Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
under
The Securities Act of 1933
ADAGE, INC.
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(Exact name of registrant as specified in its charter)
Pennsylvania 04-2225121
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
400 Willowbrook Lane, West Chester, PA 19382
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(Address of principal executive offices) (Zip Code)
Adage, Inc.
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1996 Stock Option Plan For Non-Employee Directors
(Full title of the plan)
Donald F.U. Goebert, President
Adage, Inc.
400 Willowbrook Lane
West Chester, Pennsylvania 19382
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(Name and address of agent for service)
(610) 430-3900
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(Telephone number, including area code, of agent for service)
Copy to:
Michael J. Heller, Esquire
Cozen and O'Connor
1900 Market Street
Philadelphia, PA 19103
(215) 665-2000
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<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Amount Maximum Maximum
to be Offering Aggregate Amount of
Title of Securities Regis- Price Per Offering Registration
to be Registered tered(1)(2) Share (1) Price (1) Fee (1)
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<S> <C> <C> <C> <C>
Common Stock, 200,000 $3.5625 $712,500 $216
$.60 par value
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(1) Calculated pursuant to Rule 457(h) under the Securities Act of 1933, based
upon the average of the high and low prices reported on the Nasdaq National
Market of the Registrant's Common Stock on April 21, 1997.
(2) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
Registration Statement also covers such additional shares as may
hereinafter be offered or issued to prevent dilution resulting from stock
splits, stock dividends, recapitalizations or certain other capital
adjustments.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Adage, Inc. (the "Registrant") with
the Securities and Exchange Commission (the "Commission") pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated into this Registration Statement by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996.
(b) The description of the Registrant's shares of Common Stock
contained in the Registrant's Registration Statement on Form S-4 (No. 33-31797),
containing the Registrant's proxy statement and prospectus relating to the
merger of a subsidiary of the Registrant with General Business Investment
Corporation.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all securities offered hereby 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. Any statement contained
in a document incorporated by reference herein shall be deemed to be modified or
superseded for purposes hereof to the extent that a statement contained herein
(or in any subsequently filed document which also is incorporated by reference
herein) modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part hereof.
Experts
The consolidated balance sheets of Adage, Inc. as of December 31, 1996
and 1995, the related consolidated statements of operations, stockholders'
equity and cash flows for each of the three years in the period ended December
31, 1996, and the related schedules incorporated by reference in this
Registration Statement, have been audited by MacDade Abbott LLP, independent
public accountants, as indicated in their reports with respect thereto, and are
incorporated herein by reference in reliance upon the authority of said firm as
experts in giving said reports. In addition, audited financial statements to be
included in subsequently filed documents shall be incorporated
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herein by reference in reliance upon the authority of the firm which audited
such financial statements to the extent such firm has filed with the Commission
a consent to such incorporation by reference.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Sections 1741 through 1750 of Subchapter C, Chapter 17, of the
Pennsylvania Business Corporation Law of 1988, as amended (the "BCL"), contain
provisions for mandatory and discretionary indemnification of a corporation's
directors, officers and other personnel, and related matters.
Under Section 1741, subject to certain limitations, a corporation has
the power to indemnify directors and officers under certain prescribed
circumstances against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred in connection with
an action or proceeding, whether civil, criminal, administrative or
investigative (other than derivative actions), to which any of them is a party
or is threatened to be made a party by reason of being a representative,
director or officer of the corporation or serving at the request of the
corporation as a representative of another corporation, partnership, joint
venture, trust or other enterprise, if such person acted in good faith and in a
manner he or she reasonably believed to be in, or not opposed to, the best
interests of the corporation and, with respect to any criminal proceeding, had
no reasonable cause to believe his or her conduct was unlawful.
Section 1742 permits indemnification in derivative actions if the
appropriate standard of conduct is met, except in respect of any claim, issue or
matter as to which the person has been adjudged to be liable to the corporation
unless and only to the extent that the proper court determines upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, the person is fairly and reasonably entitled to indemnity for the
expenses that the court deems proper.
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Under Section 1743, indemnification is mandatory to the extent that
the officer or director has been successful on the merits or otherwise in
defense of any action or proceeding referred to in Section 1741 or 1742.
Section 1744 provides that, unless ordered by a court, any
indemnification under Section 1741 or 1742 shall be made by the corporation only
as authorized in the specific case upon a determination that the representative
met the applicable standard of conduct, and such determination will be made by
(i) the board of directors by a majority vote of a quorum of directors not
parties to the action or proceeding; (ii) if a quorum is not obtainable, or if
obtainable and a majority of disinterested directors so directs, by independent
legal counsel; or (iii) by the shareholders.
Section 1745 provides that expenses incurred by an officer, director,
employee or agent in defending a civil or criminal action or proceeding may be
paid by the corporation in advance of the final disposition of such action or
proceeding upon receipt of an undertaking by or on behalf of such person to
repay such amount if it shall ultimately be determined that he or she is not
entitled to be indemnified by the corporation.
Section 1746 provides generally that, except in any case where the act
or failure to act giving rise to the claim for indemnification is determined by
a court to have constituted willful misconduct or recklessness, the
indemnification and advancement of expenses provided by Subchapter 17C of the
BCL shall not be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any bylaw,
agreement, vote of shareholders or disinterested directors or otherwise, both as
to action in his or her official capacity and as to action in another capacity
while holding that office.
