As filed with the Securities and Exchange Commission on November 21, 2006
Registration No. 333 -_________
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________________
CVD EQUIPMENT CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
New York 11-2621692
(State or Other Jurisdiction of
Incorporation or Organization) (I.R.S. Employer Identification No.)
1860 Smithtown Avenue
Ronkonkoma, New York 11779
CVD EQUIPMENT CORPORATION
2001 STOCK OPTION PLAN
(Full Title of the Plan)
Copies to:
Glen Charles Robert B. Murphy, Esq.
Chief Financial Officer Pepper Hamilton LLP
CVD Equipment Corporation Hamilton Square
1860 Smithtown Avenue 600 Fourteenth Street, N.W.
Ronkonkoma, New York 11779 Washington, DC 20005-2004
(Name and Address of Agent for Service)
_______________________________________________________
CALCULATION OF REGISTRATION FEE
Title of Securities Amount to Be Proposed Maximum Proposed Maximum Amount of
To Be Registered Registered Offering Price Per Aggregate Offering Registration Fee
Share (1) Price (1)
-------------------- -------------- ------------------- ------------------- ----------------
Common Stock
$.01 par value 300,000 $4.44 $1,332,000 $142.52
(1) Estimated solely for the purpose of calculating the registration
fee in accordance with Rule 457(c) and (h) under the Securities
Act of 1933, as amended. The price per share is estimated based
on the average of the high and low trading prices for CVD
Equipment Corporation?s common stock as reported by the American
Stock Exchange on November 17, 2006.
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
The document(s) containing the information specified by Part I of this
Form S-8 Registration Statement (the "Registration Statement") will be
sent or given to participants in the CVD Equipment Corporation 2001 Stock
Option Plan (the "Plan") of CVD Equipment Corporation, a New York
corporation (the "Company"), as specified in Rule 428(b)(1) promulgated by
the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act"). Such
document(s) are not being filed with the Commission but constitute (along
with the documents incorporated by reference into the Registration
Statement pursuant to Item 3 of Part II hereof), a prospectus that meets
the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been filed by CVD Equipment
Corporation (the "Company") with the Securities and Exchange Commission
(the "Commission") and are hereby incorporated by reference in this
Registration Statement:
a. The Company's Annual Report on Form 10-KSB for the
fiscal year ended December 31, 2005, as filed with the Commission on March
27, 2006;
b. The Company's Quarterly Report on Form 10-QSB for the
quarter ended September 30, 2006, as filed with the Commission on November
15, 2006;
c. The Company's Quarterly Report on Form 10-QSB for the
quarter ended June 30, 2006, as filed with the Commission on August 14,
2006;
d. The Company's Quarterly Report on Form 10-QSB for the
quarter ended March 31, 2006, as filed with the Commission on May 15,
2006;
e. The description of the Company's class of Common Stock,
$.01 par value, which is set forth in the Certificate of Incorporation of
the Company on Form 8-A12B (Registration No. 001-16525) filed with the
Commission on June 1, 2001 under Section 12(b) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act");
f. All documents subsequently filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14, 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
The description of the Company's class of Common Stock to be
offered pursuant to this registration statement has been incorporated by
reference into this Registration Statement as described in Item 3 of this
Part II.
Item 5. Interest of Name Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Sections 721 through 726 of the New York Business Corporation
Law provide for indemnification of directors and officers. If a director
or officer is successful on the merits or otherwise in a legal proceeding,
he must be indemnified to the extent he was successful. Further,
indemnification is permitted in both third-party and derivative suits if
he acted in good faith and for a purpose he reasonably believed was in the
best interest of the Registrant, and if, in the case of a criminal
proceeding, he had no reasonable cause to believe his conduct was
unlawful.
Indemnification under this provision applies to judgments,
fines, amounts paid in settlement and reasonable expenses, in the case of
third party actions, and amounts paid in settlement and reasonable
expenses, in the case of derivative actions. In a derivative action,
however, a director or officer may not be indemnified for amounts paid to
settle such a suit or for any claim, issue or matter as to which such
person shall have been adjudged liable to the Registrant absent a court
determination that the person is fairly and reasonably entitled to
indemnity.
