SCHEDULE 14A
(RULE 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(a)
OF THE SECURITIES EXCHANGE ACT OF 1934
Filed by the Registrant [x]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[ ] Preliminary Proxy Statement
[ ] Confidential for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
[X] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material under Rule 14a-12
Dave & Buster's, Inc.
- --------------------------------------------------------------------------------
(Name of Registrant as Specified In Its Charter)
- --------------------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[x] No fee required.
[ ] Fee computed on the table below per Exchange Act Rules 14a-6(i)(1) and
0-11.
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11:
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number
or the form or schedule and the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
DAVE & BUSTER'S, INC.
2481 MANANA DRIVE
DALLAS, TEXAS 75220
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
TO BE HELD JUNE 10, 2003
To the Shareholders of Dave & Buster's, Inc.:
NOTICE IS HEREBY GIVEN that the Annual Meeting of Shareholders of Dave &
Buster's, Inc. (the "Company") will be held in The Show Room at Dave & Buster's,
10727 Composite Drive, Dallas, Texas, on Tuesday, June 10, 2003, at 9:00 a.m.
local time, for the following purposes:
(a) To elect one class of directors (consisting of three directors) of
the Company to serve for a three-year term, or until their successors have
been elected and qualified. THE BOARD UNANIMOUSLY RECOMMENDS A VOTE FOR THE
ELECTION OF EACH OF THE BOARD'S NOMINEES ON THE ENCLOSED WHITE PROXY CARD.
(b) To ratify the selection of Ernst & Young LLP, as independent
auditors of the Company for the fiscal year 2003. THE BOARD UNANIMOUSLY
RECOMMENDS A VOTE FOR THIS PROPOSAL ON THE ENCLOSED WHITE PROXY CARD.
(c) To consider and act upon a shareholder proposal, requesting that
we pursue a sale of the Company with the assistance of an investment
banker. THE BOARD UNANIMOUSLY RECOMMENDS A VOTE AGAINST THIS PROPOSAL ON
THE ENCLOSED WHITE PROXY CARD.
The Company has been notified by a shareholder, Dolphin Limited Partnership
I, L.P., that such shareholder intend to nominate three individuals in
opposition to the Board's three nominees for director.
The Board has fixed the close of business on April 18, 2003 as the record
date for determination of those shareholders who will be entitled to notice of,
and to vote at, the meeting or any adjournment thereof. You may examine a list
of the shareholders of record as of the close of business on April 18, 2003 for
any purpose germane to the meeting during the 10-day period preceding the date
of the meeting at the offices of the Company, located at 2481 Manana Drive,
Dallas, Texas 75220.
WHETHER OR NOT YOU PLAN TO ATTEND THE ANNUAL MEETING AND REGARDLESS OF THE
NUMBER OF SHARES YOU OWN, PLEASE DATE, SIGN AND RETURN THE ENCLOSED WHITE PROXY
CARD IN THE ENCLOSED ENVELOPE (WHICH REQUIRES NO POSTAGE IF MAILED IN THE UNITED
STATES).
IF YOU HAVE ANY QUESTIONS, OR NEED ASSISTANCE VOTING, PLEASE CONTACT
GEORGESON SHAREHOLDER, TOLL FREE AT 1-800-605-6576.
By Order of the Board of Directors
/s/ JOHN S. DAVIS
JOHN S. DAVIS
Senior Vice President, General Counsel
and
Corporate Secretary
Dallas, Texas
May 6, 2003
DAVE & BUSTER'S, INC.
2481 MANANA DRIVE
DALLAS, TEXAS 75220
PROXY STATEMENT
FOR
ANNUAL MEETING OF SHAREHOLDERS
TO BE HELD JUNE 10, 2003
GENERAL INFORMATION
This Proxy Statement is furnished to holders of the common stock, par value
$.01 per share (the "Common Stock"), of Dave & Buster's, Inc., a Missouri
corporation (the "Company"), in connection with the solicitation of proxies by
the Board of Directors of the Company for use at the Annual Meeting of
Shareholders to be held on June 10, 2003, at 9:00 a.m. local time and at any and
all adjournments or postponements thereof (the "Annual Meeting"). The purpose of
the meeting and the matters expected to be acted upon are set forth in the
preceding Notice of Annual Meeting of Shareholders. At present, the Board of
Directors knows of no other business which will come before the meeting.
This Proxy Statement and accompanying form of proxy are being mailed to the
Company's shareholders on or about May 6, 2003. The Company's Annual Report,
covering the Company's fiscal year 2002, is enclosed herewith but does not form
any part of the materials for solicitation of proxies.
QUORUM AND VOTING OF PROXY
Record Date. The record date for the Annual Meeting ("Record Date") is
April 18, 2003. Only holders of record of the Common Stock at the close of
business on such date are entitled to notice of, and to vote at, the Annual
Meeting. At the close of business on the Record Date, the Company had issued and
outstanding, and entitled to vote at the Annual Meeting, 13,362,785 shares of
Common Stock. Each outstanding share of Common Stock is entitled to one vote.
Quorum. In order for any business to be conducted at the Annual Meeting,
the holders of a majority of the outstanding shares entitled to vote must be
represented at the Annual Meeting, either in person or by properly executed
proxy. If a quorum is not present at the scheduled time of the Annual Meeting,
the shareholders who are present may adjourn the Annual Meeting to a specified
date not later than 90 days from such adjournment. The time and place of the
adjourned meeting will be announced at the time the adjournment is taken, and no
other notice to shareholders is required to be given. An adjournment will have
no effect on the business that may be conducted at the Annual Meeting.
Required Vote. Votes cast at the meeting will be tabulated by persons
appointed as inspectors of election for the Annual Meeting. The inspectors of
election will treat shares of Common Stock represented by a properly signed and
returned proxy as being represented at the Annual Meeting for purposes of
determining a quorum, without regard to whether the proxy is marked as casting a
vote, withholding authority to vote or abstaining on any or all of the matters.
Likewise, the inspectors of election will treat shares referred to as "broker
non-votes" (referring to proxies that represent shares of Common Stock held in
street name as to which brokers do not have discretionary voting authority and
as to which they have not received voting instructions from their customers) as
being represented of the Annual Meeting for purposes of determining a quorum.
Assuming that a quorum is present at the Annual Meeting, the election as a
director of each nominee requires the affirmative vote of holders of record of a
majority of the shares of Common Stock represented, in person or by proxy, at
the Annual Meeting. Shares represented by a proxy that directs that a vote be
withheld for one or more director nominees will be deemed to be represented at
the Annual Meeting for purposes of determining the outcome of the election of
directors. "Broker non-votes" will not be deemed to be represented at the Annual
Meeting, and therefore will be disregarded by the election
inspectors for purposes of determining the outcome of the election of directors
(even if considered to be represented at the Annual Meeting for purposes of
other matters).
Assuming that a quorum is present at the Annual Meeting, the affirmative
vote of the holders of a majority of the shares of Common Stock represented at
the meeting in person or by proxy will be required to approve the ratification
of the appointment of the independent auditors, the shareholder proposal or any
other matter that may properly be brought before the Annual Meeting. For
purposes of determining the outcome of any matter other than the election of
directors, (i) shares represented by a proxy that directs that the shares
abstain from voting on a particular matter will be deemed to be represented at
the Annual Meeting as to such matter, and therefore will have the effect of a
vote against such matter, and (ii) "broker non-votes," if any, with respect to a
particular matter will not be deemed to be represented at the Annual Meeting for
purposes of the vote as to such matter, and therefore will be disregarded by the
election inspectors for purposes of determining the outcome of the vote on such
matter.
The Annual Meeting will continue until adjourned by a vote of the
shareholders present or declared adjourned by the presiding officer.
Proxies. If the enclosed Proxy is properly executed, returned in time and
not revoked, the shares represented thereby will be voted in accordance with the
instructions indicated. If a shareholder does not indicate any voting
instructions, such shareholder's shares will be voted (i) FOR the election to a
three year term as directors of the Company of the Board's three nominees set
forth below; (ii) FOR the ratification of the selection of Ernst & Young LLP as
independent auditors for fiscal year 2003, and (iii) AGAINST approval of the
shareholder proposal. The Company is not aware of any other matter of business
to be brought before the meeting. If any other matter or business is properly
brought before the meeting or any adjournment thereof, the proxy holders may
vote the proxies in their discretion.
A shareholder who has given a Proxy may revoke it at any time prior to its
exercise at the Annual Meeting by either (i) giving written notice of revocation
to the Secretary of the Company, (ii) properly submitting to the Company a duly
executed Proxy bearing a later date, or (iii) appearing at the Annual Meeting
and voting in person. All written notices of revocation of Proxies should be
addressed as follows: Dave & Buster's, Inc., 2481 Manana Drive, Dallas, Texas
75220, Attention: John S. Davis, Senior Vice President, General Counsel and
Secretary.
