As filed with the Securities and Exchange Commission on July 24, 1998
Registration No. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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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 of (I.R.S. Employer Identification No.)
Incorporation or Organization)
ONE ELECTRONICS DRIVE
TRENTON, NEW JERSEY 08619
(Address, including Zip Code, of Principal Executive Offices)
1998 DIRECTORS' STOCK OPTION 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)
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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
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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, $1.00 300,000 $3.09375 $928,125 $273.80
Par Value
Total Registration Fee
$273.80
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(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 Directors' Stock Option 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(c) 1998 Directors' Stock Option 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(c) 1998 Directors' Stock Option 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).