REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of June
11, 1999, is by and between Base Ten Systems, Inc., a New Jersey corporation
(the "Company") and Almedica International Inc., a Delaware corporation
("Almedica").
WHEREAS, the Company, Ex-BTS Clinical, Inc., a New Jersey corporation
("BTSC"), Almedica and Almedica Technology Group Inc., a New Jersey corporation
("ATG") are parties to that certain Agreement and Plan of Merger, dated as of
June 11, 1999 (the "Merger Agreement"); and
WHEREAS, unless otherwise defined in this Agreement, capitalized terms
used in this Agreement shall have the meanings ascribed to such terms in the
Merger Agreement; and
WHEREAS, the Merger Agreement provides for the merger of BTSC with and
into ATG; and
WHEREAS, the 736 shares of capital stock of ATG issued and outstanding
immediately prior to the Effective Time (the "ATG Shares") shall be converted
into and exchanged for an aggregate of 3,950,000 shares of Class A Common Stock,
par value $1.00 per share, of the Company (the "Base Ten Shares") to Almedica;
and
WHEREAS, the Company desires to grant to Almedica certain registration
rights in certain circumstances with respect to such Base Ten Shares (the
"Registrable Securities");
NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties to this Agreement hereby agree as follows:
1. Registration Rights.
(a) Registration Conditions. Almedica shall not be entitled to
any registration rights pursuant to this Agreement until June 12, 2000 and
unless a period of 12 months has elapsed since the Closing Date, and the number
of the Registrable Securities then beneficially owned by Almedica constitutes
10% or more of the Company's then outstanding Class A Common Stock. The
conditions set forth in this Section 1(a) shall be referred to as the
"Registration Conditions."
(b) Mandatory Registration. Provided that the Registration
Conditions have been satisfied, the Company shall, within 45 days following
receipt of a written request by Almedica, file a Registration Statement on Form
S-3 (if such form is then available for use by the Company, or if such form is
not then available for use by the Company, such form as is available to the
Company) permitting the registration of all or a portion of the Registrable
Securities for resale by Almedica in the manner reasonably designated by
Almedica; provided, however, the Company shall not be required to use any form
other than a Form S-3 (or such other form) so long as the Company's inability to
use a Form S-3 is solely a result of Almedica's breach of Section 7.8 of the
Merger Agreement. Almedica shall only be entitled to make one demand pursuant to
this Section 1(b), notwithstanding the fact that its one demand may cover only a
portion of the Registrable Securities then beneficially owned by Almedica;
provided, however, that a demand shall not be treated as a demand unless a
registration statement covering all of the shares as to which such demand was
made becomes effective for the full period covered by the following sentence.
Once effective, the Company shall use commercially reasonable efforts to keep
such registration statement continuously effective under the Securities Act of
1933 (the "Securities Act") until the earlier of (i) the date on which all of
the Registrable Securities have been sold, or (ii) 360 days after the
effectiveness of such registration statement (the "Registration Period").
(c) Piggyback Registration. Provided that the Registration
Conditions have been satisfied, the Company shall, at least 30 days prior to the
filing of any registration statement under the Securities Act (other than a
registration statement on Form S-8 or Form S-4 or any comparable or successor
forms) relating to the public offering of its Common Stock by the Company or any
of its security holders, give written notice of such proposed filing and of the
proposed date thereof to Almedica, and if, on or before the 20th day following
the date on which such notice is given, the Company shall receive a written
request from Almedica requesting that the Company include among the securities
covered by such registration statement some or all of the Registrable
Securities, the Company shall include such Registrable Securities in such
registration statement, if filed, so as to permit such Registrable Securities to
be sold or disposed of in the manner and on the terms of the offering thereof
set forth in such request. If the managing underwriter advises the Company in
writing that the inclusion in such registration of some or all of the
Registrable Securities sought to be registered by Almedica creates a substantial
risk that the proceeds or price per share that will be derived from such
registration will be reduced or that the number of shares to be registered at
the insistence of Almedica, plus the number of shares of Common Stock sought to
be registered by the Company and any other stockholders of the Company is too
large a number to be reasonably sold, then, in such event, the number of shares
sought to be registered for the stockholders of the Company shall be reduced,
pro rata in proportion to the number of shares sought to be registered to the
number of shares recommended be sold by the managing underwriter. Any
Registrable Securities excluded or withdrawn from such underwriting shall be
withdrawn from such registration. With respect to any excluded or withdrawn
Registrable Securities and any Registrable Securities not covered by Almedica's
request for inclusion in such registration statement, Almedica shall remain
entitled to receive additional notices pursuant to this Section 1(c) until all
Registrable Securities have been included in a registration statement either
pursuant to Section 1(b) or 1(c) of this Agreement. Once effective, the Company
shall use commercially reasonable efforts to keep such registration statement
continuously effective under the Securities Act during the Registration Period.
