SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) February 25, 1998
NUMEREX CORP.
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(Exact name of registrant as specified in its charter)
Pennsylvania 0-22920 11-2948749
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(State of other jurisdiction (SEC File Number) (IRS Employer
of incorporation) Identification No.)
100 Four Falls Corporate Center, Suite 407, Route 23 and Woodmont Road
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West Conshohocken, PA 19428-2961
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(Address of principal executive offices)
Registrant's telephone number, including area code (610) 941-2844
2360 Maryland Road, Willow Grove, PA 19090
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(Former name or former address, if changed since last report)
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Item 5. Other Events.
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Numerex Corp. ("Numerex"), BellSouth Wireless, Inc. ("BellSouth") and
BellSouth Corporation ("BellSouth Corporation") have entered into an agreement
(the "Formation Agreement"), regarding the formation of Cellemetry LLC, to be
formed as a Delaware Limited Liability Company ("Cellemetry LLC"), which will be
owned 60% by Numerex and 40% by BellSouth. The purpose of this transaction is to
form a joint venture to promote and market a wide variety of wireless cellemetry
applications and services which will be based upon BellSouth's patented
cellemetry technology. It is contemplated that the venture will focus on
developing new applications based upon cellemetry technology and on increasing
the availability of cellemetry through cellular carriers on a nationwide basis.
The Formation Agreement contemplates that the parties will enter into an
Operating Agreement which will establish the terms of operation of Cellemetry
LLC. It is contemplated that under the Operating Agreement Numerex will make
initial in-kind and cash capital contributions valued at $7,500,000, plus
additional capital contributions during the first three years in an aggregate
amount of up to $15,500,000. BellSouth contemplates making an initial in-kind
capital contribution (primarily related to its technology) valued at
$15,333,333. The Numerex contribution will include its stock ownership interest
in Uplink Security, Inc. ("Uplink") as well as various contractual and other
rights presently held by Numerex in Uplink. It is contemplated that Cellemetry
LLC will elect to be treated as a partnership for tax purposes. It is further
contemplated that the Operating Agreement will include certain provisions,
whereby various rights and obligations will exist between BellSouth and Numerex
to buy and sell their respective interests in Cellemetry LLC, upon the
occurrence of certain events. The Operating Agreement will also include
provisions dealing with business arrangements, management,
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warranties and representations, indemnifications, transfer of shares as
well as termination provisions.
Pursuant to the Formation Agreement, closing of the transaction is
conditioned upon the parties entering into various agreements, including a
Transition Agreement, Sublease Agreement, Registration Rights Agreement, a
BellSouth Cellular Corp. Services Agreement, the Uplink License Agreement, as
well as the Operating Agreement. Closing of the transaction is further
conditioned upon each party obtaining necessary consents and various other
conditions. The Formation Agreement contemplates a closing prior to May 20,
1998. Numerex is presently considering financing alternatives with regard to
certain of its funding obligations.
Item 7. Exhibits.
Cellemetry LLC Formation Agreement among Numerex Corporation, BellSouth
Wireless, Inc. and BellSouth Corporation, dated February 25, 1998.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
Numerex has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
NUMEREX CORP.
