Exhibit 10.1
SIX FLAGS, INC.
2008 STOCK OPTION AND INCENTIVE PLAN
I. THE PLAN
There is hereby established the 2008 Stock Option and Incentive Plan
(the "Plan") for Six Flags, Inc. (the "Company"), under which options may be
granted to purchase shares of the common stock of the Company, under which
shares of such common stock may be granted or sold at incentive prices below the
market price at the time of sale, and under which stock appreciation rights may
be granted.
II. DEFINITIONS
As used herein, the terms set forth below shall have the following
respective meanings:
(a) "Award" means an Employee Award or a Director Award.
(b) "Award Agreement" means an Employee Award Agreement or Director
Award Agreement.
(c) "Board" means the Board of Directors of the Company.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Committee" means the Compensation Committee of the Board or such
other committee of the Board as is designated by the Board to
administer the Plan.
(f) "Company" means Six Flags, Inc., a Delaware corporation, and its
successors.
(g) "Director" means an individual serving as a member of the Board.
(h) "Director Award" means the grant of Director Options to a
Non-Employee Director.
(i) "Director Award Agreement" means a written agreement between the
Company and a Participant who is a Non-Employee Director setting
forth the terms, conditions and limitations applicable to a Director
Award.
(j) "Director Option" means a Nonqualified Stock Option granted to a
Non-Employee Director.
(k) "Employee" means an officer or key employee of the Company or its
Subsidiaries, including an officer or key employee who serves as a
member of the Board.
(l) "Employee Award" means the grant of options, stock appreciation
rights, shares or rights to purchase shares, whether granted singly,
in combination or in tandem, to a Participant who is an Employee.
(m) "Employee Award Agreement" means a written agreement between the
Company and a Participant who is an Employee setting forth the
terms, conditions and limitations applicable to an Employee Award.
(n) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(o) "Incentive Stock Option" means an option that is intended to comply
with the requirements set forth in Section 422 of the Code.
(p) "Non-Employee Director" means a Director who is not an employee of
the Company or any of its Subsidiaries.
(q) "Nonqualified Stock Option" means an option that is not an Incentive
Stock Option.
(r) "Participant" means an Employee or Director to whom an Award has
been made under the Plan.
(s) "Performance Goals" mean the measurable performance objective or
objectives established pursuant to the Plan for Participants who
have received, when so determined by the Committee, grants of shares
of common stock pursuant to the Plan. Performance Goals may be
described in terms of Company-wide objectives or objectives that are
related to the performance of the individual Participant or of the
Subsidiary, division, department, park, region or function within
the Company or Subsidiary in which the Participant is employed. The
Performance Goals may be made relative to the performance of other
companies and will be based on one or more of the following business
criteria: earnings before interest, taxes, depreciation and
amortization; net income; pretax earnings; operating income; pro
forma net income; appreciation in value of shares; total shareholder
return; earnings per share; return on equity; return on designated
assets; return on capital; economic value added; revenues (including
net revenue per capita and sponsorship revenues); expenses;
operating cash flow; free cash flow; cash flow return on investment;
operating margin or net profit margin; attendance; or any of the
above criteria as compared to the performance of a published or a
special index deemed applicable by the Committee. If the Committee
determines that a change in the business, operations, corporate
structure or capital structure of the Company, or the manner in
which it conducts its business, or other events or circumstances
render the Performance Goals unsuitable, the Committee may in its
discretion modify such Performance Goals or the related minimum
acceptable level of achievement, in whole or in part, as the
Committee deems appropriate and equitable, except in the case of a
covered employee (within the meaning of section 162(m) of the Code)
where such action would result in the loss of the otherwise
available exemption of the award under Section 162(m) of the Code.
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(t) "Subsidiary" means a corporation so defined under Section 424(f) of
the Code.
III. AMOUNT OF STOCK
(a) A maximum of 3,250,000 shares of the Company's common stock may be
issued under the Plan pursuant to Awards issued under the Plan.
Shares issued under the Plan may be authorized but unissued shares,
shares held in the treasury or outstanding shares purchased from
their owners on the market or otherwise. If any Award granted under
the Plan is forfeited, terminates or is cancelled for any reason
before it is exercised, vested or earned in full, the shares
previously reserved for issuance for such Award shall not count
toward the maximum number of shares that may be issued under the
Plan, and such shares shall again be available to be issued under
the Plan. Awards tendered or surrendered to pay the tax obligation
or exercise price for options or stock appreciation rights cannot be
re-issued under the Plan and in the event the Company issues stock
appreciation rights and settles stock appreciation rights in shares
of common stock, the entire number of shares pursuant to the stock
appreciation right will count against the maximum number of shares
issuable under the Plan. Awards settled in cash will not count
against the maximum number of shares issuable under the Plan.
