Exhibit 10(mm)
EXHIBIT A
BASE TEN SYSTEMS, INC.
SERVICE-BASED
STOCK OPTION AGREEMENT
This Option Agreement (the "Agreement"), made as of October 17th, 1997, is
between Base Ten Systems, Inc. (the "Company"), a New Jersey corporation located
at One Electronics Drive, P.O. Box 3151, Trenton, New Jersey 08619, and Thomas
E. Gardner (the "Optionee").
WHEREAS, in consideration of the Optionee's agreement to serve as President
and Chief Executive Officer of the Company and Co-Chairman of the Board of
Directors under an Employment Agreement dated as of October 17, 1997 between
Optionee and the Company (the "Employment Agreement"), the Company has agreed to
grant to Optionee certain options to purchase shares of the Company's Class A
Common Stock ("Common Stock") pursuant to the Employment Agreement and the
Company's Amended Discretionary Deferred Compensation Plan on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
set forth below, the parties agree as follows:
1. Options. (a) Subject to the terms and conditions set forth herein
and in the Employment Agreement, the Company grants to Optionee two hundred
fifty thousand (250,000) rights (each an "Option") to subscribe for and
purchase one share of Common Stock at the price of eleven and one-eighth
dollars ($11 1/8) per share ("Purchase Price"), the NASDAQ closing price as
of the date of this Agreement. The Options granted pursuant to this Agreement
shall be considered Service-Based Stock Options. Service-Based Options shall
become vested and exercisable as follows:
Number of Options; Vesting Date
70,000 11/1/97
60,000 11/1/98
60,000 11/1/99
60,000 11/1/00
The Optionee must be an employee of the Company on a given Vesting Date in order
to become vested in such Service-Based Stock Options, except that, in the event
that Optionee's employment with the Company is terminated by the Company
"without cause" or if Optionee terminates his employment with the Company for
"good reason", all as set forth in the Employment Agreement dated October 17,
1997 between Optionee and the Company ("Employment Agreement"), then Optionee
will be considered to be an employee, solely for purposes of vesting, through
the date that is twelve (12) months following the termination of his employment.
(b) The Options shall not be transferable other than by will or the laws
of descent and distribution or, after the Optionee's death, to a beneficiary (or
beneficiaries) designated by the Optionee in writing in a form satisfactory to
the Company, and the Options may be exercised, during the lifetime of the
Optionee, only by the Optionee. Without limiting the generality of the
foregoing, the Options may not be assigned, transferred (except as provided
above), pledged or hypothecated in any way, and shall not be subject to
execution, attachment or similar process. Any attempted assignment, transfer,
pledge, hypothecation or other disposition of any of the Options contrary to the
provisions hereof, or the levy of any execution, attachment or similar process
upon any Option, shall be null and void and without effect.
2. Exercise. (a) Subject to the terms and conditions of this Agreement,
Optionee shall have the right to exercise at the Purchase Price all vested
Options at any time after the date hereof. Notwithstanding anything else herein
to the contrary, all Options granted under this Agreement shall expire no later
than the tenth anniversary of the date of this Agreement. Vested Options will
expire at the end of the ninetieth (90th) day following the Optionee's
termination of employment with the Company, except that (i) in the event that
the Optionee's employment terminated as a result of death or "permanent
disability", as defined in the Employment Agreement, then the ninety (90) day
period described above will increase to two (2) years and (ii) in the event that
the Optionee's employment with the Company is terminated by the Company "without
cause" or if the Optionee terminates his employment with the Company for "good
reason", all as set forth in the Employment Agreement, then the ninety (90) day
period described above will increase to two (2) years.
(b) Options may be exercised by the Optionee in whole or in part, but not
as to a fractional share, by surrender of such Options, properly endorsed at the
principal office of the Company, and by delivering to the Company (i) a written
exercise notice substantially in the form annexed hereto as Schedule A, and (ii)
payment of the aggregate Purchase Price, plus required tax withholding amounts
(as determined by the Company) for the number of shares purchased by certified
check or bank check (or in such other form as the Company may elect to accept).
The shares purchased shall be deemed to be issued to the Optionee as the record
owner as of the close of business on the date of which the Options are
surrendered and payment is made for the shares. Certificates representing the
shares purchased shall be delivered to the Optionee within thirty (30) days
after the rights represented by the Options have been properly exercised.
3. Shares. (a) The Company covenants and agrees that all shares of
Common Stock shall, on issuance and payment of the consideration therefor
hereunder, be fully paid and nonassessable and free from all taxes, liens and
charges related to the issuance of such shares. The Company further covenants
and agrees that during the period within which the rights represented by the
Options may be exercised, the Company shall, at all times, have authorized and
reserved for the purpose of issuance or transfer on exercise of the Options a
sufficient number of the shares subject to the Options to provide for their
exercise.