DATE: February 25, 1998 By: /s/Charles L. McNew
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Charles L. McNew, Vice President
and Chief Financial Officer
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EXECUTION COPY
CELLEMETRY LLC FORMATION AGREEMENT
Parties: Numerex Corporation,
a Pennsylvania corporation ("Numerex")
100 Four Falls Corporate Center
Suite 407
Route 23 and Woodmont Road
West Conshohocken, Pennsylvania 19428-2961
BellSouth Wireless, Inc.,
a Georgia corporation ("BellSouth")
1100 Peachtree Street, Suite 800
Atlanta, Georgia 30309
Attention: John J. Jenkins
BellSouth Corporation,
a Georgia corporation ("BellSouth Corporation")
1155 Peachtree Street, Suite 1900
Atlanta, Georgia 30309
Attention: Joel L. Peterson
Date: February 25, 1998
Background:
Numerex and BellSouth desire to form a Delaware limited liability company
to be named "Cellemetry LLC." The parties intend to enter into an operating
agreement for Cellemetry LLC under which Numerex and BellSouth would be the
initial members of the company, owning 60% and 40%, respectively, of the
membership interests. The parties desire to enter into this Agreement to set
forth the terms and conditions on which they will form Cellemetry LLC and enter
into such operating agreement.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
contained herein and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Formation of Cellemetry LLC. At the Closing (as defined in Section 6.1),
subject to and upon the terms and conditions contained herein, the parties shall
execute and deliver the Certificate of Formation for Cellemetry LLC in the form
mutually agreed to by the parties hereto ("Certificate of Formation") and the
Operating Agreement for Cellemetry LLC on terms and conditions, and in the form,
reasonably acceptable to the parties hereto; ("Operating Agreement"), make their
respective capital contributions as set forth in the
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Operating Agreement; and cause the executed Certificate of Formation to be
filed with the Secretary of State of the State of Delaware.
2. Representations and Warranties. Each party hereby represents and
warrants for itself to the other parties that (a) the execution, delivery and
performance of this Agreement does not require such party to obtain any consent
or approval other than the consents or approvals described on Schedule 2 and do
not contravene or result in a default under (with or without notice or passage
of time, or both) any provision of any existing law or regulation applicable to
such party, its articles of incorporation or bylaws, or any agreement or
instrument to which such party is a party or by which such party is bound; (b)
such party has been duly organized and is existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation with full
corporate power and authority to own and lease its properties, conduct its
business as currently conducted, and enter into this Agreement and to consummate
the transactions contemplated hereby; and (c) this Agreement has been duly
authorized by all necessary corporation action on the part of such party, has
been duly executed by such party and constitutes the legal, valid and binding
Agreement of such party enforceable against such party in accordance with its
terms, subject, as to enforcement, to the effect of bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium, conservatorship, receivership,
or other similar laws of general applicability relating to or affecting
creditors' rights in general.
3. Covenants and Other Agreements. The parties hereto covenant and agree as
follows (each party being responsible for its own covenant and agreement
contained below):
3.1 Value of Numerex's Capital Contribution. Between the date hereof and
the Closing Date, Numerex shall not take any affirmative action, or fail to take
any reasonable action within its control, likely to adversely affect the value
of any asset it is required to contribute to the capital of Cellemetry LLC under
the Operating Agreement.
3.2 Value of BellSouth's Capital Contribution. Between the date hereof
and the Closing Date, neither BellSouth nor BellSouth Corporation shall take any
affirmative action, or fail to take any reasonable action within its control,
likely to adversely affect the value of any asset BellSouth or BellSouth
Corporation is required to contribute to the capital of Cellemetry LLC under the
Operating Agreement.
3.3 Employees.
(a) Employment: Before the Closing Date, BellSouth and Numerex shall
agree upon a list of employees of BellSouth and shall extend to each such
employee an offer of employment with Cellemetry LLC, conditioned on the
formation of the Company as set forth in this Agreement. The employees of
BellSouth who accept such employment as of the Closing Date are herein called
"New Employees." The New Employees shall be employed
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for the same base salary received by such employee immediately prior to
his or her termination of employment from BellSouth. The other terms and
conditions of employment of the New Employees shall be identical to the terms
and conditions of employment provided to similarly situated employees of
Cellemetry LLC.
(b) Qualified Plans: Prior to the Closing Date, BellSouth shall take
any and all actions necessary to cause the New Employees to be fully vested as
of the Closing Date in their account balances and accrued benefits under the
BellSouth Personal Retirement Account Pension Plan ("PRA").
