EXHIBIT 10.6
TRANSCORE DEFERRED OPTION PLAN
1. Purpose of the Plan. This plan shall be known as the TransCore
Deferred Option Plan. The purpose of the Plan is to attract,
retain and motivate the highest quality employees for
positions of substantial responsibility and to provide
additional incentives to those employees so as to promote the
success of the Company.
2. Definitions. As used herein, the following definitions shall
apply:
(a) "Administrator" shall mean the Board, or the person or
persons appointed by Board to serve under paragraph 15,
below.
(b) "Award Date" shall mean the effective date of the
Participant's Option Agreement.
(c) "Board" shall mean the Board of Directors of the Company.
(d) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(f) "Company" shall mean TransCore.
(g) "Employee" shall mean any employee of the Company or its
subsidiaries.
(h) "Option" shall mean an option granted pursuant to this
Plan to purchase one or more Shares.
(i) "Option Agreement" means a written agreement evidencing
the award of an Option under the Plan.
(j) "Participant" shall mean any Employee who receives an
Option under the Plan, as evidenced by an Option Agreement
entered into between such Employee and the Company.
(k) "Plan" shall mean the TransCore Deferred Option Plan, as
amended from time to time.
(l) "Shares" shall mean the shares of mutual funds, shares of
common or preferred stock of a corporation listed or
reported on a national securities exchange or quotation
system, or shares of a regulated investment company, as
designated and amended by the Board and referenced in
Appendix A. Shares may also include common or preferred
stock or preferred stock with
warrants of the Company. In no way, however, may Shares
include units of any money market funds or other cash
equivalents. Shares subject to purchase pursuant to any
Option shall also include any earnings on such shares
subsequent to the Award Date.
(m) "Termination of Employment" shall mean the date on which
the employee ceases to perform services for the Company.
3. Term of Plan. The Plan shall become effective on the date it
is adopted by the Board and shall continue in effect until
terminated pursuant to paragraph 13.
4. Shares Subject to the Option. The aggregate number and type of
Shares subject to Options as approved by the Board will be
fully described in each Option Agreement.
5. Eligibility. Select Employees of the Company who meet the
participation guidelines as established by the Board are
eligible to receive Options under the Plan. Any criteria for
performance awards may be adopted in conjunction with this
Plan as long as such criteria meets the needs of the business
and is aligned with the strategic goals and objectives of the
business.
6. Grant of Options. The Board shall determine the number of
Shares to be offered from time to time and grant Options under
the Plan. The grant of Options shall be evidenced by written
Option Agreements containing such terms and provisions as
approved by the Board.
7. Time of Grant of Options. The date of Grant of an Option under
the Plan shall, for all purposes, be the date on which the
Board awards the Option, as evidenced by the execution of an
Option Agreement.
8. Option Price. The Option Price for each Share shall be
expressed in each Option Agreement, provided, however, the
Option Price shall be no lower than twenty-five percent (25%)
of the fair market value of a Share on the date of grant of
the Option. "Fair Market Value" means the value of a share of
Stock, determined as follows: if on the Grant Date or other
determination date the Stock is listed on an established
national or regional stock exchange, is admitted to quotation
on the NASDAQ National Market, or is publicly traded on an
established securities market, the Fair Market Value of a
share of Stock shall be the closing price of the Stock on such
exchange or in such market (the highest such closing price if
there is more than one such exchange or market) on the Grant
Date or such other determination date (or if there is no such
reported closing price, the Fair Market Value shall be the
mean between the highest bid and lowest asked prices or
between the high and low sale prices on such trading day) or,
if no sale of Stock is reported for such trading day, on the
next preceding day on which any sale shall
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have been reported. If the Stock is not listed on such an
exchange, quoted on such system or traded on such a market,
Fair Market Value shall mean the Fair Market Value of the
Stock [a] as determined by the Board to be equal to the share
price realized from the most recent private placement of
shares that are subject to an option grant hereunder, or [b]
as determined at least annually by a nationally recognized
appraiser or an appraiser with expertise in the industry in
which the Company operates (the "Appraiser"), who shall be
selected by the Board. The Board may require that the
Appraiser update its determination of the Fair Market Value in
the event the Board determines in good faith that the Fair
Market Value has changed materially since the then most recent
private placement or appraisal was concluded. The Company
shall be responsible for the fees and expenses incurred with
respect to any update to the most recent appraisal.