(b) The Company shall use its best reasonable efforts to assure that all
shares of Common Stock received by Optionee on any exercise of any Option shall
be, and shall remain, (i) fully registered (at the Company's expense) under the
Securities Act of 1933, as amended (the
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"1933 Act"), both for issuance and for resale, (ii) fully registered or
qualified (at the Company's expense) under such state securities laws as
Optionee may reasonably request, both for issuance and for resale, and (iii)
either qualified for trading on NASDAQ or listed on a national securities
exchange unless, in each case, Optionee consents to alternative arrangements
that adequately protect the salability of such shares, which consent shall not
be unreasonably withheld.
4. Adjustments. In the event that there is any change in the Common
Stock arising through merger, consolidation, reorganization, recapitalization,
stock dividend, stock split or combination, the Board of Directors shall make
such adjustments in the aggregate number of Options subject to this Agreement
and/or the price per share of such Options in order to prevent dilution or
enlargement of Optionee's rights and of the value represented by the Options.
In the event of a dissolution or liquidation of the Company or a merger,
consolidation, sale of all or substantially all of the Company's assets, or
other corporate reorganization in which the Company is not the surviving
corporation, or any merger in which the Company is the surviving corporation but
the holders of its Common Stock receive securities of another corporation (each
of the foregoing, a "Trigger Event"), outstanding Options shall terminate,
provided that the holder of each Option shall, in such event, if no provision
has been made for the substitution of a new option for such outstanding option,
have the right immediately prior to such Trigger Event, to exercise the holder's
Options in whole or in part without regard to the date on which the Options
otherwise would be first exercisable. Upon any adjustment in the number or
exercise price of shares subject to an Option, a new Option may be granted in
place of such Option which has been so adjusted.
5. Absence of Rights. No Option shall entitle the Optionee to any rights
as a shareholder of the Company prior to the exercise of such Option.
6. Invalidity; Severability. If any clause or provision of this
Agreement shall be adjudged invalid, the same shall not affect the validity of
any other clause or provision of this Agreement, or of any other document
pertaining to the subject matter thereof, or constitute by reason thereof, any
claim or cause of action in favor of Optionee as against the Company. In
addition, the provisions of this Agreement shall be read and construed and shall
have effect as separate, severable and independent provisions or restrictions,
and shall be enforceable accordingly.
7. Entire Agreement; No Waiver; Remedies. This Agreement and the
Employment Agreement contain the entire agreement of the parties and
incorporates and supersedes any and all prior or contemporaneous oral or
written agreements with respect to the matters referred to in them. No
waiver of any breach or default hereunder shall be considered valid unless in
writing and signed by the party giving such waiver, and no such waiver shall
be deemed a waiver of any subsequent breach or default of the same or similar
nature. No failure on the part of any party to exercise, and no delay in
exercising any right, remedy, power or privilege hereunder shall operate as a
waiver thereof; no waiver whatever shall be valid unless in writing signed by
the party or parties to be charged and then only to the extent specifically
set forth in such writing. All remedies, rights, powers and privileges,
either under this Agreement or by law or otherwise
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afforded the parties to this Agreement, shall be cumulative and shall not be
exclusive of any remedies, rights, powers and privileges provided by law.
8. Notices. Any notice required or permitted to be given under this
Agreement shall be given in accordance with Section 12 of the Employment
Agreement.
9. Successors and Assigns. The rights and obligations of the Company
under this Agreement or the Options shall inure to the benefit of and shall be
binding upon the successors and assigns of the Company.
10. Headings; Counterparts; Governing Law. The headings in this Agreement
are for convenience of reference only and are not intended to define or limit
the contents of any section or paragraph. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Agreement
shall in all respects be governed by the internal laws (without reference to
conflicts of laws principles) of the State of New Jersey applicable to contracts
made and performed within the State of New Jersey.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
THOMAS E. GARDNER BASE TEN SYSTEMS, INC.
THOMAS E. GARDNER By: /s/ M. KRANZLER
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Print Name: M. Kranzler
Title: Chairman & CEO
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Schedule A
Exercise Notice
Base Ten Systems, Inc.
One Electronics Drive
PO Box 3151
Trenton, NJ 08619
Gentlemen:
The undersigned hereby exercises the option to purchase __________shares of
Class A Common Stock of Base Ten Systems, Inc. pursuant to the Base Ten Systems,
Inc. Service-Based Option Agreement (the "Option Agreement") dated as of
___________________________between Base Ten Systems, Inc. and the undersigned.
Accompanying this Exercise Notice is payment pursuant to the Option Agreement in
the amount of $____________.
Dated:________________________ By:_________________________________
Thomas E. Gardner
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