-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, RnCsRMjKlHruwXxEMLIR4sv+TvIRyITLarXm0w5M0pLQ+L2gtkYy0tETx4ftTpus VFlkj8hSNxFT1ZMGiOeoRw== 0000927796-98-000222.txt : 19980727 0000927796-98-000222.hdr.sgml : 19980727 ACCESSION NUMBER: 0000927796-98-000222 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19980724 EFFECTIVENESS DATE: 19980724 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: BASE TEN SYSTEMS INC CENTRAL INDEX KEY: 0000010242 STANDARD INDUSTRIAL CLASSIFICATION: SEARCH, DETECTION, NAVIGATION, GUIDANCE, AERONAUTICAL SYS [3812] IRS NUMBER: 221804206 STATE OF INCORPORATION: NJ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-59881 FILM NUMBER: 98671313 BUSINESS ADDRESS: STREET 1: ONE ELECTRONICS DR CITY: TRENTON STATE: NJ ZIP: 08619 BUSINESS PHONE: 6095867010 MAIL ADDRESS: STREET 1: ONE ELECTRONICS DR CITY: TRENTON STATE: NJ ZIP: 08619 S-8 1 REGISTRATION STATEMENT ON FORM S-8 As filed with the Securities and Exchange Commission on July 24, 1998 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 (State or Other Jurisdiction (I.R.S. Employer Identification No.) of Incorporation or Organization) ONE ELECTRONICS DRIVE TRENTON, NEW JERSEY 08619 (Address, including Zip Code, of Principal Executive Offices) 1998 EMPLOYEE STOCK PURCHASE PLAN (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 (Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service) ---------------------- With a copy to: WARREN J. CASEY, ESQ. PITNEY, HARDIN, KIPP & SZUCH P.O. BOX 1945 MORRISTOWN, NEW JERSEY 07962 (973) 966-6300
CALCULATION OF REGISTRATION FEE - ----------------------------- ---------------------- ----------------------- ---------------------- ---------------------- Title of Amount Proposed Maximum Proposed Maximum Amount of Securities to to be Offering Price Aggregate Registration be Registered Registered(1) Per Share(2) Offering Price Fee - ----------------------------- ---------------------- ----------------------- ---------------------- ---------------------- - ----------------------------- ---------------------- ----------------------- ---------------------- ---------------------- Class A Common Stock, $1.00 1,000,000 $3.09375 $3,093,750 $912.66 Par Value Total Registration Fee $912.66 - ----------------------------- ---------------------- ----------------------- ---------------------- ----------------------
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933, this Registration Statement also covers an indeterminate number of shares of Class A Common Stock that may be issuable pursuant to anti-dilution provisions contained in the 1998 Employee Stock Purchase Plan (the "Plan"). (2) Estimated solely for the purpose of calculating the registration fee. Such estimate has been computed in accordance with Rule 457(c) and Rule 457(h)(1) based on the average high and low prices of the Registrant's Class A Common Stock as reported on the NASDAQ National Market on July 22, 1998. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS ITEM 1. Plan Information Not filed with this Registration Statement. ITEM 2. Registrant Information and Employee Plan Annual Information Not filed with this Registration Statement. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. Incorporation of Documents by Reference. The following documents filed by Base Ten Systems, Inc. ("Base Ten" or the "Registrant") with the Securities and Exchange Commission (the "Commission") are incorporated by reference in this Registration Statement: 1. Annual Report on Form 10-K for the year ended October, 31, 1997 filed on February 11, 1998. 2. Amendment to Annual Report on Form 10-K/A for the year ended October 31, 1997 filed on February 27, 1998. 3. The Description of the Registrant's Capital Stock contained in the Current Report on Form 8-K, filed on April 23, 1998. 4. Form 8-K, filed on November 12, 1997, reporting the sale of all the assets, subject to certain liabilities, of the Registrant's Government Technology Division. 5. Form 8-K, filed on December 18, 1997, reporting the sale of the first installment of the sale of $19 million of Convertible Preferred Shares. 6. Form 8-K, filed on January 9, 1998, reporting the completion of the sale of the Government Technology Division and the second and final installment of the sale of $19 million of Convertible Preferred Shares. 7. Form 8-K, filed on February 2, 1998, reporting the Registrant's change in fiscal year. 8. Form 8-K, filed on March 6, 1998, reporting the Registrant's execution of a Definitive Purchase Agreement with Consilium, Inc. under which the Registrant purchased the assets of Consilium's Health Care and Process business unit for a cash consideration of $1.5 million and the assumption of certain maintenance and warranty obligations. 