Section 1747 also grants a corporation the power to purchase and
maintain insurance on behalf of any director or officer against any liability
incurred by such person in his or her capacity as director or officer, whether
or not the corporation would have the power to indemnify him or her against the
liability under Subchapter 17C of the BCL.
Sections 1748 and 1749 extend the indemnification and advancement of
expenses provisions contained in Subchapter 17C of the BCL to successor
corporations in fundamental changes and to representatives serving as
fiduciaries of employee benefit plans.
Section 1750 provides that the indemnification and advancement of
expenses provided by, or granted pursuant to,
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Subchapter 17C of the BCL shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs and personal
representative of such person.
Article IV of the Registrant's Bylaws provides in general that the
Registrant shall indemnify its officers and directors to the fullest extent
permitted by law.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this registration
statement:
5 Opinion and Consent of Cozen and O'Connor.
23.1 Consent of MacDade Abbott LLP
23.2 Consent of Cozen and O'Connor (contained in Exhibit 5).
24 Powers of Attorney (included on signature page of the
Registration Statement).
99.1 Adage, Inc. 1996 Stock Option Plan For Non-Employee
Directors (incorporated by reference to Exhibit 10(c) of the
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1996).
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
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(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. 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 and 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 (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act that is incorporated by reference in the registration statement shall be
deemed to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
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Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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SIGNATURES AND POWERS OF ATTORNEY
The Registrant. Pursuant to the requirements of the Securities Act of
1933, as amended, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in West Chester, Pennsylvania, on April
14, 1997.
ADAGE, INC.
By: /s/Donald F.U. Goebert
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Donald F.U. Goebert, President
KNOW ALL MEN BY THESE PRESENTS, each person whose signature appears
below hereby constitutes and appoints Donald F.U. Goebert and Robert T. Holland
and each of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments to this
Registration Statement, and to file the same, with all exhibits thereto, and any
other documents in connection therewith, granting unto said attorneys-in-fact
and agents full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
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<CAPTION>
SIGNATURES TITLE DATE
<S> <C> <C>
/s/Donald F. U. Goebert Chairman, President April 14, 1997
- ----------------------- and Director
Donald F. U. Goebert (Principal Executive
Officer)
/s/Robert T. Holland Vice President - April 14, 1997
- ----------------------- Finance, Secretary
Robert T. Holland and Director
(Principal Financial
and Accounting Officer)
/s/Buck Scott Director April 14, 1997
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Buck Scott
/s/James C. Gale Director April 14, 1997
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James C. Gale
/s/Robert L. MacDonald Director April 14, 1997
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Robert L. MacDonald
/s/Ralph R. Whitney, Jr Director April 14, 1997
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Ralph R. Whitney, Jr.
/s/Joel A. Schleicher Director April 14, 1997
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Joel A. Schleicher
/s/George Benjamin Director April 14, 1997
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George Benjamin
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EXHIBIT INDEX
Exhibit No. Description of Exhibit Page
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5 Opinion and Consent of Cozen and
O'Connor.
23.1 Consent of MacDade Abbott LLP
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EXHIBIT 5
[COZEN AND O'CONNOR LETTTERHEAD]
DIRECT DIAL (215) 665-2000
April 23, 1997
Adage, Inc.
400 Willowbrook Lane
West Chester, PA 19382
Re: Securities and Exchange Commission -
Registration Statement on Form S-8 relating to
the Adage, Inc. 1996 Stock Option Plan For
Non-Employee Directors
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Gentlemen:
As counsel to Adage, Inc., a Pennsylvania corporation (the "Company")
we have assisted in the preparation of the Company's Registration Statement on
Form S-8 (the "Registration Statement") to be filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, covering
200,000 shares of the Company's Common Stock, $.60 par value per share (the
"Shares"), that may be issued under the Adage, Inc. 1996 Stock Option Plan For
Non-Employee Directors (the "Plan").
In this connection, we have examined the Company's Articles of
Incorporation, its by-laws, and such other documents and corporate records as we
have deemed appropriate for purposes of rendering this opinion. In all
examinations of documents, instruments and other papers, we have assumed the
genuineness of all signatures on original and certified documents and a
conformity to original and certified documents of all copies submitted to us as
conformed, photostat or other copies. As to matters of fact which have not been
independently established, we have relied upon representations of officers of
the Company.
Based upon the foregoing examination and the information thus
supplied, it is our opinion that the Shares to be offered under the Plan are
duly authorized and, when issued and sold to the participants pursuant to the
terms of the Plan,
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Adage, Inc.
April 23, 1997
Page 2
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will be legally issued, fully paid and non-assessable.
We hereby expressly consent to the inclusion of this opinion as an
Exhibit to the Registration Statement.
Very truly yours,
COZEN AND O'CONNOR
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EXHIBIT 23.1
[MACDADE ABBOTT LETTERHEAD]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our report dated
March 7, 1997 included in Adage, Inc.'s Form 10-K for the year ended December
31, 1996, and to all references to our Firm included in this Registration
Statement.
[MACDADE ABBOTT SIG CUT]
MacDade Abbott LLP
Paoli, Pennsylvania
April 17, 1997
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