As filed with the Securities and Exchange Commission on June 24, 1999
Registration No. 333-_______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
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
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(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
ONE ELECTRONICS DRIVE
TRENTON, NEW JERSEY 08619
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(Address, including Zip Code, of Principal Executive Offices)
1998 STOCK OPTION AND STOCK AWARD PLAN
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(Full Title of the Plan)
THOMAS E. GARDNER
PRESIDENT, CHAIRMAN OF THE BOARD,
and CHIEF EXECUTIVE OFFICER
BASE TEN SYSTEMS, INC.
ONE ELECTRONICS DRIVE
TRENTON, NEW JERSEY 08619
(609) 586-7010
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(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
----------------------
With a copy to:
JOSEPH LUNIN, ESQ.
PITNEY, HARDIN, KIPP & SZUCH
P.O. BOX 1945
MORRISTOWN, NEW JERSEY 07962
(973) 966-6300
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------ ----------------------- ---------------------- ---------------------- -----------------------
Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities to to be Offering Price Aggregate Registration
be Registered Registered(1)(2) Per Share(3) Offering Price Fee
- ------------------------------ ----------------------- ---------------------- ---------------------- -----------------------
- ------------------------------ ----------------------- ---------------------- ---------------------- -----------------------
<S> <C> <C> <C> <C>
Class A Common Stock, 3,360,000(4) $0.94 $3,158,400 $878.04
$1.00 Par Value
Total Registration Fee $878.04
- ------------------------------ ----------------------- ---------------------- ---------------------- -----------------------
</TABLE>
(1) Does not include 1,720,000 shares of Class A Common Stock that may be
issued pursuant to the 1998 Stock Option and Stock Award Plan (the
"Plan") that were previously registered under Registration Statement
on Form S-8, filed on July 24, 1998 (No. 333-59883). Of the 1,720,000
shares previously registered, 720,000 shares may be issued pursuant to
an annual increase in the number of shares that may be offered under
the Plan, then estimated at 80,000 shares for each of the then
remaining nine years of the Plan.
(2) In addition, pursuant to Rule 416 under the Securities Act of 1933,
this Registration Statement also relates to an indeterminate number of
shares of Class A Common Stock that may be issued pursuant to
anti-dilution provisions contained in the Plan.
(3) Estimated solely for the purpose of calculating the registration fee.
Such estimate has been computed in accordance with Rule 457(h)(1) and
Rule 457(c) based on the average high and low prices of the
Registrant's Class A Common Stock as reported on the Nasdaq National
Market on June 23, 1999.
(4) Includes 1,360,000 shares of Class A Common Stock that may be issued
pursuant to an annual increase in the number of shares that may be
offered under the Plan, estimated at 250,000 shares for each of the
remaining eight years of the Plan and reduced by 80,000 shares per year
because such shares were previously registered (see Note 1 above).
<PAGE>
REGISTRATION STATEMENT
FOR ADDITIONAL SECURITIES
ON FORM S-8
Incorporation by Reference
This Registration Statement on Form S-8 is being filed for the purpose
of registering an additional 3,440,000 shares of Class A Common Stock that may
be issued under the 1998 Stock Option and Stock Award Plan (the "Plan") as a
result of an increase in the number of shares that may be offered under the
Plan. 1,720,000 shares of Class A Common Stock that may be issued under the Plan
were previously registered under Registration Statement on Form S-8 filed on
July 24, 1998 (No. 333-59883). Registration Statement on Form S-8 filed on July
24, 1998 (No. 333-59883) is incorporated by reference herein pursuant to General
Instruction E to Form S-8.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all 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 Trenton, New Jersey, on this 24th day of June, 1999.
<TABLE>
<CAPTION>
BASE TEN SYSTEMS, INC.
<S> <C> <C>
THOMAS E. GARDNER WILLIAM F. HACKETT WILLIAM F. HACKETT
By:__________________ By:_____________________ By:___________________
Thomas E. Gardner William F. Hackett William F. Hackett
Chief Executive Officer Chief Financial Officer (Principal Accounting Officer
(Principal Executive Officer) and Principal Financial Officer)
</TABLE>
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below hereby constitutes and appoints Thomas E. Gardner and William F.
