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 xxxxxxx Xxxxxxxx
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: (000) 000-0000
With a copy to:
Pitney, Xxxxxx, Xxxx & Xxxxx
000 Xxxxxx Xxxxx
P.O. Box 1945
Morristown, New Jersey 07962-1945
Attention: Xxxxxx Xxxxx
Facsimile Number: (000) 000-0000
If to Almedica:
Almedica International Inc.
00 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: President
Facsimile Number: (000) 000-0000
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile Number: (000) 000-0000
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.
By: /s/ Xxxxxxx X. Xxxxxxx
______________________________
Xxxxxxx X. Xxxxxxx
Senior Vice President
ALMEDICA INTERNATIONAL INC.
By: /s/ Xxxxx X. Xxxxxxx
______________________________
Xxxxx X. Xxxxxxx
Chairman of the Board
