<PAGE>
As Filed with the Securities and Exchange Commission on February , 1997
Registration No. 333-
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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)
NEW JERSEY 22-1804206
(STATE OR OTHER JURISDICTION OR INCORPORATION (I.R.S. EMPLOYER
OR ORGANIZATION) IDENTIFICATION NO.)
One Electronics Drive 08619
Trenton, New Jersey
(ADDRESS OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
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/
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Each Maximum Maximum
Class of Amount Offering Aggregate Amount of
Securities to be Price Offering Registration
to be Registered Registered Per Unit (1) Price (1) Fee
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Class A Common 340,000 $10.25 $3,485,000 $ 1,045.50
Stock, $1.00 par
value
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(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 February 13, 1997.
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
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SUBJECT TO COMPLETION, DATED FEBRUARY , 1997
PROSPECTUS
340,000 Shares
BASE TEN SYSTEMS, INC.
Class A Common Stock
All 340,000 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 February 13, 1997, the last reported sale price of the Class A Common
Stock on the Nasdaq National Market was $10.25. The Class A Common Stock is
traded under the Nasdaq symbol "BASEA."
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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.
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February , 1997
<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. The SEC maintains a web site that contains reports,
proxy and information statements and other information regarding the
Company's and other electronic filing at http://www.sec.com).
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, 1996.
2. Proxy Statement dated February 16, 1996 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
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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 four 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 94% 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.
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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 PERCENTAGE
NUMBER OF NUMBER OF STOCK TO BE OF CLASS
SHARES OF SHARES TO BE OWNED AFTER OWNED AFTER
NAME STOCK OWNED OFFERED THE OFFERING THE OFFERING
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<S> <C> <C> <C> <C>
Alexander M. Adelson 445,416 50,000 395,416 5.13%
Bruce D. Cowen 897,450 190,000 707,450 9.18%
Andrew Sycoff 115,000 100,000 15,000 .19%
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TOTAL 1,457,866 340,000 1,117,866
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</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 Mr. Adelson has served as
a director of Base Ten since 1992, Mr. Cowen has served as a consultant to
the Company since 1991 and a director since May 1996, Mr. Sycoff is an
employee of Andrew Garrett, Inc., who assisted the Company in arranging
financing during 1996.
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 through 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 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.
3
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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......................... -
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Total.......................... $ 5,000.00*
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* 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:
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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 or 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 Zurich 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).
4. (a) Purchase Agreement dated as of August 8, 1996 between the
Registrant and Jessee L. Upchurch (incorporated by reference
to Exhibit 4(a) to Registrant's current report on Form 8-K
(File No. 0-1100) dated August 12, 1996).
5. Opinion of Pitney, Hardin, Kipp and Szuch.
II-4
<PAGE>
EXHIBIT
NUMBER EXHIBIT PAGE
- ------- ------- ----
23. (a) Consent of Deloitte & Touche LLP II-10
24. Powers of Attorney of Directors and certain Officers. II-11
- ----------------------
* Incorporated by reference.
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 15 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 the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-3 has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, this 14 day of February, 1997.
BASE TEN SYSTEMS, INC.
By:/S/ MYLES M. KRANZLER By:/S/ EDWARD J. KLINSPORT
---------------------------- ----------------------------
Myles M. Kranzler Edward J. Klinsport
Chief Executive Officer Chief Financial Officer
By:/S/ SUSAN M. KLINSPORT
----------------------------
Susan M. Klinsport
Principal Accounting Officer
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, Bruce D. Cowen, Directors
Edward J. Klinsport, Alan J. Eisenberg,
Alexander M. Adelson, Alan S. Poole*
By: /S/ EDWARD J. KLINSPORT February 14, 1997
-----------------------------
*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).
4. (a) Purchase Agreement dated as of August 8, 1996 between the
Registrant and Jessee L. Upchurch (incorporated by reference
to Exhibit 4(a) to Registrant's current report on Form 8-K
(File No. 0-1100) dated August 12, 1996).
5. Opinion of Pitney, Hardin, Kipp and Szuch.
II-8
<PAGE>
EXHIBIT 5
PITNEY, HARDIN, KIPP & SZUCH
MAIL P.O. BOX 1945
MORRISTOWN, NEW JERSEY 07962-1945
January 30, 1997
Base Ten Systems, Inc.
One Electronics Drive
Trenton, New Jersey 08619
We have acted as counsel to Base Ten Systems, Inc. (the "Company") in
connection with the registration by the Company under the Securities Act of
1933, as amended (the "Act") of 340,000 shares of Class A Common Stock of the
Company (the "Shares").
We have examined the Registration Statement on Form S-3 (the "Registration
Statement"), dated February 14, 1997 to be filed by the Company with the
Securities and Exchange Commission in connection with the registration of the
Shares.
We have also examined originals, or copies certified or otherwise identified
to our satisfaction, of the Restated Certificate of Incorporation and By-Laws
of the Company, as currently in effect, and relevant resolutions of the Board
of Directors of the Company; and we have examined such other documents as we
deemed necessary in order to express the opinion hereinafter set forth. In
our examination of such documents and records, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to
us as originals, and conformity with the originals of all documents submitted
to us as copies.
Based on the foregoing, it is our opinion that when, as and if the
Registration Statement shall have become effective pursuant to the provisions
of the Act, and the Shares shall have been duly issued and delivered in the
manner contemplated by the Registration Statement, including the Prospectus
therein, the Shares will be legally issued, fully paid and non-assessable.
The foregoing opinion is limited to the laws of the State of New Jersey, and
we are expressing no opinion as to the effect of the laws of any other
jurisdiction.
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement and to the reference to this firm under the heading
Legal Opinion in the Prospectus. In giving such consent, we do not thereby
admit that we come within the category of persons whose consent is required
under Section 7 of the Act, or the Rules and Regulations of the Securities
and Exchange Commission thereunder.
Very truly yours,
/s/ PITNEY, HARDIN, KIPP & SZUCH
- --------------------------------
Pitney, Hardin, Kipp & Szuch
II-12
<PAGE>
EXHIBIT 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Base Ten Systems, Inc. on Form S-3 of our report dated December 23, 1996,
appearing in the Annual Report on Form 10-K of Base Ten Systems, Inc. for the
year ended October 31, 1996.
DELOITTE & TOUCHE LLP
Parsippany, New Jersey
February 13, 1997
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 Registration Statement on Form S-3 dated
February 14, 1997 and any amendments thereto, and to file same, with all
exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, 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 1933, 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/ BRUCE D. COWEN
------------------------
Bruce D. Cowen
/S/ EDWARD J. KLINSPORT
------------------------
Edward J. Klinsport
/S/ ALAN J. EISENBERG
------------------------
Alan J. Eisenberg
/S/ ALEXANDER M. ADELSON
------------------------
Alexander M. Adelson
/S/ ALAN S. POOLE
------------------------
Alan S. Poole
/S/ SUSAN M. KLINSPORT
------------------------
Susan M. Klinsport
II-11
