Form 10-Q CVD EQUIPMENT CORP For: Mar 31

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UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

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Form 10-Q

 

(Mark One)
☑	QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934.
	For the quarterly period ended March 31, 2015
☐	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: 1-16525

 

CVD EQUIPMENT CORPORATION

(Name of Registrant in Its Charter)

 

New York	11-2621692
State or Other Jurisdiction of Incorporation or Organization)	(I.R.S. Employer Identification No.)
355 South Technology Drive Central Islip, New York 11722
(Address of principal executive offices)

 

(631) 981-7081

(Registrant’s Telephone Number, Including Area Code)

 

Indicate by check 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 ☑ No☐

 

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 (Section 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes ☑ No☐      

 

Indicate by check mark whether 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).

 

	Large accelerated filer	☐	Accelerated filer ☐
	Non-accelerated filer	☐	Smaller reporting company ☑

  

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☑

 

Indicate the number of shares outstanding of each of the issuer’s classes of common stock, as of the latest practicable date: 6,169,477 shares of Common Stock, $0.01 par value at May 2, 2015.

 

 

CVD EQUIPMENT CORPORATION AND SUBSIDIARIES

 

Index

 

 

Part I - Financial Information
	Item 1 - Financial Statements (Unaudited)
	Consolidated Balance Sheets at March 31, 2015 and December 31, 2014	2
	Consolidated Statements of Operations for the three months ended March 31, 2015 and 2014	3
	Consolidated Statements of Cash Flows for the three months ended March 31, 2015 and 2014	4
	Notes to Consolidated Financial Statements	5
	Item 2 - Management's Discussion and Analysis of Financial Condition and Results of Operations	13
	Item 3 – Quantitative and Qualitative Disclosures About Market Risk	17
	Item 4 - Controls and Procedures	17
Part II - Other Information		18
	Item 1 - Legal Proceedings	18
	Item 2 – Unregistered Sales of Equity Securities and Use of Proceeds	18
	Item 3 – Defaults Upon Senior Securities	18
	Item 4 – Mine Safety Disclosures	18
	Item 5 - Other Information	19
	Item 6 - Exhibits	19
Signatures		20
Exhibit Index		21

 

 

PART 1 – FINANCIAL INFORMATION

Item 1 – Financial Statements

CVD EQUIPMENT CORPORATION AND SUBSIDIARIES

Consolidated Balance Sheets

(Unaudited)

 

 

 

The accompanying notes are an integral part of these consolidated financial statements

 

 

CVD EQUIPMENT CORPORATION AND SUBSIDIARIES

Consolidated Statements of Operations

(Unaudited)

 

 

 

The accompanying notes are an integral part of these consolidated financial statements

 

 

CVD EQUIPMENT CORPORATION AND SUBSIDIARIES

Consolidated Statements of Cash Flows

(Unaudited)

 

 

 

The accompanying notes are an integral part of these consolidated financial statements

 

 

CVD EQUIPMENT CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

March 31, 2015

(Unaudited)

 

 

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CVD EQUIPMENT CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

March 31, 2015

(Unaudited)

 

NOTE 3:     CONCENTRATION OF CREDIT RISK

 

Financial instruments that potentially subject the Company to concentrations of credit risk consist of cash and cash equivalents and accounts receivable. The Company places its cash and cash equivalents with high credit-quality domestic financial institutions and invests its excess cash primarily in savings accounts, treasury bills and money market instruments. The Company performs periodic evaluations of the relative credit standing of all such institutions as it seeks to maintain stability and liquidity. From time to time, these cash investments may exceed the Federal Deposit Insurance Corporation limit, which at March 31, 2015 and December 31, 2014 was approximately $7,156,000 and $10,216,000, respectively. The Company sells products and services to various companies across several industries in the ordinary course of business. The Company performs ongoing credit evaluations to assess the probability of accounts receivable collection based on a number of factors, including past transaction experience, evaluation of their credit history and review of the invoicing terms of the contract to determine the financial strength of its customers. The Company also maintains allowances for anticipated losses.

 

NOTE 4:     UNCOMPLETED CONTRACTS

 

Costs and estimated earnings in excess of billings on uncompleted contracts are summarized as follows:

 

		March 31, 2015				December 31, 2014
Costs incurred on uncompleted contracts		$	5,722,046			$	4,250,299
Estimated earnings			5,062,092				4.541.377
			10,784,138				8,791,677
Billings to date			(9,835,952	)			(7,621,523	)
		$	948,186			$	1,170,154
Included in accompanying balance sheets under the following captions:
Cost and estimated earnings in excess of billings on contracts in progress		$	3,451,142			$	2,498,662
Billings in excess of costs and estimated earnings on contracts in progress		$	(2,502,956	)		$	(1,328,508	)

 

 

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CVD EQUIPMENT CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

March 31, 2015 

(Unaudited)

 

NOTE 5:      INVENTORIES, NET

 

Inventories consist of:

 

		March 31, 2015				December 31, 2014
Raw materials		$	4,157,533			$	4,307,913
Work-in-process			453,709				419,731
Finished goods			91,227				114,415
Totals		$	4,702,469			$	4,842,059

 

NOTE 6:     ACCOUNTS RECEIVABLE, NET

 

Accounts receivable are presented net of an allowance for doubtful accounts of $80,212 and $49,489 as of March 31, 2015 and December 31, 2014, respectively. The allowance is based on prior experience and management’s evaluation of the collectability of accounts receivable. Management believes the allowance is adequate. However, future estimates may change based on changes in future economic conditions.

 

NOTE 7:     LONG-TERM DEBT

 

On August 5, 2014, the Company extended its $7 million revolving credit facility with HSBC Bank, USA N.A. (“HSBC”), with a new maturity date of August 5, 2015, under the same terms. The credit facility consists of a $7 million revolving credit facility and a five (5) year term loan in the initial amount of $2.1 million. The Company makes monthly principal payments of $35,000 plus interest on the term loan which matures on August 5, 2016. The balances as of March 31, 2015 and December 31, 2014 were $595,000 and $700,000, respectively. Interest on the unpaid $595,000 principal balance for the term loan, which was used to pay off the previous mortgages, accrues at a fixed rate of 3.045%. Borrowings under this term loan are collateralized by $400,000 of restricted cash deposits, provided that, so long as no event of default has occurred and is then continuing, HSBC would release $200,000 of the collateral on each anniversary of the closing date. The restricted balance at March 31, 2015 and December 31, 2014 was $400,000. This restricted cash is a separate line item on the consolidated balance sheet. The $7 million revolving credit facility remained unused as of both March 31, 2015 and December 31, 2014. The revolving credit facility permits the Company to borrow on a revolving basis until August 5, 2015. Interest on the unpaid principal balance on this facility accrues at either (i) the London Interbank Offered Rate (“LIBOR”) plus 1.75% or (ii) the bank’s prime rate minus 0.50%. The credit agreement also contains certain financial covenants, all of which the Company was in compliance with as of March 31, 2015.