9. Form 8-K, filed on March 9, 1998, reporting the dismissal of Deloitte & Touche LLP as the principal accountant to audit the Registrant's financial statements. 10. Form 8-K, filed on March 16, 1998, reporting the appointment of Price Waterhouse LLP as the principal accountant to audit the Registrant's financial statements. 11. Quarterly Report on Form 10-Q for the transition period from November 1, 1997 to December 31, 1997, filed on March 16, 1998. 12. Amendment No. 1 to Form 8-K, filed on May 5, 1998, amending the Form 8-K filed on March 6, 1998. 13. Quarterly Report on Form 10-Q for the quarter ended March 31, 1998, filed on May 15, 1998. 14. Amendment No. 2 to Form 8-K, filed on May 11, 1998, amending the Form 8-K filed on March 6, 1998. All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, hereby are incorporated herein by reference and shall be deemed a part hereof from the date of filing of such documents. 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 Registration Statement 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 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. ITEM 5. Interests of Named Experts and Counsel. Not applicable. ITEM 6. Indemnification of Directors and Officers. Article 9 of the Registrant'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 o 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 the Registrant'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 the Registrant's By-Laws, as amended, entitled "Indemnification: Insurance," provides as follow: 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 contemplated 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 permitted by law, and shall advance expenses incurred by such person in any such action to the maximum extent permitted by law in accordance with the procedures 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 expense (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 stockholder 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 settlement, 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) were 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 order 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 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, Zurich Insurance Company of Philadelphia, PA and Genesis Insurance Company of Stamford, CT. 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 property 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. ITEM 7. Exemption from Registration Claimed. Not applicable. ITEM 8. Exhibits. 4(d) 1998 Employee Stock Purchase Plan. 5 Opinion of Pitney, Hardin, Kipp & Szuch, as to the legality of the securities being registered. 23(a) Consent of Deloitte & Touche LLP. 23(b) Consent of Pitney, Hardin, Kipp & Szuch (included in Exhibit 5 hereto). 24 Power of Attorney (included on signature page hereto). ITEM 9. Undertakings. 1. The undersigned Registrant hereby undertakes: (a) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement. (b) That, for purposes 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. (c) 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 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this 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 foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. 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 the City of Trenton, State of New Jersey, on this 24th day of July, 1998.
BASE TEN SYSTEMS, INC. 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)
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.
Signature Title Date THOMAS E. GARDNER __________________________ July 24, 1998 Thomas E. Gardner Chief Executive Officer, Chairman of the Board, President, and Director (Principal Executive Officer) ALEXANDER M. ADELSON __________________________ July 24, 1998 Alexander M. Adelson Director DAVID C. BATTEN __________________________ July 24, 1998 David C. Batten Director __________________________ July , 1998 Alan S. Poole Director WILLIAM SWORD __________________________ July 24, 1998 William Sword Director __________________________ July , 1998 Carl W. Schafer Director