PROXY SOLICITATION
The cost of soliciting proxies will be borne by the Company. The Company
currently estimates that it will spend a total of approximately $200,000 for its
solicitation of proxies. This estimate excludes salaries and wages of regular
employees and officers and normal expenses of an uncontested proxy solicitation
for the election of directors. As of April 16, 2003, the Company had expended
approximately $20,000 in connection with its proxy solicitation. The Company has
retained Georgeson Shareholder Communications, Inc. ("Georgeson") for a fee not
to exceed $50,000, plus reimbursement of reasonable out-of-pocket expenses to
assist in the solicitation of proxies and revocations. The Company estimates
that approximately 25 employees of Georgeson will be involved in the
solicitation of proxies and revocations on behalf of the Company. Proxies may be
solicited through the mail and through telephonic or telegraphic communications
to, by advertisements in periodicals, or by meetings with, shareholders or their
representatives by directors, officers, and other employees of the Company who
will receive no additional compensation therefor. The Company may also solicit
proxies by postings on its website at www.daveandbusters.com, but does not
intend to allow for Internet voting of proxies.
The Company requests persons such as brokers, nominees, and fiduciaries
holding stock in their names for others, or holding stock for others who have
the right to give voting instructions, to forward proxy material to their
principals and to request authority for the execution of the proxy, and the
Company will reimburse such persons for their reasonable expenses.
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INFORMATION CONCERNING PERSONS WHO MAY SOLICIT PROXIES
Under applicable Securities and Exchange Commission rules, the following
individuals, all of whom are directors or executive officers of the Company, may
be deemed to be participants in the solicitation of proxies on behalf of the
Company ("Participants'):
<Table>
<Caption>
NAME PRESENT PRINCIPAL OCCUPATION PRINCIPAL ADDRESS OF EMPLOYMENT
- ---- ---------------------------- -------------------------------
Allen J. Bernstein................... Chairman of the Board and Morton's Restaurant Group, Inc.
Chief Executive Officer, 3333 New Hyde Park Road
Morton's Restaurant Group, Suite 210
Inc. New Hyde Park, NY 10042
James "Buster" W. Corley............. Chief Executive Officer and Dave & Buster's, Inc.
Chief Operating Officer 2481 Manana Drive
Dallas, TX 75220
David "Dave" O. Corriveau............ President Dave & Buster's, Inc.
2481 Manana Drive
Dallas, TX 75220
Peter A. Edison...................... Chairman of the Board and Baker's Footwear Group, Inc.
Chief Executive Officer, 2815 Scott Avenue
Baker's Footwear Group, Inc. St. Louis, MO 63103
Mark A. Levy......................... Managing Director, Alexander Alexander Capital Group
Capital Group 737 N. Michigan Avenue
Suite 810
Chicago, IL 60611
Christopher C. Maguire............... President, Staubach Retail Staubach Retail Services
Services 15601 Dallas Parkway
Suite 400
Addison, TX 75001
Patricia P. Priest................... Managing Director and Chief The Beck Group
Financial Officer, The Beck 1807 Ross Avenue
Group Suite 500
Dallas, TX 75201
David P. Pittaway.................... Senior Managing Director, Castle Harlan, Inc.
Castle Harlan, Inc. 150 E. 58th Street
37th Floor
New York, NY 10155
Walter J. Humann..................... Chairman, President and Chief WJH Corporation
Executive Officer, WJH 1445 Ross Avenue
Corporation Suite 5400
Dallas, TX 72020
John S. Davis........................ Sr. Vice President, General Dave & Buster's, Inc.
Counsel and Secretary 2481 Manana Drive
Dallas, TX 75220
Nancy J. Duricic..................... Sr. Vice President, Human Dave & Buster's, Inc.
Resources 2481 Manana Drive
Dallas, TX 75220
William C. Hammett, Jr............... Sr. Vice President and Chief Dave & Buster's, Inc.
Financial Officer 2481 Manana Drive
Dallas, TX 75220
Deborah A. Inzer..................... Vice President, Accounting and Dave & Buster's, Inc.
Controller 2481 Manana Drive
Dallas, TX 75220
</Table>
3
<Table>
<Caption>
NAME PRESENT PRINCIPAL OCCUPATION PRINCIPAL ADDRESS OF EMPLOYMENT
- ---- ---------------------------- -------------------------------
Sterling R. Smith.................... Sr. Vice President, Operations Dave & Buster's, Inc.
2481 Manana Drive
Dallas, TX 75220
Bryan L. Spain....................... Sr. Vice President, Dave & Buster's, Inc.
Procurement & Development 2481 Manana Drive
Dallas, TX 75220
</Table>
The number of shares owned by each Participant (other than Ms. Duricic, Mr.
Spain and Ms. Inzer) are set forth below in the table under "Stock Ownership by
Certain Beneficial Owners." Except as otherwise disclosed in this Proxy
Statement, the shares set forth in that table opposite such Participant's name
are owned of record and beneficially by such Participant. As of the date of this
Proxy Statement, Ms. Duricic, Mr. Spain and Ms. Inzer, owned 12,500, 14,000 and
4,000 shares respectively of Common Stock (including restricted stock), and held
presently exercisable options to acquire 36,467, 63,500 and 1,000 shares,
respectively, under the Company's stock option plans. Within the past two years,
none of the Participants have purchased or sold any shares of Common Stock
except as follows: (i) Mr. Corriveau sold 5,000 shares of Common Stock on May 5,
2001 at a price of $9.00 per share and sold 10,000 shares on July 11, 2001 at a
price of $7.65 per share and (ii) Mr. Smith sold 1,495 shares of Common Stock on
April 12, 2002 at a price of $10.25 per share and sold 500 shares on the same
date at a price of $10.33 per share.
Except as described in this Proxy Statement, none of the Participants nor
any of their respective affiliates or associates (together, the "Participant
Affiliates") (i) directly or indirectly beneficially owns any securities of the
Company or (ii) has had any relationship with the Company in any capacity other
than as a stockholder, employee, officer or director. Furthermore, except as
described in this Proxy Statement, no Participant or Participant Affiliate is or
was either a party to any transaction or series of transactions since the
beginning of fiscal 2002 or has knowledge of any currently proposed transaction
or series of transactions (i) to which the Company was or is to be a party, (ii)
in which the amount involved exceeds $60,000 and (iii) in which any Participant
or Participant Affiliate had or will have a direct or indirect material
interest. Except as described in this Proxy Statement, no Participant or
Participant Affiliate has entered into any agreement or understanding with any
person respecting any (i) future employment by the Company or its affiliates or
(ii) any transaction to which the Company or any of its affiliates will or maybe
a party. Except as described in this Proxy Statement, there are no contracts,
arrangements or understandings by any Participant or Participant Affiliate
within the past year with any person with respect to any securities of the
Company.
CERTAIN AGREEMENTS RELATING TO THE COMPANY'S STOCK
On May 30, 2002, the Company entered into a merger agreement with D&B
Holdings I, Inc. and D&B Acquisition Sub, Inc. pursuant to which the Company
proposed to merge with D&B Acquisition Sub, Inc. Concurrently with the execution
of the merger agreement, David O. Corriveau, James W. Corley, W.C. Hammett, Jr.
and Walter S. Henrion entered into a support and exchange agreement with D&B
Holdings I, Inc. and D&B Acquisition Sub, Inc. pursuant to which each of these
individuals agreed, among other things, not to transfer or sell their shares of
Common Stock prior to the merger, to vote their shares of Common Stock in favor
of the merger, and upon closing of the merger, to exchange their shares of
Common Stock and certain stock options for shares of common stock and stock
options of D&B Holdings I, Inc. It was also contemplated that, upon closing of
the merger, these individuals would enter into a stockholder agreement which
would set forth certain voting rights, put/call rights, transfer limitations and
other rights and obligations with respect to the shares of common stock of D&B
Holdings I, Inc. to be received in the exchange. The merger agreement and the
support and exchange agreement, together with the understanding regarding the
stockholder agreement, were terminated by the parties thereto on October 24,
2002.
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STOCK OWNERSHIP BY CERTAIN BENEFICIAL OWNERS
The following table sets forth certain information regarding the beneficial
ownership of the Common Stock as of April 10, 2003, for (i) each person who is
known by the Company to own beneficially more than 5% of the outstanding shares
of common stock, (ii) each director and each of the Board's nominees for
director of the Company, (iii) each of the executive officers of the Company
named in the Summary Compensation Table under "Executive Officers Compensation"
and (iv) all of the directors and executive officers of the Company as a group.
Except pursuant to applicable community property laws and except as otherwise
indicated, each shareholder identified in the table possesses sole voting and
investment power with respect to the listed shares.
<Table>
<Caption>
SHARES BENEFICIALLY
OWNED(1)
-------------------
NAME NUMBER PERCENT
- ---- --------- -------
5% OR MORE SHAREHOLDERS
Dolphin Limited Partnership I, L.P.(2)...................... 1,235,900 9.3%
Barclays Global Investors, N.A.(3).......................... 1,088,497 8.1%
Dimensional Fund Advisors, Inc.(4).......................... 815,780 6.1%
DIRECTORS AND EXECUTIVE OFFICERS:
David O. Corriveau(5)....................................... 799,384 5.8%
James W. Corley(6).......................................... 814,385 5.9%
W.C. Hammett, Jr.(7)........................................ 50,000 *
Sterling R. Smith(8)........................................ 115,600 *
John S. Davis(9)............................................ 21,333 *
Allen J. Bernstein(10)...................................... 30,000 *
Peter A. Edison(11)......................................... 433,568 3.2%
Walter J. Humann(12)........................................ 0 *
Mark A. Levy(13)............................................ 15,005 *
Christopher C. Maguire(14).................................. 33,000 *
David B. Pittaway(12)....................................... 0 *
Patricia P. Priest(12)...................................... 0 *
ALL DIRECTORS AND EXECUTIVE OFFICERS AS A GROUP (15
PERSONS)(15).............................................. 2,443,742 17.1%
</Table>
- ---------------
* Indicates less than 1%.