(c) Vacation and Personal Days. Notwithstanding any other provision
contained herein, at the Closing, BellSouth shall deliver to Cellemetry LLC a
schedule showing, as of the Closing Date, with respect to each New Employee the
number of unused and unpaid accrued vacation and personal days. At the Closing,
BellSouth shall make a cash payment to the Company for the cost of the unused
and accrued vacation and personal days attributable to the New Employees. Such
payment shall be equal to the number of such days unused and accrued by each
such New Employee multiplied by the daily rate of pay of each such New Employee.
Cellemetry LLC agrees to allow each New Employee to take with pay any unused
vacation and personal days which such New Employee has not used as of the
Closing Date, subject to normal scheduling and operational requirements of such
New Employee's department with Cellemetry LLC. To the extent any vacation policy
established by Cellemetry LLC determines the period of vacation or other time to
which an employee is entitled based on the employee's period of service with
Cellemetry LLC, each New Employee shall be credited with the employee's period
of service with BellSouth Entities to the same extent such service was credited
under BellSouth's vacation policy immediately prior to the Closing Date for
purposes of determining vacation accruals under Cellemetry LLC's vacation
policy.
(d) Recognition of Service with BellSouth Entities. The New Employees
shall be employees at will and shall not be credited for any purpose at
Cellemetry LLC with any service with BellSouth Entities, except as provided
under 3.3(c) and in the following sentence. The New Employees (i) shall be
credited under Cellemetry LLC's pension benefit plans (within the meaning of
Section 3(2) of ERISA), solely for purposes of initial eligibility to
participate, with continuous service with BellSouth Entities prior to the
Closing Date; and (ii) shall be eligible to participate as of the Closing Date
in Cellemetry LLC's welfare benefit plans (within the meaning of Section 3(1) of
ERISA) without any waiting periods.
3.4 Consents.
3.4.1 BellSouth. BellSouth will use its commercially reasonable best
efforts to obtain the consents listed on Schedule 2 required to be obtained by
BellSouth. In the event all such consents are not delivered at Closing,
BellSouth shall use its best efforts to obtain, as soon as reasonably
practicable after the Closing, any outstanding consents listed on Schedule 2
required to be obtained by BellSouth.
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3.4.2 Numerex will use its commercially reasonable best efforts to
obtain the consents listed on Schedule 2 required to be obtained by Numerex.
3.5 Cooperation. Between the date hereof and the Closing Date, BellSouth
and Numerex shall cooperate and negotiate in good faith to finalize mutually
agreeable forms of the agreements to be delivered at Closing.
4. Conditions Precedent to the Obligations of Numerex. Each and every
obligation of Numerex to complete the Closing is subject to the satisfaction of
the following conditions (any one or more of which may be waived in writing by
Numerex):
4.1 Agreement with BellSouth Cellular Corp. On or before the Closing
Date, BellSouth Cellular Corp. shall have entered into a cellular service
agreement with Cellemetry LLC on terms and conditions reasonably acceptable to
BellSouth and Numerex.
4.2 Intercompany Loans. On or before the Closing Date, all loans between
BellSouth Corporation and its affiliates and BellSouth as disclosed in the
Operating Agreement ("Intercompany Loans") shall remain obligations of BellSouth
and shall neither be assigned to nor assumed by Cellemetry LLC.
4.3 Transition Agreement. At the Closing, BellSouth shall deliver the
Transition Agreement in the form and on terms and conditions reasonably
acceptable to the parties hereto ("Transition Agreement"), duly executed by
BellSouth.
4.4 Registration Rights Agreement. At the Closing, BellSouth shall
deliver the Registration Rights Agreement to be attached as an exhibit to the
Operating Agreement in the form and on terms and conditions reasonably
acceptable to the parties hereto ("Registration Rights Agreement"), duly
executed by BellSouth, and Cellemetry LLC shall execute the Registration Rights
Agreement.
4.5 Sublease. At the Closing, with the consent of the lessor, CSL
Twelfth Street Associates, BellSouth shall deliver the Sublease Agreement
relating to the premises at 1100 Peachtree Street, Atlanta, Georgia 30309, in
the form and on terms and conditions reasonably acceptable to the parties hereto
("Sublease Agreement"), duly executed by BellSouth Cellular Corp., and
Cellemetry LLC shall execute the Sublease Agreement.
