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WS MIDWAY HOLDINGS, INC. STOCK OPTION PLAN

Option Agreement

WS MIDWAY HOLDINGS, INC. STOCK OPTION PLAN | Document Parties: DAVE & BUSTER'S HOLDINGS, INC. | WS MIDWAY HOLDINGS, INC You are currently viewing:
This Option Agreement involves

DAVE & BUSTER'S HOLDINGS, INC. | WS MIDWAY HOLDINGS, INC

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Title: WS MIDWAY HOLDINGS, INC. STOCK OPTION PLAN
Governing Law: Delaware     Date: 7/11/2008

WS MIDWAY HOLDINGS, INC. STOCK OPTION PLAN, Parties: dave & buster's holdings  inc. , ws midway holdings  inc
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Exhibit 10.6

WS MIDWAY HOLDINGS, INC.

STOCK OPTION PLAN

 

Section 1. Purpose

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.

 

Section 2. Definitions

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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