(1) Pursuant to the rules of the Securities and Exchange Commission ("SEC"),
shares of the Company's Common Stock that a person has the right to acquire
within 60 days (i.e. on or before May 31, 2003) are deemed to be
outstanding for the purposes of computing the percentage ownership of such
person but are not deemed outstanding for the purpose of computing the
percentage ownership of any other person.
(2) Based upon a Schedule 14A filed with the SEC on March 21, 2003 and a
Schedule 13D filed with the SEC on March 3, 2003. The address of Dolphin
Limited Partnership I, L.P. ("Dolphin") is 96 Cummings Point Road,
Stamford, Connecticut 06902. Dolphin has sole voting and dispositive power
over all of such shares. The General Partner of Dolphin is Dolphin
Associates LLC, the managing member of Dolphin Associates LLC is Dolphin
Holdings Corp. and the Senior Managing Director, Chief Executive Officer
and President of Dolphin Holdings Corp. is Donald T. Netter.
(3) Based upon a Schedule 13G filed with the SEC on February 12, 2003. The
address of Barclays Global Investors, N.A. is 45 Fremont Street, San
Francisco, California 94105. Barclays Global Investors, N.A. has voting and
dispositive power over 1,019,010 shares and Barclays Global Fund Advisors
has voting and dispositive power over 69,487 shares.
5
(4) Based upon a Schedule 13G filed with the SEC on February 10, 2003. The
address of Dimensional Fund Advisors is 1299 Ocean Avenue, 11th Floor,
Santa Monica, California 90401. Dimensional Fund Advisors Inc. has sole
voting and dispositive power over all of such shares.
(5) Includes 326,667 shares subject to options exercisable within 60 days and
60,000 shares of restricted stock for which Mr. Corriveau has sole voting
power only. Includes 74,545 shares owned of record by a family limited
partnership for which Mr. Corriveau shares voting and dispositive power.
Mr. Corriveau disclaims beneficial ownership with respect to such shares.
Substantially all of the shares owned directly by Mr. Corriveau have been
pledged as collateral to secure various personal bank loans and margin
trading in personal brokerage accounts.
(6) Includes 326,667 shares subject to options exercisable within 60 days and
60,000 shares of restricted stock for which Mr. Corley has sole voting
power only. Includes 99,559 shares owned of record by a family limited
partnership for which Mr. Corley shares voting and dispositive power. Mr.
Corley disclaims beneficial ownership with respect to such shares.
(7) Includes 25, 000 shares subject to options exercisable within 60 days and
25,000 shares of restricted stock for which Mr. Hammett has sole voting
power only.
(8) Includes 93,600 shares subject to options exercisable within 60 days and
15,000 shares of restricted stock for which Mr. Smith has sole voting power
only.
(9) Includes 13,333 shares subject to options exercisable within 60 days and
8,000 shares of restricted stock for which Mr. Davis has sole voting power
only.
(10) Includes 30,000 shares subject to options exercisable within 60 days.
(11) Includes 210,970 shares owned by a charitable foundation of which Mr.
Edison is a director, 5,784 shares held in trust for the benefit of a
family member, and 60 shares owned directly by a family member. Mr. Edison
disclaims beneficial ownership of all of such shares.
(12) Mr. Humann, Ms. Priest and Mr. Pittaway were each awarded 22,500 options in
April 2003 under the Directors Stock Option Plan. See "Director
Compensation".
(13) Includes 15,000 shares subject to options exercisable within 60 days and 5
shares owned directly by a family member. Mr. Levy disclaims beneficial
ownership with respect to such shares.
(14) Includes 30,000 shares subject to options exercisable within 60 days.
(15) Includes a total of 961,234 shares subject to options exercisable within 60
days and 192,000 shares of restricted stock for which such officers hold
sole voting power only.
PROPOSAL 1
ELECTION OF DIRECTORS
The Company's Bylaws provide that the number of directors shall consist of
three or more directors, with the exact number to be determined by the
affirmative vote of a majority of the Board of Directors. By resolution, the
Board of Directors has set the number of directors of the Company at nine. The
Company's Articles of Incorporation provide for the Board of Directors to
consist of three classes of directors serving staggered terms of office, with
each class to consist, as nearly as possible, of one-third of the total number
of directors constituting the entire Board of Directors. Upon the expiration of
the term of office for a class of directors, the nominees for that class will be
elected for a three-year term to serve until the election and qualification of
their successors. Three current directors, James W. Corley, Peter A. Edison, and
Patricia P. Priest have been nominated for re-election at the Annual Meeting for
a three-year term expiring in 2006. Ms. Priest was elected by the Board on April
17, 2003 to fill the vacancy created by the retirement of former Board member
Walter S. Henrion, to serve the remainder of his term ending on the date of the
Annual Meeting. The other six directors have one year and two years, (depending
on class) remaining on their terms of office and will not be voted upon at the
Annual Meeting.
It is the intention of the persons named as proxies to vote the Proxies for
election of each Mr. Corley, Mr. Edison, and Ms. Priest as a director of the
Company, unless the shareholders direct otherwise in their
6
Proxies. Each director will be elected to hold office until the 2006 Annual
Meeting of Shareholders or until his or her earlier death, resignation or
removal. Each of Mr. Corley, Mr. Edison, and Ms. Priest has consented to
continue to serve as a director of the Company if re-elected and none of such
nominees has notified the Company that they intend to serve only if all three of
the Board's nominees are elected. In the unanticipated event that Mr. Corley,
Mr. Edison, or Ms. Priest refuses or is unable to serve as a director, the Board
of Directors, in its discretion, may designate a substitute or nominee or
nominees (in which case the persons named as proxies will vote all valid Proxies
for the election of such substitute nominee or nominees), or by resolution
reduce the authorized number of directors. The Board of Directors has no reason
to believe that any of the nominees will be unable or will decline to serve as a
director.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE ELECTION OF THE BOARD'S
THREE NOMINEES LISTED BELOW. THE AFFIRMATIVE VOTE OF THE HOLDERS OF A MAJORITY
OF THE SHARES REPRESENTED AND ENTITLED TO VOTE IN THE ELECTION AT THE ANNUAL
MEETING AT WHICH A QUORUM IS PRESENT IS REQUIRED FOR THE ELECTION OF EACH
NOMINEE.
DIRECTOR AND NOMINEE INFORMATION
Based on information supplied by them, set forth below is certain
information concerning the Board's nominees for election as directors and the
directors in other classes whose terms of office will continue after the Annual
Meeting, including the name and age of each, their current principal occupations
(which continued for at least the past five years unless otherwise indicated),
the names and principal businesses of the corporations or other organizations in
which their occupations are carried on, the year each was elected to the Board
of Directors of the Company, their positions with the Company, and their
directorships in other publicly held companies.
NOMINEES FOR DIRECTOR (CURRENT TERMS EXPIRE 2003)
Mr. Peter A. Edison, 47, was named Chairman of the Board of the Company in
April 2003. He has been the Chairman and Chief Executive Officer of the Baker's
Footwear Group, Inc., formerly Weiss and Neuman Shoe Company, a specialty
footwear retailer, since October 1997. Mr. Edison has been a director of the
Company since 1995.
Mr. James W. "Buster" Corley, 52, a co-founder of the Dave & Buster's
concept in 1982, has served as Chief Executive Officer of the Company since
April 2003 and as Chief Operating Officer since June 1995 and has been director
since 1995. He previously served as Co-Chief Executive Officer from June 1995 to
April 2003, and as Co-Chairman of the Board from February 1996 to April 2003.
Mr. Corley served as Executive Vice President and Chief Operating Officer of D&B
Holding (a predecessor of the Company) from 1989 through June 1995. From 1982 to
1989, Messrs. Corley and Corriveau operated the Company's business.
Ms. Patricia P. Priest, 51, has served as a Managing Director, a member of
the Board of Directors and Chief Financial Officer of the Beck Group, an $800
million real estate, architectural and construction services company, since
1999. Prior to joining the Beck Group, Ms. Priest served as President of
Intershop Real Estate Services, a Swiss-based real estate investment company, as
Chief Financial Officer of Rosewood Property Company and Chief Investment
Officer of Patriot American Hospitality/Wyndham International. Ms. Priest was
appointed as a director of the Company in April 2003 to fill a vacancy on the
Board created by the retirement of former director Walter S. Henrion.
DIRECTORS CONTINUING IN OFFICE (TERMS EXPIRE 2004)
Mr. Allen J. Bernstein, 57, is founder of Morton's Restaurant Group, Inc.
and has been its Chairman of the Board and Chief Executive Officer since its
inception in 1988. Morton's owns and operates more than 69 restaurants,
comprised of two distinct restaurant companies, Morton's The Steakhouse and
Bertolini's Restaurants. Mr. Bernstein has been a director of the Company since
1996.