4.6 Consultant Agreement. At the Closing, BellSouth shall deliver a
consultant agreement between BellSouth and Cellemetry LLC regarding the services
of Linda Yeh, in such form as the parties hereto may mutually agree ("Consultant
Agreement"), duly executed by BellSouth, and Cellemetry LLC shall execute the
Consultant Agreement.
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4.7 Certificate of Formation. At the Closing, BellSouth shall deliver
the Certificate of Formation duly executed by BellSouth.
4.8 Operating Agreement. At the Closing, BellSouth shall deliver the
Operating Agreement duly executed by BellSouth and BellSouth Corporation, on
terms and conditions, and in the form reasonably acceptable to the parties
hereto, together with all agreements and instruments of transfer duly executed
by BellSouth, BellSouth Corporation or any applicable third party which are
required to effect BellSouth's initial capital contribution to Cellemetry LLC as
provided in the Operating Agreement.
4.9 BellSouth's Performance. Each of the covenants and obligations that
BellSouth and/or BellSouth Corporation is required to perform or to comply with
under this Agreement at or prior to Closing must have been duly performed and
complied with in all material respects. All of the representations and
warranties made by BellSouth and BellSouth Corporation in this Agreement shall
be true on and as of the Closing Date, with the same force and effect as though
made on and as of the Closing Date.
4.10 Absence of Proceedings. No Proceeding shall have been instituted or
threatened, no Judgment shall have been issued, and no new Law shall have been
enacted, on or before the Closing Date, that seeks to or does prohibit or
restrain, or that seeks damages as a result of, the consummation of the
transactions contemplated by this Agreement.
4.11 No Material Change. No material change in the value of the assets
comprising BellSouth's initial capital contribution under the Operating
Agreement, as reasonably determined by Numerex, shall have occurred between the
date hereof and the Closing Date.
4.12 Additional Documents. At the Closing, BellSouth and BellSouth
Corporation shall execute and deliver such additional certificates, documents
and agreements as may be mutually agreed as necessary to consummate the
transactions contemplated in this Agreement and the Operating Agreement.
4.13 Consents. At the Closing, BellSouth shall deliver, at a minimum,
those consents which are specified on Schedule 2 to be delivered at Closing by
BellSouth.
5. Conditions Precedent to the Obligations of BellSouth and BellSouth
Corporation. Each and every obligation of BellSouth and BellSouth Corporation to
complete the Closing is subject to the satisfaction of the following conditions
(any one or more of which may be waived in writing by BellSouth and BellSouth
Corporation):
5.1 Uplink License. At the Closing, Numerex shall deliver a license
agreement duly executed by Uplink Security, Inc., a Georgia corporation
("Uplink"), which
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shall grant to Cellemetry LLC a non-exclusive worldwide irrevocable
license to use application enabling technologies, including but not limited to
the Uplink Gateway router and radio module technologies. The terms and
conditions of such license agreement shall be reasonably acceptable to BellSouth
and Numerex.
5.2 Transition Agreement. At the Closing, Numerex shall deliver the
Transition Agreement, duly executed by Numerex.
5.3 Registration Rights Agreement. At the Closing, Numerex shall deliver
the Registration Rights Agreement, duly executed by Numerex, and Cellemetry LLC
shall execute the Registration Rights Agreement.
5.4 Sublease Agreement. At the Closing, Cellemetry LLC shall execute the
Sublease Agreement.
5.5 Consultant Agreement. At the Closing, Cellemetry LLC shall execute
the Consultant Agreement.
5.6 Certificate of Formation. At the Closing, Numerex shall deliver the
Certificate of Formation, duly executed by Numerex.
