<PAGE>
As Filed with the Securities and Exchange Commission on February 6, 1996
Registration No. 33-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
BASE TEN SYSTEMS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<CAPTION>
<S> <C>
NEW JERSEY 22-1804206
(STATE OR OTHER JURISDICTION OR INCORPORATION OR ORGANIZATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
One Electronics Drive 08619
Trenton, New Jersey
(ADDRESS OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
</TABLE>
Myles M. Kranzler
Base Ten Systems, Inc.
One Electronic Drive
Trenton, NJ 08619
(609-586-7010)
(NAME AND ADDRESS OF AGENT FOR SERVICE)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME FOLLOWING THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans please check the following
box: / /
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box: /x/
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Title of Each Amount Proposed Maximum Proposed Maximum Amount of
Class of Securities to be Offering Price Aggregate Registration
to be Registered Registered Per Unit (1) Offering Price(1) Fee
- -----------------------------------------------------------------------------------------------------------
Class A Common Stock, 451,000 $10.75 $4,848,250 $1,671.81
$1.00 par value
- -----------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee and, pursuant to Rule 457(b), based on the average of the high
and low sales prices of the Common Stock, as reported on the Nasdaq National
Market on January 31, 1996.
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its Effective Date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until the Registration Statement
shall become effective on such dates as the Commission, acting pursuant to said
Section 8(a), may determine
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
SUBJECT TO COMPLETION, DATED FEBRUARY 6, 1996
PROSPECTUS
451,000 Shares
BASE TEN SYSTEMS, INC.
Class A Common Stock
All 451,000 shares (the "Shares") of Class A Common Stock ("Class A
Common Stock"), of Base Ten Systems, Inc., a New Jersey corporation (the
"Company" or "Base Ten"), offered hereby are being offered by certain
stockholders of the Company (the "Selling Stockholders"). The Shares may be
offered by the Selling Stockholders from time to time in open market
transactions, negotiated transactions, principal transactions or by a
combination of these methods of sale. See "Plan of Distribution."
The Shares offered for sale hereby are issuable to the Selling
Stockholders upon exercise of outstanding warrants and options. The Company has
agreed to provide certain registration rights to the Selling Stockholders. See
"Selling Stockholders."
None of the proceeds from the sale of the Shares by the Selling
Stockholders will be received by the Company. Base Ten has agreed to bear all
expenses in connection with the registration and sales of the Shares, other than
underwriting discounts and selling commissions. The Company has also agreed to
indemnify the Selling Stockholders against certain liabilities, including
liabilities under the Securities Act of 1933, as amended.
On January 31,1996, the last reported sale price of the Class A Common
Stock on the Nasdaq National Market was $ 10 3/4. The Class A Common Stock is
traded under the Nasdaq symbol "BASEA."
- --------------------------------------------------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
- --------------------------------------------------------------------------------
FEBRUARY 6, 1996
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the Securities and
Exchange Commission (the "SEC"). Reports, proxy material and other information
filed by the Company can be inspected and copied at prescribed rates at the
public reference facilities maintained by the SEC at 450 5th Street, N.W.
Judiciary Plaza, Washington, D.C. 20549 and the following Regional Offices of
the SEC: 7 World Trade Center, Suite 1300, New York, New York 10048 and 500
West Madison Street, 14th Floor, Chicago, Illinois 60661-2511. Copies of these
material can also be obtained from the Public Reference Section of the SEC at
450 5th Street, N.W., Judiciary Plaza, Washington, D.C. 20549.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by the Company with the SEC under the
Exchange Act are incorporated by reference in this Prospectus:
1. Annual Report on Form 10-K for the fiscal year ended October 31,
1995.
2. Proxy Statement dated February 24, 1995 for the Company's Annual
Meeting of Stockholders.
3. All documents filed by the Company after the date of this
Prospectus pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act, prior to the filing of a post-effective amendment
which indicates that all Shares offered hereby have been sold or
which deregisters any Shares then remaining unsold. All of these
documents will be deemed to be incorporated herein by reference
and to be a part hereof from their respective filing dates.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes that statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a
Prospectus Supplement is delivered, upon request, a copy of the documents
incorporated by reference in this Prospectus. Requests should be directed to
Base Ten Systems, Inc., One Electronic Drive, Trenton, New Jersey 08169,
Attention: Edward J. Klinsport (609) 586-7010. Additional copies of the
Prospectus are also available from the Company or the Transfer Agent upon
request.
SUMMARY INFORMATION
THE FOLLOWING SUMMARY IS QUALIFIED IN ITS ENTIRETY BY THE DETAILED
INFORMATION AND CONSOLIDATED FINANCIAL STATEMENTS INCLUDED ELSEWHERE OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS.
Base Ten is engaged in the design and manufacture of electronic
systems employing safety critical software for defense markets and the
development of commercial applications focused on batch processing control,
medical screening and image processing software. The Company also manufactures
defense products to specifications for prime government contractors and designs
and builds proprietary electronic systems for use in secure communications by
various U.S. government agencies.