INDEX TO EXHIBITS Exhibit No. Description 4(d) 1998 Employee Stock Purchase Plan. 5 Opinion of Pitney, Hardin, Kipp & Szuch. 23(a) Consent of Deloitte & Touche LLP. 23(b) Consent of Pitney, Hardin, Kipp & Szuch (included in Exhibit 5 hereto). 24 Power of Attorney (included on signature page hereto). EX-4 2 EX-4(D) - 1998 EMPLOYEE STOCK PURCHASE PLAN BASE TEN SYSTEMS, INC. EMPLOYEE STOCK PURCHASE PLAN ARTICLE I PURPOSE AND APPROVAL 1.1. Purpose of the Plan. The purpose of the Base Ten Systems, Inc. Employee Stock Purchase Plan is to provide a method whereby Employees of the Company may acquire a proprietary interest in the Company through the purchase of Shares of common stock of Base Ten Systems, Inc. The Plan is intended to qualify as an "Employee Stock Purchase Plan" as defined in Section 423 of the Code. The provisions of the Plan shall be construed so as to extend and limit participation in a manner consistent with the requirements of the Code. 1.2. Approval of the Plan. The Plan was adopted by the Board on January 13, 1998. The approval of the Plan by stockholders of the Company is required to be obtained within one (1) year following the adoption of the Plan by the Board for the Plan to be qualified under Section 423 of the Code. The Plan will be submitted to the stockholders at the 1998 Annual Meeting for this purpose. If for any reason the stockholders fail to approve the Plan within the required period of time, the Plan will not be implemented. ARTICLE II DEFINITIONS 2.1. "Account" means the account maintained by the Company for a Participant pursuant to Section 3.3. 2.2. "Act" means the Securities Exchange Act of 1934, as amended. 2.3. "Board" means the Board of Directors of the Company. 2.4. "Business Day" means a day on which there is trading on The New York Stock Exchange. 2.5. "Code" means the Internal Revenue Code of 1986, amended. 2.6. "Committee" means the Compensation Committee of the Board, or such other Committee as the Board may designate to administer the Plan pursuant to Article VI. 2.7. "Company" means Base Ten Systems, Inc. 2.8. "Compensation" means all base salary, wages, cash bonuses, commissions and overtime before giving effect to any compensation reductions made in connection with any plans described in Section 401(k) or Section 125 of the Code, and any other payments designated by the Committee. 2.9. "Effective Date" means the effective date of the Plan identified in Section 7.8. 2.10. "Eligible Employee" means an Employee described in Section 3.2. 2.11. "Employee" means any person having an employment relationship with the Company or a Participating Corporation within the meaning of Code Section 423, subject to the exclusion of such persons or classes of persons as the Committee may determine is consistent with Section 423 of the Code and other applicable law. 2.12. "Exercise Price" means the purchase price for Shares purchased pursuant to the exercise of an Option identified in Section 4.1. 2.13. "Fair Market Value" means, with respect to Shares on any Business Day, the average of the high and low prices of the Shares on the NASDAQ on such date as published in the Wall Street Journal for such day; provided that if prices of Shares shall not be so published, the Fair Market Value of a Share shall be determined by the Committee. 2.14. "Offering" means an offering to Employees of Options to purchase Shares under Section 4.1. 2.15. "Offering Commencement Date" means the first business day of each Offering Period. 2.16. "Offering Period" means each period of twelve (12) months commencing on the Effective Date and thereafter on each anniversary of the Effective Date during which the Plan is in effect. 2.17. "Option" means an option to purchase Shares granted pursuant to the Plan. 2.18. "Participant" means an Eligible Employee who has elected to participate in the Plan pursuant to Section 3.3, and who has not become an ineligible Employee or withdrawn from participation in the Plan pursuant to Article III. 2.19. "Participating Corporation" means a corporation so designated pursuant to Section 3.1(B). 2.20. "Parent" means any corporation defined as such in Section 424(e) of the Code. 2.21. "Plan" means the Base Ten Systems, Inc. Employee Stock Purchase Plan. 2.22. "Plan Administrator" means the Committee except to the extent that the Committee may otherwise designate pursuant to Article VI. 2.23. "Purchase Date" means the last business day of each three (3) month period during an Offering Period with the first three (3) month period during each Offering Period commencing on the Effective Date or the anniversary of the Effective Date, as the case may be. 2.24. "Share" means one share of Class A Common Stock ($1.00 par value) of the Company. 