exv4w3



 






Exhibit 4.3




MIDWAY GAMES INC.




RATBAG EQUITY AWARD RIGHTS PLAN




Article I — Purpose of the Plan




     The Ratbag Equity Award Rights Plan (the “Plan”) is intended to provide employment inducement
awards to key employees (the “Employees”) of Ratbag Services Pty Ltd. and its affiliates (“Ratbag”)
at the time of the acquisition (the “Acquisition”) of Ratbag by a wholly-owned subsidiary of Midway
Games Inc. (the “Company”). The Company desires to induce the Employees to be employed, or to
continue to be employed, by the Company or one of the Company’s subsidiaries (collectively, the
“Subsidiaries,” individually, a “Subsidiary”) following the Acquisition by providing the Employees
rights (“Rights,” individually, a “Right”) to purchase shares of common stock, $0.01 par value per
share (“Common Stock”) of the Company. Under the Plan, Rights to purchase shares of Common Stock
will be granted to Employees selected by the Committee in the manner hereinafter provided on the
terms and subject to the conditions hereinafter set forth. Capitalized terms, other than those
defined above, are defined in Article XIV hereof.



Article II — Administration of the Plan




     Section 1. Subject to the authority as described herein of the Board of Directors
(the “Board”) of the Company, the Plan shall be administered by the Compensation Committee of the
Board (the “Committee”). The Committee is authorized to interpret the Plan and may from time to
time adopt such rules and regulations for carrying out the Plan as it may deem best. Subject to
any applicable provisions of the Plan, all determinations by the Committee or by the Board pursuant
to the provisions of the Plan, and all related orders or resolutions of the Committee or the Board,
shall be final, conclusive and binding on all Persons, including the Company and its stockholders,
employees, directors and Rights holders.



     Section 2. All authority delegated to the Committee pursuant to the Plan may also be
exercised by the Board. Subject to the foregoing, in the event of any conflict or inconsistency
between determinations, orders, resolutions or other actions of the Committee and the Board, the
actions of the Board shall control.



Article III — Stock Subject to the Plan




     Section 1. The shares to be issued or delivered upon exercise of Rights granted
under the Plan shall be made available, at the discretion of the Board, either from the authorized
but unissued shares of Common Stock of the Company or from shares of Common Stock reacquired by the
Company, including shares purchased by the Company in the open market or otherwise obtained.



     Section 2. Subject to the provisions of Article X hereof, the aggregate number of
shares of Common Stock which may be purchased pursuant to Rights granted at any time under the Plan
shall not exceed 38,050.



     Section 3. Shares subject to any Rights which are canceled, lapse or are otherwise
terminated shall not be available for re-issuance under the Plan.



Article IV — Purchase Price of Shares Subject to Rights




     Unless the Committee shall fix a different purchase price, the purchase price per share of
Common Stock under each Right granted to the Employees shall be $0.00.



 









 





Article V — Eligibility of Recipients




     Rights will be granted only to Employees of Ratbag.



Article VI — Duration of the Plan




     Unless previously terminated by the Committee or the Board, the Plan will terminate three days
after the closing of the Acquisition. Such termination will not terminate or otherwise affect any
Right then outstanding.



Article VII — Grant of Rights to Employees




     Section 1. The Rights to be granted under the Plan will be granted concurrently with
the consummation of the Acquisition.



     Section 2. The Committee shall determine subject to the terms of the Plan the number
of shares subject to each Right, the time or times when each Right may be exercised, any conditions
of vesting and any other matters which the Committee shall deem appropriate.



     Section 3. All instruments evidencing Rights granted to the Employees under the Plan
shall be in the form of the agreement (the “Rights Agreement”) attached hereto as Exhibit A.



Article VIII — Transferability of Rights




     Rights granted under the Plan may be transferable by the Right holder to the extent permitted
by the Committee but only as specified in the Rights Agreement.



Article IX — Exercise of Rights




     Section 1. Each Right granted under the Plan shall terminate on the date specified
by the Committee, which date shall be not later than the expiration of three years and one month
from the date on which it was granted. Rights shall be exercisable in accordance with the terms of
each Rights Agreement.



     Section 2. Each Right must be exercised in the manner set forth in the Rights
Agreement.



     Section 3. Each Right shall be subject to the requirement that if at any time the
Board shall in its discretion determine that the listing, registration or qualification of the
shares of Common Stock subject to such Right upon any securities exchange or under any state or
Federal law, or the consent or approval of any governmental regulatory body, is necessary or
desirable as a condition of or in connection with, the granting of such Right or the issuance or
purchase of shares thereunder, such Right may not be exercised in whole or in part unless such
listing, registration, qualification, consent or approval shall have been effected or obtained free
from any conditions not reasonably acceptable to the Board. Unless, at the time of exercise of a
Right and the issuance of Common Stock so purchased, there shall be in effect as to such Common
Stock a registration statement under the Act, the Right holder shall deliver a certification (a)
acknowledging that such shares of Common Stock may be “restricted securities” as defined in Rule
144 promulgated under the Act; and (b) containing such Right holder’s agreement that such Common
Stock may not be sold or otherwise disposed of except in compliance with applicable provisions of
the Act. In the event that the Common Stock is then listed on a national securities exchange, the
Company shall use its best efforts to cause the listing of the shares of Common Stock subject to
Rights upon such exchange.