Specialization in extreme reliability defense products has enabled the
Company to develop expertise in the field of safety critical technology
dedicated to the prevention of performance errors. Operations in this
environment during the last two decades have also provided experience in
developing advanced quality control procedures for products meeting stringent
government standards as well as familiarity with complex government regulations
and agency procedures. Over the last several years, Base Ten has redirected
resources to decrease its historical dependence on defense contracting and has
concentrated on commercial products for highly regulated industries, relying on
the same safety critical techniques developed in its
1
<PAGE>
traditional businesses. While the Company's nondefense programs involve major
potential markets, the resulting products are still primarily developmental and
may not succeed in reaching their potential.
DESCRIPTION OF CAPITAL STOCK
GENERAL.
The authorized capital stock of Base Ten consists of 22,000,000 shares
of Class A Common Stock, 2,000,000 shares of Class B Common Stock and 1,000,000
shares of Preferred Stock, all of which have a par value of $1.00 per share.
COMMON STOCK
DIVIDENDS. Both classes of Base Ten's Common Stock have identical
cash and property dividend rights except that no cash or property dividend may
be paid on the Class B Common Stock unless a dividend at least equal in amount
is paid concurrently on the Class A Common Stock. Cash or property dividends
can be declared and paid on the Class A Common Stock without being declared and
paid on the Class B Common Stock.
If a distribution is paid in shares of Class A Common Stock or Class B
Common Stock, the distribution may be paid only as follows: (i) shares of Class
A Common Stock may be paid to holders of shares of Class A Common Stock and
shares of Class B Common Stock may be paid to holders of shares of Class B
Common Stock, and (ii) the same number of shares shall be paid in respect of
each outstanding share of Class A Common Stock or Class B Common Stock. Base
Ten may not subdivide or combine shares of either class without at the same time
proportionately subdividing or combining shares of the other class.
VOTING RIGHTS. Holders of Class A Common Stock are entitled to elect
25% of the members of the Board of Directors (rounded to the next highest whole
number) so long as the number of outstanding shares of Class A Common Stock is
at least 10% of the number of outstanding shares of both classes. Currently,
the holders of Class A Common Stock are entitled, as a class, to elect two
directors of Base Ten, and the holders of the Class B Common Stock are entitled,
as a class, to elect the remaining three directors. As a result of this
provision, the holders of a majority of the Class B Common Stock can and will
continue to be able to elect a majority of the directors and thereby control
Base Ten, regardless of the number of shares of Class B Common Stock outstanding
from time to time. Directors may be removed, only for cause, by the holders of
the class of common stock which elected them.
Except for the election or removal of directors as described above and
except for class votes as required by law or Base Ten's Restated Certificate of
Incorporation, holders of both classes of common stock vote or consent as a
single class on all matters, with each share of Class A Common Stock having
one-tenth vote per share and each share of Class B Common Stock having one vote
per share.
The outstanding shares of the Class A Common Stock currently
represents approximately 92% of the total number of shares of both classes
outstanding. If the number of outstanding shares of Class A Common Stock should
becomes less than 10% of the total number of shares of both classes of common
stock outstanding, the holders of Class A Common Stock would not have the right
to elect 25% of the Board of Directors, but would have one-tenth vote per share
for all directors, and the holders of Class B Common Stock would have one vote
per share for all directors.
CONVERSION. At the option of the holder of record, each share of
Class B Common Stock is convertible at any time into one share of Class A Common
Stock. Conversion of a significant number of shares of Class B Common Stock
into Class A Common Stock could put control of the Board of Directors into the
hands of the holders of a relatively small equity interest in Base Ten who would
continue to hold the Class B Common Stock. The Class A Common Stock is not
convertible.
OTHER RIGHTS. Shareholders of the Base Ten have no preemptive or
other rights to subscribe for additional shares. On liquidation, dissolution or
winding up of Base Ten, all shareholders, regardless of class, are entitled to
share ratably in any assets available for distribution. No shares of either
class are subject to redemption. All outstanding shares are fully paid and
non-assessable.
TRANSFER AGENT. The transfer agent and registrar for shares of the
Class A Common Stock and Class B Common Stock is American Stock Transfer & Trust
Company, 40 Wall Street, New York, New York 10005.
2
<PAGE>
PREFERRED STOCK
No shares of Preferred Stock have been issued. Base Ten's Board of
Directors is empowered to fix the designations, powers, preferences and
relative, participating, optional or other special rights of the Preferred Stock
and the qualifications, limitations or restrictions of those preferences or
rights. The voting rights of the Class B Common Stock described above are
subject to voting rights that may be granted in connection with the creation of
any series of Preferred Stock. However, no issue of Preferred Stock may change
the ratio of one-tenth of a vote for each share of Class A Common Stock to one
vote for each share of Class B Common Stock described above.