 

 

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CVD EQUIPMENT CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

March 31, 2015

(Unaudited)

 

NOTE 7:     LONG-TERM DEBT (continued)

 

In March 2012, the Company entered into a mortgage loan agreement with HSBC for the initial principal amount of $6,000,000 (the “Loan”), through the Town of Islip Industrial Development Agency. The Loan is secured by a mortgage against the property and building located at 355 South Technology Drive, Central Islip, New York. Interest presently accrues on the Loan, at our option, at the variable rate of LIBOR plus 1.75% which was 1.9245% and 1.9108% at March 31, 2015 and December 31, 2014, respectively. The balances on the mortgage on March 31, 2015 and December 31, 2014 were approximately $3,791,000 and $3,866,000 respectively. The loan matures on March 15, 2022.

 

NOTE 8:     STOCK-BASED COMPENSATION EXPENSE

 

During the three months ended March 31, 2015 and March 31, 2014, the Company recorded as part of selling and general administrative expense, approximately $195,000 and $138,000 respectively, for the cost of employee and director services received in exchange for equity instruments based on the grant-date fair value of those instruments. This expense was recorded based upon the guidance of ASC 718, “Compensation-Stock Compensation.”

 

NOTE 9:     INCOME TAXES

 

The provision for income taxes includes the following:

 

		Three Months Ended March 31,
		2015				2014
Current:
Federal		$	309,122			$	-----
State			7,146				-----
Total Current Provision			316,268				-----
Deferred:
Federal		$	204,659			$	(161,965	)
State			----				381,345
Total deferred			204,659				219,380
Income tax expense		$	520,927			$	219,380

 

In March 2014, New York State eliminated the state income tax for qualified manufacturing companies such as CVD. Due to this change in tax law, the Company was required to write off state-level deferred tax assets which would have been used to offset future taxes payable to New York State.

 

 

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CVD EQUIPMENT CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

March 31, 2015

(Unaudited)

 

NOTE 9:     INCOME TAXES (Needs to be updated)

 

Tax Rate Reconciliation

 

The reconciliation between the Company’s effective tax rate on income from continuing operations and the statutory rate is as follows:

 

		Three Months Ended
		March 31,
		2015				2014
Income tax benefit at federal statutory rate [34%]		$	404,311			$	(16,581	)
Change in capitalized inventory (Section 263A)			--				(11,080	)
Change in vacation accrual			--				(21,608	)
Change in other accruals			12,654				(4,674	)
Difference between tax and book depreciation			(16,298	)			7,532
Stock-based compensation			(9,689	)			(61,394	)
Domestic production activities deduction			(37,145	)			--
Research and development credits			(276,329	)			(54,160	)
Net operating loss			443,423				--
Impact of New York State taxation change			--				381,345
Income tax expense		$	520,927			$	219,380

 

NOTE 10:     EARNINGS PER SHARE

 

As per ASC 260, basic earnings per share are computed by dividing net earnings available to common shareholders (the numerator) by the weighted average number of common shares (the denominator) for the period presented. The computation of diluted earnings per share is similar to basic earnings per share, except that the denominator is increased to include the number of additional common shares that would have been outstanding if the potentially dilutive common shares had been issued.

 

Stock options to purchase 259,730 shares of common stock were outstanding and 147,230 were exercisable during the three months ended March 31, 2015. Stock options to purchase 173,730 shares were outstanding and 148,730 were exercisable during the three months ended March 31, 2014. At March 31, 2015 all outstanding options were included in the diluted earnings per share calculation because the average market price was higher than the exercise price. At March 31, 2014, none of the outstanding options were included in the earnings per share calculation as their effect would have been anti-dilutive.

 

The dilutive potential common shares on warrants and options is calculated in accordance with the treasury stock method, which assumes that proceeds from the exercise of all warrants and options are used to repurchase common stock at market value. The amount of shares remaining after the proceeds are exhausted represents the potential dilutive effect of the securities.

 

 

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CVD EQUIPMENT CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

March 31, 2015

(Unaudited)

 

NOTE 11:     LEGAL PROCEEDINGS

 

On January 19, 2015, CVD Equipment Corporation (the “Company”) received an Arbitration Demand and Complaint which was filed with the American Arbitration Association by Development Specialists, Inc., an Illinois corporation (“DSI”), solely in its capacity as an assignee for the benefit of creditors of CM Manufacturing, Inc. f/k/a Stion Corporation (“Stion”), a Delaware corporation, (collectively the “Plaintiff”).

 

In its compliant, the Plaintiff claims, among other things, that the Company breached its agreement with Stion by failing to design, engineer, manufacture and timely deliver a certain custom furnace used in the manufacture of solar panels. The Plaintiff also asserts claims relating to breach of warranty, conversion, misappropriation of trade secrets and a declaration that DSI is not liable under the Company’s Proof of Claim which was previously filed in connection with Stion’s October 2013 Assignment for the Benefit of Creditors. Plaintiff seeks monetary damages of approximately $6.9 million plus interest and attorney’s fees, certain injunctive relief and other unspecified money damages.

 

The Company believes that these claims have no merit and intends to vigorously defend its interests in this matter.

 

On February 5, 2015, the Company interposed an Answer denying Plaintiff’s claims and raising (15) Affirmative Defenses. Additionally, on March 24, 2015, the Company served and filed a Motion to Dismiss. A decision on this motion is expected shortly. If the Company’s Motion is granted, then the case will be dismissed, otherwise a brief period for discovery will follow and the Arbitration hearing is scheduled to take place the week of August 31, 2015.

 

 

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CVD EQUIPMENT CORPORATION AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

March 31, 2015

(Unaudited)

 

NOTE 12:      SEGMENT REPORTING

 

The Company operates through two (2) segments, CVD and SDC. The CVD division is utilized for silicon, silicon germanium, silicon carbide and gallium arsenide processes. SDC is the Company’s ultra-high purity manufacturing division in Saugerties, New York. The Company evaluates performance based on several factors, of which the primary financial measure is income or (loss) before taxes.

 

Three Months Ended March 31,

 

2015		CVD				SDC				Eliminations *				Consolidated
Revenue		$	8,578,372			$	1,404,057			$	(289,985	)		$	9,692,444
Pretax income			789,087				400,062								1,189,149
2014
Revenue		$	3,650,163			$	1,011,432			$	(276,524	)		$	4,385,071
Pretax (loss)/income			(166,888	)			118,121								(48,767	)

 

*All elimination entries represent intersegment revenues eliminated in consolidation for external financial reporting.

 

 

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Item 2.      Management’s Discussion and Analysis of Financial Condition and Results of Operations.