     Section 4. The Company may establish appropriate procedures to provide for payment
or withholding of such income or other taxes as may be required by applicable law to be paid or
withheld in



2









 




connection with the exercise of Rights or any other matters under the Plan, and to
ensure that the Company receives prompt advice concerning the occurrence of any event which may
create, or affect the timing or amount of, any obligation to pay or withhold any such taxes or
which may make available to the Company any tax deduction resulting from the occurrence of such
event.




Article X — Adjustments




     Section 1. New Rights may be substituted for the Rights granted under the Plan, or
the Company’s duties as to Rights outstanding under the Plan may be assumed by a corporation other
than the Company, or by a parent or subsidiary of the Company or such corporation, in connection
with any merger, consolidation, acquisition, separation, reorganization, liquidation or other
similar corporate transaction in which the Company is involved. Notwithstanding the foregoing or
the provisions of this Article, in the event such corporation, or parent or subsidiary of the
Company or such corporation, does not substitute new Rights for, and substantially equivalent to,
the Rights granted hereunder, or assume the Rights granted hereunder, the Rights granted hereunder
shall terminate and thereupon become null and void (i) upon dissolution or liquidation of the
Company, or similar occurrence, (ii) upon any merger, consolidation, acquisition, separation,
reorganization, or similar occurrence, where the Company will not be a surviving entity or (iii)
upon a transfer of substantially all of the assets of the Company or more than 80% of the
outstanding Common Stock in a single transaction; provided, however, that each Right holder shall
have the right immediately prior to or concurrently with such dissolution, liquidation, merger,
consolidation, acquisition, separation, reorganization or other similar corporate transaction, to
exercise any unexpired Right granted hereunder whether or not then exercisable.



     Section 2. In the event that the Committee determines that any dividend or other
distribution (whether in the form of cash, shares, other securities, or other property),
recapitalization, stock split, reverse stock split, reorganization, merger, consolidation,
split-up, spin-off, combination, repurchase, or exchange of shares or other securities of the
Company, issuance of warrants or other rights to purchase shares or other securities of the
Company, or other corporate transaction or event affects the shares of Common Stock subject to the
Rights such that an adjustment is determined by the Committee to be appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits intended to be made available under
the Plan, then the Committee shall, in such manner as it may deem equitable, adjust any or all of
(i) the number of shares of Common Stock or other securities of the Company (or number and kind of
other securities or property) with respect to which Rights have been granted and any limitations
set forth in the Plan, (ii) the number of shares of Common Stock or other securities of the Company
(or number and kind of other securities or property) subject to outstanding Rights and (iii) the
grant or exercise or target price with respect to any Right or, if deemed appropriate, make
provision for a cash payment to the holder of an outstanding Right including, if necessary, the
termination of such Right. Without limiting the generality of the foregoing, any such adjustment
shall be deemed to have prevented any dilution and enlargement of a Right holder’s rights if such
Right holder receives in any such adjustment rights which are substantially similar (after taking
into account the fact that the Right holder has not paid the applicable exercise price) to the
rights the Right holder would have received had he exercised his outstanding Rights and become a
stockholder of the Company immediately prior to the event giving rise to such adjustment.



Article XI — Privileges of Stock Ownership




     No Right holder, or legal representative, legatee, distributee or transferee of such Right
holder, shall be entitled to any rights or privileges of a stockholder of the Company in respect of
any shares of Common Stock covered by a Right until such Right has been exercised and the shares
have been registered in the Company’s register of stockholders.



3









 





Article XII — Amendments to the Plan




     The Board may at any time terminate or from time to time amend, modify or suspend the Plan;
provided, however, that no such amendment, modification, termination or suspension shall, without
the written consent of an Right holder, adversely affect any rights or obligations under any Right
theretofore granted to such Right holder under the Plan.



Article XIII — Effective Date of the Plan




     The Plan shall be effective concurrently with the closing of the Acquisition.



Article XIV – Governing Law




     This Plan and the terms of any Rights granted hereunder shall be governed, construed and
interpreted in accordance with the laws of the State of Delaware of the United States, without
giving effect to any conflicts of law rule or principle that might require the application of the
laws of another jurisdiction.



Article XV – Definitions




     For the purposes of this Plan, the following terms shall have the meanings indicated:


Act: The Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.



Board: Such term is defined in Article II, Section I hereof.



Committee: Such term is defined in Article II, Section 1 hereof.



Director: Such term includes any director of the Company.



Person: Such term shall have the meaning ascribed to it under the Securities and Exchange Act of
1934, as amended and the rules and regulations promulgated thereunder.



Plan: Such term is defined in Article I hereof and includes all amendments hereof.



Rights Agreement: Such term is defined in Article VII, Section 3 hereof.




(See Exhibit 4.4 for Exhibit A hereto)





4