5.7 Operating Agreement. At the Closing, Numerex shall deliver the
Operating Agreement duly executed by Numerex, on terms and conditions, and in
the form reasonably acceptable to the parties hereto, together with all
agreements and instruments of transfer duly executed by Numerex or any
applicable third party which are required to effect Numerex's initial capital
contribution to Cellemetry LLC as provided in the Operating Agreement.
5.8 Numerex's Performance. Each of the covenants and obligations that
Numerex is required to perform or comply with under this Agreement at or prior
to Closing must have been duly performed and complied with by Numerex in all
material respects. All of the representations and warranties made by Numerex in
this Agreement shall be true on and as of the Closing Date, with the same force
and effect as though made on and as of the Closing Date.
5.9 Absence of Proceedings. No Proceeding shall have been instituted or
threatened, no Judgment shall have been issued, and no new Law shall have been
enacted, on or before the Closing Date, that seeks to or does prohibit or
restrain, or that seeks damages as a result of, the consummation of the
transactions contemplated by this Agreement.
5.10 No Material Change. No material change in the value of the assets
comprising Numerex's initial capital contribution under the Operating Agreement,
as
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reasonably determined by BellSouth, shall have occurred between the date
hereof and the Closing Date.
5.11 Additional Documents. At the Closing, Numerex shall execute and
deliver such additional certificates, documents and agreements as may be
mutually agreed as necessary to consummate the transactions contemplated in this
Agreement and the Operating Agreement.
5.12 Consents. At the Closing, Numerex shall deliver those consents
which are specified on Schedule 2 to be delivered at Closing by Numerex.
6. Closing.
6.1 Closing Time and Place. Consummation of the transactions
contemplated by this Agreement ("Closing") shall take place on April 20, 1998 or
such other date as the parties hereto may agree in writing. The Closing shall
take place at the offices of Blank Rome Comisky & McCauley, One Logan Square,
Philadelphia, Pennsylvania, 19103-6998, commencing at 10:00 a.m. (local time) on
the closing date ("Closing Date").
6.2 Obligations of Numerex at Closing. At the Closing, Numerex shall
deliver to BellSouth the following:
6.2.1 Certificate of Formation. The Certificate of Formation, duly
executed by Numerex.
6.2.2 Operating Agreement. The Operating Agreement, duly executed by
Numerex, together with all duly executed agreements and instruments described in
Section 5.7.
6.2.3 Registration Rights Agreement. The Registration Rights
Agreement, duly executed by Numerex.
6.2.4 Transition Agreement. The Transition Agreement, duly executed
by Numerex.
6.2.5 Uplink License Agreement. The license agreement described in
Section 5.1, duly executed by Uplink.
6.2.6 Incumbency Certificate. A certificate of the Secretary of
Numerex certifying as to the incumbency and signatures of the officers of
Numerex executing this Agreement.
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6.2.7 Resolutions. Copies of the resolutions duly adopted by the
board of directors of Numerex, authorizing Numerex to enter into and perform
this Agreement and the agreements required to be delivered under this Agreement,
certified by proper officers as in full force and effect on and as of the
Closing Date.
6.2.8 Consents. The consents required by Section 5.12.
6.3 Obligations of BellSouth and BellSouth Corporation at Closing. At
the Closing, BellSouth and BellSouth Corporation shall deliver to Numerex the
following:
6.3.1 Certificate of Formation. The Certificate of Formation, duly
executed by BellSouth.
6.3.2 Operating Agreement. The Operating Agreement, duly executed by
BellSouth and BellSouth Corporation, together with all duly executed agreements
and instruments described in Section 4.8.
6.3.3 Registration Rights Agreement. The Registration Rights
Agreement, duly executed by BellSouth.
6.3.4 Transition Agreement. The Transition Agreement, duly executed
by BellSouth.
6.3.5 Sublease Agreement. The Sublease Agreement, duly executed by
BellSouth Cellular Corp. and CSL Twelfth Street Associates.
6.3.6 BellSouth Cellular Corp. Agreement. The cellular service
agreement described in Section 4.1, duly executed by BellSouth Cellular Corp.