SELLING STOCKHOLDERS
The following table sets forth (i) the name of each Selling
Stockholder, (ii) to the best of the Company's knowledge, the
total number of shares of Class A Common Stock owned beneficially by each
Selling Stockholder as of the date of this Prospectus, (iii) the number of
Shares to be offered for the account of each Selling Stockholder in this
offering and (iv) to the best of the Company's knowledge, the number of shares
of Class A Common Stock to be owned by each Selling Stockholder after giving
effect to this offering.
<TABLE>
<CAPTION>
NUMBER OF
SHARES OF
NUMBER OF NUMBER OF STOCK TO BE
SHARES OF SHARES TO BE OWNED AFTER
NAME STOCK OWNED OFFERED THE OFFERING
------------ ------------- ------------
<S> <C> <C> <C>
Alexander M. Adelson 369,416 161,000 208,416
Bruce D. Cowen 606,250 175,000 431,250
Donald M. Daniels 10,000 10,000 0
Alan S. Poole 10,000 10,000 0
Daniel Tierney 15,000 15,000 0
Pharma Overseas, Ltd. 30,000 30,000 0
Strategic Growth International, Inc. 150,000 50,000 100,000
---------- --------- ---------
TOTAL 1,190,666 451,000 739,666
---------- --------- ---------
---------- --------- ---------
</TABLE>
The information set forth in the foregoing table was provided to the
Company by the Selling Stockholders. None of the Selling Stockholders has had
any position or other material relationship with the Company or its affiliates
during the past three years, except that Messers. Adelson and Daniels have
served as directors of Base Ten since 1992, Mr. Poole has served as a director
of Base Ten since 1994, Mr. Cowen has served as a consultant to the Company
since 1991, Mr. Tierney is an officer of Clonmel Health Care, Ltd., an Irish
pharmaceutical manufacturer that has been a customer of Base Ten during the last
three years, and Strategic Growth International, Inc. has provided public
relations services to the Company during that period.
All of the Shares being offered hereunder by the Selling Stockholders
are issuable upon exercise of warrants or options issued by Base Ten to the
Selling Stockholders. The Company agreed to register the Shares for the
accounts of the Selling Stockholders and has filed with the Securities and
Exchange Commission under the Securities Act a Registration Statement on Form
S-3 of which this Prospectus is a part, covering the resale of the Shares from
time to time.
PLAN OF DISTRIBUTION
The Shares being offered hereunder by the Selling Stockholders will be
offered from time to time in open market transactions, negotiated transactions,
principal transactions or by a combination of these methods of sale. The Shares
may be offered at market prices prevailing at the time of sale, at prices
related to the prevailing market prices or at negotiated prices. The Selling
Stockholders may effect these transactions by selling Shares to or thorugh
broker-dealers. Broker-dealers may receive compensation in the form of
discounts, concessions or commissions from Selling Stockholders or purchasers
for whom the broker-dealers may act as agent or to whom they sell as principal
or both. Compensation paid to a particular broker-dealer might be in excess of
customary commissions. Selling Stockholders and broker-dealers participating in
the sale
3
<PAGE>
of Shares may be deemed to be underwriters, and any profit on the sale of Shares
or compensation received by them may be deemed to be underwriting compensation
under the Securities Act.
The Company has agreed with the Selling Stockholders, among other things,
(i) to bear all expenses (other than underwriting discounts and selling
commissions, and fees and expenses of counsel and other advisers to the Selling
Stockholders) in connection with the registration and sale of the Shares being
offered by them and (ii) to indemnify the Selling Stockholders against certain
liabilities, including liabilities under the Securities Act, as underwriters or
otherwise.
4
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
SEC registration fee . . . . . . . . . . . $
Blue sky fees and expenses . . . . . . . . 250.00*
Transfer Agent's fees. . . . . . . . . . . 50.00*
Printing and engraving costs . . . . . . . 100.00*
Legal fees . . . . . . . . . . . . . . . . 2,500.00*
Accounting fees. . . . . . . . . . . . . . 1,000.00*
Miscellaneous. . . . . . . . . . . . . . . *
-------------
Total . . . . . . . . . . . . . . . . $ 5,000.00*
-------------
-------------
--------------------
* Estimated
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Article 9 of Base Ten's Restated Certificate of Incorporation,
as amended, provides as follows:
Any present or future Director or Officer of the Corporation, and any
present or future director or officer of any other corporation serving
as such at the request of the Corporation, or the legal representative
of any such Director or Officer, shall be indemnified by the
Corporation against reasonable costs, expenses (exclusive of any
amount paid to the Corporation in settlement) and counsel fees paid or
incurred in connection with any action, suit or proceeding to which
any such Director or Officer or his legal representative may be made a
party by reason of his being or having been such Director or Officer;
provided that, (1) said action, suit or proceeding shall be
prosecuted against such Director or Officer or against his legal
representative to final determination, and it shall not be finally
adjudged in said action, suit or proceeding that he had been derelict
in the performance of his duties as such Director or Officer, or (2)
said action, suit or proceeding shall be settled or otherwise
terminated as against such Director or Officer or his legal
representative without a final determination on the merits and it
shall be determined by a majority of the members of the Board of
Directors who are not parties to said action, suit or proceeding, or
by a person or persons specially appointed by the Board of Directors
to determine the same that said Director or Officer has not in any
substantial way been derelict in the performance of his duties as
charged in such action, suit or proceeding. The foregoing right of
indemnification shall not be exclusive of other rights to which such
Director or Officer or legal representative may be entitled by law,
and shall inure to the benefit of the heirs, executors or
administrators of such Director or Officer.
