<PAGE>
As filed with the Securities and Exchange Commission on December 13, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
NUMEREX CORP.
(Exact name of registrant as specified in its charter)
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PENNSYLVANIA 11-2948749
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
1600 Parkwood Circle
Suite 200
Atlanta, Georgia 30339-2119
(770) 693-5950
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
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AMENDED AND RESTATED 1994 EMPLOYEE STOCK OPTION PLAN,
AMENDED AND RESTATED 1994 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS,
1999 lONG-TERM INCENTIVE PLAN AND
DIRECTOR AND CONSULTANT STOCK OPTIONS
(Full title of the plan)
---------------------
ANDREW J. RYAN
Secretary and General Counsel
NUMEREX CORP.
1600 Parkwood Circle
Suite 200
Atlanta, Georgia 30339-2119
(770) 693-5950
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy to:
RICHARD E. BALTZ
Arnold & Porter
555 Twelfth Street, N.W.
Washington, D.C. 20004
(202) 942-5000
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Calculation of Registration Fee
<TABLE>
<CAPTION>
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Title of securities to be Amount to be Proposed maximum Proposed maximum Amount of
registered registered offering price per aggregate offering registration
unit(1)(2) price(2) fee
----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock 1,652,823(3) $7.9685 $13,170,520 $3,477.02
-----------------------------------------------------------------------------------------------------------
</TABLE>
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(1) Calculated on the basis of the average of the high and low sale prices of
the Registrant's Common Stock as reported on December 8, 2000 on the
Nasdaq National Market which date is within 5 business days prior to the
date of the filing of this Registration Statement.
(2) Estimated solely for the purpose of determining the registration fee in
accordance with Rule 457(h).
(3) In addition to the shares being registered by this registration
statement, this registration statement also relates to shares of Common
Stock issuable pursuant to the Registrant's Amended and Restated 1994
Employee Stock Option Plan for which a Registration Statement on Form
S-8, File No. 333-38667, is currently effective. A registration fee of
$1,356.14 was paid registering 810,000 shares of Common Stock. Pursuant
to Rule 429 under the Securities Act of 1933, 519,467 of such shares are
being carried forward pursuant to this registration statement.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Numerex Corp. ("Registrant" or
"Company") with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act")
(File No. 0-22920), are incorporated herein by reference and made a part hereof:
(a) The Company's Annual Report on Form 10-K for the year ended October
31, 1999, (as amended February 28, 2000);
(b) The Company's Transition Report on Form 10-Q for the transition
period of November 1, 1999 to December 31, 1999;
(c) The Company's Quarterly Reports on Form 10-Q for the quarters ended
January 31, 2000, June 30, 2000 and September 30, 2000;
(d) The Company's Current Reports on Form 8-K as filed with the
Commission on May 12, 2000 and August 1, 2000; and
(e) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-1 filed with the
Commission on February 28, 1995 and all amendments or reports filed
for the purpose of updating such description.
All documents filed by the Registrant after the date of this
Registration Statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act, prior to the filing of a post-effective amendment which indicates
that all Common Stock offered hereby has been sold or which deregisters such
Common Stock then remaining unsold, shall be deemed to be incorporated in this
Registration Statement by reference and shall be a part hereof from the date of
filing of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference in this Registration Statement shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference in
this Registration Statement modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or so superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 1741 to 1743 of the Pennsylvania Business Corporation Law
("BCL") provide that a corporation may indemnify its representatives (including
directors and officers) against liabilities that they incur in such capacities
provided certain standards are met, including good faith and the reasonable
belief that the particular action is in, or not opposed to, the best interests
of the corporation. In general, this power to indemnify does not exist in the
case of actions against a director or officer by or in the right of the
corporation if the person seeking indemnification is adjudged liable to the
corporation. A corporation is required to indemnify directors and officers
against expenses they may incur in defending actions to which they are made a
party by reason of their status as directors or officers if they are successful
on the merits or otherwise in the defense of such actions.