Notwithstanding the failure of the Registrant to provide
indemnification and despite any contrary resolution of the board or
shareholders, indemnification shall be awarded by the proper court
pursuant to Section 724 of the New York Business Corporation Law.
Under New York law, expenses may be advanced upon receipt of an
undertaking by or on behalf of the director or officer to repay the
amounts in the event the recipient is ultimately found not to be entitled
to indemnification. The advance is conditioned only upon receipt of the
undertaking and not upon a finding that the officer or director has met
the applicable indemnity standards.
The Registrant carries directors' and officers' insurance which
covers its directors and officers against certain liabilities they may
incur when acting in their capacity as directors or officers of the
Registrant.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit
Number Description
-------- ----------------------------------------------------------
*4.1 CVD Equipment Corporation 2001 Stock Option Plan.
4.2 Articles of Incorporation of the Registrant (incorporated
by Reference to Exhibits 3.1, 3.2, and 3.3 to the Annual
Report of the Registrant on Form 10-KSB for the year ended
December 31, 2005).
4.3 By-laws of the Registrant (incorporated by reference to
Exhibit 3.4 to the Annual Report of the Registrant on Form
10-KSB for the year ended December 31, 2005).
*5 Opinion of Pepper Hamilton LLP, Counsel to the Registrant
as to the legality of the share being registered under this
Registration Statement.
*23.1 Consent of Moore Stephens, P.C, Independent Auditors
*23.2 Consent of Pepper Hamilton LLP (included in opinion as
Exhibit 5).
*24 Powers of Attorney of Directors and Certain Officers of the
Company (included on the signature pages hereof).
99 Not Applicable.
____________________________
* Filed herewith
Item 9. Undertakings.
(a) The undersigned Company 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;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of this 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. Notwithstanding the foregoing, any increase
or decrease in the
volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective 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)(i) and (a)(ii) above do
not apply if the information required to be included in a post-effective
amendment by those subparagraphs 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 this 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 the 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 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 this
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 may be permitted to directors, officers and controlling
person of the Company pursuant to the foregoing provisions described in
Item 6 of this Registration Statement, or otherwise, the Company has been
advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the
Company in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection
with the securities being registered, the Company 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 and will be governed by the final adjudication of
such issue.
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
had duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the Town of Ronkonkoma,
State of New York on this 20th day of November, 2006.
CVD EQUIPMENT CORPORATION
By:_/s/ GLEN CHARLES___________________
Glen Charles
Chief Financial Officer and Controller
(Principal Financial and Accounting Officer)
POWER OF ATTORNEY
SIGNATURES
Each person whose signature appears below appoints Glen Charles his
attorney-in-fact and agent, with full power of substitution and
resubstitution, to sign and file with the Securities and Exchange
Commission any amendments to the Registration Statement (including post-
effective amendments), any registration statement permitted under Rule
462(b) under the Securities Act of 1933 and any amendments thereto and to
file with the Securities and Exchange Commission one or more supplements
to any prospectus included in any of the foregoing, and generally to do
anything else necessary or proper in connection therewith.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates stated.
Signature Title Date
------------------------ ----------------------------- -----------------
/s/ LEONARD A. ROSENBAUM Chairman of the Board, November 20, 2006
Leonard A. Rosenbaum President, Chief Executive
Officer and Director
(Principal Executive Officer)
/s/ GLEN CHARLES Chief Financial Officer and November 20, 2006
Glen Charles Controller
(Principal Financial and
Accounting Officer)
/s/ MARTIN J. TEITELBAUM Director November 20, 2006
Martin J. Teitelbaum
/s/ ALAN H. TEMPLE Director November 20, 2006
Alan H. Temple, Jr.
/s/ CONRAD GUNTHER Director November 20, 2006
Conrad Gunther
/s/ BRUCE T. SWAN Director November 20, 2006
Bruce T. Swan
EXHIBIT INDEX
Exhibit
Number Description
-------- ----------------------------------------------------------
*4.1 CVD Equipment Corporation 2001 Stock Option Plan.
4.2 Articles of Incorporation of the Registrant (incorporated
by Reference to Exhibits 3.1, 3.2, and 3.3 to the Annual
Report of the Registrant on Form 10-KSB for the year ended
December 31, 2005).