7
Mr. David B. Pittaway, 52, has served as Senior Managing Director of Castle
Harlan, Inc., a private equity investment firm specializing in mergers and
acquisitions, since 1987. Prior to joining Castle Harlan, Mr. Pittaway was Vice
President, Strategic Planning, and Assistant to the President of Donaldson,
Lufkin & Jenrette, Inc., served as a management consultant with Bain & Company
and practiced law. He is also a director of American Achievement Corporation.
Mr. Pittaway was appointed as a director of the Company in April 2003 to fill a
vacancy on the Board occurring as a result of the Board's decision to increase
the number of directors of the Company from 8 to 9.
Mr. Walter J. Humann, 65, has been President and Chief Executive Officer of
WJH Corporation, a Dallas-based real estate partnership, since 1991. He formerly
served as Chairman of the Executive Committee, Director and Executive Vice
President of Hunt Consolidated, Inc. and as President of numerous diversified
Hunt Consolidated subsidiaries or affiliates from 1975 to 1992. He has also
served as an independent director of public companies Memorex-Telex, RAND
Corporation and Nichols Homeshield. Mr. Humann was appointed as a director of
the Company to fill a vacancy on the Board created by the retirement of Bruce H.
Hallett.
DIRECTORS CONTINUING IN OFFICE (TERMS EXPIRE 2005)
Mr. David O. "Dave" Corriveau, 51, a co-founder of the Dave & Buster's
concept in 1982, has been President and a director of the Company since 1995. He
previously served as Co-Chief Executive Officer from June 1995 to April 2003,
and as Co-Chairman of the Board from February 1996 to April 2003. Mr. Corriveau
served as President and Chief Executive Officer of D&B Holding (a predecessor of
the Company) from 1989 through June 1995. From 1982 to 1989, Messrs. Corriveau
and Corley operated the Company's business.
Mr. Mark A. Levy, 56, is founder and has been managing director of
Alexander Capital Group, a private investment firm, since June 1998. He was a
co-founder of The Levy Restaurants and served as its Vice Chairman from 1978 to
1998. The Levy Restaurants operates restaurants, food service and special
concession operations throughout the United States. Mr. Levy served as lead
director from March 2003 until Mr. Edison was named independent Chairman of the
Board in April 2003, effectively replacing the position of lead director. He has
been a director of the Company since 1995.
Mr. Christopher C. Maguire, 41, has served as CEO and President of Staubach
Retail Services, a national retail real estate consulting company, and Cypress
Equities, Inc., a retail development and acquisition affiliate, since their
inception in 1994. Mr. Maguire joined The Staubach Company, a Dallas-based
national real estate brokerage firm in 1986 to form its Retail Services
Division. Mr. Maguire has been a director of the Company since 1997.
ADVANCE NOTICE OF SHAREHOLDER NOMINEES
Dolphin, a shareholder of the company, has notified the Company of its
intention to nominate three individuals in opposition to the three nominees of
the Board. According to information provided by Dolphin, for which the Company
disclaims any responsibility, these individuals are: Donald T. Netter, 41,
Chairman, Chief Executive Officer, President and Senior Managing Director of
Dolphin Holding Corporation, 96 Cummings Point Road, Stamford, CT 06902; Edward
E. Hartline, 56, a Managing Partner of the law firm of Brown McCarroll, L.L.P.,
1111 Bagby, 47th Floor, Houston, TX 77030; and Edward A. Weinstein, 67, retired
Partner of Deloitte & Touche LLP, 433 East 56th Street, Apt. 15A, New York, NY
10022.
The Board of Directors held five meetings in fiscal 2002. No director
attended fewer than 75% of the meetings of the Board or of any committee of the
Board on which he served during such period.
COMMITTEES OF THE BOARD OF DIRECTORS
The Audit Committee, comprised of Ms. Priest (Chair) and Messrs. Edison,
and Pittaway, recommends to the Board of Directors the appointment of the
Company's independent auditors, reviews
8
and approves the scope of the annual audit of the Company's financial
statements, reviews and approves any non-audit services performed by the
independent auditors, reviews the findings and recommendations of the internal
and independent auditors and periodically reviews and approves major accounting
policies and significant internal accounting control procedures. For fiscal
2002, the Audit Committee was comprised of Messrs. Edison, Hallett and Maguire.
The Audit Committee met six times during fiscal 2002. The Audit Committee
operates pursuant to a new charter adopted in April 2003, a copy of which is
attached to this Proxy Statement as Annex A.
The Audit Committee is composed of outside directors who are not officers
or employees of the Company. Each of the present members of the Audit Committee
is independent of management, as "independence" is presently defined under the
existing listing standards of the New York Stock Exchange.
In addition, the Board has determined that each of Ms. Priest, Mr. Edison
and Mr. Pittaway qualify as "audit committee financial experts" under the
provisions of the Sarbanes-Oxley Act of 2002 and the rules of the Securities and
Exchange Commission.
The Compensation Committee, comprised of independent directors Messrs.
Pittaway (Chair), Humann, and Bernstein, reviews and recommends compensation of
officers and directors, administers equity plans and reviews major personnel
matters. For fiscal 2002, the Compensation Committee was comprised of Messrs.
Levy and Bernstein. The Compensation Committee met three times during fiscal
2002. Attached to this Proxy Statement as Annex B is the original Charter
adopted by the Compensation Committee in April 2003.
The Nominating and Corporate Governance Committee comprised of independent
directors Messrs. Edison (Chair), Humann, and Levy, was newly formed in March
2003 and therefore did not meet during fiscal 2002. The Nominating & Corporate
Governance Committee is charged with establishing criteria for and nominating
candidates for director of the Company as well as administering the overall
corporate governance policies and philosophy of the Company. Attached to this
Proxy Statement as Annex C is the original Charter adopted by the Nominating and
Governance Committee in April 2003.
While the Nominating and Corporate Governance Committee believes that it is
able to identify a sufficient number of qualified candidates from it own
resources, it will consider shareholder suggestions of persons to be considered
as nominees to fill future vacancies on the Board. Such suggestions must be sent
in writing to the Secretary at the Company's address and must be accompanied by
detailed biographical and occupational data on the prospective nominee, along
with a written consent of the prospective nominee to consideration of his or her
name by the Nominating and Corporate Governance Committee. The Company's bylaws
include additional requirements regarding nominations of persons at
shareholders' meetings other than by the Board.
The Executive Committee, formerly comprised of Messrs. Corriveau, Corley
and Mr. Henrion, did not meet or act during fiscal 2002. In April 2003, the
Board of Directors voted to eliminate the Executive Committee as a standing
board committee.
PROPOSAL 2
RATIFICATION OF THE SELECTION OF AUDITORS
The Audit Committee has appointed Ernst & Young LLP ("Ernst & Young") to be
the independent auditors of the Company for fiscal 2003. Although not legally
required to do so, upon the recommendation of the Audit Committee, the Board is
submitting the appointment of Ernst & Young as the Company's independent
auditors for fiscal 2003 to the shareholders for ratification at this meeting.
The services provided to the Company by Ernst & Young in fiscal 2003 will
include, in addition to performing the audit, review of quarterly financial
statements, completion and review of federal and state tax returns, and
consultation on various accounting financial reporting, tax and related matters.
9
Ernst & Young, a nationally known firm, has no direct or indirect interest
in the Company. The firm of Ernst & Young has been the Company's auditor since
1995.
Representatives of Ernst & Young are expected to be present at the Annual
Meeting, they will have the opportunity to make a statement if they desire to do
so and are expected to be available to respond to appropriate questions.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE RATIFICATION OF THE
APPOINTMENT OF ERNST & YOUNG TO BE THE INDEPENDENT AUDITORS OF THE COMPANY FOR
FISCAL 2003, WHICH REQUIRES THE AFFIRMATIVE VOTE OF A MAJORITY OF THE SHARES
REPRESENTED AND ENTITLED TO VOTE AT THE MEETING.
REPORT OF THE AUDIT COMMITTEE
We have reviewed and discussed with management the Company's audited
financial statements as of and for the year ended February 2, 2003. We have
discussed with the independent auditors the matters required to be discussed by
Statement on Auditing Standards No. 61, Communication with Audit Committees, as
amended, by the Auditing Standards Board of the American Institute of Certified
Public Accountants.
We have received and reviewed the written disclosures and the letter from
the independent auditors required by Independence Standard No. 1, Independence
Discussions with the Audit Committees, as amended, by the Independence Standards
Board, and have discussed with the auditors the auditors' independence.
Based on the reviews and discussions referred to above, we have recommended
to the Board of Directors that the financial statements referred to above be
included in the Company's Annual Report on Form 10-K for the year ended February
2, 2003.