6.3.7 Incumbency Certificate. Certificates of the respective
Secretaries or Assistant Secretaries of BellSouth and BellSouth Corporation,
certifying as to the incumbency and signatures of the officers of such
corporations executing this Agreement.
6.3.8 Resolutions. Copies of the resolutions duly adopted by the
board of directors of BellSouth authorizing such corporation to enter into and
perform this Agreement and the agreements required to be delivered under this
Agreement, certified by proper officers as in full force and effect on and as of
the Closing Date.
6.3.9 Intercompany Loans. Documentary evidence reasonably
satisfactory to Numerex that the Intercompany Loans shall remain obligations of
BellSouth and shall neither be assigned to nor assumed by Cellemetry LLC.
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6.3.10 Consents. The consents required by Section 4.13.
6.3.11 Consultant Agreement. The Consultant Agreement, duly executed
by BellSouth.
6.3.12 Additional Documents. Such additional certificates, documents
and agreements as may be mutually agreed as necessary to consummate the
transactions contemplated in this Agreement and the Operating Agreement.
7. Termination.
7.1 Termination by Mutual Consent. At any time before the Closing, this
Agreement may be terminated by the mutual written consent of the parties,
authorized by their respective boards of directors.
7.2 Termination on Default. As used herein, "Default" means, with
respect to Numerex on the one hand, or with respect to BellSouth and BellSouth
Corporation on the other hand, that any provision of this Agreement to be
satisfied or performed by such parties is not substantially satisfied or
performed in a timely manner, in either case for reasons within the reasonable
control of such parties. If a Default occurs and is not cured within ten days
after notice is given by the non-Defaulting party to the Defaulting party
specifying the nature of the Default (or on or before the Closing Date if
sooner), then the non-Defaulting party may terminate this Agreement immediately
upon notice to the Defaulting party.
7.3 Termination at Closing. If any of the conditions set forth in
Section 3 is not satisfied on the Termination Date, then Numerex may terminate
this Agreement by notifying BellSouth and BellSouth Corporation on the
Termination Date. If any of the conditions set forth in Section 4 is not
satisfied on the Closing Date, then BellSouth and BellSouth Corporation may
terminate this Agreement by notifying Numerex on the Termination Date.
7.4 Termination After May 20, 1998. This Agreement may be terminated by
written notice from Numerex to BellSouth and BellSouth Corporation, or from
BellSouth and BellSouth Corporation to Numerex, if it becomes certain (for all
practical purposes) that any of the conditions to the Closing obligations of the
party giving such notice cannot be satisfied on or before May 20, 1998 (the
"Termination Date"), for a reason other than such party's Default, and such
party is not willing to waive the satisfaction of such condition.
8. Expenses. Whether or not the transactions contemplated by this
Agreement are consummated, each party shall pay its own expenses incident to
preparing for entering into and carrying into effect this Agreement and the
transactions contemplated hereby, except that any fees related to or associated
with the formation of Cellemetry LLC, such as state filing and
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related fees and fees for governmental certificates, shall be shared 60%
by Numerex and 40% by BellSouth.
9. Definitions.
9.1 "Judgment" means any order, writ, injunction, citation, award,
decree or other judgment of any nature of any foreign, federal, state or local
court, governmental body, administrative agency, regulatory authority or
arbitration tribunal.
9.2 "Law" means any provision of any foreign, federal, state or local
law, statute, ordinance, charter, constitution, treaty, rule or regulation.
9.3 "Proceeding" means any demand, claim, suit, action, litigation,
investigation, arbitration, administra
tive hearing or other proceeding of any
nature.