2.25. "Subsidiary" means any corporation defined as such in Section 424(f) of the Code. 2.26. "Transfer Agent" means the officially designated transfer agent of the Company. ARTICLE III ELIGIBILITY AND PARTICIPATION 3.1. Granting of Options to Employees A. Granting of Options to Company Employees Only. To the extent permitted by the Plan, Options to purchase Shares hereunder shall only be granted to Employees of the Company or a Participating Corporation. B. Designation of Participating Corporations. Designations of additional corporations whose Employees may be granted Options to purchase Shares to the extent permitted hereunder will be made from time to time by the Committee. Such designations shall be of the Subsidiaries and Parents of the Company. C. Employee Rights and Privileges. All Employees granted Options under the Plan shall have the same rights and privileges, except that the Committee may from time to time provide for differences in the rights and privileges of Employees granted Options hereunder, so long as such differences do not jeopardize the qualification of the Plan under Code Section 423 or violate other applicable law. 3.2. Eligibility of Employees. Employees who qualify as Eligible Employees pursuant to this Section shall be eligible to elect to participate in the Plan in accordance with Section 3.3. A. Eligible Employees Defined. Except as otherwise required by Section 423 of the Code or other applicable law, an Employee (full or part time) shall be considered an Eligible Employee for the purposes of participation in the Plan on the first date following completion of sixty (60) days of service. B. Rehired Employees. If an Eligible Employee who has ceased to be an Employee becomes an Employee again on a date thereafter, such Employee automatically shall become an Eligible Employee effective as of the Offering Commencement Date following such date. C. Employees Deemed Ineligible For Participation (i) Approved Leave Of Absence. An Employees shall be deemed an ineligible Employees during the period such Employees is on a Company approved leave of absence. Such a Participant shall be deemed to have filed a withdrawal form in accordance with Section 3.4(A) on the date such Employee first begins such approved leave of absence, and such deemed filing shall have the same consequences as would the actual filing of a withdrawal form pursuant to Section 3.4(A). As of the Offering Commencement Date following the end of the period during which the approved leave of absence expires and the Employee returns to active employment with the Company or a Participating Corporation, such Employee shall no longer be deemed an ineligible Employee pursuant to this Section. (ii) 5% Owners. No Option shall be granted hereunder to any Employee who, immediately after the Option is granted, owns or would own, within the meaning of Section 424(d) of the Code, Shares possessing 5% or more of the total combined voting power or value of all classes of stock of the Company. For purposes of this Section, Shares that an Employee would be entitled to purchase during an Offering Period applicable to an Option that has been granted pursuant to Section 4.1 shall be treated as owned by the Employee. (iii) Employees With Exercise Rights In Excess Of $25,000 Per Year. No Option shall be granted hereunder to any Employee if, within the calendar year in which such Option first becomes exercisable, such Option (together with any other options that first become exercisable in such year that have been granted to the Employees under the Plan or any other qualified Employee stock purchase plan maintained by the Company) would provide the Employee with the right in such year to purchase Shares having a Fair Market Value (determined on the Offering Commencement Date applicable to each such Option) in excess of $25,000. (iv) Other Employees. The Committee may from time to time deem ineligible for participation hereunder any class or group of Employees, so long as the exclusion of such class or group from participation does not jeopardize the qualification of the Plan under Code Section 423 or violate other applicable law. 3.3. Election to Participate. A. Payroll Deduction Authorization Form. An Eligible Employee may elect to participate in the Plan by filing a properly completed authorization form, or such other authorization as the Plan Administrator shall require, with the party and by the date designated by the Plan Administrator. Such form shall authorize automatic payroll deductions from a Participant's Compensation for each pay period commencing on the Offering Commencement Date next succeeding receipt of the timely filed authorization form by the designated party (or such other date as may be designated by the Plan Administrator), and continuing until (i) the Participant changes the amount of such payroll deductions pursuant to Section 3.3(C), (ii) the Participant becomes an ineligible Employee or withdraws from participation in the