Peter A. Edison, Chairman
Bruce H. Hallett
Christopher C. Maguire
INDEPENDENCE OF ACCOUNTANTS
Ernst & Young, LLP served as the Company's independent accountants for the
fiscal years ended February 2, 2003 and February 3, 2002 and has been selected,
subject to the ratification of such selection by the Company's stockholders, to
serve in such capacity for the current year. For the fiscal years ended February
2, 2003 and February 3, 2002, the Company paid Ernst & Young, the following
amounts:
<Table>
<Caption>
FISCAL 2002 FISCAL 2001
----------- -----------
Audit Fees.................................................. $175,400 $138,000
Audit-Related Fees (includes................................ 205,105 0
transaction due diligence)
Tax Fees (tax compliance and preparation)................... 215,499 140,074
All Other Fees (includes special projects; tax advice and
services outside the scope of tax compliance and
preparation; other miscellaneous matters)................. 246,620 145,921
</Table>
In March 2003, the Audit Committee established a policy whereby Ernst &
Young would be required to seek pre-approval by the Committee of all tax and
other non-audit related services by providing a prior description of the
services to be performed and specific fee estimates for each such service. Prior
to the adoption of such policy, the Audit Committee pre-approved 100% of
estimated audit-related and tax fees and 0% of all other fees of Ernst & Young
for fiscal 2002 and 2001.
The Audit Committee concluded that the provision of the above mentioned
non-audit services is compatible with maintaining the independence of Ernst &
Young.
10
COMPENSATION OF DIRECTORS AND EXECUTIVE OFFICERS
EXECUTIVE OFFICERS COMPENSATION
The following table sets forth information concerning all compensation paid
or accrued by the Company during fiscal 2000, 2001 and 2002 to or for the
Company's Chief Executive Officer and the four other highest compensated
executive officers of the Company (collectively the "Named Executive Officers").
SUMMARY COMPENSATION TABLE
<Table>
<Caption>
LONG-TERM COMPENSATION
ANNUAL COMPENSATION(1) ------------------------------
---------------------- RESTRICTED SECURITIES ALL OTHER
SALARY(2) BONUS(2) STOCK AWARDS UNDERLYING COMPENSATION
NAME AND PRINCIPAL POSITION YEAR ($) ($) ($)(3) OPTIONS/SARS(#) ($)(4)
- --------------------------- ---- ---------- --------- ------------ --------------- ------------
David O. Corriveau....... 2002 $582,692 $ 60,000 -- -- --
(President) 2001 $498,077 $100,000 -- 150,000 $115,385
2000 $391,346 -- $480,000 120,000 --
James W. Corley.......... 2002 $582,692 $ 60,000 -- -- --
(CEO & COO) 2001 $498,077 $100,000 -- 150,000 $115,385
2000 $391,346 -- $480,000 120,000 --
W.C. Hammett, Jr.(5)..... 2002 $234,510 $ 50,000 -- -- $ 16,152
(Senior Vice President 2001 $ 34,615 $ 10,000 $161,250 75,000 838
and CFO) 2000 -- -- -- -- --
Sterling R. Smith........ 2002 $213,115 $ 20,000 -- -- $ 5,862
(Senior Vice President, 2001 $205,577 $ 25,000 -- 70,000 $ 51,845
Operations) 2000 $187,115 -- $120,000 20,000 --
John S. Davis(6)......... 2002 $182,236 $ 20,000 -- -- $ 3,347
(Senior Vice President, 2001 $134,712 $ 17,500 $ 63,200 20,000 $ 5,559
General Counsel and 2000 -- -- -- -- --
Secretary)
</Table>
- ---------------
(1) The value of perquisites and other personal benefits is not reported where
such amount does not exceed the lesser of $50,000 or 10% of the total annual
salary and bonus reported for the Named Executive Officer.
(2) Amounts earned were determined by the Company's Compensation Committee. Base
salaries for Mr. Corriveau and Mr. Corley were reduced by 20 percent for
2003. See "Report of the Compensation Committee."
(3) All restricted stock awards, except the award to Mr. Hammett, are subject to
vesting over seven years, or earlier contingent upon the Company reaching
specific financial performance measures. Mr. Hammett's restricted stock
vests in full on December 1, 2006. As of February 2, 2003 the number and
value of restricted stock holdings by the Named Executive Officers was as
follows: Mr. Corriveau 60,000 shares, $488,400; Mr. Corley 60,000 shares,
$488,400; Mr. Hammett 25,000 shares, $203,500; Mr. Smith 15,000 shares,
$122,100; and Mr. Davis 8,000 shares, $65,120.
(4) Includes non-qualified and qualified moving expenses for Mr. Hammett in
fiscal 2002, and retention bonuses paid to Mr. Corley, Mr. Corriveau and Mr.
Smith in fiscal 2001. Also includes matching contributions to the Company's
401k plan.
(5) Mr. Hammett joined the Company on December 1, 2001.
(6) Mr. Davis joined the Company on April 16, 2001.
EMPLOYMENT AGREEMENTS
Effective April 3, 2000, the Company entered into employment agreements
with each of Messrs. Corriveau and Corley (the "Employment Agreements"). Under
the terms of the Employment
11
Agreements, each of Messrs. Corriveau and Corley are entitled to a base salary
of $400,000, or such higher amount as the Compensation Committee may determine
from time to time. They also are entitled to participate in the executive
incentive bonus plan and in any other bonus arrangement mutually agreed between
them and the Company. The Employment Agreements continually renew after an
initial one-year period on a rolling one-year basis. Contemporaneously with the
Employment Agreements, the Company also entered into Executive Retention
Agreements with each of Messrs. Corriveau and Corley. In fiscal 2001, the
Company also entered into Executive Retention Agreements with Mr. Hammett, Mr.
Smith and Mr. Davis, as well as other executive officers of the Company. These
Executive Retention Agreements provide for guaranteed severance payments equal
to two times the annual compensation of the executive officers (base salary plus
cash bonus award) and continuation of health and similar benefits for a two year
period upon termination of employment without cause within one year after a
change of control of the Company. In the case of Messrs. Corriveau and Corley,
if the officer remains employed with the Company through the first anniversary
date following a change of control, a special bonus equal to one year's
compensation will be paid.
The Company has entered into related trust agreements to provide for
payment of amounts under its non-qualified deferred compensation plans and the
Executive Retention Agreements. Full funding is required in the event of a
change of control.
Under the terms of the Company's Stock Option Plans, all options and
restricted stock will become vested upon the occurrence of a change of control.
STOCK PLAN INFORMATION
There were no stock options or restricted stock granted during fiscal 2002
under the Dave & Buster's 1995 Stock Incentive Plan (the "Stock Plan") to any of
the Named Executive Officers.
None of the Named Executive Officers exercised options during fiscal 2002.
The following table sets forth certain information with respect to the options
held by the Named Executive Officers at February 2, 2003:
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR AND FISCAL YEAR-END OPTION
VALUES
<Table>
<Caption>
VALUE OF UNEXERCISED
NUMBER OF UNEXERCISED IN-THE-MONEY OPTIONS AT
OPTIONS AT FEBRUARY 2, 2003 FEBRUARY 2, 2003(1)
--------------------------- ---------------------------
SHARES VALUE EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
NAME EXERCISED(#) REALIZED($) (#) (#) ($) ($)
- ---- ------------ ----------- ----------- ------------- ----------- -------------
David O. Corriveau.... 0 0 293,334 116,666 $107,468 $150,832
James W. Corley....... 0 0 293,334 116,666 $107,468 $150,832
W.C. Hammett.......... 0 0 25,000 50,000 $ 42,250 $ 84,500
Sterling R. Smith..... 0 0 72,767 66,833 $ 45,867 $ 73,933
John S. Davis......... 0 0 6,667 13,333 $ 1,600 $ 3,200
</Table>
- ---------------
(1) Based upon the closing price of the Common Stock of the Company on January
31, 2003 of $8.14 per share.
REPORT OF THE COMPENSATION COMMITTEE
The Compensation Committee of the Board of Directors of the Company (the
"Compensation Committee") has furnished the following report on executive
compensation. The Compensation Committee report documents the components of the
Company's executive officer compensation programs and describes the compensation
philosophy on which fiscal year 2002 compensation determinations were made by
the Compensation Committee with respect to the executive officers of the
Company, including the Chief Executive Officer (which for fiscal 2002 included
the Co-Chief Executive Officers) and the other executive officers that are named
in the compensation tables who are currently employed by the
12
Company (the "Named Executive Officers"). The Compensation Committee, composed
solely of non-employee directors, also administers the Stock Plan.
This report of the Compensation Committee will not be deemed to be
incorporated by reference by any general statement incorporating this proxy
statement into any of our filings under the Securities Act of 1933 or under the
Securities Exchange Act of 1934, except to the extent that we specifically
incorporate this information by reference, and will not be deemed "soliciting
material" or be deemed "filed" under such Acts.
COMPENSATION PHILOSOPHY AND OVERALL OBJECTIVES OF EXECUTIVE COMPENSATION
PROGRAMS
It is the philosophy of the Company to link executive compensation to
corporate performance and to create incentives for management to enhance
shareholder value. The following objectives have been adopted by the
Compensation Committee as guidelines for compensation decisions:
- Provide a competitive total executive compensation package that enables
the Company to attract and retain key executives.
- Integrate all pay programs with the Company's annual and long-term
business objectives and strategy, and focus executives on the fulfillment
of these objectives.
- Provide variable compensation opportunities that are directly linked with
the performance of the Company.
CASH COMPENSATION
Cash compensation includes base salary and the Company's annual incentive
plan awards. The base salary of each of the Company's executive officers is
determined by an evaluation of the responsibilities of that position and by
comparison to the average level of salaries paid in the competitive market in
which the Company competes for comparable executive ability and experience.