10. Other Provisions.
10.1 All notices, requests, or consents provided for or permitted to be
given under this Agreement must be in writing and must be given either by
depositing that writing in the United States mail, addressed to the recipient,
postage paid, and registered or certified with return receipt requested, or by
delivering that writing to the recipient in person, by courier, or by facsimile
transmission; and a notice, request, or consent given under this Agreement is
effective upon receipt by the person to whom it was addressed. All notices,
requests, and consents to be sent to a party must be sent to or made at the
address given for that party on the first page of this Agreement, or such other
address as that party may specify by notice to the other parties. A copy of any
notice, request, or consent to Numerex shall be sent to:
Blank Rome Comisky & McCauley LLP
One Logan Square
Philadelphia, PA 19103
Attention: Barry Genkin, Esquire
Fax: 215-569-5555
A copy of any notice, request or consent to BellSouth or BellSouth
Corporation shall be sent to:
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BellSouth Corporation
Suite 1800
1155 Peachtree Street
Atlanta, Georgia 30309
Attention: John A. Harwood, Esquire
Fax: 404-249-5901
10.2 Entire Agreement. This Agreement (including its Exhibits and
Schedules) constitutes the entire agreement of the parties relating to the
subject matter hereof and supersedes all prior contracts or agreements with
respect to the subject matter hereof, whether oral or written; provided,
however, that the Non-Disclosure Agreement dated July 23, 1997 by and between
Numerex and BellSouth Corporation shall remain in full force and effect in
accordance with its terms.
10.3 Effect of Waiver or Consent. A waiver or consent, express or
implied, to or of any breach or default by any party in the performance by that
party of its obligations hereunder is not a consent or waiver to or of any other
breach or default in the performance by that party of the same or any other
obligations of that party. Failure on the part of a party to complain of any act
of any party or to declare any party in default hereunder, irrespective of how
long that failure continues, does not constitute a waiver by that party of its
rights with respect to that default until the applicable statute-of-limitations
period has run.
10.4 Amendment. This Agreement may be amended from time to time only by
a written instrument executed by all parties hereto.
10.5 Assignment. No party may assign this Agreement, or any such party's
rights or obligations under this Agreement, without the prior written consent of
each other party.
10.6 Binding Effect. This Agreement is binding on and inures to the
benefit of the parties hereto and their respective successors and permitted
assigns.
10.7 Governing Law; Severability. THIS AGREEMENT IS GOVERNED BY AND
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE,
EXCLUDING ANY CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE
OR THE CONSTRUCTION OF THIS AGREEMENT TO THE LAWS OF ANOTHER JURISDICTION. If
any provision of this Agreement or the application thereof to any party or
circumstance is held invalid or unenforceable to any extent, the remainder of
this Agreement and the application of that provision to other parties or
circumstances is not affected thereby and that provision shall be enforced to
the greatest extent permitted by law.
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10.8 Further Assurances. In connection with this Agreement and the
transactions contemplated hereby, each party hereto shall execute and deliver
any additional documents and instruments and perform any additional acts that
may be necessary or appropriate to effectuate and perform the provisions of this
Agreement and those transactions.
10.9 Neutral Construction. The parties have negotiated this Agreement
and all of the terms and conditions contained in this Agreement in good faith
and at arms' length, and each party has been represented by counsel during such
negotiations. No term, condition, or provision contained in this Agreement shall
be construed against any party or in favor of any party (i) because such party
or such party's counsel drafted, revised, commented upon, or did not comment
upon, such term, condition, or provision; or (ii) because of any presumption as
to any inequality of bargaining power between or among the parties. Furthermore,
all terms, conditions, and provisions contained in this Agreement shall be
construed and interpreted in a manner which is consistent with all other terms,
conditions, and provisions contained in this Agreement.