Article 10 of Base Ten's Restated Certificate of Incorporation, as
amended, provides as follows:
No director or officer of the corporation shall be personally liable
to the corporation or its shareholders for damages for breach of any
duty owed to the corporation or its shareholders, except for liability
for any breach of duty based upon an act or omission (a) in breach of
such director's or officer's duty of loyalty to the corporation or its
shareholders, (b) not in good faith or involving a knowing violation
of law, or (c) resulting in receipt by such director or officer of an
improper personal benefit. As used in this Article, an act or
omission in breach of a director's or officer's duty of loyalty means
an act or omission which such director or officer knows or believes to
be contrary to the best interests of the corporation or its
shareholders in connection with a matter in which such director or
officer has a material conflict of interest.
The provisions of this Article shall be effective as and to the
fullest extent that, in whole or in part, they shall be authorized or
permitted by the laws of the State of New Jersey. No repeal or
modification of the provisions of this Article nor, to the fullest
extent permitted by law, any modification of law shall adversely
affect any right or protection of a director or officer of the
corporation which exists at the time of such repeal or modification.
Article X of Base Ten's By-Laws, as amended, entitled
"Indemnification: Insurance," provides as follows:
II-1
<PAGE>
SECTION 1. The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (including an action by or in the
right of the Corporation) by reason of the fact that he is or was a
director or officer of the Corporation against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement to
the maximum extent, according to the standards and in the manner
provided by applicable law.
SECTION 2. To the extent, according to standards and in such manner
as the Board of Directors may direct pursuant to and in accordance
with applicable law in the particular case, the Corporation shall
indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(including an action by or in the right of the Corporation) by reason
of the fact that he is or was an employee or agent of the
Corporation, or is or was serving at the request of the Corporation,
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement.
SECTION 3. The indemnification provided by this Article X shall not
be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any agreement, vote of
stockholders or disinterested directors or otherwise, both as to
action in his official capacity and as to action in another capacity
while holding such office and shall 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, executors and administrators of such a
person.
SECTION 4. The Corporation, acting by its Board of Directors, shall
have power to purchase and maintain insurance on behalf of any person
who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such
liability under the provisions of this Article X. Nothing in this
Section 4 shall obligate the Corporation to indemnify any person to
any extent other than as provided in Sections 1, 2, 3 and 4 of this
Article X.
Statutory authority for indemnification of and insurance for Base
Ten's directors and officers is contained in the New Jersey Business Corporation
Act ("the Act"), in particular, Section 14A:3-5 of the Act, the material
provisions of which may be summarized as follows:
Directors and officers may be indemnified in non-derivative
proceedings against settlements, judgments, fines and penalties and against
reasonable expenses (including counsel fees) where the person acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation and also, in a criminal proceeding, he must have
had no reasonable cause to believe that his conduct was unlawful. In derivative
proceedings such persons may be indemnified against reasonable expenses
(including counsel fees) where the person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, but not against settlements, judgments, fines or penalties except
that, without a court determination as to entitlement to indemnity, no indemnity
may be provided to a person who has been adjudged liable to the corporation. In
all cases, the Act provides that indemnification may only be made by the
corporation (unless ordered by a court) only as authorized in a specific case
upon a determination that indemnification is proper in the circumstances because
the person has met the applicable standard of conduct required of the person,
requires a person to be indemnified for reasonable expenses (including counsel
fees) to the extent he has been successful in any proceeding and permits a
corporation to advance expenses upon an undertaking for repayment if it shall be
ultimately determined that the director or officer is not entitled to
indemnification. The indemnification and advancement of expenses provided by or
granted pursuant to the Act is not exclusive of other rights of indemnification
to which a corporate agent may be entitled under a certificate of incorporation,
by-law, agreement, vote of shareholders or otherwise. However, no
indemnification may be made to or on behalf of a director or officer if a final
adjudication adverse to the director or officer establishes that the director's
or officer's acts or omissions were in breach of his duty of loyalty to the
corporation or its shareholders, were not in good faith or involved a knowing
violation of law, or resulted in receipt by the director or officer of an
improper personal benefit. A corporation may purchase and maintain insurance on
behalf of any directors and officers against expenses incurred in any proceeding
and liabilities asserted against them by reason of being or having been a
director of officer, whether or not the corporation would have the power to
indemnify the directors or officers against such expenses and liabilities under
the statute.