 

Except for historical information contained herein, this “Management’s Discussion and Analysis of Financial Condition and Results of Operations” contains forward-looking statements within the meaning of the U.S. Private Securities Litigation Reform Act of 1995, as amended. These statements involve known and unknown risks, uncertainties and other factors which may cause the actual results, performance, or achievements of the Company to be materially different from any future results, performance, or achievements expressed or implied by such forward-looking statements. These forward-looking statements were based on various factors and were derived utilizing numerous important assumptions and other important factors that could cause actual results to differ materially from those in the forward-looking statements. Important assumptions and other factors that could cause actual results to differ materially from those in the forward-looking statements, include but are not limited to: competition in the Company’s existing and potential future product lines of business; the Company’s ability to obtain financing on acceptable terms if and when needed; uncertainty as to the Company’s future profitability, uncertainty as to the future profitability of acquired businesses or product lines, uncertainty as to any future expansion of the Company. Other factors and assumptions not identified above were also involved in the derivation of these forward-looking statements and the failure of such assumptions to be realized as well as other factors may also cause actual results to differ materially from those projected. The Company assumes no obligation to update these forward looking statements to reflect actual results, changes in assumptions or changes in other factors affecting such forward-looking statements. Past results are no guaranty of future performance. You should not place undue reliance on any forward-looking statements, which speak only as of the dates they are made. When used in this Report, the words “believes,” “anticipates,” “expects,” “estimates,” “plans,” “intends,” “will” and similar expressions are intended to identify forward-looking statements.

 

 

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Results of Operations

 

Three Months Ended March 31, 2015 vs. Three Months Ended March 31, 2014

 

		Three Months Ended								Change				% Change
		March 31, 2015				March 31 2014
(In thousands)
Bookings		$	5,181			$	15,725			$	(10,543	)			(67.0	)
Ending Backlog			16,562				15,257				1,305				8.6
Revenue
CVD (net of eliminations)		$	8,571			$	3,649			$	4,922				134.9
SDC (net of eliminations)			1,122				736				386				52.4
Total Revenue			9,693				4,385				5,308				121.5
Cost of Goods Sold			5,933				2,406				3,527				146.6
Gross Profit			3,760				1,979				1,781				90.0
Gross Margin			38.8	%			45.1	%			(6.3	%)
Research and development			212				196				16				8.2
Selling and Shipments			314				358				(44	)			(12.3	)
General and administrative			2,027				1,475				552				37.4
Total Operating Expenses			2,553				2,029				524				25.8
Operating income/(loss)			1,207				(50	)			1,257
Other Income (expense)			(18	)			1				(19	)
Income/(loss) before taxes			1,189				(49	)			1,238
Income tax expense			521				219				302				137.9
Net Income/(loss)			668				(268	)			936

 

Orders/Order Backlog

 

Orders received for the three months ended March 31, 2015 were approximately $5.2 million compared to approximately $15.7 million in orders received for the three months ended March 31, 2014, a decrease of 67.0%. This resulted in a backlog of $16.6 million as of March 31, 2015 compared to $15.3 million as of March 31, 2014. $9.7 million of the March 31, 2015 backlog or 58.4% is a result of multiple orders from one customer as compared to $12.9 million or 84.3% of the March 31, 2014 backlog. Although timing for completion of the backlog varies depending on the product mix and can be as long as two years, we believe a significant portion of our current backlog will be completed within the next twelve months.

 

Included in the backlog are all accepted purchase orders, less any amounts which have been previously billed or recognized as a component of our percentage-of-completion calculations. Management utilizes the order backlog to assist it in gauging projected revenues and profits; however, it does not provide an assurance of future achievement of revenues or profits as, for example, order cancellations or delays are possible. 

 

 

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Revenue

 

We achieved record revenue for the three month period ended March 31, 2015 of $9.7 million as compared to $4.4 million for the three month period ended March 31, 2014, an increase of $5.3 million or 121.5%. The increase is directly attributable to the work performed on the increased orders that we have secured from both the aerospace and the medical industries. One customer represented 54.6% or $5.3 million of our revenue for the three months ended March 31, 2015.

 

Revenue from the SDC division for the three months ended March 31, 2015 increased by 52.4% to $1.1 million compared to $0.7 million for the three months ended March 31, 2014 as a result of the worked performed on the increased level of order activity.

 

Gross Profit

 

We generated a gross profit of $3.8 million, resulting in a gross profit margin of 38.8%, for the three months ended March 31, 2015 as compared to gross profits of $2.0 million and a gross profit margin of 45.1%, for the three months ended March 31, 2014. The decreased gross margin we are now experiencing is primarily attributable to a large order we are currently undertaking that is running at a lower gross profit margin.

 

Research and development, Selling and General and Administrative Expenses

 

Research and development expenses for the three months ended March 31, 2015 and March 31, 2014 were $0.2 million. We continue to independently conduct research and product development for CVD products.

 

Selling and shipping expenses for the three months ended March 31, 2015 and 2014 were $0.3 million and $0.4 million, respectively. This decrease is primarily attributable to reduced commissions earned during the current period. Although our revenues are significantly greater during the current three months as compared to the same period a year ago, a vast majority of our revenue is generated by our internal sales personnel who do not receive sales commissions.

 

We incurred $2.0 million of general and administrative expenses during the three months ended March 31, 2015, compared to $1.5 million incurred during the three months ended March 31, 2014, representing an increase of 37.4%. This increase is primarily attributable to an increase in personnel, occupancy and legal costs during the current period.

 

 

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Operating income/(loss)

 

The increased revenue and higher gross profit delivered income from operations of $1.2 million for the three months ended March 31, 2015 compared to a loss from operations loss of $(0.1) million for the three months ended March 31, 2014.

 

Income Taxes

 

Current income tax expense for the three months ended March 31, 2015 amounted to $0.3 million. We utilized an additional $0.2 million in deferred tax benefits during that period as well.

 

Net Income/(Loss)

 

We reported net income of $0.7 million for the three months ended March 31, 2015 compared to a net loss of $(0.3) million for the three months ended March 31, 2014.

  

Liquidity and Capital Resources

 

As of March 31, 2015, we had working capital of approximately $17.0 million compared to $16.4 million at December 31, 2014, an increase of $0.6 million, and cash and cash equivalents of $7.5 million, compared to $12.0 million at December 31, 2014, a decrease of $4.5 million. The decrease in cash and cash equivalents was primarily a result of the $4.9 million payment made to resolve the Taiwan Glass litigation settlement and the timing of both shipments and customer payments on outstanding balances.

 

Accounts receivable, net, as of March 31, 2015 was approximately $8.1 million compared to $6.5 million as of December 31, 2014. This increase is primarily attributable to the increased revenue, the timing of customer shipments and customer payments on outstanding balances.

 

We believe that our cash and cash equivalents position and cash flow from operations will be sufficient to meet our working capital and capital expenditure requirements for the next twelve months. We expect to renew our $7 million revolving line of credit on similar terms to that which we currently have.

