<PAGE>
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------------------
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------------------
ADE CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
----------------------------------
MASSACHUSETTS 04-2441829
(State or Other Jurisdiction of (I.R.S. Employer Identification Number)
Incorporation or Organization)
------------------------------------------
80 Wilson Way, Westwood, MA 02090
(Address of Principal Executive Offices) (Zip Code)
-----------------------------------
ADE CORPORATION
1997 EMPLOYEE STOCK OPTION PLAN
(Full Title of the Plan)
-------------------------------------------
Copies to:
ROBERT C. ABBE, President and WILLARD G. MCGRAW, JR., ESQ.
Chief Executive Officer Warner & Stackpole LLP
ADE Corporation 75 State Street
80 Wilson Way, Westwood, MA 02090 Boston, MA 02109
(781) 467-3500
(Name, Address and Telephone Number,
Including Area Code, of Agent For Service)
------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================
Proposed Maximum Proposed Maximum Amount Of
Title of Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered(1) Per Share(2) Offering Price(2) Fee
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 500,000 shares $19.00 $9,500,000 $2,802.50
par value $.01 per share
==============================================================================================================
</TABLE>
(1) Together with an indeterminate number of additional shares which may
result from a stock split, stock dividend, or other similar adjustment of
the outstanding shares of Common Stock.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h)(l) under the Securities Act of 1933 on the basis
of the average of the high and low sale prices of the Common Stock of the
Registrant on February 3, 1998 as reported by Nasdaq.
<PAGE>
ADE Corporation (the "Company" or the "Registrant") is registering
500,000 shares of Common Stock, $.01 par value per share ("Common Stock"), all
of which are reserved for issuance under the 1997 Employee Stock Option Plan
(the "1997 Plan").
PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
Item 3. Incorporation Of Documents By Reference
---------------------------------------
Incorporated herein by reference are the following documents of the
Company filed with the Securities and Exchange Commission ("Commission"):
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended April 30, 1997;
(b) The Company's Quarterly Reports on Form 10-Q for the quarters
ended July 31, 1997 and October 31, 1997;
(c) The Company's Current Report on Form 8-K filed with the
Commission on November 4, 1997; and
(d) The description of the Company's Common Stock set forth in the
Company's Registration Statement on Form 8-A filed with the Commission on August
30, 1995.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
prior to the filing of a post-effective amendment which indicates that the
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference into this
Registration Statement and to be a part thereof from the date of filing of such
documents.
Item 4. Description of Securities
-------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
Willard G. McGraw, Jr., the Clerk of the Company and a partner of
Warner & Stackpole LLP, the Company's legal counsel, owns 9,000 shares of the
Common Stock of the Company.
II-1
<PAGE>
Item 6. Indemnification of Directors and Officers
-----------------------------------------
The Restated Articles of Organization of the Registrant provide that
no director of the Registrant shall be personally liable to the Registrant or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except that such provision does not eliminate or limit the liability
of a director (i) for any breach of the director's duty of loyalty to the
Registrant or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
distributions made in violation of the Registrant's Restated Articles of
Organization or which are made when the Registrant is insolvent or which renders
it insolvent, (iv) for loans made to officers or directors of the Registrant
which are not repaid if the director has voted for such loans and they have not
been approved or ratified as loans reasonably expected to benefit the
Registrant, by a majority of directors who are not recipients of such loans or
the holders of a majority of voting shares, which holders are not recipients of
such loans, or (v) for any transactions from which the director derived an
improper personal benefit.
Article VI of the Registrant's By-laws provides that the Registrant
shall indemnify each of its directors and officers (including persons who serve
at the Registrant's request as directors, officers or trustees of another
organization in which the Registrant has any interest, direct or indirect, as a
stockholder, creditor or otherwise or who serve at the Registrant's request in
any capacity with respect to any employee benefit plan) against all liabilities
and expenses, including amounts paid in satisfaction of judgments, in
compromise, or as fines and penalties, and counsel fees reasonably incurred by
such person in connection with the defense or disposition of any action, suit or
other proceeding, whether civil or criminal, in which such person may be
involved or with which such person may be threatened, while in office or
thereafter, by reason of such person's being or having been such a director,
officer or trustee, except with respect to any matter as to which such person
shall have been adjudicated in any proceeding not to have acted in good faith in
the reasonable belief that such person's action was in the best interest of the
Registrant or, to the extent that such matter relates to service with respect to
an employee benefit plan, in the best interests of the participants or
beneficiaries of such employee benefit plan.
As to any matter disposed of by a compromise payment by any such
person, pursuant to a consent decree or otherwise, Article VI of the
Registrant's By-laws provides that no indemnification shall be provided to such
person for such payment or for any other expenses unless such compromise has
been approved as in the best interests of the Registrant, after notice that it
involves such indemnification, (i) by a disinterested majority of the directors
then in office; or (ii) by a majority of disinterested directors then in office,
provided that there has been obtained an opinion in writing of independent legal
counsel to the effect that such director or officer appeared to have acted in
good faith in the reasonable belief that such person's action was in the best
interests of the Registrant; or (iii) by the holders of a majority of the
outstanding stock at the time entitled to vote for directors, voting as a single
class, exclusive of any stock owned by any interested director or officer.