Annually, the performance of each Named Executive Officer is reviewed by the
Compensation Committee using information and evaluations provided by the
President and the Chief Executive Officer (these officers review the performance
of all other senior management) taking into account the Company's operating and
financial results for that year, a subjective assessment of the contribution of
each executive officer to such results, the achievement of goals established for
each such executive officer at the beginning of each year, and competitive
salary levels for persons in those positions in the markets in which the Company
competes. To assist in its deliberations, the Compensation Committee has engaged
the services of an independent compensation consultant to provide a detailed
analysis of market competitive base salary and incentive compensation
information that included companies in both the chain restaurant industry and in
a broader cross-section of similar industries. Following its review of the
performance of the Company's Named Executive Officers, the Compensation
Committee Chairman reports the Compensation Committee's recommendations for
salary increases and incentive awards to the Board of Directors.
The Company's executive incentive plan (EIP) is designed to recognize and
reward those employees that make significant contributions towards achieving the
Company's annual business plan. The Compensation Committee believes the EIP
should be the principal short-term incentive program for providing cash bonus
opportunities for the Company's executives contingent upon operating results and
the achievement of individual performance objectives as determined by the
Compensation Committee or the Chief Executive Officer, as the case may be. The
fiscal 2002 EIP corporate financial target was based on targeted earnings before
income taxes and depreciation (EBITDA) for the Company, which counts 75% towards
the total EIP bonus awarded. Individual performance objectives count 25% toward
such award. The Compensation Committee will continue to review and modify the
performance goals for the EIP as necessary to ensure reasonableness,
achievability, and consistency with overall Company objectives and shareholder
expectations. In 2002, annual base salary increases and incentive compensation
awards for all of the Named Executive Officers were approved by the Compensation
Committee and reported to the Board of Directors. The Compensation Committee
believes the recommended salary levels and incentive
13
awards were warranted and consistent with the performance of such executives
during fiscal year 2002 based on the Compensation Committee's evaluation of each
individual's overall contribution to accomplishing the Company's fiscal year
2002 corporate goals and of each individual's achievement of individual
performance goals during the year.
In reviewing fiscal year 2002 EIP results, the Compensation Committee
recognized that the Company did not meet the EBITDA target for financial
performance. Therefore, incentive compensation awards to the named Executive
Officers for fiscal 2002 were based solely on individual performance factors,
which included such qualitative factors as leadership skills, planning
initiatives and employee development to ensure short and long-term operational
objectives.
LONG-TERM INCENTIVES
The Compensation Committee believes that it is essential to align the
interests of Dave & Buster's executives and other key management personnel
responsible for the growth of the Company with the interests of the Company's
shareholders. The Compensation Committee believes that this objective is best
accomplished through the provision of stock-based incentives that align
themselves to enhancing the Company's value, as set forth in the Company's Stock
Plan. Because the Company does not maintain any qualified retirement programs,
the Stock Plan also serves as the opportunity to generate additional wealth to
be used for later retirement needs.
The Committee did not award any additional long-term incentives to the
Company's executive officers during fiscal 2002, based upon the Committee's view
of the adequacy of the levels of current long -- term incentive awards and the
Company's performance in fiscal 2002. The Compensation Committee will continue
to review long-term incentives and make recommendations, where it deems
appropriate, to the Company's Board of Directors, from time to time, to assure
the Company's executive officers and other key employees are appropriately
motivated and rewarded based on the long-term financial success of the Company.
CEO COMPENSATION
In determining the base compensation of Mr. Corriveau and Mr. Corley, who
served as Co-Chief Executive Officers during fiscal 2002, the Compensation
Committee considered the Company's operating and financial results for fiscal
year 2001, subjectively evaluated their individual performance and substantial
contribution to Company results, and considered the compensation range for other
chief executive officers of companies in the industry. Based on its review of
comparable salary data, the Committee believes that the base compensation paid
to the Co-CEO's during fiscal 2002 ranked in the 75th percentile range for the
industry. Based on that review and assessment, the Compensation Committee
recommended, and the Company's Board of Directors approved, an increase in Mr.
Corriveau and Mr. Corley's base salary to $600,000 per year effective April 1,
2002.
Under the EIP, the maximum bonus potential for each of Mr. Corriveau and
Mr. Corley is 100% of their base salary. In March 2003, the Compensation
Committee awarded each of Mr. Corriveau and Mr. Corley an incentive bonus of
$60,000 under the EIP for performance during fiscal 2002. In determining the
amount of incentive compensation for fiscal 2002, the Compensation Committee
recognized that the Company did not achieve the financial targets under the EIP
for 2002, and based such awards solely on the Committee's subjective assessment
of the accomplishment of individual performance objectives applicable to Mr.
Corriveau and Mr. Corley under the EIP including such qualitative factors as
leadership skills, planning initiatives and employee development. Neither Mr.
Corriveau or Mr. Corley received any grants of stock-based incentives under the
Stock Plan in fiscal 2002 for the reasons stated above.
In March 2003, the Compensation Committee reviewed the compensation of Mr.
Corriveau and Mr. Corley, and recommended not to increase their base salaries
for 2003. Subsequently, effective April 2003, the Compensation Committee agreed
with each of Mr. Corriveau and Mr. Corley to a 20 percent reduction in base
salary, from $600,000 to $480,000 on an annualized basis. At the time of such
salary
14
reduction, the Compensation Committee also instituted a special bonus plan for
Mr. Corley and Mr. Corriveau whereby each officer could earn an additional bonus
of from $60,000 to $120,000 if the Company achieves specified targets in
earnings per share (EPS) for fiscal 2003. The entry point for the special bonus
plan is a 50% increase in EPS over fiscal 2002, and the maximum bonus will be
earned upon a 100% increase in EPS over fiscal 2002. Such bonus plan is in
addition to the regular EIP for such officers for fiscal 2003. The practical
effect of such changes was to convert a significant amount of each such
officer's total annual compensation to "at risk" incentive-based compensation as
opposed to guaranteed base compensation.
In April, 2003, Mr. Corley was named Chief Executive Officer of the
Company, replacing the Co-CEO positions previously held by both Mr. Corley and
Mr. Corriveau and Mr. Edison was named as Chairman of the Board, replacing Mr.
Corley and Mr. Corriveau as Co-Chairmen.
DEDUCTIBILITY OF EXECUTIVE COMPENSATION
Section 162(m) of the Internal Revenue Code under the Omnibus Budget
Reconciliation Act of 1993 limits the deductibility of compensation over $1
million paid by a company to an executive officer. The Compensation Committee
will take action to qualify most compensation approaches to ensure
deductibility, except in those limited cases in which the Compensation Committee
believes shareholder interests are best served by retaining flexibility. In such
cases, the Compensation Committee will consider various alternatives to
preserving the deductibility of compensation payments and benefits to the extent
reasonably practicable and to the extent consistent with its compensation
objectives.
SUMMARY
As a result of pay-for-performance concepts incorporated in Dave & Buster's
executive compensation program, the Compensation Committee believes that the
total compensation program for executive officers of the Company is competitive
with the compensation programs provided by other companies with which the
Company competes, emulates programs of high-performing companies and will serve
the best interests of the shareholders of the Company. The Compensation
Committee also believes this program will provide opportunities to participants
that are consistent with the expectations of the Board and with the returns that
are generated on the behalf of the Company's shareholders.
Mark A. Levy, Chairman
Allen J. Bernstein
DIRECTOR COMPENSATION
Directors who are employees of the Company receive no additional
compensation for their attendance at meetings of the Board or any of its
committees of which they are members. Prior to April 2003, Directors who are not
employees of the Company receive $8,000 as an annual retainer, $1,000 for
participation in each Board meeting and $800 for participation in each committee
meeting. In April 2003, the Compensation Committee recommended and the Board
approved increases in the Directors cash compensation as follows: $12,000 annual
retainer and $1,250 for participation in each Board meeting. In addition, the
Board approved the payment of an additional annual retainer of $5,000 to each
Committee chair. When participation in a Board or committee meeting is by
telephone, the fee paid is one-half of the amount reported above.
Under the Company's 1996 Stock Option Plan for outside Directors (the
"Directors Plan") each non employee director (excluding those directors who were
shareholders prior to the adoption of the Directors Plan) has received an
initial grant of 22,500 options either at the time the Directors Plan was
adopted or contemporaneously with such director's appointment to the Board. In
addition, the non-employee directors have received additional grants of 7,500
options from time to time under the Directors Plan as determined by the
Compensation Committee, in recognition of their continuing service as a
director. Each such grant
15
vests over a period of three years. In April 2003, the Compensation Committee
approved initial grants of 22,500 options to each of Ms. Priest and Messrs.
Humann and Pittaway.
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Under the securities laws of the United States, the Company's directors,
executive officers and persons who own more than 10% of the Company's common
stock are required to report their initial ownership of the Company's common
stock and any subsequent changes in that ownership to the Securities and
Exchange Commission. Specific due dates have been established for these reports,
and the Company is required to disclose in this proxy statement any failure to
file by these dates. Based solely on a review of the copies of the forms
furnished to the Company, or written representations from certain reporting
persons that no Form 5s were required, the Company believes that no persons were
required to file a report on Form 5 for the 2002 fiscal year.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
No member of the Compensation Committee is or has been an executive officer
or employee of the Company. None of the named Executive Officers serves or has
served as a member of the board of directors or compensation committee of any
other entity which has one or more executive officers serving on the Company's
Board of Directors or Compensation Committee.