 

We may also raise additional capital in the event we determine in the future to effect one or more acquisitions of businesses, technologies or products. In addition, we may elect to raise additional capital even before we need them if the conditions for raising capital are favorable. Any equity or equity-linked financing could be dilutive to existing shareholders.

 

 

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Off-Balance Sheet Arrangements

 

We have no off-balance sheet arrangements at this time.

 

Item 3.

Quantitative and Qualitative Disclosures About Market Risk

 

Not applicable.

 

Item 4.

Controls and Procedures.

 

Evaluation of Disclosure Controls and Procedures

 

We maintain a system of disclosure controls and procedures (as defined in Rule 13a-15(e) under the Exchange Act). As required by Rule 13a-15(b) under the Exchange Act, management of the Company, under the direction of our Chief Executive Officer and Chief Financial Officer, reviewed and performed an evaluation of the effectiveness of design and operation of the Company’s disclosure controls and procedures (as defined in Rule 13a-15(e) under the Exchange Act) as of the end of the period covered by this Quarterly Report on Form 10-Q (the “Report”).

 

Based on that review and evaluation, the Chief Executive Officer and Chief Financial Officer, along with our management, have determined that as of the end of the period covered by this Report on Form 10-Q, the disclosure controls and procedures were and are effective to provide reasonable assurance that information required to be disclosed by us in the reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms and were effective to provide reasonable assurance that such information is accumulated and communicated to our management, including our principal executive officer and principal financial officer, as appropriate to allow timely decisions regarding disclosures.

 

Changes in Internal Controls

 

There were no changes in our internal controls over financial reporting as defined in Rule 13a-15(f) or Rule 15d-15(f) under the Exchange Act that occurred during the most recent fiscal quarter that have materially affected, or are reasonably likely to materially affect, the internal controls over financial reporting.

 

Limitations on the Effectiveness of Controls

 

We believe that a control system, no matter how well designed and operated, cannot provide absolute assurance that the objectives of the control systems are met, and no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, within a company have been detected.

 

 

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CVD EQUIPMENT CORPORATION

 

PART II

 

OTHER INFORMATION

 

 

Item 1.

Legal Proceedings.

 

On January 19, 2015, CVD Equipment Corporation (the “Company”) received an Arbitration Demand and Complaint which was filed with the American Arbitration Association by Development Specialists, Inc., an Illinois corporation (“DSI”), solely in its capacity as an assignee for the benefit of creditors of CM Manufacturing, Inc. f/k/a Stion Corporation (“Stion”), a Delaware corporation, (collectively the “Plaintiff”).

 

In its compliant, the Plaintiff claims, among other things, that the Company breached its agreement with Stion by failing to design, engineer, manufacture and timely deliver a certain custom furnace used in the manufacture of solar panels. The Plaintiff also asserts claims relating to breach of warranty, conversion, misappropriation of trade secrets and a declaration that DSI is not liable under the Company’s Proof of Claim which was previously filed in connection with Stion’s October 2013 Assignment for the Benefit of Creditors. Plaintiff seeks monetary damages of approximately $6.9 million plus interest and attorney’s fees, certain injunctive relief and other unspecified money damages.

 

The Company believes that these claims have no merit and intends to vigorously defend its interests in this matter.

 

On February 5, 2015, the Company interposed an Answer denying Plaintiff’s claims and raising (15) Affirmative Defenses. Additionally, on March 24, 2015, the Company served and filed a Motion to Dismiss. A decision on this motion is expected shortly. If the Company’s Motion is granted, then the case will be dismissed, otherwise a brief period for discovery will follow and the Arbitration hearing is scheduled to take place the week of August 31, 2015.

 

Item 2.

Unregistered Sales of Equity Securities and Use of Proceeds.

 

None.

 

Item 3.

Defaults Upon Senior Securities.

 

None.

 

Item 4.

Mine Safety Disclosures.

 

Not applicable.     

 

 

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Item 5.

Other Information.

 

None.

 

Item 6.

Exhibits

  

	The exhibits listed below are hereby furnished to the SEC as part of this report:
10.1	Settlement Agreement effective as of January 29, 2015, among the Company, Taiwan Glass International Corporation and Capital One, National Association.
31.1*	Certification of Leonard A. Rosenbaum, Chief Executive Officer, dated May 15, 2015

 

31.2*

Certification of Glen R. Charles, Chief Financial Officer, dated May 15, 2015

 

32.1*

Certification of Leonard A. Rosenbaum, Chief Executive Officer, dated May 15, 2015, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

 

32.2*

Certification of Glen R. Charles, Chief Financial Officer, dated May 15, 2015, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

 

101.1**

XBRL Instance.

 

101.SCH**

XBRL Taxonomy Extension Schema.

 

101.CAL**

XBRL Taxonomy Extension Calculation.

 

101.DEF**

XBRL Taxonomy Extension Definition.

 

101.LAB**

XBRL Taxonomy Extension Labels.

 

101.PRE**

XBRL Taxonomy Extension Presentation.

 

________________

* Filed herewith.

 

** Pursuant to Rule 406T of Regulation S-T, these interactive data files are deemed not to be filed or part of a registration statement of prospectus for purposes of Section 11 or 12 of the Securities Act of 1933, as amended, are deemed not filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and otherwise are not subject to liability under these sections.

 

 

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SIGNATURES

 

Pursuant to the requirements 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, this 15^th day of May 2015.

 

	CVD EQUIPMENT CORPORATION
	By: /s/ Leonard A. Rosenbaum
	Leonard A. Rosenbaum
	Chief Executive Officer
	(Principal Executive Officer)
	By: /s/ Glen R. Charles
	Glen R. Charles
	Chief Financial Officer
	(Principal Financial and
	Accounting Officer)

 

 

20

---

 

 

EXHIBIT INDEX

 

10.1	Settlement Agreement effective as of January 29, 2015, among the Company, Taiwan Glass International Corporation and Capital One, National Association.
31.1*	Certification of Leonard A. Rosenbaum, Chief Executive Officer, dated May 15, 2015

 

31.2*

Certification of Glen R. Charles, Chief Financial Officer, dated May 15, 2015

 

32.1*

Certification of Leonard A. Rosenbaum, Chief Executive Officer, dated May 15, 2015, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

 

32.2*

Certification of Glen R. Charles, Chief Financial Officer, dated May 15, 2015, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

 

101.1**

XBRL Instance.

 

101.SCH**

XBRL Taxonomy Extension Schema.

 

101.CAL**

XBRL Taxonomy Extension Calculation.

 

101.DEF**

XBRL Taxonomy Extension Definition.

 

101.LAB**

XBRL Taxonomy Extension Labels.

 

101.PRE**

XBRL Taxonomy Extension Presentation.

 

________________

* Filed herewith.

 

** Pursuant to Rule 406T of Regulation S-T, these interactive data files are deemed not to be filed or part of a registration statement of prospectus for purposes of Section 11 or 12 of the Securities Act of 1933, as amended, are deemed not filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and otherwise are not subject to liability under these sections.