Hackett, 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 any and all amendments to this Registration
Statement (including post-effective amendments), and to file the same with all
exhibits thereto and other 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 in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming what said attorneys-in-fact and agents or their
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
THOMAS E. GARDNER
__________________________ June 24, 1999
Thomas E. Gardner Chief Executive Officer, Chairman of
the Board, President, and Director
(Principal Executive Officer)
ALEXANDER M. ADELSON
__________________________ June 24, 1999
Alexander M. Adelson Director
__________________________ June __, 1999
David C. Batten Director
ALAN S. POOLE
__________________________ June 24, 1999
Alan S. Poole Director
JOHN C. RHINEBERGER
__________________________ June 24, 1999
John C. Rhineberger Director
ROBERT HURWITZ
__________________________ June 24, 1999
Robert Hurwitz Director
</TABLE>
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Description
4.2 1998 Stock Option and Stock Award Plan.
5 Opinion of Pitney, Hardin, Kipp & Szuch, as to the legality
of the securities being registered.
23(a) Consent of PricewaterhouseCoopers LLP.
23(b) Consent of Deloitte & Touche LLP.
23(c) Consent of Pitney, Hardin, Kipp & Szuch
(included in Exhibit 5 hereto).
24 Power of Attorney (included on signature page hereto).
BASE TEN SYSTEMS, INC.
1998 STOCK OPTION AND STOCK AWARD PLAN
1. Purpose
The purpose of this Base Ten Systems, Inc. 1998 Stock Option
and Stock Award Plan (the "Plan") is to encourage and enable selected officers
and other key employees of Base Ten Systems Inc. (the "Company") and its
subsidiaries to acquire a proprietary interest in the Company through the
ownership of Class A Common Stock ("Common Stock") of the Company. Such
ownership will provide such employees with a more direct stake in the future
welfare of the Company and encourage them to remain with the Company and its
subsidiaries. It is also expected that the Plan will encourage qualified persons
to seek and accept employment with the Company and its subsidiaries. Pursuant to
the Plan, such employees will be offered the opportunity to acquire such Common
Stock through the grant of options, the award of restricted stock under the
Plan, bonuses payable in stock, or a combination thereof.
As used herein, the term "subsidiary" shall mean any present
or future corporation which is or would be a "subsidiary corporation" of the
Company as the term is defined in Section 424(f) of the Internal Revenue Code of
1986, as amended (the "Code").
2. Administration of the Plan
The Plan shall be administered by the Board of Directors of
the Company or a Compensation Committee as appointed from time to time by the
Board of Directors of the Company ("Board"), which Compensation Committee shall
consist solely of not less than two (2) members of the Board qualifying as
"non-employee directors" under Rule 16b-3 of the Securities Exchange Act of
1934, as it may be amended from time to time (the "Exchange Act"); none of the
members of the Compensation Committee shall be eligible to be granted options or
awarded restricted stock under the Plan or receive bonuses payable in stock. No
member of the Board of Directors shall be appointed to the Compensation
Committee who has been granted an option, awarded restricted stock or received a
bonus payment in stock under the Plan within one year prior to appointment. As
used hereinafter the term "Committee" shall mean (i) the Board of Directors of
the Company at all times that a Compensation Committee is not in existence or
(ii) the Compensation Committee at all times that a Compensation Committee is in
existence.
In administering the Plan, the Committee may adopt rules and
regulations for carrying out the Plan. The interpretation and decision with
regard to any question arising under the Plan made by the Committee shall be
final and conclusive on all employees of the Company and its subsidiaries
participating or eligible to participate in the Plan. The Committee may consult
with counsel, who may be of counsel to the Company, and the Committee shall not
incur any liability for any action taken in good faith in reliance upon the
advice of counsel.
The Committee shall determine the employees to whom, and the
time or times at which, grants or awards shall be made and the number of shares
to be included in the grants or awards.
Each option granted pursuant to the Plan shall be evidenced by
an Option Agreement (the "Agreement"). The Agreement shall not be a precondition
to the granting of options; however, no person shall have any rights under any
option granted under the Plan unless and until the optionee to whom such option
shall have been granted shall have executed and delivered to the Company an
Agreement. The Committee shall prescribe the form of the Agreement. A fully
executed original of the Agreement shall be provided to both the Company and the
optionee.
