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Exhibit
10.6
WS MIDWAY HOLDINGS,
INC.
STOCK OPTION
PLAN
The Plan authorizes the
Committee to provide persons or entities that are providing, or
have agreed to provide, services to the Company or its Affiliates,
who are in a position to contribute to the long-term success of the
Company or its Affiliates, with Options to acquire Shares. The
Company believes that this incentive program will cause those
persons to increase their interest in the welfare of the Company
and its Affiliates, and aid in attracting, retaining and motivating
persons of outstanding ability.
Capitalized terms used herein
shall have the meanings set forth in this Section.
(a) “Affiliate”
shall mean any person or entity that, either directly or indirectly
through one or more intermediaries, (i) controls the Company,
or (ii) is controlled by the Company or a person described in
clause (i).
(b) “Code” means
the Internal Revenue Code of 1986, as amended.
(c) “Committee”
shall mean the Compensation Committee of the Board of Directors of
the Company.
(d) “Company”
shall mean WS Midway Holdings, Inc., a corporation organized under
the laws of the State of Delaware.
(e) “Employee”
shall mean any person or entity that is providing, or has agreed to
provide, services to the Company or an Affiliate of the Company,
whether as an employee, director or independent
contractor.
(f) “Fair Market
Value” of a Share on any given date shall be determined by
the Committee, in its discretion, provided, that such value shall
not be less than the fair market value within the meaning of
Section 409A of the Code.
(g) “Grantee”
shall mean an Employee granted an Option under the Plan.
(h) “ISO” shall
mean any Option or portion thereof that meets the requirements of
an incentive stock option under Section 422 of the Internal
Revenue Code of 1986, as amended.
(i) “Nonqualified
Option” shall mean any Option or portion thereof that is not
an ISO.
(j) “Option
Agreement” shall mean a written agreement between the Company
and
the Grantee, evidencing the grant of an
Option hereunder and containing such terms and conditions, not
inconsistent with the express provisions of the Plan, as the
Committee shall approve.
(k) “Options”
shall refer to Series A Options and Series B Options issued under
and subject to the Plan.
(l) “Performance-Based
Vesting” shall have the meaning set forth in
Section 5.
(m) “Plan” shall
mean this Option Plan as set forth herein and as amended from time
to time.
(n) “Sale of the
Company” means the sale of the Company (whether by merger,
consolidation, recapitalization, reorganization, sale of
securities, sale of assets or otherwise) in one transaction or a
series of related transactions to a person or entity not an
affiliate, directly or indirectly, of Wellspring Capital, pursuant
to which such person or entity (together with its affiliates)
acquires (i) securities representing at least a majority of
the voting power of all securities of the Company, assuming the
conversion, exchange or exercise of all securities convertible,
exchangeable or exercisable for or into voting securities, or
(ii) all or substantially all of the Company’s assets on
a consolidated basis.
(o) “Series A
Options” shall be options issued under and subject to the
Plan. One-half of the Series A Options shall be subject to
Time-Based Vesting and one-half of the Series A Options shall be
subject to Performance-Based Vesting, as set forth in
Section 5.
(p) “Series B
Options” shall be options issued under and subject to the
Plan. All Series B Options shall be subject to Performance-Based
Vesting, as set forth in Section 5.
(q) “Share” shall
mean a share of common stock of the Company.
(r) “Stockholders
Agreement” shall mean the Stockholders Agreement, dated as of
March 8, 2006, among the Company and its stockholders, as the
same may thereafter be amended from time to time.
(s) “Time-Based
Vesting” shall have the meaning set forth in
Section 5.
(t) “Wellspring
Capital” means Wellspring Capital Partners III,
LP.
(u) “Wellspring
IRR” shall equal the discount rate (compounded annually)
which causes (i) the present value as of March 8, 2006 of
all amounts received by Wellspring Capital and its affiliates in
respect of the sale, exchange or redemption of their Shares, plus
any dividends, to equal (ii) the present value as of
March 8, 2006 of all equity investments in the Company made by
Wellspring Capital and its affiliates.
(v) “Wellspring
Liquidity Event” means a sale, exchange or redemption of
substantially all Shares held by Wellspring Capital and its
affiliates pursuant to which Wellspring Capital and its affiliates
receive cash in respect of such Shares.
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| Section 3. |
Shares Available under the Plan |
Subject to the provisions of
Section 7, the total number of Shares with respect to which
Options may be granted under the Plan shall not exceed 19,076.47,
inclusive of both Series A Options and Series B Options. If, prior
to exercise, any Options are forfeited, lapse or terminate for any
reason, the Shares covered thereby may again be available for
Option grants under the Plan.
| Section 4. |
Administration of the Plan |
(a) Authority of the
Committee . The Plan shall be administered by the Committee.
The Committee shall have full and final authority to take the
following actions, in each case subject to and consistent with the
provisions of the Plan:
(i) to select the Employees
to whom Options may be granted;
(ii) to determine the number
of Shares subject to each such Option;
(iii) to determine the terms
and conditions of any Option granted under the Plan, including the
exercise price, conditions relating to exercise, and termination of
the right to exercise;
(iv) to determine the
restrictions or conditions related to the delivery, holding and
disposition of Shares acquired upon exercise of an
Option;
(v) to prescribe the form of
each Option Agreement;
(vi) to adopt, amend,
suspend, waive and rescind such rules and regulations and appoint
such agents as the Committee may deem necessary or advisable to
administer the Plan;
(vii) to correct any defect
or supply any omission or reconcile any inconsistency in the Plan
and to construe and interpret the Plan and any Option, Option
Agreement or other instrument hereunder; and
(viii) to make all other
decisions and determinations as may be required under the terms of
the Plan or as the Committee may deem necessary or advisable for
the administration of the Plan.
(b) Manner of Exercise of
Committee Authority . Any action of the Committee with respect
to the Plan shall be final, conclusive and binding on all persons,
including the Company, its Affiliates, Grantees, and any person
claiming any rights under the Plan from or through any
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Grantee, except to the extent the
Committee may subsequently modify, or take further action not
inconsistent with, its prior action. If not specified in the Plan,
the time at which the Committee must or may make any determination
shall be determined by the Committee, and any such determination
may thereafter be modified by the Committee (subject to
Section 10). The express grant of any specific power to the
Committee, and the taking of any action by the Committee, shall not
be construed as limiting any power or au
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