 

 

 

 

 

 

21

Exhibit 10.1

 

 

AGREEMENT made as of the     day of January, 2015 by and among CVD

 

Equipment Corporation, a New York Corporation with its principal office at 355 South Technology Drive, Central Islip, NY 11722 ("CVD"), Taiwan Glass Industrial Corporation, a Taiwanese Corporation, with offices at Taiwan Glass Building, 261, Section 3, Nanjing East Road, Taipei 10550, Taiwan ("TGI") and Capital One, National Association, a national association, with its principal office at 1680 Capital One Drive, McLean, Virginia 22101 ("CONA").

 

WITNESSETH:

WHEREAS, CVD, TGI and CONA are parties to that certain action pending in the United States District Court for the Southern District of New York under Docket No. 10-CV-0573 (the "Action" and "the parties" for purposes of this agreement). The full caption of the Action is attached as Exhibit 1;

 

WHEREAS, Mizuho Corporate Bank, Ltd., an initially-named defendant in the Action, was granted summary judgment on the claims against it by CVD in an Opinion and Order dated March 31, 2011 (CVD Equip. Corp. v. Taiwan Glass Indus. Corp., No. 10 Civ. 00573 (RJH), 2011 WL 1210199 (S.D.N.Y. Mar. 31, 2011) (the "Mizuho Dismissal")) and CVD hereby waives any right to appeal the Mizuho Dismissal; and

 

WHEREAS, the parties have agreed to resolve their dispute and differences, and to terminate the Action pursuant to the terms set forth below,

 

NOW, THEREFORE, in consideration of the mutual promises set forth below and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged by each party, and intending themselves to be bound hereby, the parties agree as follows:

 

 

 

  I.     Settlement of the Action. Upon the full compliance of each party of its respective obligations as set out below, within the applicable time limits prescribed by this Agreement, the Action will be settled and dismissed, with prejudice and without costs as against any party. Contemporaneously with its execution of this Agreement, each party's counsel will execute a counterpart of a stipulation of dismissal, in form substantially identical to the attached Exhibit 2 (the "Stipulation") and each party will then deliver that counterpart, along with an executed copy of this Agreement, to Allegaert Berger & Vogel LLP, TGI's attorney ("Escro w Agent") to be held in escrow, as provided below. If the executed documents required here of CVD and CONA have not been received by the Escrow Agent by January 20 , 2015, then this Agreement shall be of no force and effect and the Escrow Agent shall be relieved of any responsibilities hereunder.

 

2.     Payment by CVD. CVD will pay to TGI the sum of Four Million Nine Hundred Twenty-Five Thousand and 00/100ths Dollars ($4,925,000.00 USD) (the "Payment"), by wire transfer to Escrow Agent (pursuant to the wire instructions set forth on Exhibit 4 hereto) on or before the later of (i) Thursday, January 22, 2015 (EST) or (ii) three business days following receipt by CVD's counsel of email advice from Escrow Agent confirming that Escrow Agent is in possession of a counterpart of this Agreement and of TGI's executed and notarized releases (that need not include the consular certification as provided in paragraph 3 hereof) executed by TGI. If payment is not received by Escrow Agent within that time limit, this Agreement shall be null and void and of no further force and effect, and Escrow Agent shall return all documents received by it to the parties who delivered them, and any payment received from CVD by Escrow Agent after that above time limit.

 

 

3.     Releases. Contemporaneous with its execution of a counterpart of this Agreement, each party will execute the appropriate releases substantially in the form attached as Exhibit 3 ("Release"), and deliver an "ink original" of that duly executed Release to Escrow Agent. The TGI Releases will be notarized in accordance with the laws of Taiwan, but notwithstanding the foregoing, TGI agrees that it shall execute two originals of its releases, one of which for CVD and CONA shall include an authentication by the certificate of a consular officer of the United States resident in Taiwan. Those originals with consular certifications will be provided to CVD and CONA as soon as reasonably practicable.

 

4.     Escrow. Upon timely receipt by Escrow Agent of the Payment provided for in paragraph 2 above, the executed counterparts of the Stipulation and this Agreement as provided for in paragraph 1 above and the ink original Releases provided for in paragraph 3 above, Escrow Agent forthwith shall, contemporaneously: (i) deliver the Payment to TGI; (ii) forward the Stipulation to the Court for judicial endorsement; and (iii) deliver each Release to its respective designated Releasee, together with executed counterparts of this Agreement.

 

5.     Certain Proceedings in Taiwan. Promptly after Escrow Agent delivers the Payment to TGI, TGI shall notify the Taiwanese prosecutor, in writing, that all of its disputes with CVD and its directors, officers, employees and agents, including Mr. Leonard Rosenbaum, have been amicably resolved on a business-like basis, and that the complaint made by TGI in Taiwan is withdrawn. A copy of such notification shall contemporaneously be sent to CVD.

 

 

 

 

6.     Temporary Non-Disclosure. Except as specifically provided in paragraph 5 above, TGI and CONA agree not to disclose the fact or the terms of this settlement of the Action until the Stipulation is judicially endorsed and filed with the Clerk of the Court. CVD agrees it will make no disclosure of the facts or the terms of this settlement of the Action until the filing of the judicially endorsed Stipulation with the Clerk of the Court, except as it may be required or advised to disclose same in a filing with the Securities and Exchange Commission or as otherwise required by law, rule or regulation, in advance of the filing of the judicially endorsed Stipulation.

 

7.     Miscellaneous.

7.1 This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which, collectively, shall be deemed but one and the same document. Email or facsimile signatures on this Agreement and the documents referenced herein shall be deemed to be "original". The condition in paragraph 4 as to Releases shall require the delivery of ink original Releases by all parties, except that the TGI original releases need not be the originals that include the consular certifications as provided in paragraph 3 hereof.

7.2 This Settlement Agreement may not be altered, changed, modified, amended or terminated orally, but only by a writing signed by the parties.

7.3 Each party agrees to execute and deliver such other documents, and to take such other actions, at the request of the other, as may be reasonably required to effectuate the terms and purposes of this Agreement.

7.4 This Agreement shall be governed by, enforced, interpreted and construed under New York law, without regard to conflicts of law principles.

 

 

7.5 When executed by all the parties and delivered to the Escrow Agent this Agreement (and the documents provided for herein) shall constitute the full and final expression of the parties' agreement concerning the subject hereof. All prior and contemporaneous agreements, understandings, and negotiations regarding the settlement of the Action will then be merged in this Agreement. Until and unless the Escrow Agent has timely received copies of this Agreement executed by all parties, this document shall have no force or effect and shall not be admissible as evidence of any agreement between the parties.

7.6 Notices required or permitted to be served in connection with this Agreement shall be sent to a party by email and express delivery service addressed as follows:

 

if to CVD:

 

Martin J. Teitelbaum, Esq.