10.10 Arbitration. All claims, demands, disputes, controversies,
differences, or misunderstandings between the parties arising out of, or by
virtue of, this Agreement shall be submitted to and determined by arbitration in
accordance with this Section. In the event of such a claim, demand, dispute,
controversy, difference, or misunderstanding, Numerex, on the one hand, and
BellSouth and BellSouth Corporation, on the other hand, shall each select one
arbitrator and shall together select a third arbitrator who is neutral and
unbiased, and who shall serve as the chairman of the panel. If the parties are
unable to agree upon the third arbitrator, or if one of the parties is unable to
or fails to select an arbitrator in accordance with this Section, the American
Arbitration Association ("AAA") shall be designated by either party to appoint
such arbitrator(s) to arbitrate the matter in accordance with this Section. The
matter shall be arbitrated under the rules of the AAA applicable to commercial
arbitrations then obtaining, such arbitration to be held in Washington, D.C. At
any time before a decision of the arbitration panel has been rendered, the
parties may resolve the dispute by settlement. The decision of a majority of
arbitrator(s) shall be the award of the panel of arbitrators and shall be made
in writing setting forth the award, the reasons for the decision and award shall
be binding and conclusive on all parties; shall not be appealable and shall
include a finding for payment of the costs of such arbitration. Judgment of a
court of competent jurisdiction may be entered upon the award and may be
enforced as such in accordance with the provisions of the award. This agreement
to arbitrate is specifically enforceable by the parties to this Agreement.
10.11 Counterparts. This Agreement may be executed in any number of
counterparts with the same effect as if all signing parties had signed the same
document. All counterparts shall be construed together and constitute the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
BELLSOUTH WIRELESS, INC.
By: /s/John J. Jenkins
--------------------------------
John J. Jenkins, Vice President
NUMEREX CORP.
By: /s/John Reis
--------------------------------
John Reis, President
BELLSOUTH CORPORATION
(limited to Sections 1, 2,
3.2, 4.2, 4.8, 4.9, 4.12,
6.3.2, 6.3.9, 6.3.12 and
10 of this Agreement)
By: /s/ Joel L.A. Peterson
--------------------------------
Name: Joel L.A. Peterson
--------------------------
Title: Director Corporate
Development
-------------------------
-13-
<PAGE>
INDEX TO EXHIBITS
Schedule 2 Consents and Approvals
-14-
<PAGE>
SCHEDULE 2
CONSENTS OF BELLSOUTH
Legal Date of
File No. Party (Carrier) Execution
- ------------------- --------------------------------- ------------------
1 114.00 Equitrac 12/12/95
2 114.01 Skywire 05/13/96
3 114.03 CommNet 03/26/96
4 114.04 Bell Mobility Cellular (Canada) 03/07/96
5 114.05 Ericsson 02/04/97
6 114.06 New Par 04/15/96
7 114.07 Excell (Uplink) 11/24/95(1)
8 114.08 Corexco 10/10/96
9 114.09 Sygnet 10/31/96
10 114.10 Open Cellular Systems 01/29/97
11 114.11 Dale, Gesek, McWilliams & Sheridan 05/03/96
12 114.12 Vanguard 04/03/96
13 114.13 Liberty 12/13/96
14 114.14 Upstate Cellular Joint Venture 08/20/97
15 123.00 Standard Communications 08/07/96
16 125.00 US WEST 08/01/96
17 126.00 RCC 08/20/96
As of the Closing Date, BellSouth is required to deliver the consents
of any combination of the above carriers whose aggregate pops represent at least
90% of the pops associated with all carriers listed above.
- ----------------------
(1) Amended 09/05/96 and 07/97.
-15-
<PAGE>
SCHEDULE 2 continued
CONSENTS OF NUMEREX
-------------------
1. Stock Purchase Agreement dated July 16, 1997 among Numerex Corp., Uplink
Security, Inc. and certain shareholders of Uplink Security, Inc.
2. Uplink Security, Inc. Shareholders' Agreement dated July 16, 1997 among
Uplink Security, Inc., Numerex Corp. and certain shareholders of Uplink
Security, Inc.
3. Loan and Security Agreement dated July 16, 1997 between Numerex Corp. and
Uplink Security, Inc.
4. Loan Agreement, dated February 12, 1997, among Numerex Corp. and certain of
its United States subsidiaries and PNC Bank, National Association as
amended on July 1, 1997.