Plan pursuant to Article III, (iii) the Plan is suspended or terminated pursuant to Section 7.11, or (iv) the Committee otherwise determines. If a Participant has not withdrawn or been deemed to have withdrawn from the Plan, such Participant does not need to re-enroll for subsequent Offering Periods. B. Amount of Payroll Deductions. The payroll deductions authorized by the Participant shall be in whole dollars, with a minimum of Five Dollars ($5.00) per pay period up to a maximum of ten percent (10%) of Compensation, for each pay period, in effect on the date the payroll deductions to which the authorization form relates are made. C. Changes in Payroll Deductions. Subject to Section 3.3(B), A Participant may increase or decrease the amount of payroll deductions previously authorized by filing a properly completed change form, or such other authorization as the Plan Administrator shall require, with the party and by the date designated by the Plan Administrator but in no event more often than once during each three (3) month period ending on a Purchase Date. Such change shall be made in whole dollars subject to the limitation contained in Section 3.3(B) above, and shall be effective beginning as soon as practicable after the receipt of the timely filed change form by the designated party (or such other date as may be designated by the Plan Administrator). If a Participant reduces his or her participation level below the minimum set forth in Section 3.3(B), such Participant will be deemed to have withdrawn from the Plan. The deemed filing of a withdrawal form pursuant to this Section shall have the same consequences as would the actual filing of a withdrawal form pursuant to Section 3.4(A). D. Participant's Account. The Company shall maintain payroll deduction Accounts for all Participants. Payroll deductions made from a Participant's Compensation shall be credited to the Participant's Account, and shall be applied for the purchase of Shares pursuant to Article IV. A Participant may not make any separate cash payment into his or her Account. No interest shall be paid or allowed on any payroll deductions credited to a Participant's Account. 3.4. Withdrawal From Participation A. In General. A Participant may at any time withdraw from participation in the Plan by filing a properly completed withdrawal form, or such other authorization as the Plan Administrator shall require, with the party and by the date designated by the Plan Administrator. As soon as practicable after receipt of the timely filed withdrawal form by the designated party, (i) all payroll deductions then credited to the Participant's Account which have not already been applied for the purchase of Shares hereunder shall be paid to the Participant, (ii) no further payroll deductions shall be made from the Participant's Compensation and no Options shall be granted to the Participant during any Offering Period commencing thereafter, unless the Participant elects again to participate in the Plan pursuant to Section 3.3, and (iii) subject to the provisions of Section 4.2(C) of this Plan, unless otherwise designated in writing by the Participant, the Participant's Account shall remain in existence and all Shares in such Account at the time of withdrawal shall remain in the Account. Partial withdrawals from participation shall not be permitted. After a withdrawal or deemed withdrawal from participation, a Participant, if eligible, shall only be permitted to re-enroll in the Plan effective as of the next succeeding Offering Commencement Date. B. Termination of Employment. If a Participant ceases to be an Employee for any reason on or before the last working day preceding the 15th day prior to any Purchase Date, the Participant shall be deemed to have filed a withdrawal form in accordance with Section 3.4(A) on the date such Participant ceases to be an Employee. If the Participant ceases to be an Employee after such last working day, the Participant shall be deemed to have (i) exercised any outstanding Options in accordance with Article IV, and (ii) immediately thereafter filed a withdrawal form in accordance with Section 3.4(A). The deemed filing of a withdrawal form pursuant to this Section shall have the same consequences as would the actual filing of a withdrawal form pursuant to Section 3.4(A). ARTICLE IV GRANTING AND EXERCISE OF OPTIONS 4.1. Granting of Options A. Yearly Offerings. The Plan shall be implemented by Offerings to Participants of Options to purchase Shares. Offerings shall be made each Offering Period. Each Offering shall commence on the Offering Commencement Date and shall terminate on the day immediately