3. Shares of Stock Subject to the Plan
The total number of shares that may be optioned or awarded
under the Plan is 3,000,000 shares of Common Stock plus an additional amount of
shares on May 1 each year, from May 1, 1999 to May 1, 2007, inclusive, equal to
one percent (1%) of the number of shares of Common Stock outstanding on the
immediately preceding April 30 (the "Additional Annual Increment"), of which (i)
150,000 shares plus shares equal to twenty percent (20%) of each Additional
Annual Increment may be awarded as restricted stock and (ii) no more than
2,000,000 shares may be awarded as Incentive Stock Options, as defined in
Section 422 of the Code, except that, notwithstanding any of the foregoing
limitations set forth in this Paragraph 3, said numbers of shares shall be
adjusted as provided in Paragraph 12. Any shares subject to an option which for
any reason expires or is terminated unexercised and any restricted stock which
is forfeited may again be optioned or awarded under the Plan; provided, however,
that forfeited shares shall not be available for further awards if the employee
has realized any benefits of ownership from such shares. Shares subject to the
Plan may be either authorized and unissued shares or issued shares acquired by
the Company or its subsidiaries.
4. Eligibility
Key employees, including officers, of the Company and its
subsidiaries (but excluding members of the Committee), are eligible to be
granted options and awarded restricted stock under the Plan and to have their
bonuses payable in stock. The employees who shall receive awards or options
under the Plan shall be selected from time to time by the Committee, in its sole
discretion, from among those eligible, and the Committee shall determine, in its
sole discretion, the number of shares to be covered by the award or awards and
by the options or options granted to each such employee selected.
5. Duration of the Plan
The Plan shall terminate upon the earlier of the following
dates or events to occur:
(a) upon the adoption of a resolution of the Board terminating
the Plan; or
(b) ten years from the date of adoption of the Plan by the
Board; or
(c) the date all shares of Common Stock subject to the Plan
shall have been purchased according to the Plan's provisions.
No such termination of the Plan shall affect the rights of any
participant hereunder and all options previously granted and restricted stock
and stock bonus awarded hereunder shall continue in force and in operation after
the termination of the Plan, except as they may be otherwise terminated in
accordance with the terms of the Plan.
6. Terms and Conditions of Stock Options
All options granted under this Plan shall be either Incentive
Stock Options as defined in Section 422 of the Code or options other than
Incentive Stock Options. Each such option shall be subject to all the applicable
provisions of the Plan, including the following terms and conditions, and to
such other terms and conditions not inconsistent therewith as the Committee
shall determine.
(a) The option price per share shall be determined by the
Committee. However, the option price shall not be less than 100% of the fair
market value at the time the option is granted. The fair market value shall be
the closing price of the Common Stock as reported on NASDAQ for the day on which
the option is granted. In the event that the method for determining the fair
market value of the shares provided for in this Paragraph 6(a) shall not for any
reason be practicable, then the fair market value per share shall be determined
by such other reasonable method as the Committee shall, in its discretion,
select and apply at the time of grant of the option concerned.
(b) Each option shall be exercisable during and over such
period ending not later than ten years from the date it was granted, as may be
determined by the Committee and stated in the option.
(c) No option shall be exercisable prior to the expiration of
the period specified by the Committee at the time of grant (the "vesting
period"), which period shall not be less than six (6) months, except as provided
in Paragraphs 6(j), 9 and 12 of the Plan.
(d) Each option shall state whether it will or will not be
treated as an Incentive Stock Option.
(e) Each option may be exercised by giving written notice to
the Company specifying the number of shares to be purchased, which shall be
accompanied by payment in full including applicable taxes, if any. Payment shall
be (i) in cash, or (ii) in shares of Common Stock of the Company already owned
by the optionee (the value of such stock shall be its fair market value on the
date of exercise as determined under Paragraph 6(a), or (iii) by a combination
of cash and shares of Common Stock of the Company. No option shall be exercised
for less than the lesser of 50 shares or the full number of shares for which the
option is then exercisable. No optionee shall have any rights to dividends or
other rights of a shareholder with respect to shares subject to his option until
he has given written notice of exercise of his option and paid in full for such
shares. Tax withholding obligations may be met by the withholding of Common
Stock otherwise deliverable to the optionee pursuant to procedures approved by
the Committee. In no event shall Common Stock be delivered to any optionee until
he has paid to the Company in cash the amount of tax required to be withheld by
the Company or has elected to have his tax withholding obligations met by the
withholding of Common Stock in accordance with the procedures approved by the
Committee, except that in the case of later tax dates under Section 83 of the
Code, the Company may deliver Common Stock prior to the optionee's satisfaction
of tax withholding obligations if the optionee makes arrangements satisfactory
to the Company that such obligations will be met on the applicable tax date.