II-2
<PAGE>
Article VI of the Registrant's By-laws provides that expenses,
including counsel fees, reasonably incurred by any director or officer in
connection with the defense or disposition of any such action, suit or other
proceeding may be paid by the Registrant, at the discretion of a majority of the
disinterested directors then in office, in advance of the final disposition
thereof, upon receipt of an undertaking by such director or officer to repay to
the Registrant the amounts so paid if it is ultimately determined that
indemnification for such expenses is not authorized under Article VI of the
By-laws, which undertaking may be accepted by the Registrant without reference
to the financial ability of such director or officer to make repayment.
Article VI of the Registrant's By-laws gives the Board of Directors
of the Registrant the power to authorize the purchase and maintenance of
insurance, in such amounts as the Board of Directors may from time to time deem
appropriate, on behalf of any person who is or was a director, officer or agent
of the Registrant, or who is or was serving at the request of the Registrant as
a director, officer or agent of another organization in which the Registrant has
any interest, direct or indirect, as a stockholder, creditor or otherwise, or
with respect to any employee benefit plan, against any liability incurred by
such person in any such capacity, or arising out of such person's status as such
agent, whether or not such person is entitled to indemnification by the
Registrant pursuant to Article VI or otherwise and whether or not the Registrant
would have the power to indemnify the person against such liability.
Section 13(b)(1 1/2) of the Massachusetts Business Corporation Law,
Chapter 156B of the General Laws of Massachusetts (the "MBCL") authorizes the
provisions, described above, contained in the Restated Articles of Organization
of the Registrant.
Section 67 of the MBCL authorizes the provisions, described above,
contained in Article VI of the By-laws of the Registrant.
Section 65 of the MBCL provides that performance by a director,
officer or incorporator of his duties in good faith and in a manner he
reasonably believes to be in the best interests of the corporation, and with
such care as an ordinarily prudent person in a like position would use under
similar circumstances, shall be a complete defense to any claim asserted against
such director, officer or incorporator, except as otherwise expressly provided
by statute, by reason of his being or having been a director, officer or
incorporator of the corporation.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not Applicable.
Item 8. Exhibits
--------
See list of Exhibits in the Exhibit Index.
II-3
<PAGE>
Item 9. Undertakings
------------
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement 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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 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 Act and will
be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Westwood and the Commonwealth of Massachusetts, on
February 18, 1998.
ADE CORPORATION
By: /s/ Robert C. Abbe
--------------------------------------
Robert C. Abbe
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below on this Registration Statement hereby constitutes and appoints
Robert C. Abbe and Mark D. Shooman and each of them, with full power to act
without the other, his true and lawful attorney-in-fact and agent, 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
other documents in connection therewith, with the Securities and Exchange
Commission, and generally to do anything else necessary and 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 date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Robert C. Abbe President, Chief Executive February 18, 1998
- --------------------------------- Officer and Director
Robert C. Abbe (Principal Executive
Officer)
/s/ Mark D. Shooman Vice President and February 18, 1998
- --------------------------------- Chief Financial Officer
Mark D. Shooman (Principal Financial Officer)
/s/ Joseph E. Rovatti Controller (Principal February 18, 1998
- --------------------------------- Accounting Officer)
Joseph E. Rovatti
</TABLE>
II-5
<PAGE>
<TABLE>
<S> <C> <C>
/s/ Landon T. Clay Director February 18, 1998
- ---------------------------------
Landon T. Clay
/s/ Harris Clay Director February 18, 1998
- ---------------------------------
Harris Clay
/s/ Francis B. Lothrop, Jr. Director February 18, 1998
- ---------------------------------
Francis B. Lothrop, Jr.
/s/ H. Kimball Faulkner Director February 18, 1998
- ---------------------------------
H. Kimball Faulkner
/s/ Kendall Wright Director February 18, 1998
- ---------------------------------
Kendall Wright
</TABLE>
II-6
<PAGE>
Form S-8 Registration Statement
ADE CORPORATION
EXHIBIT INDEX
-------------
Exhibit Sequential
No. Description of Exhibit Page No.
--- ---------------------- --------
4.1* Restated Articles of Organization
4.2* Bylaws, as amended
4.3 Registrant's 1997 Employee Stock Option
Plan (filed herewith)
5 Opinion of Warner & Stackpole LLP (filed
herewith)
23.1 Consent of Price Waterhouse LLP (filed
herewith)
23.2 Consent of Warner & Stackpole LLP
(included in Exhibit 5)
24 Power of Attorney of officers and directors
of the Registrant (included in the signature
page hereto)
- ---------------------
* Filed as an exhibit to the Registrant's Registration Statement on Form S-1
filed with the Commission on August 30, 1995 (Registration No. 33-96408) or
amendments thereto and incorporated herein by reference.
<PAGE>
ADE CORPORATION
1997 EMPLOYEE STOCK OPTION PLAN
-------------------------------
1. PURPOSES OF THE PLAN
The ADE Corporation 1997 Employee Stock Option Plan is intended to
encourage ownership of shares of Common Stock of ADE Corporation (the "Company")
by key employees of the Company in order to attract such persons, to induce them
to work for the benefit of the Company or of an Affiliate, and to provide
additional incentive for them to promote the success of the Company or of an
Affiliate.
2. DEFINITIONS
Unless otherwise specified or unless the context otherwise requires, the
following terms, as used in the Plan, have the following meanings:
Affiliate means a corporation which, for purposes of Section 424 of the Code, is
- ---------
a parent or subsidiary of the Company, direct or indirect.
Board of Directors means the Board of Directors of the Company.
- ------------------
Code means the United States Internal Revenue Code of 1986, as amended.