prior to the next succeeding anniversary of the Effective Date. The first Offering Commencement Date shall be the Effective Date of the Plan as provided in Section 7.8. Offerings shall continue to be made under the Plan until the later of (i) the date the maximum number of Shares identified in Article V has been purchased pursuant to Options granted hereunder, or (ii) the Plan is terminated or suspended pursuant to Section 7.11. The Committee or the Board may from time to time change the duration and/or frequency of an Offering Period or the frequency with which Shares are purchased under the Plan by announcing such change to Participants at least fifteen (15) days prior to the scheduled beginning of the first Offering Period to be affected. B. Granting of Options. On the Offering Commencement Date for each Offering Period, a Participant automatically shall be granted a separate Option to purchase for the applicable Exercise Price (as defined in 4.1(C) below) a maximum number of full and fractional Shares equal to the accumulated payroll deductions credited to the Participant's Account as of each Purchase Date for such Period, divided by 85% of the lesser of (i) the Fair Market Value of the Shares on the Offering Commencement Date, or (ii) the Fair Market Value of the Shares on such Purchase Date. C. Exercise Price. The Exercise Price for Options granted hereunder shall be 85% of the lesser of (i) the Fair Market Value of the Shares on the Offering Commencement Date, or (ii) the Fair Market Value of the Shares on the Purchase Date. 4.2. Exercise of Options A. Automatic Exercise. Except as otherwise provided in the Plan or determined by the Committee, an Option granted to a Participant hereunder shall be deemed to have been exercised automatically on the Purchase Date applicable to such Option. Such exercise shall be for the purchase, on or as soon as practicable after each Purchase Date, of the number of full and/or fractional Shares that the accumulated payroll deductions credited to the Participant's Account as of such Purchase Date will purchase at the applicable Exercise Price (but not in excess of the number of Shares for which an Option has been granted to the Participant pursuant to Section 4.1). The Participant's Account shall be charged for the amount of the purchase, and the Participant's ownership of the Shares purchased shall be appropriately evidenced on the books of the Company. B. Restrictions on Exercise of Options (i) Exercise of Options. Any Option granted hereunder shall in no event be exercisable after the expiration of the Offering Period applicable thereto. (ii) Exercise by the Participant Only. During the Participant's lifetime, any option granted to the Participant shall be exercisable only by such Participant. (iii) Other Restrictions. Under no circumstances shall any Option be exercised, nor shall any Shares be issued hereunder, until such time as the Company shall have complied with all applicable requirements of (a) the Act, (b) all applicable listing requirements of any securities exchange on which the Shares are listed, and (c) all other applicable requirements of law or regulation. C. Issuance of Certificates. Until a Participant has satisfied the Holding Period for any Shares held under the Plan, the Shares must (unless a disqualifying disposition is made) remain in a Participant's Account. Therefore, a Participant may not request a certificate for his or her Shares until the Participant has satisfied the Holding Period with respect to Shares. Subject to the immediately preceding sentences of this Section 4.2(C), certificates with respect to Shares purchased hereunder shall be issued to the Participant upon request by the Participant to the party designated by the Plan Administrator. The party designated by the Plan Administrator shall cause the issuance and delivery of such certificates as soon as practicable after receipt of such a request. The Participant shall pay any fees charged by the Transfer Agent and/or the party designated by the Plan Administrator for its services. The Company shall not be required to issue any certificates for fractional shares. If a Participant requests certificates for Shares, the Company shall pay to the Participant cash in lieu of any fractional Shares, based on the Fair Market Value of such fractional Shares as of the date of issuance of such certificate(s). D. Registration of Certificates. Certificates shall be registered only in the name of the Participant. E. Rights as a Shareholder. The Participant shall have no rights or privileges of a shareholder of the Company with respect to Options granted or Shares