(b) If the outstanding shares of the Company's common stock are from
time to time increased, decreased, changed into or exchanged for a
different number or kind of shares of the Company through merger,
consolidation, reorganization, split-up, split-off, spin-off,
recapitalization, reclassification, stock dividend, stock split or
reverse stock split, an appropriate and proportionate adjustment
shall be made in the number, kind and price of shares which may be
issued pursuant to Awards under the Plan, such that each Award shall
be for such securities, cash and/or other property as would have
been received and at such exercise price or purchase price as would
have been paid in respect of such shares had the shares been issued
in full immediately prior to such increase, decrease, change or
exchange. Such adjustment shall be made successively each time that
any such increase, decrease, change or exchange is made. In
addition, in the event of any such increase, decrease, change or
exchange, the Committee shall make such further adjustments as are
appropriate to the maximum number of shares subject to the Plan, to
the other provisions of the Plan and to Awards pursuant to the Plan.
Except to the extent provided in this Section III, no reduction
shall be made in the exercise price of any option or stock
appreciation right and no option or stock appreciation right shall
be regranted with a lower exercise price or cancelled and replaced
with an option or stock appreciation right having a lower exercise
price.
(c) To the extent that the aggregate fair market value of stock subject
to one or more Incentive Stock Options that are first exercisable by
an Employee in any calendar year under the Plan (and under all other
plans of the Company and its Subsidiaries) exceeds $100,000,
determined as of the time the options are granted, such options
shall be treated as Nonqualified Stock Options. This limitation will
be applied by taking into account options in the order in which they
were granted.
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IV. ADMINISTRATION
(a) The Plan shall be administered by the Committee, which shall include
not fewer than two Directors, each of whom shall be a "Non-Employee
Director" within the meaning of Rule 16b-3 promulgated under the
Exchange Act and an "outside director" within the meaning of
Treasury Regulation Section 1.162-27(e)(3). The Board may from time
to time remove members from or add members to the Committee.
Vacancies on the Committee, however caused, shall be filled by the
Board. A majority of the Committee shall constitute a quorum and the
acts of a majority of the members present at any meeting (held at a
time and place determined by, and in accordance with rules adopted
by, the Committee) at which a quorum is present, or actions approved
in writing by a majority of the members of the Committee, shall
constitute acts of the Committee.
(b) Subject to the express terms and conditions of the Plan, the
Committee shall have full power to construe the Plan, to prescribe,
amend and rescind rules and regulations relating to the Plan and to
make all other determinations necessary or advisable for the
administration of the Plan. The exercise of these powers by the
Committee shall be conclusive and binding upon all present, past and
future Participants in the Plan.
(c) The Committee may from time to time determine to which Employees and
Non-Employee Directors eligible for selection as Participants in the
Plan, if any, Awards shall be made under the Plan, the number of
shares which may be issued in connection with each such Award, the
restrictions and forfeiture provisions related to such Awards, the
periods after which shares subject to an Award shall vest and after
which options and stock appreciation rights may be exercised and
incentive shares may be purchased, the circumstances under which
such periods may be accelerated, the exercise price of options and
stock appreciation rights and the purchase price of shares subject
to Awards, the means of payment of such exercise price or purchase
price, the means of payment of any withholding taxes related to an
Award, and the extent to which any option, right or share may be
transferred.
In addition, the Committee shall have full power and
discretion to establish and administer Performance Goals and
business criteria, establish performance periods, and certify that
Performance Goals have been attained, in each case, if and to the
extent required to comply with the "qualified performance-based
compensation" exception to Section 162(m) of the Code and the
applicable regulations thereunder.
(d) The Committee shall report in writing to the Secretary of the
Company the names of the Employees and Non-Employee Directors
selected as Participants in the Plan, and the terms and conditions
of the options, stock appreciation rights or shares to be granted or
sold to each of them.
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V. ELIGIBILITY FOR PARTICIPATION
All Employees and Non-Employee Directors shall be eligible for
selection as Participants in the Plan; provided, however, that Incentive Stock
Options may be granted only to Employees.