9. Exercise. Except as otherwise provided in an Option Agreement,
all Options granted under the Plan will be vested at grant and
therefore may be exercisable immediately, unless stated
otherwise by the Board.
The Option may be exercised in full or in part within twenty
years from the date on which options are granted, or such
shorter period as may be specified by the Board in the Option
Agreement.
Reinvested dividends shall be attributed proportionally to the
property subject to the Option awards and will be deemed
exercised when the underlying award is exercised. For example,
if an original grant of an Option to purchase 500 shares
generated 100 shares from reinvested dividends, an exercise of
one-fourth of the originally granted options will result in
the purchase of 150 shares in order to proportionally include
the resulting reinvested dividends.
The Participant shall have the right to receive in-kind
distributions upon exercise as the ordinary means of
distribution. Other means of distribution such as cash may be
authorized by the Board on a case-by-case basis.
In addition, all Options granted under the Plan may only be
exercised subject to any other terms specified in the Option
Agreement and if such terms conflict with the terms of this
Plan, the terms of the Option Agreement control.
10. Limitations on Option Disposition. Any Option granted under
the Plan and the rights and privileges conferred therewith
shall not be sold, transferred, encumbered, hypothecated or
otherwise alienated by the Participant other than by gift or
will or the laws of descent and distribution. Options shall
not be subject to, in whole or in part, the debts, contracts,
liabilities, or torts of the Participant, nor shall they be
subject to garnishment, attachment, execution, levy or other
legal or equitable process.
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11. Limitations on Option Exercise and Distribution. In the event
that the listing, registration or qualification of an Option
or Shares on any securities exchange or under any state or
federal law, or the consent of approval of any governmental
regulatory body, or the availability of any exemption
therefrom, is necessary as a condition of, or in connection
with, the exercise of an Option, then the Option shall not be
exercised in whole or in part until such listing,
registration, qualification, consent or approval has been
effected or obtained. Notwithstanding any provision of the
Plan to the contrary, the Company shall have no obligation or
liability to deliver any Shares under the Plan unless such
delivery would comply with all applicable laws and all
applicable requirements of any securities exchange or similar
entity
12. Withholding of Taxes. The Board may make such provisions and
take such steps as it may deem necessary or appropriate for
the withholding of any taxes which the Company is required by
any law or regulation of any governmental authority, whether
federal, state or local, domestic or foreign, to withhold in
connection with any Option issued under the Plan including,
but not limited to, the withholding of the issuance of all or
any portion of such Shares until the Participant reimburses
the Company for the amount the Company is required to withhold
with respect to such taxes, canceling any portion of such
issuance in an amount sufficient to reimburse itself for the
amount it is required to so withhold, or taking any other
action reasonably required to satisfy the Company's
withholding obligation.
13. Modification of Option or Plan. The Board may, at any time and
from time to time, amend, suspend or terminate the Plan as to
any shares of Stock as to which Grants have not been made.
Except as permitted under this Section 16 hereof, no
amendment, suspension or termination of the Plan shall,
without the consent of the Grantee, alter or impair rights or
obligations under any Grant awarded under the Plan.
14. Substitution of Option. If a Participant has been granted an
Option to purchase Shares under an Option Agreement, then
except as limited by the terms of the Option Agreement or
Plan, the Participant may direct that the Option be converted
into an Option to purchase other Shares as permitted by the
Option Agreement with written consent of the Board. Such
substitution shall only be allowed to the extent that,
immediately following the substitution, the difference between
the fair market value of the Shares subject to the substituted
Option and the exercise price of the substituted Option is no
greater than the difference which existed immediately prior to
the substitution between the fair market value of the Shares
subject to the original Option and the exercise price of the
original Option. In no event shall a participant be permitted
to make substitutions more often than annually.
