Exhibit 10(ii)
BASE TEN SYSTEMS, INC.
SERVICE-BASED
STOCK OPTION AGREEMENT
This Option Agreement (the "Agreement"), made as of October 13, 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 Alan Poole (the "Optionee").
WHEREAS, in consideration of the Optionee's contributions to the Company,
the Company has agreed to grant to Optionee certain options to purchase
shares of the Company's Class A Common Stock ("Common Stock"), subject to
receipt of shareholder approval of this option to purchase at the Company's
next Annual Meeting of Shareholders.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
set forth below, the parties agree as follows:
1. Options. (a) The Company hereby grants to Optionee ten thousand (10,000)
rights (each an "Option") to subscribe for and purchase one share of Common
Stock at the price of ten and 7/8 dollars ($10.875) per share ("Purchase
Price"), the NASDAQ closing price as of the date of this Agreement. The
Options granted pursuant to this Agreement shall become vested and
exercisable as of the date of this Agreement, contingent upon the
shareholders of the Company approving the issuance of such Options at the
Company's next Annual Meeting of Shareholders.
(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 (10th) anniversary of the date of this Agreement.
(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
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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 "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 (which, for this purpose, does not include the sale or
disposition of the Company's Government Technology Division), 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
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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 contains 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 it. 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 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. 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.
9. 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.
ALAN POOLE BASE TEN SYSTEMS, INC.
_____________________________(L.S.) By:______________________________
Print Name:______________________
Title:___________________________
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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: ___________________________________
Alan Poole
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