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EXHIBIT 10.10
NUMEREX CORP.
1999 LONG-TERM INCENTIVE PLAN
1. Purpose and Types of Awards
NumereX Corp., a Pennsylvania corporation (the "Corporation"), maintained
the NumereX Corp. Amended and Restated 1994 Employee Stock Option Plan (the
"Prior Plan"). The Prior Plan has been replaced with the 1999 Long-Term
Incentive Plan as set forth herein, effective October 25, 1999, subject to the
approval of the shareholders of the Corporation within twelve months of such
2effective date (the "Plan"). Notwithstanding anything herein to the contrary,
nothing in this Plan shall adversely affect the rights or obligations, under any
Award granted under the Prior Plan, of any grantee or holder of an Award without
such person's approval.
The purpose of the Plan is to promote the long-term growth and
profitability of the Corporation by: (i) providing key people with incentives to
improve stockholder value and to contribute to the growth and financial success
of the Corporation and (ii) enabling the Corporation to attract, retain and
reward the best-available persons.
The Plan permits the granting of stock options (including incentive stock
options qualifying under Code section 422 and nonqualified stock options), stock
appreciation rights, restricted or unrestricted stock awards, phantom stock,
performance awards, or any combination of the foregoing.
2. Definitions
Under this Plan, except where the context otherwise indicates, the
following definitions apply:
(a) "Administrator" shall have the meaning set forth in Section 3(a).
(b) "Affiliate" shall mean any entity, whether now or hereafter existing,
which controls, is controlled by, or is under common control with, the
Corporation (including, but not limited to, joint ventures, limited liability
companies, and partnerships). For this purpose, "control" shall mean ownership
of 50% or more of the total combined voting power or value of all classes of
stock or interests of the entity.
(c) "Award" shall mean any stock option, stock appreciation right, stock
award, phantom stock award, or performance award.
(d) "Board" shall mean the Board of Directors of the Corporation.
(e) "Code" shall mean the Internal Revenue Code of 1986, as amended, and
any regulations promulgated thereunder.
(f) "Common Stock" shall mean shares of common stock of the Corporation, no
par value.
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(g) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(h) "Fair Market Value" of a share of the Corporation's Common Stock for
any purpose on a particular date shall mean the last reported sale price per
share of Common Stock, regular way, on such date or, in case no such sale takes
place on such date, the average of the closing bid and asked prices, regular
way, in either case as reported in the principal consolidated transaction
reporting system with respect to securities listed or admitted to trading on a
national securities exchange or included for quotation on the Nasdaq-National
Market, or if the Common Stock is not so listed or admitted to trading or
included for quotation, the last quoted price, or if the Common Stock is not so
quoted, the average of the high bid and low asked prices, regular way, in the
over-the-counter market, as reported by the National Association of Securities
Dealers, Inc. Automated Quotation System or, if such system is no longer in use,
the principal other automated quotations system that may then be in use or, if
the Common Stock is not quoted by any such organization, the average of the
closing bid and asked prices, regular way, as furnished by a professional market
maker making a market in the Common Stock as selected in good faith by the
Administrator or by such other source or sources as shall be selected in good
faith by the Administrator. If, as the case may be, the relevant date is not a
trading day, the determination shall be made as of the next preceding trading
day. As used herein, the term "trading day" shall mean a day on which public
trading of securities occurs and is reported in the principal consolidated
reporting system referred to above, or if the Common Stock is not listed or
admitted to trading on a national securities exchange or included for quotation
on the Nasdaq-National Market, any business day.
(i) "Grant Agreement" shall mean a written document memorializing the terms
and conditions of an Award granted pursuant to the Plan and shall incorporate
the terms of the Plan.
(j) "Participants" shall have the meaning set forth in Section 5.
(k) "Parent" shall mean a corporation, whether nor or hereafter existing,
within the meaning of the definition of "parent corporation" provided in Code
section 424(e), or any successor thereto.
(l) "Performance Goals" shall mean performance goals established by the
Administrator which may be based on one or more business criteria selected by
the Administrator that apply to an individual or group of individuals, a
business unit, or the Corporation and/or one or more of its Affiliates either
separately or together, over such performance period as the Administrator may
designate, including, but not limited to, business criteria based on operating
income, earnings or earnings growth, sales, return on assets, equity or
investment, satisfactory internal or external audits, improvement of financial
ratings, achievement of balance sheet or income statement objectives, or any
other objective goals established by the Administrator, and may be absolute in
their terms or measured against or in relationship to other companies
comparably, similarly or otherwise situated.