- ----
Committee means the Compensation Committee of the Board of Directors or any
- ---------
successor thereto appointed by the Board of Directors pursuant to Section 4
hereof to administer this Plan, or in the absence of any such Committee, means
the full Board of Directors.
Common Stock means shares of the Company's common stock, $.Ol par value.
- ------------
Company means ADE Corporation, a Massachusetts corporation.
- -------
Disability or Disabled means permanent and total disability as defined in
- ---------- --------
Section 22(e)(3) of the Code.
Exchange Act means the Securities Exchange Act of 1934, as amended.
- ------------
Fair Market Value of a Share of Common Stock on a particular date shall be the
- -----------------
mean between the highest and lowest quoted selling prices on such date (the
"valuation date") on the securities market where the Common Stock of the Company
is traded, or if there were no sales on the valuation date, on the next
preceding date within a reasonable period (as determined in the sole discretion
of the Committee) on which there were sales. In the event that there were no
sales in such a market within a reasonable period, or in the event the Common
Stock of the Company is
<PAGE>
not traded on any securities market, the Fair Market value shall be as
determined in good faith by the Committee in its sole discretion.
ISO means an option intended to qualify as an incentive stock option under Code
- ---
Section 422.
Key Employee means an employee of the Company or of an Affiliate (including,
- ------------
without limitation, an employee who is also serving as an officer or director of
the Company or of an Affiliate), designated by the Committee to be eligible to
be granted one or more Stock Rights under the Plan.
NQSO means an option which is not intended to qualify as an ISO.
- ----
Option means an ISO or NQSO granted under the Plan.
- ------
Participant means a Key Employee to whom one or more Stock Rights are granted
- -----------
under the Plan. As used herein, "Participant" shall include "Participant's
Survivors" and a Participant's permitted transferees where the context requires.
Participant's Survivors means a deceased Participant's legal representatives
- -----------------------
and/or any person or persons who acquires the Participant's rights to a Stock
Right by will or by the laws of descent or distribution.
Plan means this ADE Corporation 1997 Employee Stock Option Plan, as amended from
- ----
time to time.
Shares means shares of the Common Stock as to which Stock Rights have been or
- ------
may be granted under the Plan or any shares of capital stock into which the
Shares are changed or for which they are exchanged within the provisions of
Section 3 of the Plan. The Shares issued upon exercise of Stock Rights granted
under the Plan may be authorized and unissued shares or shares held by the
Company in its treasury, or both.
Stock Agreement means an agreement between the Company and a Participant
- ---------------
executed and delivered pursuant to the Plan, in such form as the Committee shall
approve.
Stock Award means an award of Shares or the opportunity to make a direct
- -----------
purchase of Shares of the Company granted under the Plan.
Stock Right means a right to Shares of the Company granted pursuant to the Plan
- -----------
as an ISO, an NQSO, or a Stock Award.
3. SHARES SUBJECT TO THE PLAN
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<PAGE>
The number of Shares subject to the Plan as to which Stock Rights may be
granted from time to time shall be 500,000, plus the number of shares of Common
Stock previously reserved for the granting of options under the Company's 1995
Stock Option Plan which are not granted under that plan or which are not
exercised and cease to be outstanding by reason of cancellation or otherwise, or
the equivalent of such number of Shares after the Committee, in its sole
discretion, has interpreted the effect of any stock split, stock dividend,
combination, recapitalization, or similar transaction in accordance with Section
16 of the Plan.
If an Option granted hereunder ceases to be "outstanding", in whole or in
part, the Shares which were subject to such Option shall also be available for
the granting of other Stock Rights under the Plan. Any Stock Right shall be
treated as "outstanding" until such Stock Right is exercised in full or
terminates or expires under the provisions of the Plan, or by agreement of the
parties to the pertinent Stock Agreement, without having been exercised in full.
4. ADMINISTRATION OF THE PLAN
The Plan shall be administered by the Committee. The Committee shall be
comprised of two or more members of the Board of Directors, all of whom shall be
Non-employee Directors as defined in Rule 16b-3 under the Exchange Act and
"outside directors" as that term is used in Section 162 of the Code and the
regulations promulgated thereunder, or the entire Board of Directors acting as
such a committee. Any provision in this Plan with respect to the Committee
contrary to Rule 16b-3 or Code Section 162 shall be deemed null and void to the
extent permitted by law and deemed appropriate by the Committee.
Subject to the provisions of the Plan, the Committee is authorized to:
(a) Interpret the provisions of the Plan or of any Option, Stock
Award, or Stock Agreement and to make all rules and
determinations which it deems necessary or advisable for the
administration of the Plan;
(b) Determine which employees of the Company or of an Affiliate
shall be designated as Key Employees and which of the Key
Employees shall be granted Stock Rights;
(c) Determine the number of Shares and exercise price for which a
Stock Right or Stock Rights shall be granted;
(d) Specify the terms and conditions upon which a Stock Right or
Stock Rights may be granted; and
(e) In its discretion, accelerate the date of exercise of any
installment of any Stock Right; provided that the Committee
shall not, without the consent of the Participant, accelerate
the exercise date of any installment of any Option granted to
such Participant as an ISO (and not previously converted into an
NQSO pursuant to Section 18) if such acceleration would violate
the annual vesting
-3-
<PAGE>
limitation contained in Section 422(d) of the Code, as
described in paragraph (b)(3) of Section 6;
provided, however, that all such interpretations, rules, determinations, terms,
and conditions shall be made and prescribed in the context of preserving the tax
status under Code Section 422 of those Options which are designated as ISOs and
shall be in compliance with any applicable provisions of Rule 16b-3 under the
Exchange Act. Subject to the foregoing, the interpretation and construction by
the Committee of any provisions of the Plan or of any Stock Right granted under
it shall be final, unless otherwise determined by the Board of Directors, if the
Committee is other than the Board of Directors.