VI. TERMS AND CONDITIONS OF OPTIONS, STOCK APPRECIATION RIGHTS AND SHARE
GRANTS AND SALES
(a) The terms, conditions and vesting periods, if any, for each Award
under the Plan shall be evidenced by an Employee Award Agreement or
Director Award Agreement, as applicable, executed by the Company and
the Participant, which shall contain the following provisions, if
applicable:
(i) The number of shares which may be issued upon exercise of the
option, the period during which the option may be exercised,
the purchase price or prices per share to exercise the option,
and the means of payment for the shares and for any
withholding taxes imposed upon exercise of the option;
provided, however, that notwithstanding any other provision of
the Plan to the contrary, the term of an option shall not
exceed ten (10) years; and provided, further, that in the case
of an Incentive Stock Option granted to an Employee who, at
the time such Incentive Stock Option is granted, owns shares
of the Company or any of its Subsidiaries which possess more
than ten percent (10%) of the total combined voting power of
all classes of stock of the Company or of any of such
Subsidiaries, the term of such Incentive Stock Option shall
not exceed five (5) years; and provided, further, that the
purchase price or prices of each share of the Company's common
stock subject to any option under the Plan shall be determined
as follows:
(A) The purchase price of each share subject to an option
under the Plan shall be not less than one hundred
percent (100%) of the fair market value of such share on
the date the option is granted; provided, however, that
in the case of an Incentive Stock Option granted to an
Employee who, at the time such Incentive Stock Option is
granted, owns shares of the Company or any of its
Subsidiaries which possess more than ten percent (10%)
of the total combined voting power of all classes of
stock of the Company or of any of such Subsidiaries, the
purchase price of each share subject to such Incentive
Stock Option shall be not less than one hundred and ten
percent (110%) of the fair market value of such share on
the date such option is granted. In determining stock
ownership by an Employee for any purpose under the Plan,
the rules of Section 424(d) of the Code shall apply, and
the Board and the Committee may rely on the
representations of fact made to them by the Employee and
believed by them to be true.
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(B) The fair market value of shares of the Company's common
stock on a particular date is deemed to be the reported
closing sales price of such shares on such date on the
largest national securities exchange (based on the
aggregate dollar value of securities listed) on which
such shares are then listed or traded (or, if such
exchange is not open on such date, the reported opening
sales price on the next date on which such exchange is
open). If such shares are not listed or traded on any
national securities exchange, then, in each case, to the
extent the Committee determines in good faith that the
following prices arise out of a bona fide, established
trading market for the shares, the fair market value of
the shares is deemed to be:
(x) the reported closing sales price of such shares in
the over-the-counter market, as reported on the
National Association of Securities Dealers
Automated Quotations System, or, if no such price
is reported thereon, the average of the closing
bid and asked prices as so reported on such date
(or, if such market is not open on such date, the
average of the opening bid and asked prices on the
next date on which such market is open), or
(y) if such prices are not reported on such system,
then the average of the closing bid and asked
prices reported by the National Quotation Bureau
Incorporated on such date (or, if no such prices
are reported on such date, the average of the
opening bid and asked prices on the next date on
which such prices are reported). In all other
cases, the fair market value of the shares shall
be established by the Committee in good faith.
(ii) Such terms and conditions of exercise as may be set by the
Board or the Committee and specified in the Award Agreement or
other grant agreement.
(iii) An Incentive Stock Option is not transferable other than by
will or the laws of descent and distribution and is
exercisable during the Employee's lifetime only by the
Employee or, if the Employee is disabled, by his guardian or
legal representative. Award Agreements also may permit an
Incentive Stock Option to be transferred to a trust, provided
the Employee is considered, under Section 671 of the Code and
applicable state law, to be the sole beneficial owner of the
option while it is held in trust. In the case of an option
that does not otherwise qualify as an Incentive Stock Option,
Award Agreements may permit the option to be transferred to
immediate family members of the Participant, trusts for their
exclusive benefit or partnerships of which the Participant or
such family members are the only partners.
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(iv) In addition to the restrictions set forth in subsection (iii)
above, such restrictions on transfer of the option, and such
restrictions on transfer of the shares acquired upon exercise
of the option, as may be set by the Committee.
(v) Such other terms and conditions not inconsistent with the Plan
as may be set by the Committee, including provisions allowing
acceleration of options upon a change of control of the
Company or otherwise.
(b) In the discretion of the Committee, any option granted hereunder may
provide that such option may be exercised by the holder's surrender
of all or part of such option to the Company in exchange for a
number of shares of the Company's common stock having a total fair
market value, as of the date of surrender, equal to the excess of
(i) the fair market value, as of the date of surrender, of the
number of shares that could be acquired by the exercise of the
portion of the option that is surrendered, over (ii) the aggregate
exercise price which would otherwise be paid to the Company upon a
normal exercise of the option as to that number of shares. In the
event the foregoing calculation would require the issuance of a
fractional share, the Company shall, in lieu thereof, pay cash to
the holder in an amount equal to the fair market value of such
fractional share as of the date of surrender.