(f) Notwithstanding the foregoing Paragraph 6(e) of the Plan,
each option granted hereunder may provide, or be amended to provide, the right
either (i) to exercise such option in whole or in part without any payment of
the option price, or (ii) to request the Committee to permit, in its sole
discretion, such exercise without any payment of the option price. If an option
is exercised without a payment of the option price, the optionee shall be
entitled to receive that number of whole shares as is determined by dividing (a)
an amount equal to the fair market value per share on the date of exercise as
determined under Paragraph 6(a) into (b) an amount equal to the excess of the
total fair market value of the shares on such date as so determined with respect
to which the option is being exercised over the total cash purchase price of
such shares as set forth in the option. Fractional shares will be rounded to the
next lowest number and the optionee will receive cash in lieu thereof. At the
sole discretion of the Committee, or as specified in the option, the settlement
of all or part of an optionee's rights under this Paragraph 6(f) may be made in
cash in an amount equal to the fair market value of the shares otherwise payable
hereunder. The number of shares with respect to which any option is exercised
under this Paragraph 6(f) shall reduce the number of shares thereafter available
for exercise under the option, and such shares thereafter may not again be
optioned under the Plan.
(g) Each option may provide, or be amended to provide, that
the optionee may exercise the option without payment of the option price by
delivery to the Company of an exercise notice and irrevocable instructions to
deliver shares of Common Stock directly to the brokerage firm named therein in
exchange for payment of the option price and withholding taxes by such brokerage
firm to the Company.
(h) If an optionee's employment by the Company or a subsidiary
terminates by reason of his retirement under a retirement plan of the Company or
a subsidiary, his option may thereafter be exercised whenever the vesting period
has elapsed until the expiration of the stated period of the option; provided,
however, that if the optionee dies after such termination of employment, any
unexercised option may thereafter be immediately exercised in full by the legal
representative of his estate or by the legatee of the optionee under his last
will until the expiration of the stated period of the option; provided, further,
that any right granted to such an optionee pursuant to Paragraph 6(f) of the
Plan, shall terminate on the date of such termination of employment.
(i) If an optionee's employment by the Company or a subsidiary
terminates by reason of permanent disability, as determined by the Committee,
his option may thereafter be exercised whenever the vesting period has elapsed
until the expiration of the stated period of the option; provided, however, that
if the optionee dies after such termination of employment, any unexercised
option may thereafter be immediately exercised in full by the legal
representative of his estate or by the legatee of the optionee under his last
will until the expiration of the stated period of the option; provided, further,
that any right granted to such an optionee pursuant to Paragraph 6(f) of the
Plan, shall terminate on the date of such termination of employment.
(j) If an optionee's employment by the Company or a subsidiary
terminates by reason of his death, his option may thereafter be immediately
exercised in full by the legal representative of his estate or by the legatee of
the optionee under his last will until the expiration of the stated period of
the option; provided, however, that any right granted to such an optionee
pursuant to Paragraph 6(f) of the Plan, shall terminate on the date of his
death.
(k) Unless otherwise determined by the Committee, if an
optionee's employment terminates for any reason other than death, retirement or
permanent disability, his option shall thereupon terminate.
(l) The option by its terms shall be personal and shall not be
transferable by the optionee otherwise than by will or by the laws of descent
and distribution. During the lifetime of an optionee, the option shall be
exercisable only by him.
(m) Notwithstanding any intent to grant Incentive Stock
Options, an option granted will not be considered an Incentive Stock Option to
the extent that it together with any earlier Incentive Stock Options permits the
exercise for the first time in any calendar year of more than $100,000 in value
of Common Stock (determined at the time of grant).
(n) In the event any option is exercised by the executors,
administrators, heirs or distributees of the estate of a deceased optionee, the
Company shall be under no obligation to issue Common Stock thereunder unless and
until the Company is satisfied that the person or persons exercising the option
are the duly appointed legal representative of the deceased optionee's estate or
the proper legatees or distributees thereof.