(m) "Subsidiary" and "subsidiaries" shall mean only a corporation or
corporations, whether now or hereafter existing, within the meaning of the
definition of "subsidiary corporation" provided in section 424(f) of the Code,
or any successor thereto.
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(n) "Ten-Percent Stockholder" shall mean a grantee who (applying the rules
of Code section 424(d)) owns stock possessing more than 10% of the total
combined voting power or value of all classes of stock or interests of the
Corporation or an Affiliate.
3. Administration
(a) Administration of the Plan. The Plan shall be administered by the Board
or by such committee or committees as may be appointed by the Board from time to
time (the Board, committee or committees hereinafter referred to as the
"Administrator").
(b) Powers of the Administrator. The Administrator shall have all the
powers vested in it by the terms of the Plan, such powers to include authority,
in its sole and absolute discretion, to grant Awards under the Plan, prescribe
Grant Agreements evidencing such Awards and establish programs for granting
Awards.
The Administrator shall have full power and authority to take all other
actions necessary to carry out the purpose and intent of the Plan, including,
but not limited to, the authority to: (i) determine the eligible persons to
whom, and the time or times at which Awards shall be granted; (ii) determine the
types of Awards to be granted; (iii) determine the number of shares to be
covered by or used for reference purposes for each Award; (iv) impose such
terms, limitations, restrictions and conditions upon any such Award as the
Administrator shall deem appropriate, including, but not limited to, whether a
stock option shall be an incentive stock option or a nonqualified stock option,
any exceptions to nontransferability, any Performance Goals applicable to
Awards, any provisions relating to vesting, any circumstances in which the
Awards would terminate, the period during which Awards may be exercised, and the
period during which Awards shall be subject to restrictions; (v) modify, amend,
extend or renew outstanding Awards, accept the surrender of outstanding Awards
and substitute new Awards, or specify a lower or higher exercise price, or a
longer or shorter term, for any substituted Awards than the surrendered Awards,
or impose any other provisions that are authorized by this Plan (provided
however, that, except as provided in Section 7(f)(ii) of the Plan, any
modification that would materially adversely affect any outstanding Award shall
not be made without the consent of the holder); (vi) accelerate, extend (as long
as such extension shall not cause the Plan to fail to comply with Code section
422, if applicable) or otherwise change the time in which an Award may be
exercised or becomes payable and to waive or accelerate the lapse, in whole or
in part, of any restriction or condition with respect to such Award, including,
but not limited to, any restriction or condition with respect to the vesting or
exercisability of an Award due to termination of any grantee's employment or
other relationship with the Corporation; and (vii) establish objectives and
conditions, if any, for earning Awards and determining whether Awards will be
paid after the end of a performance period.
In making these determinations, the Administrator may take into account the
nature of the services rendered or to be rendered by the Award recipients, their
present and potential contributions to the success of the Corporation and its
Affiliates, and such other factors as the Administrator in its discretion shall
deem relevant. Subject to the provisions of the Plan, the Administrator shall
have full power and authority, in its sole and absolute discretion, to
administer and interpret the Plan and to adopt and interpret such rules,
regulations, agreements, guidelines and instruments for the administration of
the Plan and for the conduct of its business as the Administrator deems
necessary or advisable.
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(c) Non-Uniform Determinations. The Administrator's determinations under
the Plan (including, without limitation, determinations of the persons to
receive Awards, the form, amount and timing of such Awards, the terms and
provisions of such Awards and the Grant Agreements evidencing such Awards) need
not be uniform and may be made by the Administrator selectively among persons
who receive, or are eligible to receive, Awards under the Plan, whether or not
such persons are similarly situated.
(d) Limited Liability. To the maximum extent permitted by law, no member of
the Administrator shall be liable for any action taken or decision made in good
faith relating to the Plan or any Award thereunder.
(e) Effect of Administrator's Decision. All actions taken and decisions and
determinations made by the Administrator on all matters relating to the Plan
pursuant to the powers vested in it hereunder shall be in the Administrator's
sole and absolute discretion and shall be conclusive and binding on all parties
concerned, including the Corporation, its shareholders, any Participants and any
other employee, consultant, or director of the Corporation, and their respective
successors in interest.