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15. Administration of the Plan. The Board, in its sole discretion,
is authorized to select the Employees who will receive Options
and to determine the number of Options and the number of
Shares under each Option. The Board, or the person or persons
appointed by the Board to serve as Administrator, shall be the
Administrator of the Plan. The Administrator, in its sole
discretion, is authorized to interpret the Plan, to prescribe,
amend and rescind rules and regulations relating to the Plan
and to the Options granted under the Plan, to determine the
form and content of Options to be issued under the Plan, and
to make such other determinations and exercise such other
power and authority as may be necessary or advisable for the
administration of the Plan. No fee or compensation shall be
paid to any person for services as the Administrator. The
Administrator in its sole discretion may delegate and pay
compensation for services rendered relating to the ministerial
duties of plan administration including, but not limited to,
selection of investments available under the Plan. Any
determination made by the Administrator pursuant to the powers
set forth herein are final, binding and conclusive upon each
Participant and upon any other person affected by such
decision, subject to the claims procedure hereinafter set
forth. The Administrator shall decide any question which may
arise regarding the rights of employees, Participants and
beneficiaries, and the amounts of their respective interests,
adopt such rules and to exercise such powers as the
Administrator may deem necessary for the administration of the
Plan, and exercise any other rights, powers or privileges
granted to the Administrator by the terms of the Plan. The
Administrator shall maintain full and complete records of its
decisions. Its records shall contain all relevant data
pertaining to the Participant and his rights and duties under
the Plan. The Administrator shall have the duty to maintain
Account records or all Participants. The Administrator shall
cause the principal provisions of the Plan to be communicated
to the Participants and a copy of the Plan and other documents
shall be available at the principal office of the Company for
inspection by Participants at reasonable times determined by
the Administrator.
16. Continued Employment Not Presumed. Nothing in the Plan or any
document describing it nor the grant of an Option via an
Option Agreement shall give any Participant the right to
continue in employment with the Company or affect the right of
the Company to terminate the employment of any such person
with or without cause.
17. Governing Law. The Plan shall be governed by and construed in
accordance with the laws of Pennsylvania.
18. Severability of Provisions. Should any provision of the Plan
be determined to be invalid, illegal or unenforceable, such
invalidity, illegality or unenforceability shall not affect
the remaining provisions of the Plan, but shall be fully
severable, and the Plan shall be construed and enforced as if
such provision had never been inserted herein.
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19. Hedge of Liability Created by the Option Plan. At the sole
discretion of the Board, the liability created by the exercise
of the Options issued pursuant to the Option Plan may be
offset by the Company entering into a hedging transaction. The
hedging transaction may consist of the Company purchasing all
or part of the Shares subject to the Options issued pursuant
to the Plan, at date of grant of the Options or at any time
during the Option exercise period.
20. Claims Procedure. In general, any claim for benefits under the
Plan shall be filed by the Participant or beneficiary
("claimant") on the form prescribed for such purpose with the
Administrator. If a claim for benefits under the Plan is
wholly or partially denied, notice of the decision shall be
furnished to the claimant by the Administrator within a
reasonable period of time after receipt of the claim by the
Administrator. The claims procedure shall be as follows:
(a) Any claimant who is denied a claim for
benefits shall be furnished written notice
setting forth:
(i) the specific reason or reasons for the
denial;
(ii) specific reference to the pertinent
provision of the Plan upon which the
denial is based;
(iii) a description of any additional
material or information necessary for
the claimant to perfect the claim; and
(iv) an explanation of the claim review
procedure under the Plan.
(b) In order that a claimant may appeal a denial
of a claim, the claimant or the claimant's
duly authorized representative may:
(i) request a review by written
application to the Administrator, or
its designate, no later than sixty
(60) days after receipt by the
claimant of written notification of
denial of a claim;
(ii) review pertinent documents; and
(iii) submit issues and comments in writing.
(c) A decision on review of a denied claim shall
be made not later than sixty (60) days after
receipt of a request for review, unless
special circumstances require an extension
of time for processing, in which case a
decision shall be rendered within a
reasonable period of time, but not later
than one hundred and twenty (120) days after
receipt of a request for review. The
decision on a review shall be in writing and
shall include the specific reason(s) for the
decision and the specific reference(s) to
the pertinent provisions of the Plan on
which the decision is based.
22. Designation of Beneficiary. A Participant, by filing the
prescribed form with the Administrator (See Exhibit B), may
designate one or more beneficiaries and
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successor beneficiaries who shall be given the right to
exercise Options in accordance with the terms of the Plan in
the event of the Participant's death. In the event the
Participant does not file a form designating one or more
beneficiaries, or no designated beneficiary survives the
Participant, the Option shall be exercisable by the individual
to whom such right passes by will or the laws or descent and
distribution.