CVD Equipment Corporation

355 South Technology Drive

Central Islip, NY 11722

Email: [email protected]

 

with a copy by email to:

 

Douglas J. Good, Esq.

Ruskin Moscou Faltischek, P.C. 1425 RXR Plaza

Uniondale, NY 11556-1425 Email: [email protected]

 

if to TGI:

 

Taiwan Glass Industrial Corporation Taiwan Glass Building, 261, Section 3 Nanjing East Road

Taipei 10550, Taiwan

Attn: Mr. Tseng Ming Tsai

Email: [email protected]

With a copy by email to:

 

Christopher Allegaert, Esq.

Allegaert Berger & Vogel LLP

111 Broadway, 20th Floor New

York, New York 10006

Email: [email protected]

 

 

if to CONA:

 

Christopher Peak, Esq.

Capital One, National Association

2 Bethesda Metro Center, 10^th Floor

Bethesda, Maryland 20814

Email: [email protected]

 

with a copy by email to:

 

Paul Straus, Esq.

King & Spalding, LLP,

1185 Avenue of the Americas

New York, NY 10036

Email: [email protected]

 

Notice shall be deemed to have been "given" two business days after it is sent.

 

CVD EQUIPMENT CORPORATION		TAIWAN GLASS INDUSTRIAL
By: /s/ Leonard A. Rosenbaum		By: _______________________
Dated: January 16, 2015		Dated: January ___, 2015
CAPITAL ONE, NATIONAL ASSOCIATION
By: _______________________
Dated: January ___, 2015

 

With a copy by email to:

 

Christopher Allegaert, Esq

Allegaert Berger & Vogel LLP

111 Broadway, 20th Floor

New York, New York 10006

Email: [email protected]

 

if to CONA:

 

Christopher Peak, Esq.

Capital One, National Association

2 Bethesda Metro Center, 10¹¹¹ Floor

Bethesda, Maryland 20814

Email: [email protected]

 

with a copy by email to:

 

Paul Straus, Esq.

King & Spalding, LLP

1185 Avenue of the Americas

New York, NY 10036

Email: [email protected]

 

Notice shall be deemed to have been "given" two business days after it is sent.

 

CVD EQUIPMENT CORPORATION		TAIWAN GLASS INDUSTRIAL
By: _______________________		By: /s/ Tseng Ming Tsai
Dated: January ___, 2015		Dated: January 22, 2015
CAPITAL ONE, NATIONAL ASSOCIATION
By: _______________________
Dated: January ___, 2015

 

 

 

With a copy by email to:

 

Christopher Allegaert, Esq.

Allegaert Berger & Vogel LLP

111 Broadway, 20th Floor

New York, New York 10006

Email: [email protected]

 

if to CONA:

 

Christopher Peak, Esq.

Capital One, National Association

2 Bethesda Metro Center, 10`" Floor

Bethesda, Maryland 20814

Email: christopher,[email protected]

 

with a copy by email to:

 

Paul Straus, Esq.

King & Spalding, LLP

1185 Avenue of the Americas

New York, NY 10036

Email: [email protected]

 

Notice shall be deemed to have been "given" two business days after it is sent.

 

CVD EQUIPMENT CORPORATION		TAIWAN GLASS INDUSTRIAL
By: _______________________		By: _______________________
Dated: January ___, 2015		Dated: January ___, 2015
CAPITAL ONE, NATIONAL ASSOCIATION
By: /s/ Christopher Peak
Dated: January 16, 2015

 

 

 

Exhibit 1

 

 

 

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

 

----------------------------------------------------------------------x

 

CVD EQUIPMENT CORPORATION,     

 

             Plaintiff                                  10-CV-0573 (JPO)(RLE)

 

-against-     

 

TAIWAN GLASS INDUSTRIAL CORPORATION,     

and MIZUHO INDUSTRIAL BANK, LTD.,     

 

     Defendants     

---------------------------------------------------------------------x

 

TAIWAN GLASS INDUSTRIAL CORPORATION,     

 

Counterclaim Plaintiff,     

 

-against-     

 

CAPITAL ONE, N.A.,     

 

Counterclaim Defendant.     

---------------------------------------------------------------------x

 

 

 

Exhibit 2

 

 

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

 

----------------------------------------------------------------------x

 

CVD EQUIPMENT CORPORATION,     

 

             Plaintiff                                  10-CV-0573 (JPO)(RLE)

 

     -against-                                                                            STIPULATION OF DISMISSAL

 

TAIWAN GLASS INDUSTRIAL CORPORATION,     

and MIZUHO INDUSTRIAL BANK, LTD.,     

 

     Defendants     

---------------------------------------------------------------------x

 

TAIWAN GLASS INDUSTRIAL CORPORATION,     

 

Counterclaim Plaintiff,     

 

-against-     

 

CAPITAL ONE, N.A.,     

 

Counterclaim Defendant.     

 

---------------------------------------------------------------------x

 

WHEREAS all claims against defendant, Mizuho Corporate Bank, Ltd. ("Mizuho"), were dismissed by Memorandum Opinion and Order dated March 31, 2011 (Docket No. 79); and

 

WHEREAS plaintiff, CVD Equipment Corporation, waives any right to appeal such dismissal against Mizuho,

 

NOW plaintiff CVD Equipment Corporation and defendant/counterclaim plaintiff

 

 

 

Taiwan Glass Industrial Corporation and counterclaim defendant Capital One, National Association, through their undersigned attorneys, hereby stipulate and agree, pursuant to Fed.R.Civ.P. 41, that all claims and counterclaims against all parties in the above-captioned case shall be, and hereby are, dismissed with prejudice. The parties shall each bear their own costs and attorney's fees.

 

RUSKIN MOSCOU FALTISCHEK, P.C.		ALLEGAERT BERGER & VOGEL LLP
By: /s/ Joseph R. Harbeson		By: /s/ Christopher Allegaert
Douglas J. Good, Esq.		Christopher Allegaert, Esq.
Joseph R. Harbeson, Esq.		James A. Beha, II, Esq.
Attorney for Plaintiff, CVD		Attorneys for Defendant/Counterclaim
Equipment Corporation		Plaintiff, Taiwan Glass Industrial
1425 RXR Plaza		Corporation
East Tower, 15th Floor		111 Broadway, 20th Floor
Uniondale, New York 11556		New York, New York 10006
(516) 663-6600		(212) 571-0550
Dated: January 16, 2015		Dated: January 28, 2015
KING & SPALDING, LLP
By: _________________________
Paul A. Straus, Esq.
Attorneys for Counterclaim Defendant,
Capital One, National Association
1185 Avenue of the Americas
New York, New York 10036
(212) 556-2136
Dated: January __, 2015

 

 

 

Association, through their undersigned attorneys, hereby stipulate and agree, pursuant to Fed.R.Civ.P. 41, that all claims and counterclaims against all parties in the above-captioned case shall be, and hereby are, dismissed with prejudice. The parties shall each bear their own costs and attorney's fees.