2. Terms and Conditions of Registration. Except as otherwise provided
herein, in connection with any registration statement filed pursuant to Section
1 above, the following provisions shall apply:
(a) In connection with a registration statement filed
pursuant to Section 1(c) above, the Company will enter into an underwriting
agreement with the underwriters for such offering, such agreement to be
reasonably satisfactory in form and substance to the Company, Almedica and the
underwriters, and to contain such representations, warranties and covenants by
the Company and such other terms as are customarily contained in such agreements
used by the managing underwriter, including, without limitation, restrictions of
sales of Class A Common Stock or other securities by the Company as may be
reasonably agreed to between the Company and such underwriters. Almedica shall
be a party to any underwriting agreement relating to an underwritten sale of the
Registrable Securities and may, at Almedica's option, require that any or all of
the representations, warranties and covenants of the Company to or for the
benefit of such underwriters, shall also be made to and for the benefit of
Almedica. All representations and warranties of Almedica shall be made to or for
the benefit of the Company.
(b) The Company shall provide a transfer agent and
registrar (which may be the same entity) for the Registrable Securities, not
later than the effective date of such registration.
(c) All expenses in connection with the preparation
and filing of such registration statement shall be borne solely by the Company,
except for any transfer taxes payable with respect to the disposition of such
Registrable Securities, and any underwriting discounts and selling commissions
applicable solely to such sales of Registrable Securities, which shall be paid
by Almedica.
(d) Following the effective date of such registration
statement, the Company shall, upon the request of Almedica, forthwith supply
such number of prospectuses (including exhibits thereof and preliminary
prospectuses and amendments and supplements thereto) meeting the requirements of
the Securities Act and such other documents as are referred to in the prospectus
as shall be reasonably requested by Almedica to permit Almedica to make a public
distribution of the Registrable Securities.
(e) The Company shall prepare, if necessary, and file
such amendments and supplements to such registration statement, as may be
necessary to keep such registration statement effective, subject to applicable
laws, rules and orders, during the Registration Period.
(f) The Company shall use commercially reasonable
efforts to register the Registrable Securities covered by such registration
statement under such securities or Blue Sky laws in addition to those in which
the Company would otherwise sell shares, as Almedica reasonably requests, except
that neither the Company nor Almedica shall for any such purpose be required to
execute a general consent to service of process or to qualify to do business as
a foreign corporation in any jurisdiction where it is not so qualified. The
filing fees incurred in connection with such registration shall be borne by the
Company.
(g) Almedica shall cooperate fully with the Company
and provide the Company with all information reasonably requested by the Company
for inclusion in the registration statement or as necessary to comply with the
Securities Act.
(h) The Company shall notify Almedica, at any time
after effectiveness when a prospectus relating thereto is required to be
delivered under the Securities Act of the happening of any event as a result of
which the prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of circumstances then existing (and upon receipt of such
notice and until a supplemented or amended prospectus as set forth below is
available, Almedica shall not offer or sell any securities covered by such
registration statement and shall return all copies of such prospectus to the
Company if requested to do so by it), and at the request of Almedica prepare and
furnish Almedica promptly a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that such prospectus shall
not include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances than existing.
(i) The Company will use commercially reasonable
efforts to comply with the reporting requirements of Sections 13 and 15(d) of
the Securities Exchange Act of 1934, as amended, to the extent it shall be
required to do so pursuant to such sections, and at all times while so required
shall use commercially reasonable efforts to comply with all other public
information reporting requirements of U.S. Securities and Exchange Commission
(the "Commission") Rule 144 promulgated by the Commission under the Securities
Act from time to time in effect to provide Almedica with the availability of an
exemption from the Securities Act for the sale of any of the Company's common
stock held by Almedica. The Company will also cooperate with Almedica in
supplying such information and documentation as may be necessary for Almedica to
complete and file any information reporting forms presently or hereafter
required by the Commission as a condition to the availability of an exemption
from the Securities Act for the sale of any Company common stock held by
Almedica.