The Committee may employ attorneys, consultants, accountants, or other
persons, and the Committee, the Company, and its officers and directors shall be
entitled to rely upon the advice, opinions, or valuations of such persons. All
actions taken and all interpretations and determinations made by the Committee
in good faith shall be final and binding upon the Company, all Participants, and
all other interested persons. No member or agent of the Committee shall be
personally liable for any action, determination, or interpretation made in good
faith with respect to the Plan or grants hereunder. Each member of the
Committee shall be indemnified and held harmless by the Company against any cost
or expense (including counsel fees) reasonably incurred by him or liability
(including any sum paid in settlement of a claim with the approval of the
Company) arising out of any act or omission to act in connection with the Plan
unless arising out of such member's own fraud or bad faith. Such
indemnification shall be in addition to any rights of indemnification the
members of the Committee may have as directors or otherwise under the by-laws of
the Company, or any agreement, vote of stockholders, or disinterested directors,
or otherwise.
5. ELIGIBILITY FOR PARTICIPATION
The Committee shall, in its sole discretion, name the Participants in the
Plan, provided, however, that each Participant must be a Key Employee of the
Company or of an Affiliate at the time a Stock Right is granted.
Notwithstanding the foregoing, the Committee may authorize the grant of a Stock
Right to a person not then an employee of the Company or of an Affiliate;
provided, however, that the actual grant of such Stock Right shall be
conditioned upon such person becoming eligible to become a Participant at or
prior to the time of execution of the Stock Agreement evidencing such Stock
Right. The granting of any Stock Right to any individual shall neither entitle
that individual to, nor disqualify him or her from, participation in other
grants of Stock Rights.
6. TERMS AND CONDITIONS OF OPTIONS
(a) General. Each Option shall be set forth in writing in a Stock
-------
Agreement, duly executed by the Company and, to the extent required by law or
requested by the Company, by the Participant. The Committee may provide that
Options be granted subject to such conditions as the Committee may deem
appropriate, including, without limitation, subsequent approval by the
shareholders of the Company of this Plan or any amendments thereto; provided,
however, that
-4-
<PAGE>
the option price per share of the Shares covered by each Option shall not be
less than the par value per share of the Common Stock. Each Stock Agreement
shall state the number of Shares to which it pertains, the date or dates on
which it first is exercisable, and the date after which it may no longer be
exercised. Option rights may accrue or become exercisable in installments over a
period of time, or upon the achievement of certain conditions or the attainment
of stated goals or events. Exercise of any Option may be conditioned upon the
Participant's execution of a Share purchase agreement in form satisfactory to
the Committee providing for certain protections for the Company and its other
shareholders, including requirements that the Participant's or the Participant's
Survivors' right to sell or transfer the Shares may be restricted, and the
Participant or the Participant's Survivors may be required to execute letters of
investment intent and to acknowledge that the Shares will bear legends noting
any applicable restrictions.
(b) ISOs. In addition to the minimum standards set forth in paragraph (a)
----
of this Section 6, ISOs shall be subject to the following terms and conditions,
with such additional restrictions or changes as the Committee determines are
appropriate but not in conflict with Code Section 422 and relevant regulations
and rulings of the Internal Revenue Service:
(1) ISO Option Price: The Option price per Share of the Shares subject
----------------
to an ISO shall not be less than one hundred percent (100%) of the Fair Market
Value per share of the Common Stock on the date of grant of the ISO; provided,
however that the Option price per share of the Shares subject to an ISO granted
to a Participant who owns, directly or by reason of the applicable attribution
rules in Code Section 424(d), more than ten percent (10%) of the total combined
voting power of all classes of share capital of the Company or an Affiliate
shall not be less than one hundred ten percent (110%) of the said Fair Market
Value on the date of grant.
(2) Term of ISO: Each ISO shall expire not more than ten (10) years
-----------
from the date of grant; provided, however, that an ISO granted to a Participant
who owns, directly or by reason of the applicable attribution rules in Code
Section 424(d), more than ten percent (10%) of the total combined voting power
of all classes of share capital of the Company or an Affiliate, shall expire not
more than five (5) years from the date of grant.
(3) Limitation on Yearly ISO Exercisability: The aggregate Fair Market
---------------------------------------
Value (determined at the time each ISO is granted) of the stock with respect to
which ISOs are exercisable for the first time by a Participant in any calendar
year (under this or any other ISO plan of the Company or an Affiliate) shall not
exceed the maximum amount allowable under Section 422 of the Code.
(4) Limitation on Grant of ISOS: No ISOs shall be granted after August
---------------------------
20, 2007, the date which is ten (10) years from the date of the approval of the
Plan by the Board of Directors.
(c) Limitation on Number of Options Granted. Notwithstanding anything in
---------------------------------------
the Plan to the contrary, no Participant shall be granted Options in any
calendar year for the purchase of more than 75,000 Shares.