 

RUSKIN MOSCOU FALTISCHEK, P.C.		ALLEGAERT BERGER & VOGEL LLP
By: _______________________________		By: _______________________________
Douglas J. Good, Esq.		Christopher Allegaert, Esq.
Joseph R. Harbeson, Esq.		James A. Beha, II, Esq.
Attorney for Plaintiff, CVD		Attorneys for Defendant/Counterclaim
Equipment Corporation		Plaintiff, Taiwan Glass Industrial
1425 RXR Plaza		Corporation
East Tower, 15th Floor		111 Broadway, 20th Floor
Uniondale, New York 11556		New York, New York 10006
(516) 663-6600		(212) 571-0550
Dated: January __, 2015		Dated: January __, 2015
KING & SPALDING, LLP
By: /s/ Paul A. Straus
Paul A. Straus, Esq.
Attorneys for Counterclaim Defendant,
Capital One, National Association
1185 Avenue of the Americas
New York, New York 10036
(212) 556-2136
Dated: January 16, 2015

 

 

Exhibit 3

 

 

RELEASE

TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT, TAIWAN GLASS INDUSTRIAL CORPORATION, a Taiwanese corporation, on its own behalf and on behalf of its parents, subsidiaries, affiliates, shareholders, officers, directors, agents, employees, successors and assigns, as Releasor, in consideration of the sum of Ten and 00/100 ($10.00) Dollars and other good and valuable consideration, received from CVD EQUIPMENT CORPORATION, as Releasee, the receipt and sufficiency of which is hereby acknowledged, releases and discharges the Releasee, Releasee's parents, subsidiaries, affiliates, shareholders, officers, directors, agents, employees, successors and assigns from all actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and demands whatsoever, in law, admiralty or equity (collectively, "Claims"), which against the Releasee, the Releasor, Releasor's parents, subsidiaries, affiliates, shareholders, officers, directors, agents, employees, successors and assigns ever had, now have or hereafter can, shall or may have, for, upon, or by reason of any matter, cause or thing from the beginning of the world to the date of this Release. Notwithstanding the generality of the foregoing, this Release is limited to those Claims which relate in any manner to the subject matter of that certain action in the United States District Court for the Southern District of New York entitled CVD Equipment Corporation v. Taiwan Glass Industrial Corp., et al,, Docket No. 10-CV-0573 (the Action), including without limitation the Agreement and letters of credit referred to in the pleadings therein.

 

 

Whenever the text hereof requires, the use of singular number shall include the appropriate plural number as the text of the within instrument may require. This Release may not be changed orally.

 

IN WITNESS WHEREOF, the Releasor has executed this Release on January 2015.

 

 

 

		TAIWAN GLASS INDUSTRIAL CORPORATION
Sworn by the said LIN, POR-FONG)		/s/ Tseng Ming Tsai
at the Taipei, Taiwan                    )		By:
on the 22 day of January, 2015)
Before me:
/s/ Chao Chih-Min		Chao Chih-Min
Notary Public		Notary Public
		Chao & Partners Notary Public Office
		7F, 9, Sec.3, Nanking E. Rd.,
		Taipei, Taiwan, R.O.C.
		Registered with Taiwan Taipei District Court

 

 

 

 

RELEASE

TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT, TAIWAN GLASS INDUSTRIAL CORPORATION, a Taiwanese corporation, on its own behalf and on behalf of its parents, subsidiaries, affiliates, shareholders, officers, directors, agents, employees, successors and assigns, as Releasor, in consideration of the sum of Ten and 00/100 ($10.00) Dollars and other good and valuable consideration, received from CAPITAL ONE, NATIONAL ASSOCIATION, as Releasee, the receipt and sufficiency of which is hereby acknowledged, releases and discharges the Releasee, Releasee's parents, subsidiaries, affiliates, shareholders, officers, directors, agents, employees, successors and assigns from all actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and demands whatsoever, in law, admiralty or equity (collectively, "Claims"), which against the Releasee, the Releasor, Releasor's parents, subsidiaries, affiliates, shareholders, officers, directors, agents, employees, successors and assigns ever had, now have or hereafter can, shall or may have, for, upon, or by reason of any matter, cause or thing from the beginning of the world to the date of this Release, Notwithstanding the generality of the foregoing, this Release is limited to those Claims which relate in any manner to the subject matter of that certain action in the United States District Court for the Southern District of New York entitled CVD Equipment Corporation v, Taiwan Glass Industrial Corp,, et al., Docket No. 10-CV-0573 (the Action), including without limitation the Agreement and letters of credit referred to in the pleadings therein.

 

 

Whenever the text hereof requires, the use of singular number shall include the appropriate plural number as the text of the within instrument may require. This Release may not be changed orally.

 

IN WITNESS WHEREOF, the Releasor has executed this Release on January 2015.

 

		TAIWAN GLASS INDUSTRIAL CORPORATION
Sworn by the said LIN, POR-FONG)		/s/ Tseng Ming Tsai
at the Taipei, Taiwan                    )		By:
on the 22 day of January, 2015)
Before me:
/s/ Chao Chih-Min		Chao Chih-Min
Notary Public		Notary Public
		Chao & Partners Notary Public Office
		7F, 9, Sec.3, Nanking E. Rd.,
		Taipei, Taiwan, R.O.C.
		Registered with Taiwan Taipei District Court

 

 

RELEASE

TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT, CVD EQUIPMENT CORPORATION, a corporation organized under the laws of the State of New York, on its own behalf and on behalf of its parents, subsidiaries, affiliates, shareholders, officers, directors, agents, employees, successors and assigns, as Releasor, in consideration of the sum of Ten and 00/100 ($10.00) Dollars and other good and valuable consideration, received from TAIWAN GLASS INDUSTRIAL CORPORATION, as Releasee, the receipt and sufficiency of which is hereby acknowledged, releases and discharges the Releasee, Releasee's parents, subsidiaries, affiliates, shareholders, officers, directors, agents, employees, successors and assigns from all actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and demands whatsoever, in law, admiralty or equity (collectively, "Claims"), which against the Releasee, the Releasor, Releasor's parents, subsidiaries, affiliates, shareholders, officers, directors, agents, employees, successors and assigns ever had, now have or hereafter can, shall or may have, for, upon, or by reason of any matter, cause or thing from the beginning of the world to the date of this Release. Notwithstanding the generality of the foregoing, this Release is limited to those Claims which relate in any manner to the subject matter of that certain action in the United States District Court for the Southern District of New York entitled CVD Equipment Corporation v. Taiwan Glass Industrial Corp., et al., Docket No. 10-CV-0573 (the Action), including without limitation the Agreement and letters of credit referred to in the pleadings therein.

 

 

Whenever the text hereof requires, the use of singular number shall include the appropriate plural number as the text of the within instrument may require. This Release may not be changed orally.