II-2
<PAGE>
Each of the officers and directors of Base Ten is insured against
certain liabilities which he might incur in his capacity as an officer or
director of Base Ten or its subsidiaries pursuant to a Directors and Officers
Insurance and Company Reimbursement Policy issued by National Union Fire
Insurance Company of Pittsburgh, PA., and Home Insurance Company of
Philadelphia, PA. The general effect of the policy is that if any claims are
made against officers or directors of Base Ten or its subsidiaries or any of
them for a Wrongful Act (as defined in the policy) while acting in their
individual or collective capacities as directors or officers, to the extent Base
Ten or its subsidiary has properly indemnified such officers and directors, the
insurer will, subject to the retention amount, reimburse Base Ten or its
subsidiary for 100% of any Loss (as defined in the policy). In addition, to the
extent that Base Ten or its subsidiary has not indemnified an officer or
director, the insurer will, subject to the retention amount, pay on behalf of
such officer or director 100% of the Loss. Defense Costs (as defined in the
Policy) are part of Loss and are subject to the limits of the policy.
The retention amount under the policy is $250,000. The retention
amount is first applied to Base Ten or its subsidiary. The retention amount is
not applicable to officers or directors if Base Ten or its subsidiary is not
permitted or required to indemnify the officers or directors. If, however, Base
Ten or its subsidiary is permitted or required to indemnify the officers or
directors, then the retention amount does apply to them.
Under the policy, the term "Wrongful Act" means any actual or alleged
error, or misstatement, or misleading statement, or act, or omission, or neglect
or breach of duty by the directors or officers in their capacities as such,
individually or collectively, or any matter claimed against them solely by
reason of their being directors or officers of Base Ten or its subsidiaries,
except that certain claims are excluded by the terms and conditions of the
policy. The term "Loss" means damages, judgments, settlements and Defense
Costs. The term "Defense Costs" means reasonable and necessary
fees, costs and expenses consented to by the insurer resulting solely from the
investigation, adjustment, defense and appeal of any claim against any director
or officer, but excluding salaries of officers or employees of Base Ten or its
subsidiaries.
II-3
<PAGE>
ITEM 16. EXHIBITS.
The following documents are filed as Exhibits to this Registration
Statement:
EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT PAGE
- ------- -------- ----
3. (a) Restated Certificate of Incorporation, as amended, *
of Registrant (incorporated by reference to Exhibit
4(a) to Amendment No. 1 to Registrant's Registration
Statement on Form S-8 (File No. 2-84451) filed on
July 31, 1990).
(b) Certificate of Amendment of the Restated Certificate *
of Incorporation dated September 1, 1992 (incorporated
by reference to Exhibit 4(b)(2) to Amendment No. 3 to
Registrant's Registration Statement on Form S-1 (File
No. 33-48404) filed on September 3, 1992).
(c) Amended By-Laws of the Registrant (incorporated by *
reference to Exhibit 4(d)(2) to Registrant's
Registration Statement on Form S-8 (File No.
33-60454) filed on April 1, 1993).
5. Opinion of Stahl & Zelmanovitz, counsel to Base Ten
Systems, Inc.
10. (a) 1980 Deferred Compensation Agreement between the *(A)
Registrant and certain executive officers
(incorporated by reference to Exhibit 10.3 to
Registrant's Registration Statement on Form S-1
File No. 2-70259 filed on December 16, 1980).
(b) 1981 Incentive Stock Option Plan of Registrant, *(A)
as amended and restated on January 12, 1990
(incorporated by reference to Exhibit 4(c) to
Amendment No. 1 to Registrant's Registration
Statement on Form S-8 (File No. 2-84451) filed
on July 31, 1990).
(c) 1992 Stock Option Plan of Registrant (incorporated *(A)
by reference to Exhibit 10(ai) to Amendment No. 3
to Registrant's Registration Statement on Form
S-1 (File No. 33-48404) filed on September 3, 1992).
(d) Change in Control Agreement dated October 23, 1991 *(A)
between Registrant and Myles M. Kranzler
(incorporated by reference to Exhibit 10(e)
to Registrant's Annual Report on Form 10-K (File
No. 0-7100) for the fiscal year ended October
31, 1991).
(e) Change in Control Agreement dated October 23, 1991 *(A)
between Registrant and James A. Eby (incorporated
by reference to Exhibit 10(f) to Registrant's Annual
Report on Form 10-K (File No. 0-7100) for the fiscal
year ended October 31, 1991).
(f) Change in Control Agreement dated October 23, 1991 *(A)
between Registrant and Edward J. Klinsport
(incorporated by reference to Exhibit 10(h) to
Registrant's Annual Report on Form 10-K (File
No. 0-7100) for the fiscal year ended October
31, 1991).