(o) No Incentive Stock Option shall be granted to an employee
who owns immediately before the grant of such option, directly or indirectly,
stock possessing more than 10% of the total combined voting power of all classes
of stock of the Company. This restriction does not apply if, at the time such
Incentive Stock Option is granted, the option price is at least 110% of the fair
market value of one share of Common Stock, as determined in Paragraph 6(a), on
the date of grant and the Incentive Stock Option by its terms is not exercisable
after the expiration of five years from the date of grant.
7. Terms and Conditions of Restricted Stock Awards
All awards of restricted stock under the Plan shall be subject
to all the applicable provisions of the Plan, including the following terms and
conditions, and to such other terms and conditions not inconsistent therewith,
as the Committee shall determine.
(a) Awards of restricted stock may be in addition to or in
lieu of option grants.
(b) During a period set by the Committee at the time of each
award of restricted stock (the "restriction period"), the recipient shall not be
permitted to sell, transfer, pledge, or assign the shares of restricted stock.
(c) Shares of restricted stock shall become free of all
restrictions if the recipient dies or his employment terminates by reason of
permanent disability, as determined by the Committee, during the restriction
period and, to the extent set by the Committee at the time of the award or
later, if the recipient retires under a retirement plan of the Company or a
subsidiary during such period. The Committee may require medical evidence of
permanent disability, including medical examinations by physician(s) selected by
it. If the Committee determines that any such recipient is not permanently
disabled or that a retiree's restricted stock is not to become free of
restrictions, the restricted stock held by either such recipient, as the case
may be, shall be forfeited and revert to the Company.
(d) Shares of restricted stock shall be forfeited and revert
to the Company upon the recipient's termination of employment during the
restriction period for any reason other than death, permanent disability or
retirement under a retirement plan of the Company or a subsidiary except to the
extent the Committee, in its sole discretion, finds that such forfeiture might
not be in the best interest of the Company and, therefore, affirmatively waives
in writing all or part of the application of this provision to the restricted
stock held by such recipient.
(e) Stock certificates for restricted stock shall be
registered in the name of the recipient but shall be appropriately legended and
returned to the Company by the recipient, together with a stock power, endorsed
in blank by the recipient. The recipient shall be entitled to vote shares of
restricted stock and shall be entitled to all dividends paid thereon, except
that dividends paid in Common Stock or other property shall also be subject to
the same restrictions.
(f) Restricted stock shall become free of the foregoing
restrictions upon expiration of the applicable restriction period and the
Company shall deliver Common Stock certificates evidencing such stock.
(g) Recipients of restricted stock shall be required to pay
taxes to the Company upon the expiration of restriction periods or such earlier
dates as elected pursuant to Section 83 of the Code; provided, however, tax
withholding obligations may be met by the withholding of Common Stock otherwise
deliverable to the recipient pursuant to procedures approved by the Committee.
In no event shall Common Stock be delivered to any awardee until he has paid to
the Company in cash the amount of tax required to be withheld by the Company or
has elected to have his withholding obligations met by the withholding of Common
Stock in accordance with the procedures approved by the Committee.
8. Bonuses Payable in Stock
In lieu of cash bonuses otherwise payable under the Company's
compensation practices to employees eligible to participate in the Plan, the
Committee, in its sole discretion, may determine that such bonuses shall be
payable in stock or partly in stock and partly in cash. Such bonuses shall be in
consideration of services previously performed and shall consist of shares of
Common Stock free of any restrictions imposed by the Plan. The number of shares
of Common Stock payable in lieu of an amount of each bonus otherwise payable
shall be determined by dividing such amount by the fair market value of one
share of Common Stock on the date the bonus is payable, with the fair market
value determined in accordance with Paragraph 6(a). The Company shall withhold
from any such bonus an amount of cash sufficient to meet its tax withholding
obligations.