purchased hereunder, unless and until such Shares shall have been appropriately evidenced on the books of the Company. F. Dividends. If the Company pays a cash dividend on Shares and a Participant is entitled to receive such dividend on Shares that have been purchased under the Plan, such dividend may be paid in cash or in the form of additional Shares, upon such terms and conditions as the Committee shall determine. ARTICLE V STOCK 5.1. Maximum Shares. The maximum aggregate number of Shares which may be purchased under the Plan shall be 1,000,000, subject to adjustment upon certain corporate changes as provided in Section 5.2. If the total number of Shares for which Options have been exercised on any Purchase Date exceeds such maximum number, the Committee shall make a pro rata allocation of the Shares available for purchase in as nearly a uniform manner as shall be practicable and as it shall determine to be equitable, and the balance of payroll deductions credited to the Account of each Participant shall, to the extent not applied for the purchase of Shares, be refunded to the Participants as soon as practicable thereafter. 5.2. Adjustment Upon Corporate Changes. In the event of any stock dividend, stock split, recapitalization (including, without limitation, the payment of an extraordinary dividend), merger, consolidation, combination, spin-off, distribution of assets to shareholders (other than ordinary cash dividends), exchange of Shares, or other similar corporate change with respect to the Company, the Committee (i) shall determine the kind of Shares that may be purchased under the Plan after such event, and (ii) may, in its discretion, adjust the aggregate number of Shares available for purchase under the Plan or subject to outstanding Options and the respective Exercise Prices applicable to outstanding Options. Any adjustment made by the Committee pursuant to the preceding sentence shall be conclusive and binding on the Company and all Employees. For purposes of this Section, any distribution of Shares to shareholders in an amount aggregating 20% or more of the outstanding Shares shall be deemed a stock split, and any distribution of Shares aggregating less than 20% of the outstanding Shares shall be deemed a stock dividend. ARTICLE VI ADMINISTRATION 6.1. Appointment of Committee. Except as otherwise delegated by the Committee pursuant to this Article VI, (i) the Plan shall be administered by the Committee, (ii) the Committee shall have full authority to administer and interpret the Plan in any manner it deems appropriate in its sole discretion, and (iii) the determination of the Committee shall be binding on and conclusive as to all parties. 6.2. Delegation of Certain Authority. The Committee may delegate any or all of its responsibility hereunder to such person or persons as it deems prudent. 6.3. Compliance with Applicable Law. The Plan shall not be interpreted or administered in any way that would cause the Plan to be in violation of Code Section 423 or other applicable law. 6.4. Expenses. The Company shall pay all expenses related to the administration of the Plan except charges imposed by the Transfer Agent for issuing certificates for Shares, sales charges and commissions applicable to the sale of Shares by a Participant, charges for back records and research performed at the request of the Participant, and such other expenses as may be designated by the Committee. The Participant shall pay all expenses related to administration of the Plan that are not paid for by the Company. ARTICLE VII MISCELLANEOUS 7.1. No Employment Rights. The Plan shall not, directly or indirectly, create in any Employee or class of Employees any right with respect to continuation of employment with the Company or any of its divisions, subsidiaries or affiliates. The Plan shall not interfere in any way with the Company's or any of its divisions', Subsidiaries', Parents' or affiliates' right to terminate, or otherwise modify, an Employee's employment at any time. 7.2. Rights Not Transferable. Any rights of the Participant under the Plan shall not be transferred other than (i) by will, and (ii) by the laws of descent or distribution. 7.3. Withholding. The Committee shall have the right to make such provisions as it deems appropriate to satisfy any obligation of the Company to withhold federal, state or local income or other taxes incurred by reason of the operation of the Plan. 7.4. Delivery of Shares to Estate Upon Death. In the event of the death of a Participant, any Shares purchased by the Participant hereunder, other than Shares as to which the Participant previously received certificates, shall be issued and delivered to the estate of the Participant as soon as practical thereafter. 