(c) The Committee may, in its discretion, grant stock appreciation
rights to Participants who are concurrently being granted, or
previously have been granted, options under the Plan. A stock
appreciation right shall be related to a particular option (either
to an option previously granted or to an option granted concurrently
with the stock appreciation right) and shall entitle the
Participant, at such time or times as the related option is
exercisable, and upon surrender of the then exercisable option, or
part thereof, and exercise of the stock appreciation right, to
receive payment of an amount determined pursuant to paragraph (ii)
below.
Stock appreciation rights shall be subject to the following
terms and conditions, to the terms of subsection (a)(iii) above
regarding transferability of Nonqualified Stock Options, and to such
other terms and conditions not inconsistent with the Plan as the
Committee may approve and direct:
(i) A stock appreciation right shall be exercisable by a
Participant at such time or times, and to such extent, as the
option to which it relates is then exercisable.
(ii) Upon exercise of a stock appreciation right and surrender of
the corresponding exercisable portion of the related option, a
Participant shall be entitled to receive payment of an amount
determined by multiplying:
(A) the difference obtained by subtracting the option
exercise price per share of common stock under the
related option from the fair market value of a share of
common stock of the Company on the date of exercise of
the stock appreciation right, by
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(B) the number of shares with respect to which the related
option is being surrendered and the stock appreciation
right is being exercised.
(d) The Committee may, in its discretion, grant or sell to a Participant
shares of the Company's common stock, subject to such terms,
conditions and vesting provisions, if any, as the Committee may
prescribe.
(e) Notwithstanding anything herein to the contrary, during any calendar
year, (i) no Participant may be granted options or stock
appreciation rights with respect to more than one million five
hundred thousand (1,500,000) shares of common stock under the Plan
in the aggregate, and (ii) no Participant may be granted or sold
shares of common stock, whether or not subject to Performance Goals,
for more than one million five hundred thousand (1,500,000) shares,
as adjusted pursuant to Section III above.
VII. PROCEEDS FROM SALES OF SHARES
Proceeds from sales of shares pursuant to the Plan and from exercises
of options granted under the Plan shall be added to the general funds of the
Company and thereafter may be used for such corporate purposes as the Board
determines and directs.
VIII. AMENDMENT, SUSPENSION OR TERMINATION OF PLAN
The Board may at any time amend, suspend or terminate the Plan.
However, no such action by the Board may be taken without the approval of the
stockholders of the Company entitled to vote thereon if such action would
materially increase the benefits accruing to Participants under the Plan,
increase the aggregate number of shares subject to the Plan (other than pursuant
to Section III of the Plan), or change the provisions of the Plan regarding
eligibility for participation in the Plan. No amendment, suspension or
termination of the Plan shall alter or impair any rights or obligations under an
outstanding Award Agreement or other grant agreement without the consent of the
holder.
IX. PROVISIONS FOR EMPLOYEES OF SUBSIDIARIES
In connection with an Award to an Employee of a Subsidiary, the Company
may sell to the Subsidiary the shares subject to the Award, at a price which
shall be not less than the option exercise price or purchase price paid by the
Employee for the shares, but which may be more, in order that the shares issued
or sold to the Employee may be issued or sold to him directly by his employer
corporation.
X. EFFECTIVE DATE AND TERMINATION OF THE PLAN
(a) The Plan shall be submitted for a vote at a meeting of the
stockholders of the Company or shall be approved by written consent
of the stockholders in accordance with, and only to the extent
permitted by, the Company's charter and
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by-laws and by applicable state laws prescribing the method and
degree of stockholder approval required for the issuance of
corporate stock or options; provided, that if applicable state law
does not provide a method and degree of required approval, the Plan
must be approved by a majority of the votes cast at a duly held
stockholders' meeting at which a quorum representing a majority of
all outstanding voting stock is, either in person or by proxy,
present and votes on the Plan.
(b) If approved by the stockholders of the Company within twelve (12)
months before or after adoption of the Plan by the Board, the Plan
shall become effective on the later of the date of such stockholder
approval or the date of adoption of the Plan by the Board (the
"Effective Date"). Unless sooner terminated by the Board, the Plan
shall terminate on the date ten (10) years after the earlier of (i)
the date the Plan is adopted by the Board or (ii) the Effective
Date. After termination of the Plan, no further Awards may be made
under the Plan; provided, however, that such termination will not
affect any options or stock appreciation rights granted or shares
granted or sold under the Plan prior to such termination and shall
not affect the provisions of the Plan relating to such options,
stock appreciation rights and shares.
XI. MISCELLANEOUS
(a) The invalidity or illegality of any provision of the Plan shall not
affect the validity or legality of any other provision of the Plan.
(b) The Plan, any options or stock appreciation rights granted or shares
granted or sold thereunder and all related matters shall be governed
by, and construed and enforced in accordance with, the laws of the
State of Delaware.
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