9. Limited Rights
Any option granted under the Plan may, at the discretion of
the Committee, contain provisions for limited rights, as described herein. A
limited right shall be exercisable upon the occurrence of an event specified in
the option as an exercise event, and shall expire thirty (30) days after the
occurrence of such event. Exercise events may include, at the discretion of the
Committee and as specified in the option, consummation of a tender or exchange
offer for at least 20% of the Company's Common Stock outstanding at the
commencement of such offer or a proxy contest the result of which is the
replacement of a majority of the members of the Company's Board of Directors, or
consummation of a merger or reorganization of the Company in which the Company
does not survive or in which the shareholders of the Company receive stock or
securities of another corporation or cash, or a liquidation or dissolution of
the Company or other similar events. Limited rights shall permit optionees to
receive in cash either (i) the highest market price per share for each share
covered by an option, without regard to the date on which the option otherwise
would be exercisable, which the Company's Common Stock traded on NASDAQ for the
sixty days immediately preceding the exercise event or (ii) if provided by the
Committee in its discretion at the time of grant, the highest market price per
share for each share covered by the option which the Company's Common Stock
traded on NASDAQ on the date of exercise, less the option price per share
specified in the option. In the event the exercise event is consummation of a
tender or exchange offer, the value per share set by the tenderor or offeror
shall be substituted for the highest market price per share provided in clause
(i) in the preceding sentence. Limited rights shall not extend the exercise
period of any option and, to the extent exercised, shall reduce the shares of
Common Stock available under the Plan and the shares of Common Stock covered by
the options to which the limited rights relate.
10. Transfer, Leave of Absence, Etc.
For the purpose of the Plan: (a) a transfer of an employee
from the Company to a subsidiary, or vice versa, or from one subsidiary to
another, and (b) a leave of absence, duly authorized in writing by the Company,
shall not be deemed a termination of employment.
11. Rights of Employees
(a) No person shall have any rights or claims under the Plan
except in accordance with the provisions of the Plan.
(b) Nothing contained in the Plan shall be deemed to give any
employee the right to be retained in the service of the Company or its
subsidiaries.
12. Changes in Capital
Upon changes in the Common Stock by a stock dividend,
extraordinary dividend payable in cash or property, stock split, reverse split,
subdivision, recapitalization, merger, consolidation (whether or not the Company
is a surviving corporation), combination or exchange of shares, separation,
reorganization or liquidation, the number and class of shares available under
the Plan as to which stock options and restricted stock may be awarded, the
number and class of shares under each option or award and the option price per
share shall be correspondingly adjusted by the Committee, such adjustments to be
made in the case of outstanding options without change in the total price
applicable to such options; provided, however, no such adjustments shall be made
in the case of stock dividends aggregating in any fiscal year of the Company not
more than 5% of the Common Stock issued and outstanding at the beginning of such
year or in the case of one or more splits, subdivisions or combinations of the
Common Stock during any fiscal year of the Company resulting in an increase or
decrease of not more than 5% of the Common Stock issued and outstanding at the
beginning of such year.
In the event of a "Change of Control of the Company" (as
hereinafter defined) (i) all restrictions on restricted stock previously awarded
to recipients under the Plan shall lapse and (ii) all stock options and stock
appreciation rights which are outstanding shall become immediately exercisable
in full without regard to any limitations of time or amount otherwise contained
in the Plan, the options or the rights. Further, in the event of a Change in
Control of the Company, the Committee may determine that the options shall be
adjusted and make such adjustments by substituting for Common Stock subject to
options, stock or other securities of any successor corporation to the Company
that may be issuable by another corporation that is a party to such Change in
Control of the Company if such stock or other securities are publicly traded or,
if such stock or other securities are not publicly traded, by substituting stock
or other securities of a parent or affiliate of such corporation if the stock or
other securities of such parent or affiliate are publicly traded, in which event
the aggregate option price shall remain the same and the amount of shares or
other securities subject to options shall be the amount of shares or other
securities which could have been purchased on the day of the Change in Control
of the Company with the proceeds which would have been received by the optionee
if the option had been exercised in full prior to such Change in Control of the
Company and the optionee had exchanged all of such shares in the Change in
Control transaction. No optionee shall have any right to prevent the
consummation of any of the foregoing acts affecting the number of shares
available to the optionee.