7.5. Effect of Plan. The provisions of the Plan shall be binding upon, and inure to the benefit of, all successors of each Participant, including without limitation the Participant's estate and the executors, administrators or trustees thereof, heirs and legatees, and any receiver, trustee in bankruptcy or representative of creditors of such Participant. 7.6. Use of Funds. All funds received or held by the Company pursuant to the Plan may be used by the Company for any corporate purpose, and the Company shall not be obligated to segregate such funds from its general assets. Participants should be aware that the Plan is an unfunded plan and, therefore, with respect to such funds, Participants are unsecured creditors of the Company. 7.7. Plan Share Purchases. Shares subject to purchase by Participants under the Plan shall, in the discretion of the Committee, be made available from treasury Shares, authorized but unissued Shares, re-acquired Shares, and/or Shares purchased on the open market. 7.8. Effective Date. The Plan shall be effective on the first business day occurring after April 16, 1998, subject to its approval by the stockholders of the Company. 7.9. Amendments to the Plan. The Committee may from time to time make amendments to the Plan that it deems advisable and consistent with the purposes of the Plan and applicable law. Notwithstanding the foregoing, no amendment that would (i) effect an increase in the number of Shares which may be purchased under the Plan, which increase is of a type that would require shareholder approval under Code Section 423, or (ii) effect a change in the designation of the corporations whose Employees may be offered Options under the Plan, which change is of a type that would require shareholder approval under Code Section 423, shall become effective unless the shareholder approval required by Code Section 423 is obtained. 7.10. Subsidiary Plans Required to Satisfy Local Law. The Committee may approve or adopt discount Share purchase plans, or other similar or related plans consistent with the purposes of the Plan, for Employees of subsidiaries of the Company as required to meet the provisions of the tax or securities laws or other applicable laws, rules or regulations in the jurisdictions in which any subsidiary operates. Any Shares purchased under any such subsidiary plans shall be deemed to have been purchased under the Plan. The Committee, in its sole discretion and to the extent permitted by applicable law, may delegate its authority under this Section to (i) any other appropriate committee of the Company, or (ii) to the Chief Executive Officer of the Company or any other appropriate officer of the Company. 7.11. Termination or Suspension of the Plan. The Board shall have the power at any time to terminate or suspend the Plan and all rights of Employees under the Plan. Unless earlier terminated, the Plan will terminate by virtue of its terms on April 16, 2008. 7.12. Governing Law. The laws of the State of New Jersey shall govern all matters relating to the Plan, except to the extent such laws are superseded by the laws of the United States. 7.13. Merger Clause. The terms of the Plan are wholly set forth in this document, including certain standards of certain other plans which are to be applied to an Employee for purposes of the Plan to the extent provided herein, regardless of whether such Employee is covered under such plans. This Section shall in no way limit the authority of the Committee to administer the Plan as provided herein. EX-5 3 EX. 5 - OPINION OF PITNEY, HARDIN, KIPP & SZUCH PITNEY, HARDIN, KIPP & SZUCH (MAIL TO) P.O. BOX 1945 MORRISTOWN, NEW JERSEY 07962-1945 ------ (DELIVERY TO) 200 CAMPUS DRIVE 152 WEST 57TH STREET FLORHAM PARK, NEW JERSEY 07932-0950 (973) 966-6300 FACSIMILE (973) 966-1550 July 24, 1998 Base Ten Systems, Inc. One Electronics Drive Trenton, New Jersey 08619 Re: Registration Statement on Form S-8 1998 Employee Stock Purchase 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 1,000,000 shares of Class A Common Stock of the Company, $1.00 par value (the "Shares") issuable pursuant to awards granted under the 1998 Employee Stock Purchase 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 EX-23 4 EX. 23(A) - CONSENT OF DELOITTE & TOUCHE LLP Exhibit 23(a) Consent of Deloitte & Touche LLP 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 of Base Ten Systems, Inc. for the year ended October 31, 1997. DELOITTE & TOUCHE LLP Parsippany, New Jersey July 24, 1998 -----END PRIVACY-ENHANCED MESSAGE-----