Section 1746 of the BCL provides that the foregoing provisions
shall not be deemed exclusive of any other rights to which a person seeking
indemnification may be entitled under, among other things, any provision in the
corporation's articles of incorporation or bylaws, provided that no
indemnification may be made in any case where the act or failure to act giving
rise to the claim for indemnification is determined by a court to have
constituted willful misconduct or recklessness. Article 11 of the Company's
Amended and Restated Articles of Incorporation and Article IV of the Company's
Bylaws provide for the mandatory indemnification of directors and officers in
accordance with and to the full extent permitted by the laws of Pennsylvania as
in effect at the time of such indemnification.
Section 1713 of the BCL provides that a corporation may provide in
its bylaws that, subject to certain exceptions, a director shall not be
personally liable for monetary damages for any action taken unless the director
has breached or failed to perform the duties of his office under the BCL and the
breach or failure to perform constitutes self-dealing, willful misconduct or
recklessness. The Company has adopted such a provision in Article IV of its
Bylaws, and the provision eliminates the personal monetary liability of
directors to the full extent permitted by Section 1713 of the BCL.
The Company has obtained and maintains insurance policies covering its
officers and directors and indemnifying them against loss on account of certain
claims made against them.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
<PAGE>
ITEM 8. EXHIBITS
The exhibits listed on the Exhibit Index on page II-9 of this
Registration Statement are filed herewith or are incorporated herein by
reference to other filings.
ITEM 9. UNDERTAKINGS
The Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended
(the "Securities Act").
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement.
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement.
Provided, however, that paragraphs (i) and (ii) do not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference
in the Registration Statement;
2. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof;
<PAGE>
3. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering;
4. That, for purposes of determining any liability under the
Securities Act, each filing of the Company's annual report
pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such new securities at that time
shall be deemed to be the initial bona fide offering thereof.
5. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Securities Act
and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia on December 13, 2000.
NUMEREX CORP.
By: /s/ Stratton J. Nicolaides
--------------------------------
Stratton J. Nicolaides
Chairman of the Board of Directors
and Chief Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS that each person whose signature
appears below constitutes and appoints, jointly and severally, Stratton J.
Nicolaides, Peter J. Quinn and Andrew J. Ryan and each one of them, his true and
lawful attorney-in-fact and agents, each will full power of substitution, for
him and in his name, place and stead, in any and all capacities, to sign any and
all amendments, including post-effective amendments, to this registration
statement, and to file the same, with all exhibits thereto and all other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that each of said attorneys-in-fact and agents or any of them, or his or their
substitute or substitutes, may lawfully do or cause to be done or by virtue
thereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated:
Signature Title Date
/s/ Stratton J. Nicolaides Chairman of the Board of December 13, 2000
------------------------------ Directors and Chief
Stratton J. Nicolaides Executive Officer
/s/ Peter J. Quinn Chief Financial Officer December 13, 2000
------------------------------ (Principal Financial and
Peter J. Quinn Accounting Officer)
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/s/ Andrew J. Ryan Director December 13, 2000
-------------------------------
Andrew J. Ryan
/s/ Matthew J. Flanigan Director December 13, 2000
-------------------------------
Matthew J. Flanigan
/s/ Allan H. Liu Director December 13, 2000
-------------------------------
Allan H. Liu
/s/ George Benson Director December 13, 2000
-------------------------------
George Benson
/s/ John G. Raos Director December 13, 2000
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John G. Raos
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INDEX TO EXHIBITS
Exhibit 5 Opinion of Arnold & Porter, filed herewith.
Exhibit 23.1 Consent of Arnold & Porter, included in the opinion filed
as Exhibit 5 hereto.
Exhibit 23.2 Consent of Grant Thornton LLP, filed herewith.
Exhibit 24 Power of Attorney (included as part of signature page).
Exhibit 99.1 Numerex Corp. 1999 Long-Term Incentive Plan, incorporated by
reference from Exhibit 10.10 to the Registrant's Form 10-Q
for the quarter ended June 30, 2000.