23. Intent. The Plan is intended to be unfunded and maintained by
the Company solely to provide options to a select group of
management or highly compensated employees as such group is
described under Sections 201(2), 301(a)(3), and 401(a)(1) of
the Employee Retirement Income Security Act of 1974 ("ERISA")
as interpreted by the U.S. Department of Labor. The Plan is
not intended to be a plan described in Sections 401(a) or 457
of the Code. The obligation of the Company to deliver Shares
subject to the Options granted under this Plan constitutes
nothing more than an unsecured promise of the Company to
fulfill such obligations and any property of the Company that
may be set aside to permit it to fulfill such obligations
under the Plan shall, in the event of the Company's bankruptcy
or insolvency, remain subject to the claims of the Company's
general creditors until such Options are exercised. At the
discretion of the Administrator, the individual assets of the
Plan for any or all Participants may be placed in a rabbi
trust, which meets the guidelines of Revenue Procedure 92-64.
24. Option Financing. Upon the exercise of any Option granted
under the Plan, the Participant may request that the Company
sell or deem to sell a number of Shares otherwise deliverable
to the Participant and attributable to the exercise of the
Option in order to pay the exercise price of the Option. The
Board may, in its sole discretion, make financing available to
the Participant to facilitate the exercise of the Option,
subject to such terms as the Board may specify.
******************
As evidence of its adoption of the Plan, TransCore has caused this
instrument to be signed by its officer of representative duly authorized on this
28th day of June, 2000.
TransCore
By: /s/ DAVID SPARKS
_________________________
Title: EXECUTIVE VICE PRESIDENT
_________________________
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APPENDIX A
SHARES AVAILABLE TO THE COMPANY FOR GRANT OR SUBSTITUTION
Description
TransCore Series A-1 Preferred Shares with warrants
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FIRST AMENDMENT
TO THE
TRANSCORE DEFERRED OPTION PLAN
WHEREAS, TransCore (hereinafter referred to as the "Employer") maintains the
TransCore Deferred Option Plan (hereinafter referred to as the "Plan") as
effective June 28, 2000; and
WHEREAS, the Employer desired to amend the Plan to revise the terms and
conditions of the Plan.
NOW THEREFORE, pursuant to Section 13 of the Plan, the Plan is hereby amended as
follows:
Section 10 shall read:
Succession and Transferability. Except as otherwise provided in this
paragraph, the Option and the rights and privileges conferred herewith
shall not be sold, transferred, encumbered, hypothecated or otherwise
anticipated by the Participant other than by will or the laws of descent
and distribution, and during the Participant's life, may be exercised only
by the Participant. However, the Participant, with the Approval of the
Committee, may transfer by gift any Option or part thereof to (a) a member
or members of the Participant's Immediate Family and/or to a trust
established for the benefit of an Immediate Family member or members, or
(b) a charitable organization described in Section 170(c) of the Internal
Revenue Code of 1986, as amended from time to time, provided such transfer
is irrevocable, is made without consideration, and each Option so
transferred by the Participant remains subject after transfer to the
provisions of the Plan. The term "Immediate Family" shall mean the
Participant's spouse, parents, children, stepchildren, adoptive
relationships, sisters, brothers and grandchildren. This Option is not
liable for or subject to, in whole or in part, the debts, contract,
liabilities or torts of the Participant, nor shall it be subject to
garnishment, attachment, execution, levy or other legal or equitable
process. Following transfer, any such Options shall continue to be subject
to the same terms and conditions as were applicable immediately prior to
the transfer. The provisions with respect to termination of employment set
forth in Section 16 shall continue to apply with respect to the
Participant, in which event the Options shall be exercisable by the
transferee only to the extent and for the periods specified herein. The
participant will remain subject to withholding taxes upon exercise of any
such Option by the transferee. The Company shall have no obligation
whatsoever to provide notice to any transferee of any matter, including
without limitation, early termination of an Option on account of
termination of employment of the participant.
IN WITNESS WHEREOF, the Employer has executed and adopted this First Amendment
on this day of _____________, 2002.
TRANSCORE:
BY: /s/ Claudia F. Wiegand
TITLE: Executive Vice President