(g) Employment Agreement dated as of March 26, 1992 *(A)
between the Registrant and Myles M. Kranzler
(incorporated by reference to Exhibit 28(b) to
Registrant's Current Report on Form 8-K (File
No. 0-7100) filed on April 10, 1992).
(h) Employment Agreement dated as of March 26, 1992 *(A)
between the Registrant and James A. Eby
(incorporated by reference to Exhibit 28(c) to
Registrant's Current Report on Form 8-K (File
No. 0-7100) filed on April 10, 1992).
II-4
<PAGE>
EXHIBIT
NUMBER EXHIBIT PAGE
- ------- -------- ----
(i) Employment Agreement dated as of March 26, 1992 between *(A)
the Registrant and Edward J. Klinsport (incorporated
by reference to Exhibit 28(d) to Registrant's Current
Report on Form 8-K (File No. 0-7100) filed on April
10, 1992).
(j) Employment Agreement dated as of March 26, 1992 between *(A)
the Registrant and Alan J. Eisenberg (incorporated by
reference to Exhibit 28(e) to Registrant's Current
Report on Form 8-K (File No. 0-7100) filed on April
10, 1992).
(k) Amended Agreement dated July 28, 1992 between the *(A)
Registrant and Alexander Adelson (incorporated by
reference to Exhibit 10(ar) to the Registrant's
Registration Statement on Amendment No. 3. to
Form S-2 on Form S-1 (Registration No. 33-48404)
filed on September 3, 1992).
(l) Modification of Amended Agreement dated January *
11, 1993 between the Registrant and Alexander M.
Adelson.
(m) Amended Modification of Amended Agreement dated *
January 28, 1994 between the Registrant and
Alexander M. Adelson.
(n) Amended Consulting Agreement made as of February *(A)
24, 1992 between the Registrant and Bruce D. Cowen
(incorporated by reference to Exhibit 10(as) to
the Registrant's Registration Statement on Amendment
No. 3. to Form S-2 on Form S-1 (Registration No.
33-48404) filed on September 3, 1992).
(o) Modification of Amended Agreement dated January 11, *
1993 between the Registrant and Bruce D. Cowen.
(p) Consulting Agreement dated March 1, 1994 between *
the Registrant and Bruce D. Cowen.
(q) Option Agreement dated as of November 9, 1992 *(A)
between the Registrant and Donald M. Daniels
(incorporated by reference to Exhibit 10(as) to
the Registrant's Annual Report on Form 10-K
(File No. 0-7100) for the fiscal year ended
October 31, 1992).
(r) Option Agreement dated as of June 5, 1992 between *
the Registrant and Strategic Growth International,
Inc. (incorporated by reference to Exhibit 10(at)
to the Registrant's Annual Report on Form 10-K
(File No. 0-7100) for the fiscal year ended
October 31, 1992).
(s) Acquisition Agreement dated October 28, 1994 *
between the Registrant and CKR Partners, L.L.C.
(incorporated by reference to Exhibit 2(a) to
Registrant's Current Report on Form 8-K (File
No. 0-7100) dated November 11, 1994).
(t) Lease dated October 28, 1994 between the Registrant *
and CKR Partners, L.L.C. (incorporated by reference
to Exhibit 2(b) to Registrant's Current Report on
Form 8-K (File No. 0-7100) dated November 11, 1994).
21. Subsidiaries of the Registrant (incorporated by *
reference to Exhibit 21 to Registrant's Annual Report
on Form 10K (File No. 0-7100) for the fiscal year
ended October 31, 1995.)
II-5
<PAGE>
EXHIBIT
NUMBER EXHIBIT PAGE
- ------- -------- ----
23. (a) Consent of Deloitte & Touche LLP
(b) Consent of Stahl & Zelmanovitz (included as part of *
Exhibit 5 (a) above).
24. Powers of Attorney of Directors and certain Officers.
- --------------
* Incorporated by reference.
(A) A management contract or compensatory plan or arrangement.
ITEM 17. UNDERTAKINGS.
1. 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;
(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;
(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 (i) and (ii) above do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference 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.
2. 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 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.
3. 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 provisions discussed in Item 6 of this Registration
Statement, 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 such 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
a 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 such Act and
will be governed by the final adjudication of such issue.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized, this ___ day of
February, 1996.
BASE TEN SYSTEMS, INC.
<TABLE>
<S> <C> <C>
By: /s/ MYLES M. KRANZLER By: /s/ EDWARD J. KLINSPORT By:/s/ SUSAN M. KLINSPORT
-------------------------- ---------------------------- -------------------------
Myles M. Kranzler Edward J. Klinsport Susan M. Klinsport
Chief Executive Officer Chief Financial Officer Principal Accounting Officer
</TABLE>
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
Registrant in the capacities and on the date indicated.