4.3 By-laws of the Registrant (incorporated by reference to
Exhibit 3.4 to the Annual Report of the Registrant on Form
10-KSB for the year ended December 31, 2005).
*5 Opinion of Pepper Hamilton LLP, Counsel to the Registrant
as to the legality of the share being registered under this
Registration Statement.
*23.1 Consent of Moore Stephens, P.C, Independent Auditors
*23.2 Consent of Pepper Hamilton LLP (included in opinion as
Exhibit 5).
*24 Powers of Attorney of Directors and Certain Officers of the
Company (included on the signature pages hereof).
99 Not Applicable.
____________________________
* Filed herewith
Exhibit 5
November 20, 2006
Board of Directors
CVD Equipment Corporation
1860 Smithtown Avenue
Ronkonkoma, NY 11779
Re: Registration Statement on Form S-8 for
CVD Equipment Corporation
2001 Stock Option Plan
Dear Sirs:
We are acting as counsel to CVD Equipment Corporation, a New York
Corporation (the "Corporation"), in connection with the preparation and
filing of a Registration Statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended, (the "Act") with
the Securities and Exchange Commission (the "Commission") relating to the
registration of 300,000 shares of common stock, $.01 par value per share
(the "Shares"), of the Corporation offered for sale pursuant to CVD
Equipment Corporation 2001 Stock Option Plan (the "Plan").
In connection with this opinion, we have examined and relied upon
copies certified or otherwise identified to our satisfaction of: (i) the
Plan; (ii) an executed copy of the Registration Statement; (iii) the
Corporation's Articles of Incorporation, and the Corporation's By-laws;
and (iv) the minute books and other records of corporate proceedings of
the Corporation, as made available to us by officers of the Corporation.
In addition, we have reviewed such matters of law as we have deemed
necessary or appropriate for the purpose of rendering this opinion.
For purposes of this opinion we have assumed the authenticity of
all documents submitted to us as originals, the conformity to originals of
all documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of all documents submitted to us as copies.
We have also assumed the legal capacity of all natural persons and the
genuineness of all signatures on all documents examined by us. As to
certain factual matters material to the opinion expressed herein, we have
relied, to the extent we deemed proper, upon representations, warranties
and statements as to the factual matters of officers and other
representatives of the Corporation. This opinion is limited to the State
of New York and the federal laws of the United States of America. Without
limiting the foregoing, we express no opinion with respect to the
applicability thereto or effect of municipal laws or the rules,
regulations or orders of any municipal agencies within any such state.
Based upon and subject to the foregoing qualifications,
assumptions and limitations and the further limitations set forth below,
it is our opinion that the Shares to be issued by the Company pursuant to
the Plan have been duly authorized and reserved for issuance and, when
certificates for the Shares have been duly executed by the Company,
countersigned by a transfer agent, duly registered by a registrar for the
Shares and issued and paid for in accordance with the terms of the Plan,
the Shares will be validly issued, fully paid and non-assessable.
This opinion is limited to the specific issues addressed herein,
and no opinion may be inferred or implied beyond that expressly stated
herein. We assume no obligation to revise or supplement this opinion
should the present laws of the State of New York or the federal laws of
the United States of America be changed by legislative action, judicial
decision or otherwise.
We hereby consent to the filing of this letter as an Exhibit 5 to
the Registration Statement. In given such consent, we do not admit that
we are in the category of persons whose consent is required under Section
7 of the Act or the rules and regulations of the Commission promulgated
there under.
This opinion is furnished to you in connection with the filing of
the Registration Statement and is not to be used, circulated, quoted or
otherwise relied upon for any other purpose.
Very truly yours,
PEPPER HAMILTON LLP
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration
Statement of CVD Equipment Corporation on Form S-8, pertaining to the 2001
Stock Option Plan of CVD Equipment Corporation, of our report dated March
9, 2006, relating to the consolidated financial statements of CVD
Equipment Corporation included in the Annual Report on Form 10-KSB for the
year ended December 31, 2005.
/s/ Moore Stephens, P.C.
MOORE STEPHENS, P.C.
Certified Public Accountants.
Cranford, New Jersey
November 21, 2006