For purposes of the foregoing, a "Change in Control of the
Company" shall be deemed to have occurred upon the occurrence of one of the
following events:
(a) "any person," as such term is used in
Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the
"Exchange Act") (other than the Company, any
employee benefit plan sponsored by the
Company, any trustee or other fiduciary
holding securities under an employee benefit
plan of the Company, or any corporation
owned, directly or indirectly, by the
stockholders of the Company in substantially
the same proportion as their ownership of
stock of the Company), is or becomes (other
than pursuant to a transaction which is
deemed to be a "Non-Qualifying Transaction"
under Subsection 12(c)) the "beneficial
owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of
securities of the Company representing 50%
or more of the combined voting power of the
Company's then outstanding securities
eligible to vote for the election of the
Board of Directors of the Company (the
"Company Voting Securities"); or
(b) individuals who, on January 31, 1998,
constitute the Board of Directors of the
Company (the "Incumbent Directors") cease
for any reason to constitute at least a
majority of the Board of Directors of the
Company, provided that any person becoming a
director subsequent to January 31, 1998,
whose election or nomination for election
was approved by a vote of at least
two-thirds of the Incumbent Directors then
on the Board of Directors of the Company
(either by a specific vote or by approval of
the proxy statement of the Company in which
such person is named as a nominee for
director, without written objection to such
nomination) shall be an Incumbent Director;
provided, however, that no individual
initially elected or nominated as a director
of the Company as a result of an actual or
threatened election contest with respect to
directors (including without limitation in
order to settle any such contest) or any
other actual or threatened solicitation of
proxies by or on behalf of any person other
than the Board of Directors of the Company
shall be an Incumbent Director; or
(c) the stockholders of the Company approve a
merger, consolidation, statutory share
exchange or similar form of corporate
transaction involving the Company or any of
its subsidiaries that requires such
approval, whether for such transaction or
the issuance of securities in the
transaction (a "Business Combination"),
unless immediately following such Business
Combination: (i) more than 50% of the total
voting power of (x) the corporation
resulting from such Business Combination
(the "Surviving Corporation"), or (y) if
applicable, the ultimate parent corporation
that directly or indirectly has beneficial
ownership of 100% of the voting securities
eligible to elect directors of the Surviving
Corporation (the "Parent Corporation"), will
be represented by Company Voting Securities
that were outstanding immediately prior to
such Business Combination (or, if
applicable, shares into which such Company
Voting Securities were converted pursuant to
such Business Combination), (ii) no person
(other than any employee benefit plan
sponsored or maintained by the Surviving
Corporation or the Parent Corporation) will
be or becomes the beneficial owner, directly
or indirectly, of 25 % or more of the total
voting power of the outstanding voting
securities eligible to elect directors of
the Parent Corporation (or, if there is no
Parent Corporation, the Surviving
Corporation) and (iii) at least a majority
of the members of the board of directors of
the Parent Corporation (or, if there is no
Parent Corporation, the Surviving
Corporation) following the consummation of
the Business Combination were Incumbent
Directors at the time of the approval of the
Board of Directors of the Company of the
execution of the initial agreement providing
for such Business Combination (any Business
Combination which satisfies all of the
criteria specified in (i), (ii) and (iii)
above shall be deemed to be a
"Non-Qualifying Transaction"); or
(d) the stockholders of the Company approve a
plan of complete liquidation or dissolution
of the Company or an agreement for the sale
or disposition by the Company of all or
substantially all of the Company's assets.
Anything contained herein to the contrary notwithstanding, a
Change in Control of the Company shall be deemed not to have occurred with
respect to any optionee who participates as an investor in the acquiring entity
(which shall include the Parent Corporation) in any such Change in Control
transaction unless such acquiring entity is a publicly-traded corporation and
the optionee's interest in such acquiring entity immediately prior to the
acquisition constitutes less than one percent (1 %) of both (1) the combined
voting power of such entity's outstanding securities and (2) the aggregate fair
market value of such entity's outstanding equity securities. For this purpose
the optionee's interest in any equity securities shall include any such interest
of which such optionee is a beneficial owner.
13. Use of Proceeds
Proceeds from the sale of shares pursuant to options granted
under this Plan shall constitute general funds of the Company.
14. Amendments
The Board of Directors may amend, alter or discontinue the
Plan, including without limitation any amendment considered to be advisable by
reason of changes to the United States Internal Revenue Code, but no amendment,
alteration or discontinuation shall be made which would impair the rights of any
holder of an award of restricted stock or option or stock bonus theretofore
granted, without his consent, or which, without the approval of the
shareholders, would:
(a) except as is provided in Paragraph 12 of the Plan,
increase the total number of shares reserved for the purpose of the Plan.