-5-
<PAGE>
7. TERMS AND CONDITIONS OF STOCK AWARDS
Each Stock Award shall be set forth in a Stock Agreement, duly executed by
the Company and, to the extent required by law or requested by the Company, by
the Participant. The Stock Agreement shall be in the form approved by the
Committee, with such changes and modifications to such form as the Committee, in
its discretion, shall approve with respect to any particular Participant or
Participants. The Stock Agreement shall contain terms and conditions which the
Committee determines to be appropriate and in the best interest of the Company;
provided, however, that the purchase price per share of the Shares covered by
each Stock Award shall not be less than the par value per Share. Each Stock
Agreement shall state the number of Shares to which the Stock Award pertains,
the date prior to which the Stock Award must be exercised by the Participant,
and the terms of any right of the Company to reacquire the Shares subject to the
Stock Award, including the time and events upon which such rights shall accrue
and the purchase price therefor, and any restrictions on the transferability of
such Shares.
8. EXERCISE OF STOCK RIGHTS AND ISSUANCE OF SHARES
A Stock Right (or any part or installment thereof) shall be exercised by
giving written notice to the Company, together with provision for payment of the
full purchase price in accordance with this Section for the Shares as to which
such Stock Right is being exercised, and upon compliance with any other
conditions set forth in the Stock Agreement. Such written notice shall be
signed by the person exercising the Stock Right, shall state the number of
Shares with respect to which the Stock Right is being exercised, and shall
contain any representation required by the Plan or the Stock Agreement.
Payment of the purchase price for the Shares as to which such Stock Right
is being exercised shall be made (i) in United States dollars in cash or by
check, (ii) through delivery of shares of Common Stock already owned by the
Participant not subject to any restriction under any plan and having a Fair
Market Value equal as of the date of exercise to the cash exercise price of the
Stock Right, (iii) at the discretion of the Committee, by any other means,
including a promissory note of the Participant, which the Committee determines
to be consistent with the purpose of this Plan and applicable law, (iv) at the
discretion of the Committee, in accordance with a cashless exercise program
established with a securities brokerage firm and approved by the Committee, or
(v) at the discretion of the Committee, by any combination of (i), (ii), (iii),
and (iv) above. Notwithstanding the foregoing, the Committee shall accept only
such payment on exercise of an ISO as is permitted by Section 422 of the Code.
The Company shall reasonably promptly deliver the Shares as to which such
Stock Right was exercised to the Participant (or to the Participant's Survivors,
as the case may be). In determining what constitutes "reasonably promptly," it
is expressly understood that the delivery of the Shares may be delayed by the
Company in order to comply with any law or regulation which requires the Company
to take any action with respect to the Shares prior to their issuance. The
Shares shall, upon delivery, be fully paid, non-assessable Shares.
9. RIGHTS AS A SHAREHOLDER
-6-
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No Participant to whom a Stock Right has been granted shall have rights as
a shareholder with respect to any Shares covered by such Stock Right, except
after due exercise thereof and tender of the full purchase price for the Shares
being purchased pursuant to such exercise and registration of the Shares in the
Company's share register in the name of the Participant.
10. ASSIGNABILITY AND TRANSFERABILITY OF STOCK RIGHTS
ISOs and, except as otherwise provided in the pertinent Stock Agreement,
NQSOs and Stock Awards shall not be transferable by the Participant other than
by will or by the laws of descent and distribution or pursuant to a qualified
domestic relations order as defined by the Code or Title I of the Employee
Retirement Income Security Act of 1974 or the rules thereunder; provided,
however, that the designation of a beneficiary of a Stock Right by a Participant
shall not be deemed a transfer prohibited by this Section. Except as provided
in the preceding sentence or as otherwise permitted under an NQSO or Stock Award
Stock Agreement, a Stock Right shall be exercisable, during the Participant's
lifetime, only by such Participant (or by his or her legal representative) and
shall not be assigned, pledged, or hypothecated in any way (whether by operation
of law or otherwise) and shall not be subject to execution, attachment, or
similar process. Any attempted transfer, assignment, pledge, hypothecation, or
other disposition of any Stock Right or of any rights granted thereunder
contrary to the provisions of this Plan, or the levy of any attachment or
similar process upon a Stock Right, shall be null and void.
11. EFFECT OF TERMINATION OF SERVICE
(a) Except as otherwise provided in the pertinent Stock Agreement or
as otherwise provided in Section 12, 13, or 14, if a Participant ceases to be an
employee of the Company and its Affiliates (a "Termination of Service") for any
reason other than termination "for cause", Disability, or death before the
Participant has exercised all Stock Rights, the Participant may exercise any
Stock Right granted to him or her to the extent that the Stock Right is
exercisable on the date of such Termination of Service, but only within a period
of not more than three (3) months after the date of the Participant's
Termination of Service or, if earlier, within the originally prescribed term of
the Stock Right. Notwithstanding the foregoing, except as provided in Section 13
or 14, in no event may an ISO be exercised later than three (3) months after the
Participant's termination of employment with the Company and its Affiliates.
(b) The provisions of this Section, and not the provisions of Section
13 or 14, shall apply to a Participant who subsequently becomes disabled or dies
after the Termination of Service; provided, however, that in the case of a
Participant's death within three (3) months after the Termination of Service,
the Participant's Survivors may exercise the Stock Right within one (1) year
after the date of the Participant's death, but in no event after the date of
expiration of the term of the Stock Right.