 

IN WITNESS WHEREOF, the Releasor has executed this Release on January 16, 2015.

 

 

		CVD EQUIPMENT CORPORATION
		By: /s/ Leonard A. Rosenbaum
		Leonard A. Rosenbaum

 

 

STATE OF NEW YORK	)
	) ss.:
COUNTY OF SUFFOLK	)

 

On this 16th day of January, in the year 2015, before e, the undersigned, a Notary Public in and for said state, personally appeared Leonard A. Rosenbaum personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the entity (to wit: CVD EQUIPMENT CORPORATION) upon behalf of which the individual acted, executed the instrument.

 

 

/s/ Martin J. Teitelbaum

____________________________

Notary Public

 

Martin J. Teitelbaum

Notary Public, State of New York

NO.02TE4629060, Suffolk County

Term Expires February 28, 2015

 

 

RELEASE

TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT, CAPITAL ONE, NATIONAL ASSOCIATION, a National Banking Association, under the laws of the United States, on its own behalf and on behalf of its parents, subsidiaries, affiliates, shareholders, officers, directors, agents, employees, successors and assigns, as Releasor, in consideration of the sum of Ten and 00/100 ($10.00) Dollars and other good and valuable consideration, received from TAIWAN GLASS INDUSTRIAL CORPORATION, as Releasee, the receipt and sufficiency of which is hereby acknowledged, releases and discharges the Releasee, Releasee's parents, subsidiaries, affiliates, shareholders, officers, directors, agents, employees, successors and assigns from all actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and demands whatsoever, in law, admiralty or equity (collectively, "Claims"), which against the Releasee, the Releasor, Releasor's parents, subsidiaries, affiliates, shareholders, officers, directors, agents, employees, successors and assigns ever had, now have or hereafter can, shall or may have, for, upon, or by reason of any matter, cause or thing from the beginning of the world to the date of this Release. Notwithstanding the generality of the foregoing, this Release is limited to those Claims which relate in any manner to the subject matter of that certain action in the United States District Court for the Southern District of New York entitled CVD Equipment Corporation v. Taiwan Glass Industrial Corp., et al., Docket No. 10-CV-0573 (the Action), including without limitation the Agreement and letters of credit referred to in the pleadings therein.

 

 

Whenever the text hereof requires, the use of singular number shall include the appropriate plural number as the text of the within instrument may require. This Release may not be changed orally.

 

IN WITNESS WHEREOF, the Releasor has executed this Release on January 16, 2015.

CAPITAL ONE, NATIONAL ASSOCIATION

 

 

By: /s/ Christopher Peak           

 

 

STATE OF MARYLAND	)
	) ss.:
COUNTY OF anne arundel	)

 

On this 16th day of January, in the year 2015, before me, the undersigned, a Notary Public in and for said state, personally appeared Christopher Peak, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the entity (to wit: CAPITAL ONE, NATIONAL ASSOCIATION) upon behalf of which the individual acted, executed the instrument.

 

 

/s/ Michelle J. Johnson                                     

Notary Public

 

Michelle J. Johnson

  Notary Public

  Anne Arundel County, State of Maryland

 My Commission Expires February 27, 2018

 

 

 

Exhibit 4

 

 

Wire Transfer Instructions for Allegaert Berger & Vogel LLP (lOLA)

 

Citibank, N.A.

120 Broadway

New York, New York 10271

 

Account No.

Routing No./ABA No.

 

Attn: Allegaert Berger & Vogel LLP Please reference your invoice number

 

International Wire Transfer Instructions for Allegaert Berger & Vogel LLP (IOLA)

 

Citibank, N.A.

120 Broadway

New York, New York 10271

 

Account No.

Routing No./ABA No.:

International SWIFT code:

 

Attn: Allegaert Berger & Vogel LLP Please reference your invoice number

 

Exhibit 31.1

 

Certifications of Principal Executive Officer

Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

 

I, Leonard A. Rosenbaum, certify that:

 

1.

I have reviewed this quarterly report on Form 10-Q of CVD Equipment Corporation;

 

2.

Based upon my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3.

Based upon my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4.

The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f) for the registrant and have:

 

a.

Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b.

Designed such internal controls over financial reporting, or caused such internal controls over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c.

Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d.

Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5.

The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrants’ board of directors (or persons performing the equivalent functions):

 

a.

All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b.

Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Dated: May 15, 2015

 

/s/ Leonard A. Rosenbaum 

----------------------------------------

President, Chief Executive Officer and Director

 

 

 

 

22

 

Exhibit 31.2

 

Certifications of Principal Financial Officer

Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

 

I, Glen R. Charles, certify that:

 

1.

I have reviewed this quarterly report on Form 10-Q of CVD Equipment Corporation;

 

2.

Based upon my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3.

Based upon my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report.

 

4.

The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f) for the registrant and have:

 

a.

Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b.

Designed such internal controls over financial reporting, or caused such internal controls over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c.

Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d.

Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5.

The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrants’ board of directors (or persons performing the equivalent functions):

 

a.

All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b.

Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal controls over financial reporting.

 

Dated: May 15, 2015

 

/s/ Glen R. Charles

----------------------------------------

Chief Financial Officer

 

 

 

 

23

 

Exhibit 32.1

 

Certification of Principal Executive Officer

Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to

Section 906 of the Sarbanes-Oxley Act of 2002

 

 

 

I, Leonard A. Rosenbaum, President and Chief Executive Officer of CVD Equipment Corporation, hereby certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge, the quarterly report on Form 10-Q for the period ending March 31, 2015 of CVD Equipment Corporation (the “Form 10-Q") fully complies with the requirements of Section 13 (a) or 15 (d) of the Securities Exchange Act of 1934 and the information contained in the Form 10-Q fairly presents, in all material respects, the financial condition and results of operations of CVD Equipment Corporation.

 

 

Dated: May 15, 2015	/s/ Leonard A. Rosenbaum
	Leonard A. Rosenbaum
	Chief Executive Officer
	(Principal Executive Officer)

 

 

 

 

 

 

 

 

 

 

24

 

Exhibit 32.2

 

Certification of Principal Financial Officer

Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to

Section 906 of the Sarbanes-Oxley Act of 2002

 

 

 

I, Glen R. Charles, Chief Financial Officer of CVD Equipment Corporation, hereby certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge, the quarterly report on Form 10-Q for the period ending March 31, 2015 of CVD Equipment Corporation (the “Form 10-Q") fully complies with the requirements of Section 13 (a) or 15 (d) of the Securities Exchange Act of 1934 and the information contained in the Form 10-Q fairly presents, in all material respects, the financial condition and results of operations of CVD Equipment Corporation.

 

 

Dated: May 15, 2015	/s/ Glen R. Charles
	Glen R. Charles
	Chief Financial Officer
	(Principal Financial Officer)

 

 

 

 

 

 

 

 

 

 

25

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