(j) In the event of any registration pursuant to this
Agreement, the Company agrees to indemnify and hold harmless, to the extent
permitted by law, Almedica and each person who controls Almedica (within the
meaning of the Securities Act) against all losses, claims, damages, liabilities
and expenses to which Almedica or such controlling person may become subject
under the Securities Act which are caused by any untrue or alleged untrue
statement of material fact contained in the registration statement, or any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as the
same are caused by or contained in any information furnished to the Company by
or on behalf of Almedica or such controlling person for use therein.
3. Miscellaneous.
(a) Amendments and Waivers. This Agreement may be amended and
the Company may take any action herein prohibited, or omit to perform any act
herein required to be performed by it, only if the Company shall have obtained
the written consent of Almedica to such amendment, action or omission to act.
(b) Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns, but not transferees of the Registrable Securities who
are then present or former employees of Almedica or any entity that is then or
was a subsidiary of Almedica.
(c) Notices. All notices and other communications provided for
in this Agreement will be in writing and will be either personally delivered,
mailed by first class mail (postage prepaid) or sent by reputable overnight
courier service (delivery charges prepaid) to any party at the address specified
below, or at such other address or to such other person as provided by prior
written notice:
If to the Company:
Base Ten Systems, Inc.
One Electronics Drive
Trenton, New Jersey
Attention: President
Facsimile Number: (609) 586-3677
With a copy to:
Pitney, Hardin, Kipp & Szuch
200 Campus Drive
P.O. Box 1945
Morristown, New Jersey 07962-1945
Attention: Joseph Lunin
Facsimile Number: (973) 966-1550
If to Almedica:
Almedica International Inc.
75 Commerce Drive
Allendale, New Jersey 07401
Attention: President
Facsimile Number: (201) 995-0728
With a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Attention: Richard T. Prins
Facsimile Number: (212) 451-7519
Any such notice will be deemed to have been given when delivered personally, on
the third business day after deposit in the U.S. mail or on the business day
after deposit with a reputable overnight courier service, as the case may be.
(d) Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
(e) Severability. If any provision of this Agreement is held
to be invalid for any reason whatsoever, then such provision will be deemed
severable from the remaining provisions of this Agreement and will in no way
affect the validity or enforceability of any other provision of this Agreement.
(f) Counterparts. The parties to this Agreement may execute
this Agreement in separate counterparts (no one of which need contain the
signatures of all parties), each of which will be an original and all of which
together will constitute one and the same instrument.
(g) Governing Law. This Agreement will be governed by and
construed in accordance with the domestic laws of the State of New Jersey,
without giving effect to any choice of law or conflict rule of any jurisdiction
that would cause the laws of any other jurisdiction to be applied. In
furtherance of the foregoing, the internal law of the State of New Jersey will
control the interpretation and construction of this Agreement, even if under any
choice of law or conflict of law analysis, the substantive law of some other
jurisdiction would ordinarily apply.
(h) Jurisdiction. Each of the parties hereby (i) irrevocably
submits to the jurisdiction of the state courts of, and the federal courts
located in, the State of New Jersey in any action or proceeding arising out of
or relating to, this Agreement, (ii) waives, and agrees to assert, by way of
motion, as a defense, or otherwise, in any such suit, action or proceeding, any
claim that it is not subject personally to the jurisdiction of the above-named
courts, that its property is exempt or immune from attachment or execution, that
the suit, action or proceeding is brought in an inconvenient forum, that the
venue of the suit, action or proceeding is improper or that this Agreement or
the subject matter hereof may not be enforced in or by such court, and waives
and agrees not to seek any review by any court of any other jurisdiction which
may be called upon to grant an enforcement of the judgment of any such court.
(i) Merger and Integration. Except as otherwise provided in
this Agreement, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
whether written or oral, are superseded by this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this
Registration Rights Agreement as of the date first written above.
BASE TEN SYSTEMS, INC.
WILLIAM F. HACKETT
By: _______________________________
William F. Hackett
Senior Vice President
ALMEDICA INTERNATIONAL INC.
CLARK L. BULLOCK
By: _______________________________
Clark L. Bullock
Chairman of the Board