(c) Notwithstanding anything herein to the contrary, if subsequent to a
Participant's Termination of Service, but prior to the exercise of a Stock
Right, the Committee determines that, either prior or subsequent to the
Participant's Termination of Service, the Participant
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engaged in conduct which would constitute "cause" (as defined in Section 12),
then such Participant shall forthwith cease to have any right to exercise any
Stock Right.
(d) Absence from work with the Company or an Affiliate because of
temporary disability (any disability other than a permanent and total Disability
as defined in Section 2 hereof), or a leave of absence for any purpose, shall
not, during the period of any such absence, be deemed, by virtue of such absence
alone, a Termination of Service, except as the Committee may otherwise expressly
provide.
(e) A change of employment or other service within or among the Company
and its Affiliates shall not be deemed a Termination of Service, so long as the
Participant continues to be an employee of the Company or any Affiliate;
provided, however, that if a Participant's employment with the Company or an
Affiliate should cease (other than to become an employee of another Affiliate or
of the Company), then paragraph (a) of this Section 11 shall apply as to any
ISOs granted to such Participant.
12. EFFECT OF TERMINATION OF SERVICE FOR "CAUSE"
Except as otherwise provided in the pertinent Stock Agreement, in the event
of a Termination of Service of a Participant "for cause," all outstanding and
unexercised Stock Rights as of the date the Participant is notified his or her
service is terminated "for cause" will immediately be forfeited. For purposes
of this Section 12, "cause" shall include (and is not limited to) dishonesty
with respect to the Company and its Affiliates, insubordination, substantial
malfeasance or nonfeasance of duty, unauthorized disclosure of confidential
information, conduct substantially prejudicial to the business of the Company or
any Affiliate, and termination by the Participant in violation of an agreement
by the Participant to remain in the employ of the Company of an Affiliate. The
determination of the Committee as to the existence of cause will be conclusive
on the Participant and the Company. "Cause" is not limited to events which have
occurred prior to a Participant's Termination of Service, nor is it necessary
that the Committee's finding of "cause" occur prior to termination. If the
Committee determines, subsequent to a Participant's Termination of Service but
prior to the exercise of a Stock Right, that either prior or subsequent to the
Participant's termination the Participant engaged in conduct which would
constitute "cause," then the right to exercise any Stock Right shall be
forfeited. Any definition in an agreement between a Participant and the Company
or an Affiliate which contains a conflicting definition of "cause" for
termination and which is in effect at the time of such termination shall
supersede the definition in this Plan with respect to that Participant.
13. EFFECT OF TERMINATION OF SERVICE FOR DISABILITY
Except as otherwise provided in the pertinent Stock Agreement, in the event
of a Termination of Service by reason of Disability, the Disabled Participant
may exercise any Stock Right granted to him or her to the extent exercisable but
not exercised on the date of Disability. A Disabled Participant may exercise
such rights only within a period of not more than one (1) year after the date
that the Participant became Disabled or, if earlier, within the originally
prescribed term of the Stock Right.
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The Committee shall make the determination both of whether Disability has
occurred and the date of its occurrence (unless a procedure for such
determination is set forth in another agreement between the Company and such
Participant, in which case such procedure shall be used for such determination).
If requested, the Participant shall be examined by a physician selected or
approved by the Committee, the cost of which examination shall be paid for by
the Company.
14. EFFECT OF DEATH WHILE AN EMPLOYEE
Except as otherwise provided in the pertinent Stock Agreement, in the event
of death of a Participant while the Participant is an employee of the Company or
of an Affiliate, any Stock Rights granted to such Participant may be exercised
by the Participant's Survivors to the extent exercisable but not exercised on
the date of death. Any such Stock Right must be exercised within one (1) year
after the date of death of the Participant.
15. PURCHASE FOR INVESTMENT
Unless the offering and sale of the Shares to be issued upon the particular
exercise of a Stock Right shall have been effectively registered under the
Securities Act of 1933, as now in force or hereafter amended (the "Securities
Act"), the Company shall be under no obligation to issue the Shares covered by
such exercise unless and until the following conditions have been fulfilled:
(a) The person who exercises such Stock Right shall warrant to the
Company, at the time of such exercise or receipt, as the case may be,
that such person is acquiring such Shares for his own account for
investment and not with a view to, or for sale in connection with, the
distribution of any such Shares, in which event the person acquiring
such Shares shall be bound by the provisions of the following legend
which shall be endorsed upon the certificate evidencing the Shares
issued pursuant to such exercise or such grant:
"The shares represented by this certificate have been taken for
investment and they may not be sold or otherwise transferred by
any person, including a pledgee, unless (1) either (a) a
Registration Statement with respect to such shares shall be
effective under the Securities Act of 1933, as amended, or (b)
the Company shall have received an opinion of counsel
satisfactory to it that an exemption from registration under such
Act is then available, and (2) there shall have been compliance
with all applicable state securities laws.
(b) The Company shall have received an opinion of its counsel that the
Shares may be issued upon such particular exercise in compliance with
the Securities Act without registration thereunder.
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The Company may delay issuance of the Shares until completion of any
action or obtaining of any consent which the Company deems necessary under any
applicable law (including, without limitation, state securities or "blue sky"
laws).
