director

 

J. Bruce Robinson

 

 

 

 

 

 

 

 

 

/s/ Walter A. Shephard

 

Vice President, Finance, Chief

 

December 23, 2009

 

Financial Officer, and Treasurer

 

Walter A. Shephard

 

(principal financial and accounting officer)

 

 

 

 

 

 

 

*

 

Director

 

December 23, 2009

 

 

 

Eugene G. Banucci

 

 

 

 

 

 

 

 

 

*

 

Director

 

December 23, 2009

 

 

 

Stephen D. Fantone

 

 

 

 

 

 

 

 

 

*

 

Director

 

December 23, 2009

 

 

 

Samuel H. Fuller

 

 

 

 

 

 

 

 

 

*

 

Director

 

December 23, 2009

 

 

 

Seymour E. Liebman

 

 

 

 

 

 

 

 

 

*

 

Director

 

December 23, 2009

 

 

 

Robert B. Taylor

 

 

 

 

 

 

 

 

 

*

 

Director

 

December 23, 2009

 

 

 

Carol P. Wallace

 

 

 

 

 

 

 

 

 

*

 

Director

 

December 23, 2009

 

 

 

Gary K. Willis

 

 

 

 

 

 

 

 

 

*

 

Director - Chairman

 

December 23, 2009

 

 

 

Bruce W. Worster

 

 

 

 

 

 

 

 

 

* By: /s/ Walter A. Shephard

 

 

 

 

 

 

 

  

ATTORNEY-IN-FACT

 

 

 

 

 

EXHIBIT INDEX

 

 

 

 

EXHIBIT
TABLE
NUMBER

 

 

 

 

 

 

 

 

 

10.30

 

Asset Transfer Agreement, dated as of June 17, 2009, by and between Zygo Corporation and Nanometrics Corporation.**

 

 

 

 

 

10.31

 

Supply Agreement, dated as of June 17, 2009, by and between Zygo Corporation and Nanometrics Corporation.**

 

 

 

 

 

31.1

 

Certification Pursuant to Rule 13a-14(a) or 15d-14(a) of the Securities Exchange Act of 1934, as adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

 

 

 

 

 

31.2

 

Certification Pursuant to Rule 13a-14(a) or 15d-14(a) of the Securities Exchange Act of 1934, as adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

 

 

 

 

 

32.1

 

Certification Pursuant to 18 U.S.C. Section 1350, As Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

 

 

 

 

 

32.2

 

Certification Pursuant to 18 U.S.C. Section 1350, As Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
       
  ** Confidential treatment has been requested for portions of this exhibit. Omitted portions have been filed separately with the Securities Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.

ZYGO CORP Reports