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As filed with the Securities and Exchange Commission on February 14, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
BASE TEN SYSTEMS, INC.
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(Exact name of issuer as specified in its charter)
New Jersey 22-1804206
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(State or other Jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Electronics Drive
Trenton, New Jersey 08619
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(Address of Principal Executive Offices) (Zip Code)
Amended Discretionary Deferred Compensation Plan
1995 Incentive Stock Option Plan
Base Ten Stock Option Plan
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(Full title of the plan)
Myles M. Kranzler, President
BASE TEN SYSTEMS, INC.
One Electronics Drive
Trenton, NJ 08619
(609 586-7010)
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(name and address of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of each class of Amount maximum maximum Amount of
securities being registered being offering aggregate registration
registered price per unit(1) offering price(1) fee
Class A Common Stock, par
value $1.00 per share: 1,700,000 $10.25 $ 17,425,000 $ 5,227.50
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(1) Calculated in accordance with Rule 457(c) under the Securities Act of 1933 as of February 13, 1997.
</TABLE>
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Part I
INFORMATION REQUIRED IN THE PROSPECTUS
The documents containing the information specified in Part I of Form S-8 will
be sent or given to Base Ten Systems, Inc. ("Base Ten or the Registrant")
employees as specified by Rule 428(b)(1) under the Securities Act of 1933, as
amended (the "Securities Act"). Those documents are not being filed with
the Securities and Exchange Commission (the "Commission") either as part of
this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 under the Securities Act.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Information contained in the following documents of Base Ten
filed with the Commission is incorporated by reference into this Registration
Statement:
(a) Annual Report on Form 10-K for the year ended October 31,
1996, File No. 0-7100 filed pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act");
(b) The description of the Class A Common Stock, par value $1.00 per
share, of Base Ten contained in registration statements filed by Base Ten
pursuant to Section 12 of the Exchange Act, as amended by any amendment or
report filed by Base Ten updating the description.
All documents filed with Commission by Base Ten pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date hereof,
and prior to the filing by Base Ten of a post-effective amendment
hereto with the Commission indicating that all securities offered hereby have
been sold or deregistering all securities then remaining unsold, shall be
deemed to be incorporated by reference into this Registration Statement and
to be a part hereof from the date of filing of such documents until the
information contained therein is superseded or updated by any subsequently
filed document incorporated by reference into this Registration Statement.
Such incorporation by reference shall not be deemed to specifically incorporate
by reference the information referred to in Item 402(a)(8) of Regulation S-K.
Any statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein, or in any other subsequently filed document that also is or
is deemed to be incorporated by reference herein, modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
Not applicable.
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Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. 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.
3
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Article X of Base Ten's By-Laws, as amended, entitled
"Indemnification; Insurance," provides as follows:
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
4
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(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.
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.
5
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Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following documents are filed as Exhibits to this Registration
Statement:
*4.1 Restated Certificate of Incorporation of Base Ten.
*4.2 ByLaws of Base Ten
*4.3 Form of Class A Common Stock of Base Ten
5.1 Undertakings of Base Ten
5.2 Opinion of Pitney, Hardin & Szuch
23.1 Consent of Deloitte & Touche LLP
24 Powers of Attorney of Directors and certain Officers.
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* Exhibit incorporated by reference to Base Ten's Registration Statement
Form S-1 (Registration Number 33-48404).
Item 9. Undertakings of Base Ten.
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;
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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 (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.
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.
7
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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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Trenton, and the State of New Jersey on this 14th day
of February, 1997.
BASE TEN SYSTEMS, INC.
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<S> <C> <C>
By: By: By:
------------------------- ------------------------- ----------------------------
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, Bruce D. Cowen, Directors
Edward J. Klinsport, Alan J. Eisenberg,
Alexander M. Adelson, Alan S. Poole*
By: February 14, 1997
-----------------------------------------
*Edward J. Klinsport, as attorney-in-fact
8
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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 14th day of
February, 1997.
BASE TEN SYSTEMS, INC.
<TABLE>
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<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, 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
9
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EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT PAGE
4. (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 Pitney, Hardin, Kipp and Szuch.
23. (a) Independent Auditors' Consent.
24. Power of Attorney
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* Incorporated by reference.
10
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EXHIBIT 5.1
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 754,000 shares of Class A Common Stock of the
Company (the "Shares") pursuant to the Company's Amended Discretionary
Deferred Compensation Plan (the "Plan"), the 1995 Incentive Stock Option Plan
(the "Incentive Plan") and the Base Ten Stock Option Plan (the "Option
Plan").
We have examined the Registration Statement on Form S-8 (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 amendments to the Discretionary Plan have been approved by
the Shareholders of the Company at the 1997 Annual Meeting, and the Shares
shall have been duly issued and delivered in the manner contemplated by the
Registration Statement and the Discretionary Plan, the Incentive Plan, and
the Option Plan for the consideration determined in accordance with the
Discretionary Plan and the Incentive Plan, respectfully. 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. 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
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Pitney, Hardin, Kipp & Szuch
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Base Ten Systems, Inc. on Form S-8 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
14
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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 Form S-8 for Base Ten System's Inc.
Amended Discretionary Deferred Compensation Plan, 1995 Incentive Stock Option
Plan and Base Ten Stock Option Plan and any subsequent 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 1934, as amended,
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
13