TITLE DATE
----- ----
Myles M. Kranzler, James A. Eby, Directors
Edward J. Klinsport, Alan J. Eisenberg,
Alexander M. Adelson, Donald M. Daniels,
Alan S. Poole*
By:/s/ EDWARD J. KLINSPORT February __, 1996
-----------------------------
*Edward J. Klinsport, as attorney-in-fact
II-7
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT PAGE
- ------- -------- ----
3. (a) Restated Certificate of Incorporation, as amended, *
of Registrant (incorporated by reference to Exhibit
4(a) to Amendment No. 1 to Registrant's Registration
Statement on Form S-8 (File No. 2-84451) filed on
July 31, 1990).
(b) Certificate of Amendment of the Restated Certificate *
of Incorporation dated September 1, 1992 (incorporated
by reference to Exhibit 4(b)(2) to Amendment No. 3 to
Registrant's Registration Statement on Form S-1 (File
No. 33-48404) filed on September 3, 1992).
(c) Amended By-Laws of the Registrant (incorporated by *
reference to Exhibit 4(d)(2) to Registrant's
Registration Statement on Form S-8 (File No.
33-60454) filed on April 1, 1993).
5. Opinion of Stahl & Zelmanovitz, counsel to Base Ten
Systems, Inc.
10. (a) 1980 Deferred Compensation Agreement between the *(A)
Registrant and certain executive officers
(incorporated by reference to Exhibit 10.3 to
Registrant's Registration Statement on Form S-1
File No. 2-70259 filed on December 16, 1980).
(b) 1981 Incentive Stock Option Plan of Registrant, *(A)
as amended and restated on January 12, 1990
(incorporated by reference to Exhibit 4(c) to
Amendment No. 1 to Registrant's Registration
Statement on Form S-8 (File No. 2-84451) filed
on July 31, 1990).
(c) 1992 Stock Option Plan of Registrant (incorporated *(A)
by reference to Exhibit 10(ai) to Amendment No. 3
to Registrant's Registration Statement on Form
S-1 (File No. 33-48404) filed on September 3, 1992).
(d) Change in Control Agreement dated October 23, 1991 *(A)
between Registrant and Myles M. Kranzler
(incorporated by reference to Exhibit 10(e)
to Registrant's Annual Report on Form 10-K (File
No. 0-7100) for the fiscal year ended October
31, 1991).
(e) Change in Control Agreement dated October 23, 1991 *(A)
between Registrant and James A. Eby (incorporated
by reference to Exhibit 10(f) to Registrant's Annual
Report on Form 10-K (File No. 0-7100) for the fiscal
year ended October 31, 1991).
(f) Change in Control Agreement dated October 23, 1991 *(A)
between Registrant and Edward J. Klinsport
(incorporated by reference to Exhibit 10(h) to
Registrant's Annual Report on Form 10-K (File
No. 0-7100) for the fiscal year ended October
31, 1991).
(g) Employment Agreement dated as of March 26, 1992 *(A)
between the Registrant and Myles M. Kranzler
(incorporated by reference to Exhibit 28(b) to
Registrant's Current Report on Form 8-K (File
No. 0-7100) filed on April 10, 1992).
(h) Employment Agreement dated as of March 26, 1992 *(A)
between the Registrant and James A. Eby
(incorporated by reference to Exhibit 28(c) to
Registrant's Current Report on Form 8-K (File
No. 0-7100) filed on April 10, 1992).
(i) Employment Agreement dated as of March 26, 1992 between *(A)
the Registrant and Edward J. Klinsport (incorporated
by reference to Exhibit 28(d) to Registrant's Current
Report on Form 8-K (File No. 0-7100) filed on April
10, 1992).
II-8
<PAGE>
EXHIBIT
NUMBER EXHIBIT PAGE
- ------- -------- ----
(j) Employment Agreement dated as of March 26, 1992 between *(A)
the Registrant and Alan J. Eisenberg (incorporated by
reference to Exhibit 28(e) to Registrant's Current
Report on Form 8-K (File No. 0-7100) filed on April
10, 1992).
(k) Amended Agreement dated July 28, 1992 between the *(A)
Registrant and Alexander Adelson (incorporated by
reference to Exhibit 10(ar) to the Registrant's
Registration Statement on Amendment No. 3. to
Form S-2 on Form S-1 (Registration No. 33-48404)
filed on September 3, 1992).
(l) Modification of Amended Agreement dated January *
11, 1993 between the Registrant and Alexander M.
Adelson.
(m) Amended Modification of Amended Agreement dated *
January 28, 1994 between the Registrant and
Alexander M. Adelson.
(n) Amended Consulting Agreement made as of February *(A)
24, 1992 between the Registrant and Bruce D. Cowen
(incorporated by reference to Exhibit 10(as) to
the Registrant's Registration Statement on Amendment
No. 3. to Form S-2 on Form S-1 (Registration No.
33-48404) filed on September 3, 1992).
(o) Modification of Amended Agreement dated January 11, *
1993 between the Registrant and Bruce D. Cowen.
(p) Consulting Agreement dated March 1, 1994 between *
the Registrant and Bruce D. Cowen.