(b) except as is provided in Paragraphs 6(f) and 12 of the
Plan, decrease the option price of an option to less than 100% of the fair
market value on the date of the granting of the option.
(c) change the class of persons eligible to receive an award
of restricted stock or options under the Plan; or
(d) extend the duration of the Plan.
The Committee may amend the terms of any award of restricted
stock or option theretofore granted, retroactively or prospectively, but no such
amendment shall impair the rights of any holder without his consent.
15. Miscellaneous Provisions
(a) The Plan shall be unfunded. The Company shall not be
required to establish any special or separate fund or to make any other
segregation of assets to assure the issuance of shares upon exercise of any
option under the Plan.
(b) It is understood that the Committee may, at any time and
from time to time after the granting of an option or the award of restricted
stock or bonuses payable in Common Stock hereunder, specify such additional
terms, conditions and restrictions with respect to such option or stock as may
be deemed necessary or appropriate to ensure compliance with any and all
applicable laws, including, but not limited to, terms, restrictions and
conditions for compliance with federal and state securities laws and methods of
withholding or providing for the payment of required taxes.
(c) If at any time the Committee shall determine, in its
discretion, that the listing, registration or qualification of shares of Common
Stock upon any national securities exchange or under any state or federal law,
or the consent or approval of any governmental regulatory body, is necessary or
desirable as a condition of, or in connection with, the sale or purchase of
shares of Common Stock hereunder, no option or stock appreciation right may be
exercised or restricted stock or stock bonus may be transferred in whole or in
part unless and until such listing, registration, qualification, consent or
approval shall have been effected or obtained, or otherwise provided for, free
of any conditions not acceptable to the Committee.
(d) The Plan shall be governed by and construed in accordance
with the laws of the State of New Jersey.
16. Limits of Liability
(a) Any liability of the Company or a subsidiary of the
Company to any Participant with respect to an option or stock or other award
shall be based solely upon contractual obligations created by the Plan and the
Agreement.
(b) Neither the Company nor a subsidiary of the Company, nor
any member of the Committee or the Board, nor any other person participating in
any determination of any question under the Plan, or in the interpretation,
administration or application of the Plan, shall have any liability to any party
for any action taken or not taken in connection with the Plan, except as may
expressly be provided by statute.
PITNEY, HARDIN, KIPP & SZUCH
(MAIL TO)
P.O. BOX 1945
MORRISTOWN, NEW JERSEY 07962-1945
------
(DELIVERY TO)
200 CAMPUS DRIVE
FLORHAM PARK, NEW JERSEY 07932-0950
(973) 966-6300
FACSIMILE (973) 966-1550
June 24, 1999
Base Ten Systems, Inc.
One Electronics Drive
Trenton, New Jersey 08619
Re: Registration Statement on Form S-8
1998 Stock Option and Stock Award Plan
We have examined the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by Base Ten Systems, Inc. (the "Company")
with the Securities and Exchange Commission in connection with the registration
under the Securities Act of 1933, as amended (the "Act"), of 3,360,000 shares of
Class A Common Stock of the Company, $1.00 par value (the "Shares") issuable
pursuant to awards granted under the 1998 Stock Option and Stock Award Plan (the
"Plan").
We have also examined originals, or copies certified or otherwise
identified to our satisfaction, of the Plan, the 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, we are of the opinion that, when the
Registration Statement has become effective under the Act, and the Shares shall
have been duly issued in the manner contemplated by the Registration Statement
and the Plan, the Shares will be legally issued, fully paid and non-assessable.
The foregoing opinion is limited to the federal laws of the United
States and 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 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,
PITNEY, HARDIN, KIPP & SZUCH
Exhibit 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
-----------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated April 12, 1999 relating to the
financial statements, which appears in the 1998 Annual Report to Shareholders of
Base Ten Systems, Inc., which is incorporated by reference in Base Ten Systems,
Inc.'s Annual Report on Form 10-K/A-1 for the year ended December 31, 1998.
PRICEWATERHOUSECOOPERS LLP
Florham Park, New Jersey
June 23, 1999
Exhibit 23(b)
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 February 6, 1998,
appearing in the Annual Report on Form 10-K/A-1 of Base Ten Systems, Inc. for
the year ended December 31, 1998.
DELOITTE & TOUCHE LLP
Parsippany, New Jersey
June 21, 1999