4. Shares Available for the Plan
(a) Maximum Issuable Shares. Subject to adjustments as provided in Section
7(f), the shares of Common Stock that may be issued with respect to Awards
granted under the Plan shall not exceed an aggregate of 1,500,000 shares of
Common Stock. The Corporation shall reserve such number of shares for Awards
under the Plan, subject to adjustments as provided in Section 7(f). If any
Award, or portion of an Award, under the Plan expires or terminates unexercised,
becomes unexercisable or is forfeited or otherwise terminated, surrendered or
canceled as to any shares, or if any shares of Common Stock are surrendered to
the Corporation in connection with any Award (whether or not such surrendered
shares were acquired pursuant to any Award), the shares subject to such Award
and the surrendered shares shall thereafter be available for further Awards
under the Plan; provided, however, that any such shares that are surrendered to
the Corporation in connection with any Award or that are otherwise forfeited
after issuance shall not be available for purchase pursuant to incentive stock
options intended to qualify under Code section 422.
(b) Maximum Awards. Subject to adjustments as provided in Section 7(f), the
maximum number of shares of Common Stock subject to Awards of any combination
that may be granted during any one calendar year of the Corporation to any one
individual under this Plan shall be limited to 100,000.
5. Participation
Participation in the Plan shall be open to all persons who are at the time
of the grant of an Award employees (including persons who may become employees),
officers, directors, and consultants of the Corporation, or of any Affiliate of
the Corporation, as may be selected by the Administrator from time to time. A
Participant who has been granted an Award may, if he or she is otherwise
eligible, be granted additional Awards if the Administrator so determines.
6. Awards
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The Administrator, in its sole discretion, establishes the terms of all
Awards granted under the Plan. All Awards shall be subject to the terms and
conditions provided in the Grant Agreement.
(a) Stock Options. The Administrator may from time to time grant to
eligible Participants Awards of incentive stock options as that term is defined
in Code section 422 or nonqualified stock options; provided, however, that
Awards of incentive stock options shall be limited to employees of the
Corporation or of any Parent or Subsidiary of the Corporation. Options intended
to qualify as incentive stock options under Code section 422 must have an
exercise price at least equal to Fair Market Value on the date of grant or at
least 110% of Fair Market Value in the case of a Ten-Percent Stockholder. No
stock option shall be an incentive stock option unless so designated by the
Administrator at the time of grant and such designation is reflected in the
Grant Agreement evidencing such stock option. Nonqualified stock options may not
be granted with an exercise price below Fair Market Value on the date of grant.
(b) Stock Appreciation Rights. The Administrator may from time to time
grant to eligible Participants Awards of Stock Appreciation Rights ("SARs"). A
SAR may be exercised in whole or in part as provided in the applicable Grant
Agreement and entitles the grantee to receive, subject to the provisions of the
Plan and the Grant Agreement, a payment having an aggregate value equal to the
product of (i) the excess of (A) the Fair Market Value on the exercise date of
one share of Common Stock over (B) the base price per share specified in the
Grant Agreement, multiplied by (ii) the number of shares covered by the SAR, or
portion thereof, which is exercised. Payment by the Corporation of the amount
receivable upon any exercise of a SAR may be made by the delivery of Common
Stock or cash, or any combination of Common Stock and cash, as specified in the
Grant Agreement. If upon settlement of the exercise of a SAR a grantee is to
receive a portion of such payment in shares of Common Stock, the number of
shares shall be determined by dividing such portion by the Fair Market Value of
a share of Common Stock on the exercise date. No fractional shares shall be used
for such payment and the Administrator shall determine whether cash shall be
given in lieu of such fractional shares or whether such fractional shares shall
be eliminated.
(c) Stock Awards. The Administrator may from time to time grant restricted
or unrestricted stock Awards to eligible Participants in such amounts, on such
terms and conditions (which terms and conditions may condition the vesting or
payment of Stock Awards on the achievement of one or more Performance Goals),
and for such considerations, including no consideration or such minimum
consideration as may be required by law, as it shall determine.
(d) Phantom Stock. The Administrator may from time to time grant Awards to
eligible Participants denominated in stock-equivalent units ("Phantom Stock") in
such amounts and on such terms and conditions as it shall determine, which terms
and conditions may condition the vesting or payment of Phantom Stock on the
achievement of one or more Performance Goals. Phantom Stock units granted to a
Participant shall be credited to a bookkeeping reserve account solely for
accounting purposes and shall not require a segregation of any of the
Corporation's assets. An Award of Phantom Stock may be settled in Common Stock,
in cash, or in a combination of Common Stock and cash, as specified in the Grant
Agreement. Except as otherwise provided in the applicable Grant Agreement, the
grantee shall not have the rights of a stockholder with respect to any shares of
Common Stock represented by a Phantom Stock unit solely as a result of the grant
of a Phantom Stock unit to the grantee.