16. ADJUSTMENTS
Upon the occurrence of any of the following events, a Participant's rights
with respect to any Stock Right granted to him or her hereunder which have not
previously been exercised in full shall be adjusted as hereinafter provided,
unless otherwise specifically provided in the written agreement between the
Participant and the Company relating to such Stock Right or in any employment
agreement between a Participant and the Company or an Affiliate:
(a) Stock Dividends and Stock Splits. If the shares of Common Stock shall
--------------------------------
be subdivided or combined into a greater or smaller number of shares or if the
Company shall issue any shares of Common Stock as a stock dividend on its
outstanding Common Stock, the number of shares of Common Stock deliverable upon
the exercise of such Stock Right shall be appropriately increased or decreased
proportionately, and appropriate adjustments shall be made in the purchase price
per share to reflect such subdivision, combination, or stock dividend
(b) Mergers or Consolidations. If the Company is to be consolidated with
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or acquired by another entity in a merger, or in the event of a sale of all or
substantially all of the Company's assets (an "Acquisition"), the Company may
take such action with respect to outstanding Stock Rights as the Committee or
the Board of Directors may deem to be equitable and in the best interests of the
Company and its stockholders under the circumstances, including, without
limitation, (i) giving the Participant reasonable advance notice of the pendency
of the Acquisition and accelerating the vesting of the Stock Rights so that they
become exercisable in full immediately prior to the Acquisition, (ii) making
appropriate provision for the continuation of the Stock Rights by substituting
on an equitable basis for the shares then subject to the Options either the
consideration payable with respect to the outstanding shares of Common Stock in
connection with the Acquisition or securities of any successor or acquiring
entity, or (iii) giving the Participant reasonable advance notice of the
pendency of the Acquisition and canceling the Stock Rights effective upon the
Acquisition if they are not exercised prior to the Acquisition.
(c) Recapitalization or Reorganization. In the event of a recapitalization
----------------------------------
or reorganization of the Company (other than a transaction described in
paragraph (b) of this Section 16) pursuant to which securities of the Company or
of another corporation are issued with respect to the outstanding shares of
Common Stock, a Participant upon exercising a Stock Right shall be entitled to
receive for the purchase price paid upon such exercise the securities he or she
would have received if he or she had exercised such Stock Right prior to such
recapitalization or reorganization.
(d) Modification of ISOs. Notwithstanding the foregoing, any adjustments
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made pursuant to paragraph (a), (b), or (c) of this Section 16 with respect to
ISOs shall be made only after the Committee determines whether such adjustments
would constitute a "modification" of such ISOs (as that term is defined in
Section 424(h) of the Code) or would cause any adverse tax
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consequences for the holders of such ISOS. If the Committee determines that such
adjustments made with respect to ISOs would constitute a modification of such
ISOS, it may refrain from making such adjustments, unless the holder of an ISO
specifically requests in writing that such adjustment be made and such writing
indicates that the holder has full knowledge of the consequences of such
"modification" on his or her income tax treatment with respect to the ISO.
17. FRACTIONAL SHARES
No fractional share shall be issued under the Plan, and the person
exercising any Stock Right shall receive from the Company cash in lieu of any
such fractional share equal to the Fair Market Value thereof determined in good
faith by the Board of Directors of the Company.
18. CONVERSION OF ISOs INTO NON-QUALIFIED OPTIONS; TERMINATION OF ISOs.
Any Options granted under this Plan which do not meet the requirements of
the Code for ISOs shall automatically be deemed to be NQSOs without further
action on the part of the Committee. The Committee, at the written request of
any Participant, may in its discretion take such actions as may be necessary to
convert such Participant's ISOs (or any portion thereof) that have not been
exercised on the date of conversion into NQSOs at any time prior to the
expiration of such ISOS, regardless of whether the Participant is an employee of
the Company or an Affiliate at the time of such conversion. Such actions may
include, but not be limited to, extending the exercise period or reducing the
exercise price of the appropriate installments of such Options. At the time of
such conversion, the Committee (with the consent of the Participant) may impose
such conditions on the exercise of the resulting NQSOs as the Committee in its
discretion may determine, provided that such conditions shall not be
inconsistent with this Plan. Nothing in the Plan shall be deemed to give any
Participant the right to have such Participant's ISOs converted into NQSOS, and
no such conversion shall occur until and unless the Committee takes appropriate
action. The Committee, with the consent of the Participant, may also terminate
any portion of any ISO that has not been exercised at the time of such
termination.
19. WITHHOLDING
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In the event that any federal, state, or local income taxes, employment
taxes, Federal Insurance Contributions Act ("FICA") withholdings, or other
amounts are required by applicable law or governmental regulation to be withheld
from the Participant's salary, wages, or other remuneration in connection with
the exercise of a Stock Right or a Disqualifying Disposition (as defined in
Section 20), the Participant shall advance in cash to the Company, or to any
Affiliate of the Company which employs or employed the Participant, the amount
of such withholdings unless a different withholding arrangement, including the
use of shares of the Company's Common Stock, is authorized by the Committee (and
permitted by law); provided, however, that with respect to persons subject to
Section 16 of the Exchange Act, any such withholding arrangement shall be in
compliance with any applicable provisions of Rule 16b-3 promulgated under
Section 16 of the Exchange Act. For purposes hereof, the Fair Market Value of
any shares withheld for purposes of payroll withholding shall be determined in
the manner provided in Section 2 hereof, as of the most recent practicable date
prior to the date of exercise. If the Fair Market Value of the shares withheld
is less than the amount of payroll withholdings required, the Participant may be
required to advance the difference in cash to the Company or the Affiliate
employer. The Committee in its discretion may condition the exercise of an
Option for less than the then Fair Market Value on the Participant's payment of
such additional withholding.