CERTAIN TRANSACTIONS
Pursuant to a consulting agreement between the Company and Mr. Henrion, a
former director of the Company, in fiscal 2002, the Company paid consulting fees
of $12,500 per month to Mr. Henrion for advisory services relating to
international franchise development and licensing, expansion and site selection,
market analysis, improvement and enhancement of the Company's business and other
similar activities. The consulting agreement expires in January 2005. Mr.
Henrion retired from the Board of Directors in April 2003.
Since the beginning of fiscal 2002, Mr. Corriveau was indebted to the
Company under the terms of a personal loan in the amount of $100,000, which is
non-interest bearing and payable on demand. Such loan was in existence prior to
the prohibitions enacted under Section 402 of the Sarbanes-Oxley Act of 2002,
effective July 30, 2002, and is therefore specifically excluded from such
prohibitions so long as it is not materially modified. In March 2003, Mr.
Corriveau repaid $50,000 of the loan balance and in April, 2003, repaid the
remaining balance.
On December 29, 2000, the Company entered into a sale/leaseback transaction
with Cypress San Diego I, L.P., an affiliate of Cypress Equities, Inc., for its
San Diego, California location, whereby the Company received $8.0 million in
exchange for committing to lease payments of approximately $23.2 million over 20
years with options for renewal. Mr. Maguire, a director of the Company, is
President of Cypress Equities, Inc. Payments to Cypress San Diego I, L.P. for
rent during fiscal 2002 were approximately $1,000,000.
In addition, the Company from time to time has engaged Cypress Equities,
Inc. to provide brokerage services in connection with the sale and leaseback of
other properties owned by the Company. The amount of broker's commissions paid
to Cypress Equities for such services in fiscal 2002 was $332,405.
Hallett & Perrin, P.C. provides legal services to the Company from time to
time. Mr. Hallett, a shareholder of Hallett & Perrin, was a director of the
Company during fiscal 2002. Total fees paid by the Company to Hallett & Perrin
in fiscal 2002 did not exceed five percent of such firm's gross revenues for its
2002 fiscal year.
16
STOCK PRICE PERFORMANCE
Set forth below is a line graph indicating a comparison of cumulative total
returns (change in stock price plus reinvested dividends) for the Company's
common stock for the five fiscal years ended February 2, 2003, as contrasted
with (i) the Standard & Poor's 500 Stock Index and (ii) the Standard & Poor's
Smallcap Restaurant Stock Composite Index. Each index assumes $100 invested at
February 1, 1998 and is calculated assuming reinvestment of dividends.
This performance graph will not be deemed to be incorporated by reference
by any general statement incorporating this proxy statement into any of the
Company's filings under the Securities Act of 1933 or under the Security
Exchange Act of 1934, except to the extent that the Company specifically
incorporates this information by reference, and will not be deemed "soliciting
material" or be deemed "filed" under such Acts.
COMPARISON OF 5 YEAR CUMULATIVE TOTAL RETURN*
AMONG DAVE & BUSTER'S, INC., THE S&P 500 INDEX
AND THE S&P SMALLCAP RESTAURANTS INDEX
(PERFORMANCE GRAPH)
<Table>
<Caption>
- --------------------------------------------------------------------------------------
02/01/98 01/31/99 01/30/00 02/04/01 02/03/02 02/02/03
- --------------------------------------------------------------------------------------
Dave & Buster's,
Inc. 100.0 103.83 32.45 46.49 38.47 38.42
S&P 500 100.0 132.49 146.20 144.88 121.49 93.52
S&P SmallCap
Restaurants 100.0 107.02 97.44 125.48 184.25 151.42
</Table>
* $100 invested on 2/1/98 in stock or index-including reinvestment of dividends.
Copyright (C) 2002, Standard & Poor's, a division of The McGraw-Hill Companies,
Inc. All rights reserved. www.researchdatagroup.com/S&P.htm
17
PROPOSAL 3
SHAREHOLDER PROPOSAL
Renaissance Capital Group, Inc. has presented a proposal for consideration
at the annual meeting. The address and stock ownership of Renaissance will be
furnished by the Company's Secretary to any person, orally or in writing as
requested, promptly upon receipt of any request therefor. The adoption of such
proposal requires the affirmative vote of the holders of a majority of the
common stock represented at the Annual Meeting in person or by proxy.
PROPOSAL -- SALE OF THE COMPANY
The shareholders request that our Board of Directors pursue a sale of the
Company, or all or substantially all of its business and assets, with the
assistance of a nationally recognized investment banking firm, with a view to
consummating such transactions not later than February 28, 2004.
SUPPORTING STATEMENT
Shareholder value has declined:
1. The Company's shares consistently trade at a discount to its publicly
traded restaurant peers based on fundamental metrics such as price to book and
price to earning ratios, among others.
2. The market capitalization of the Company has declined from over $375
million in 1999 to a market capitalization of just over $100 million currently
despite a 35% increase in the number of restaurants operated by the Company.
Financial and business performance has also declined:
1. Operating income for the nine months ended November 3, 2003 declined 20%
to $8.5 million from $10.6 million for the comparable period last year.
2. Operating income has continued to decline over time. For the nine months
ended November 3, 2003, operating income declined 35% to $8.5 million from $13.1
million for the comparable period of 1998.
3. For the nine months ended November 3, 2003, operating margins were 3.1%
compared to 4.2% for the nine months ended October 31, 1998, a 26.2% decline.
4. Operating margins have continued to decline over time. For the nine
months ended November 3, 2003, operating margins were 3.1% compared to 10.5% for
the nine months ended October 31, 1998, a 70.5% decline.
5. At November 3, 2002 debt to capital was 27.8% and debt to equity was
50.9% compared to 19.6% and 29.2%, respectively, at December 31, 1998.
Sale of the Company is called for:
Some Dave & Buster's, Inc. shareholders are disappointed in the decline of
their stock value and the poor financial and business performance of the
Company. These shareholders believe that a meaningful way to increase
shareholder value for all Dave & Buster's, Inc. shareholders is to pursue a sale
of the Company, or all or substantially all of its business and assets, with the
assistance of a nationally recognized investment banking firm.
In the interest of shareholder value vote yes.
18
OPPOSING STATEMENT
THE BOARD OF DIRECTORS OF THE COMPANY RECOMMENDS A VOTE "AGAINST" THIS PROPOSAL
FOR THE FOLLOWING REASONS:
First, the Company's Board of Directors regularly analyzes strategic
alternatives consistent with its fiduciary duties. Such analyses require a
review of a broad range of information regarding the Company's business,
prospects, financial condition and results of operations, in addition to
numerous other factors that a Board must consider in performing its fiduciary
responsibilities to the shareholders. Decisions to sell a company do not arise
in a vacuum. Rather, such a decision is typically only one potential outcome a
Board may reach after it thoroughly analyzes all of its strategic alternatives
and concludes that a sale of the Company is the optimal alternative.
Second, the Board believes that a decision to pursue a sale of the Company,
to the exclusion of other potential strategic alternatives, could create a
"forced sale" atmosphere. This could cause the Company to negotiate with
potential bidders from a position of weakness and could actually have the effect
of reducing the perceived value of the Company to a "fire sale" level.
Third, the Board believes that a sale process which contemplates an
unspecified transaction by a specified date could be injurious to the Company's
day to day operations by creating uncertainty among lenders, employees, vendors
and other constituencies. This uncertainty could materially jeopardize the
business and value of the Company. The Board strongly wants to avoid these
risks, particularly in the midst of a challenging business environment for
restaurant and entertainment companies.
Fourth, the Board believes that adoption of the proposal is unnecessary.
The Company recently completed an extended period during which an announced sale
of the Company to Investcorp was pending and then ultimately terminated. During
this period, the Company made various public announcements and filings with the
SEC which identified parties that had contacted the Company regarding a
potential acquisition of the Company and the process by which additional
interested parties could seek to do so. The Board, consistent with its fiduciary
duties, will carefully consider any bona fide third party offer which the Board
believes has the potential to increase shareholder value.
MISCELLANEOUS
"HOUSEHOLDING" OF PROXY MATERIALS
The SEC has adopted rules that permit companies and intermediaries such as
brokers to satisfy delivery requirements for proxy statements with respect to
two or more shareholders sharing the same address by delivering a single proxy
statement addressed to those shareholders. This process, which is commonly
referred to as "householding," potentially provides extra convenience for
shareholders and cost savings for the Company. Under this procedure, multiple
shareholders who share the same last name and address will receive only one copy
of the annual proxy materials, unless they notify the Company that they wish to
continue receiving multiple copies. The Company has undertaken householding to
reduce its printing costs and postage fees. If shareholders wish to opt-out of
householding and continue to receive multiple copies of the proxy materials at
the same address, a shareholder may do so at any time prior to thirty days
before the mailing of proxy materials, which will typically be mailed in April
of each year, by notifying the Company in writing at 2481 Manana Drive, Dallas,
Texas 75220 or by contacting the Company at (214) 357-9588. Shareholders also
may request additional copies of the proxy materials by notifying the Company in
writing at the above referenced address or contacting the Company at (214)
357-9588, and the Company will undertake to deliver such additional copies
promptly. If a shareholder shares an address with another shareholder and
currently is receiving multiple copies of the proxy materials, such shareholder
may request householding by notifying the Company at the above referenced
address or telephone number.