(q) Option Agreement dated as of November 9, 1992 *(A)
between the Registrant and Donald M. Daniels
(incorporated by reference to Exhibit 10(as) to
the Registrant's Annual Report on Form 10-K
(File No. 0-7100) for the fiscal year ended
October 31, 1992).
(r) Option Agreement dated as of June 5, 1992 between *
the Registrant and Strategic Growth International,
Inc. (incorporated by reference to Exhibit 10(at)
to the Registrant's Annual Report on Form 10-K
(File No. 0-7100) for the fiscal year ended
October 31, 1992).
(s) Acquisition Agreement dated October 28, 1994 *
between the Registrant and CKR Partners, L.L.C.
(incorporated by reference to Exhibit 2(a) to
Registrant's Current Report on Form 8-K (File
No. 0-7100) dated November 11, 1994).
(t) Lease dated October 28, 1994 between the Registrant *
and CKR Partners, L.L.C. (incorporated by reference
to Exhibit 2(b) to Registrant's Current Report on
Form 8-K (File No. 0-7100) dated November 11, 1994).
21. Subsidiaries of the Registrant (incorporated by reference to *
Exhibit 21 to Registrant's Annual Report on Form 10K (File
No. 0-7100) for the fiscal year ended October 31, 1995.)
23. (a) Independent Auditors' Consent
(b) Consists of Stahl & Zelmanovitz (included as part of *
Exhibit 5(a) above).
24. Powers of Attorney
- --------------
* Incorporated by reference.
(A) A management contract or compensatory plan or arrangement.
II-9
<PAGE>
Exhibit 5
January 21, 1996
Base Ten Systems, Inc.
One Electronics Drive
Trenton, NJ 08619
Re: Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
We refer to the registration statement (the "Registration Statement") of
Base Ten Systems, Inc., a New Jersey corporation (the "Company"), on Form S-3 to
be filed with the Securities and Exchange Commission, covering the registration
under the Securities Act of 1933, as amended (the "Securities Act"), of shares
of the Company's Class A Common Stock (the "Shares") for the account of the
selling stockholders named therein (the "Selling Stockholders") pursuant to Rule
415 under the Securities Act.
We have examined the Registration Statement, the Certificate of
Incorporation, as amended, and Bylaws of the Company, and such records,
certificates and other documents as we have considered necessary or appropriate
for the purposes of this opinion.
Based upon the foregoing, it is our opinion that:
1. The Company is duly organized, validly existing and in good standing
under the laws of the State of New Jersey.
2. The Shares to be offered pursuant to the terms described in the
Registration Statement have been duly authorized and, upon issuance in
accordance with the terms of the options and warrants described in the
Registration Statement, will be validly issued, fully paid and non-assessable.
We hereby consent to the use of our name in the Registration Statement as
counsel who will pass upon the legality of the Shares for the Company and as
having prepared this opinion and to the use of this opinion as an exhibit to the
Registration Statement. We further consent to the use of our name as counsel in
the Prospectus constituting part of the Registration Statement. In giving the
foregoing consent, we do not thereby admit that we are in the category of
persons whose consent is required under Section 7 of the Securities Act or the
rules and regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
STAHL & ZELMANOVITZ
<PAGE>
EXHIBIT 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the Registration Statements of
Base Ten Systems, Inc. on Form S-3 of our report dated December 15, 1995,
appearing in the Annual Report on Form 10-K of Base Ten Systems, Inc. for the
year ended October 31, 1995.
DELOITTE & TOUCHE LLP
Parsippany, New Jersey
February 5, 1996
II-10
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Myles M. Kranzler and Edward J.
Klinsport, and each of them, his true and lawful attorneys-in-fact and agents
with full power of substitution, for him and in his name, place and stead in any
and all capacities, to sign the Annual Report on Form 10-K of Base Ten Systems,
Inc. for the fiscal year ended October 31, 1995 and any amendments thereto, and
to file same, with all exhibits thereto, and all documents in connection
therewith, with the Securities and Exchange Commission, pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934, as amended, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done to
comply with the provisions of the Securities Act of 1934, and all requirements
of the Securities and Exchange Commission, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them, or their or his
substitutes, may lawfully do or cause to be done by virtue thereof.
/S/ MYLES M. KRANZLER
----------------------------------------
Myles M. Kranzler
/S/ JAMES A. EBY
----------------------------------------
James A. Eby
/S/ EDWARD J. KLINSPORT
----------------------------------------
Edward J. Klinsport
/S/ ALAN J. EISENBERG
----------------------------------------
Alan J. Eisenberg
/S/ DONALD M. DANIELS
----------------------------------------
Donald M. Daniels
/S/ ALEXANDER M. ADELSON
----------------------------------------
Alexander M. Adelson
/S/ ALAN S. POOLE
----------------------------------------
Alan S. Poole
/S/ SUSAN M. KLINSPORT
----------------------------------------
Susan M. Klinsport
II-11