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(e) Performance Awards. The Administrator may, in its discretion, grant
performance Awards, which become payable on account of attainment of one or more
Performance Goals established by the Administrator. Performance Awards may be
paid by the delivery of Common Stock or cash, or any combination of Common Stock
and cash, as specified in the Grant Agreement.
7. Miscellaneous
(a) Investment Representations. The Administrator may require each person
acquiring shares of Common Stock pursuant to Awards hereunder to represent to
and agree with the Corporation in writing that such person is acquiring the
shares without a view to distribution thereof. The certificates for such shares
may include any legend that the Administrator deems appropriate to reflect any
restrictions on transfer. All certificates for shares issued pursuant to the
Plan shall be subject to such stock transfer orders and other restrictions as
the Administrator may deem advisable under the rules, regulations and other
requirements of the Securities and Exchange Commission, any stock exchange upon
which the Common Stock is then listed or interdealer quotation system upon which
the Common Stock is then quoted, and any applicable federal or state securities
laws. The Administrator may place a legend or legends on any such certificates
to make appropriate reference to such restrictions.
(b) Compliance with Securities Law. Each Award shall be subject to the
requirement that if, at any time, counsel to the Corporation shall determine
that the listing, registration or qualification of the shares subject to such an
Award upon any securities exchange or interdealer quotation system or under any
state or federal law, or the consent or approval of any governmental or
regulatory body, or that the disclosure of nonpublic information or the
satisfaction of any other condition is necessary in connection with the issuance
or purchase of shares under such an Award, such Award may not be exercised, in
whole or in part, unless such satisfaction of such condition shall have been
effected on conditions acceptable to the Administrator. Nothing herein shall be
deemed to require the Corporation to apply for or to obtain such listing,
registration or qualification, or to satisfy such condition.
(c) Withholding of Taxes. Grantees and holders of Awards shall pay to the
Corporation or its Affiliate, or make provision satisfactory to the
Administrator for payment of, any taxes required to be withheld in respect of
Awards under the Plan no later than the date of the event creating the tax
liability. The Corporation or its Affiliate may, to the extent permitted by law,
deduct any such tax obligations from any payment of any kind otherwise due to
the grantee or holder of an Award. In the event that payment to the Corporation
or its Affiliate of such tax obligations is made in shares of Common Stock, such
shares shall be valued at Fair Market Value on the applicable date for such
purposes.
(d) Loans. The Corporation or its Affiliate may make or guarantee loans to
grantees to assist grantees in exercising Awards and satisfying any withholding
tax obligations.
(e) Transferability. Except as otherwise determined by the Administrator or
provided in a Grant Agreement, no Award granted under the Plan shall be
transferable by a grantee except by will or the laws of descent and
distribution. Unless otherwise determined by the Administrator in accordance
with the provisions of the immediately preceding sentence, during the lifetime
of the grantee, the Award may be exercised only by the grantee, by such
permitted transferees or, during the period the grantee is under a legal
disability, by the grantee's guardian or legal representative. Except as
provided above, the Award
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may not be assigned, transferred, pledged, hypothecated or disposed of in any
way (whether by operation of law or otherwise) and shall not be subject to
execution, attachment or similar process.
(f) Adjustments; Business Combinations.
(i) Adjustments for Events Affecting Common Stock. In the event of changes
in the Common Stock of the Corporation by reason of any stock dividend,
spin-off, split-up, reverse stock split, recapitalization, reclassification,
merger, consolidation, liquidation, business combination or exchange of shares
and the like, the Administrator shall, in its discretion, make appropriate
substitutions for or adjustments to the maximum number and kind of shares
reserved for issuance or with respect to which Awards may be granted under the
Plan to any individual as provided in Section 4 of the Plan and to the number,
kind and price of shares covered to any individual by outstanding Awards
(without changing the aggregate purchase price as to which such Awards remain
exercisable) and shall, in its discretion and without the consent of holders of
Awards, make any other substitutions for or adjustments in outstanding Awards,
including but not limited to reducing the number of shares subject to Awards or
providing or mandating alternative settlement methods such as settlement of the
Awards in cash or in shares of Common Stock or other securities of the
Corporation or of any other entity, or in any other matters which relate to
Awards as the Administrator shall, in its sole discretion, determine to be
necessary or appropriate.