20. NOTICE TO COMPANY OF DISQUALIFYING DISPOSITION
Each Key Employee who receives an ISO must agree to notify the Company in
writing immediately after the Key Employee makes a Disqualifying Disposition of
any Shares acquired pursuant to the exercise of an ISO. A Disqualifying
Disposition is any disposition (including any sale) of such shares before the
later of (a) two years after the date the Key Employee was granted the ISO, or
(b) one year after the date the Key Employee acquired Shares by exercising the
ISO. If the Key Employee has died before such Shares are sold, these holding
period requirements do not apply and no Disqualifying Disposition can occur
thereafter.
21. EFFECTIVE DATE; TERMINATION OF THE PLAN
The Plan shall be effective on August 21, 1997, the date it is approved by
the Board of Directors. Stock Rights may be granted under the Plan on and after
its effective date; provided, however, that any such Stock Rights shall be null
and void if the Plan is not approved by the stockholders of the Company within
twelve (12) months after the effective date. The Plan will terminate on August
20, 2007, the date which is ten (10) years from the date of its approval by the
Board of Directors. The Plan may be terminated at an earlier date by vote of
the stockholders of the Company; provided, however, that any such earlier
termination will not affect any Stock Rights granted or Stock Agreements
executed prior to the effective date of such termination.
22. AMENDMENT OF THE PLAN
The Plan may be amended by the stockholders of the Company. The Plan may
also be amended by the Board of Directors or the Committee, including, without
limitation, to the extent necessary to qualify any or all outstanding Stock
Rights granted under the Plan or Stock Rights to be granted under the Plan for
favorable federal income tax treatment (including deferral of
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taxation upon exercise) as may be afforded incentive stock options under Section
422 of the Code, to the extent necessary to ensure the qualification of the Plan
under Rule 16b-3 under the Exchange Act, and to the extent necessary to qualify
the shares issuable upon exercise of any outstanding Stock Rights granted, or
Stock Rights to be granted, under the Plan for listing on any national
securities exchange or quotation in any national automated quotation system of
securities dealers. Any amendment approved by the Board of Directors or the
Committee which is of a scope that requires stockholder approval in order to
ensure favorable federal income tax treatment for any ISOs or requires
stockholder approval in order to ensure the compliance of the Plan with Rule
16b-3 or Section 162(m) of the Code shall be subject to obtaining such
stockholder approval. No modification or amendment of the Plan shall adversely
affect any rights under a Stock Right previously granted to a Participant
without such Participant's consent.
In its discretion, the Committee may amend any term or condition of any
outstanding Stock Right, provided (i) such term or condition as amended is
permitted by the Plan, (ii) if the amendment is adverse to the Participant, such
amendment shall be made only with the consent of the Participant, (iii) any such
amendment of any ISO shall be made only after the Committee determines whether
such amendment would constitute a "modification" of any Stock Right which is an
ISO (as that term is defined in Section 424(h) of the Code) or would cause any
adverse tax consequences for the holder of such ISO, and (iv) with respect to
any Stock Right held by any Participant who is subject to the provisions of
Section 16(a) of the 1934 Act, any such amendment shall be made only after the
Committee determines whether such amendment would constitute the grant of a new
Stock Right.
23. EMPLOYMENT OR OTHER RELATIONSHIP
Nothing in the Plan or any Stock Agreement shall be deemed to prevent the
Company or an Affiliate from terminating the employment status of a Participant,
nor to prevent a Participant from terminating his or her own employment, or to
give any Participant a right to be retained in employment or other service by
the Company or any Affiliate for any period of time.
24. GOVERNING LAW
This Plan shall be construed and enforced in accordance with the law of the
Commonwealth of Massachusetts.
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[LETTERHEAD OF WARNER & STACKPOLE LLP COUNSELLORS AT LAW APPEARS HERE]
February 18, 1998
ADE Corporation
80 Wilson Way
Westwood, MA 02090
Ladies and Gentlemen:
We have acted as counsel to ADE Corporation, a Massachusetts
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission of a Registration Statement on Form S-8
(the "Registration Statement") with respect to the offering by the Company of
500,000 shares (the "Shares") of the Common Stock, $.01 par value per share, of
the Company pursuant to the Company's 1997 Employee Stock Option Plan (the
"Plan").
We have examined the Registration Statement, the Restated Articles of
Organization of the Company and such other documents and records of the Company
as we have deemed necessary for the purpose of this opinion.
In our examination of the foregoing documents, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals, the conformity to original documents of all documents submitted
to us as certified or photostatic copies, and the authenticity of the originals
of such latter documents.
We are members of the bar of the Commonwealth of Massachusetts, and
we express no opinion as to any matters insofar as any laws other than Federal
laws and the laws of the Commonwealth of Massachusetts may be applicable.
We assume for the purpose of this opinion that the grants of options
under the Plan have been or will be made in accordance with the terms and
conditions of the Plan.
Based upon the foregoing, we are of the opinion that the Shares are
duly authorized and reserved for issuance pursuant to the terms of the Plan, and
upon (i) payment for the Shares in accordance with the terms of the Plan and
(ii) the issuance of certificates therefor by the Company, the Shares will be
validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
WARNER & STACKPOLE LLP
<PAGE>
Exhibit 23.1
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CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated July 1, 1997 appearing on page F-2 of
ADE Corporation's Annual Report on Form 10-K for the year ended April 30, 1997.
PRICE WATERHOUSE LLP
Boston, Massachusetts
February 18, 1998