(ii) Pooling of Interests Transaction. Notwithstanding anything in the Plan
to the contrary and without the consent of holders of Awards, the Administrator,
in its sole discretion, may make any modifications to any Awards, including but
not limited to cancellation, forfeiture, surrender or other termination of the
Awards in whole or in part regardless of the vested status of the Award, in
order to facilitate any business combination that is authorized by the Board to
comply with requirements for treatment as a pooling of interests transaction for
accounting purposes under generally accepted accounting principles.
(iii) Adjustments for Other Events. The Administrator is authorized to
make, in its discretion and without the consent of holders of Awards,
adjustments in the terms and conditions of, and the criteria included in, Awards
in recognition of unusual or nonrecurring events affecting the Corporation, or
the financial statements of the Corporation or any Affiliate, or of changes in
applicable laws, regulations, or accounting principles, whenever the
Administrator determines that such adjustments are appropriate in order to
prevent dilution or enlargement of the benefits or potential benefits intended
to be made available under the Plan.
(g) Substitution of Awards in Merger and Acquisitions. Awards may be
granted under the Plan from time to time in substitution for Awards held by
employees or directors of entities who become or are about to become employees
or directors of the Corporation or an Affiliate as the result of a merger or
consolidation of the employing entity with the Corporation or an Affiliate, or
the acquisition by the Corporation or an Affiliate of the assets or stock of the
employing entity. The terms and conditions of any substitute Awards so granted
may vary from the terms and conditions set forth herein to the extent that the
Administrator deems appropriate at the time of grant to conform the substitute
Awards to the provisions of the awards for which they are substituted.
Substitute Awards shall not be counted toward the share limit imposed by Section
4(b).
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(h) Foreign Participants. The Administrator may, without amending the Plan,
modify Awards granted to Participants who are foreign nationals or employed
outside the United States to recognize differences in laws, rules, regulations
or customs of such foreign jurisdictions with respect to tax, securities,
currency, employee benefit or other matters.
(i) Termination, Amendment and Modification of the Plan. The Board may
amend, alter or terminate the Plan, or portion thereof, at any time.
(j) Non-Guarantee of Employment or Service. Nothing in the Plan or in any
Grant Agreement shall confer on an individual any legal or equitable right
against the Corporation, any Affiliate or the Administrator, except as expressly
provided in the Plan or the Grant Agreement. Nothing in the Plan or in any Grant
Agreement thereunder shall (i) constitute inducement, consideration, or contract
for employment or service between an individual and the Corporation or any
Affiliate; (ii) confer any right on an individual to continue in the service of
the Corporation or any Affiliate; or (iii) shall interfere in any way with the
right of the Corporation or any Affiliate to terminate such service at any time
with or without cause or notice, or to increase or decrease compensation for
such service.
(k) Other Employee Benefits. Except as to plans that by their terms include
such amounts as compensation, the amount of any compensation deemed to be
received by a Participant as a result of the exercise of an Award or the sale of
shares received upon such exercise will not constitute compensation with respect
to which any other employee benefits of such Participant are determined,
including, without limitation, benefits under any bonus, pension,
profit-sharing, life insurance or salary continuation plan, except as otherwise
specifically determined by the Administrator.
(l) No Trust or Fund Created. Neither the Plan nor any Award shall create
or be construed to create a trust or separate fund of any kind or a fiduciary
relationship between the Corporation and a grantee or any other person. To the
extent that any grantee or other person acquires a right to receive payments
from the Corporation pursuant to an Award, such right shall be no greater than
the right of any unsecured general creditor of the Corporation.
(m) Governing Law. The validity, construction and effect of the Plan, of
Grant Agreements entered into pursuant to the Plan, and of any rules,
regulations, determinations or decisions made by the Administrator relating to
the Plan or such Grant Agreements, and the rights of any and all persons having
or claiming to have any interest therein or thereunder, shall be determined
exclusively in accordance with applicable federal laws and the laws of the State
of Pennsylvania without regard to its conflict of laws principles.
(n) Effective Date, Termination Date. The Plan is effective as of October
25, 1999, the date on which the Plan, as a replacement to the Prior Plan, was
adopted by the Board, subject to the approval of the shareholders of the
Corporation within twelve months of such effective date. No Award shall be
granted under the Plan after the close of business on October 24, 2009. Subject
to other applicable provisions of the Plan, all Awards made under the Plan prior
to such termination of the Plan shall remain in effect until such Awards have
been satisfied or terminated in accordance with the Plan and the terms of such
Awards.
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Date Approved by the Shareholders: April 28, 2000
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