19
SHAREHOLDER PROPOSALS FOR 2004 ANNUAL MEETING
For a shareholder proposal to be considered for inclusion in the Company's
proxy statement for next year's annual meeting, a written proposal must be
received by the Secretary at the Company's principal executive offices no later
than January 1, 2004. If the Company changes the date of next year's annual
meeting by more than 30 days from the date of this year's annual meeting, then
the deadline is a reasonable time before the Company begins to print and mail
its proxy materials. Shareholders should also be aware that shareholder
proposals must comply with SEC regulations regarding inclusion of shareholder
proposals in company-sponsored proxy materials. In order for a shareholder to
raise a proposal (including director nominations) from the floor during next
year's annual meeting, the Secretary must receive a written notice of the
proposal no later than April 11, 2004 and no earlier than March 12, 2004, and it
must contain the additional information required by the Company's bylaws.
Shareholders may obtain a complete copy of the Company's bylaws by submitting a
written request to the Secretary at the Company's principal executive offices.
If the Company advances the date of next year's annual meeting by more than 30
days or delays the date of next year's annual meeting by more than 60 days from
the date contemplated at this year's annual meeting, in order for the proposal
to be timely, the Company must receive a shareholder's written proposal or
nomination at the Company's principal executive offices no later than the close
of business on the date which is 60 days before the date of next year's annual
meeting or 10 days following the day on which the meeting date is publicly
announced, whichever is later, and no earlier than 90 days before the date of
next year's annual meeting.
20
ANNEX A
DAVE & BUSTER'S, INC.
AUDIT COMMITTEE CHARTER
(AMENDED AND RESTATED APRIL 4, 2003)
This Audit Committee Charter ("Charter") sets forth the purpose and
membership requirements of the Audit Committee (the "Committee") of the Board of
Directors of Dave & Buster's Inc. (the "Board") and establishes the authority
and responsibilities delegated to it by the Board.
1. Purpose. The purpose of the Committee is to oversee (i) the integrity
of the Company's financial statements and disclosures, (ii) the Company's
compliance with legal and regulatory requirements, (iii) the qualifications,
independence and performance of the Company's independent auditing firm (the
"External Auditor"), (iv) the performance of the Company's internal audit
function, (v) the Company's internal control systems, and (vi) the Company's
procedures for monitoring compliance with its Code of Business Ethics (the "Code
of Ethics").
2. Committee Members.
2.1. Composition and Appointment. The Committee shall consist of three
(3) or more members of the Board. The members and Chairperson of the Committee
shall be appointed by the Board on the recommendation of the Nominating and
Corporate Governance Committee ("Governance Committee"). Membership on the
Committee shall rotate at the Board's discretion. The Board shall fill vacancies
on the Committee and may remove a Committee member from the membership of the
Committee at any time without cause. Members shall serve until their successors
are appointed by the Board.
2.2. Qualifications. Each member of the Committee shall be independent.
To be "independent," a director may not have a relationship with the Company or
its management or a private interest in the Company that in any way may
interfere with the exercise of such director's independence from the Company and
its management. In addition, each member of the Committee must meet the
independence requirements of the New York Stock Exchange ("NYSE") and applicable
federal securities laws, including the rules and regulations of the Securities
and Exchange Commission ("SEC"), including the following requirements:
2.2.1. No director qualifies as "independent" unless the Board
affirmatively determines that the director has no material relationship
with the Company (either directly or as a partner, shareholder or officer
of an organization that has a relationship with the Company), other than
such director's capacity as a member of the Board, the Committee or any
other Board committee.
2.2.2. No director shall be considered "independent" if such director
is affiliated with the Company or any subsidiary thereof in any capacity,
other than in such director's capacity as a member of the Board, the
Committee or any other Board committee.
2.2.3. No director shall be considered "independent" if such director
receives any consulting, advisory or other compensatory fee from the
Company, other than fees received in such director's capacity as a member
of the Board, the Committee or any other Board committee.
2.2.4. No director who is a former employee of the Company or any
affiliate of the Company shall be considered "independent" until five years
after such employment has ended. A director that was employed by a former
parent or predecessor of the Company shall not be considered "independent"
until five years after the relationship between the Company and the former
parent or predecessor has ended.
2.2.5. No director who is, or in the past five years has been,
affiliated with or employed by a present or former External Auditor of the
Company (or present or former external auditor of any of the Company's
affiliates) shall be considered "independent" until five years after the
end of either the affiliation or the auditing relationship.
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2.2.6. No director shall be considered "independent" if such director
is, or in the past five years has been, employed by any company for which
any officer of the Company serves or served as a member of its compensation
committee (or, in the absence of a compensation committee, the board
committee performing equivalent functions, or, in the absence of such
committee, the board of directors) during the time that such director is or
was so employed.
2.2.7. Directors with immediate family members in the categories
described in Sections 2.2.4, 2.2.5 and 2.2.6 are likewise subject to the
applicable five-year "cooling off" provisions of those Sections for
purposes of determining "independence." However, employment of an immediate
family member of a director in a non-officer position (as defined with
reference to Rule 16a-1(f) under the Securities Exchange Act of 1934, as
amended, or any successor rule) does not preclude the Board from
determining that such director is "independent." The term "immediately
family member" includes a person's spouse, parents, children, siblings,
mother and father-in-law, sons and daughters-in-law, brothers and
sisters-in-law, and anyone (other than such person's employees) who shares
such person's home.
2.3. Financial Literacy. Each member of the Committee shall, in the
Board's judgment, be financially literate or must become financially literate
within a reasonable period of time after such member's appointment to the
Committee. At least one member of the Committee shall, in the Board's judgment,
have accounting or related financial management expertise. In addition, in
connection with the preparation of any reports regarding the financial
experience of the members of the Committee to be included in the Company's
periodic public reports, the Board shall determine with respect to each member
of the Committee whether or not, in the Board's judgment, such member is a
"financial expert," as such term is defined by the SEC.
2.4. Simultaneous Service on Other Audit Committees. If a member of the
Committee serves on the audit committee (or, in the absence of an audit
committee, the board committee performing equivalent functions, or, in the
absence of such committee, the board of directors) of more than two (2) public
companies in addition to the Company, the Board must affirmatively determine
that such simultaneous service on multiple audit committees will not impair the
ability of such member to serve on the Committee. The basis for the Board's
determination shall be disclosed in the Company's proxy statement prepared in
connection with its annual meeting of stockholders.
2.5. Compensation. The members of the Committee shall not receive any
direct or indirect compensation from the Company, other than director's fees.
Members of the Committee shall, at the discretion of the Board, be entitled to
receive fees for service on the Committee or for service as Chairperson of the
Committee in addition to the normal fees paid to all directors.
3. Authority.
3.1. Education. To help ensure that the members of the Committee have the
proper knowledge to perform their responsibilities, Committee members, shall
have the authority, at the Company's expense, to attend outside educational
programs, retain outside professionals to conduct educational programs and
undertake other appropriate steps to keep current with developments in
accounting, disclosure, risk management, internal controls, auditing and other
matters that are relevant to the carrying out of the Committee's
responsibilities.
3.2. Advisors. The Committee shall have the authority (i) to retain, at
the Company's expense, independent legal, financial and other advisors
("Advisors") it deems necessary to fulfill its responsibilities, and (ii)
determine the compensation of such Advisors.
3.3. Investigations. The Committee shall have the authority to conduct
investigations that it deems necessary to fulfill its responsibilities.
3.4. Information. The Committee shall have the authority to require any
officer, director or employee of the Company, the Company's outside legal
counsel and the External Auditor to meet with the
A-2
Committee and any of its advisors and to respond to their inquiries. The
Committee shall have full access to the books, records and facilities of the
Company in carrying out its responsibilities.
3.5. Funding. The Committee shall have the authority to determine, on
behalf of the Company, the compensation of (i) the External Auditor for its
services in rendering an audit report, and (ii) any Advisors employed by the
Committee pursuant to Section 3.2.
3.6. Subcommittees. The Committee shall have the authority to delegate
authority and responsibilities to subcommittees provided that no subcommittee
shall consist of less than two members.
4. Meetings.
4.1. Periodic Meetings. The Committee shall meet at least once per fiscal
quarter in connection with (i) its review of the Company's earning releases,
financial statements and the disclosures that are to be included in its Form
10-Q and Form 10-K filings with the SEC, including the disclosures under
"Management's Discussion and Analysis of Financial Condition and Results of
Operations," and (ii) its preparation of the Committee's report to be included
in the Company's proxy statement in connection with the Company's annual meeting
of stockholders. The Chairperson may call a special meeting at any time as he or
she deems advisable.
4.2. Executive Sessions. The Committee shall maintain free and open
communication with (i) the Company's chief executive officer ("CEO"), (ii) the
Company's chief financial officer ("CFO"), (iii) the Company's chief of internal
auditing ("Internal Auditor"), (iv) the External Auditor, and (v) the Company's
general counsel ("General Counsel") and shall periodically meet, in its sole
discretion, in separate executive (private) sessions with each such person to
discuss any matters that the Committee or any of them believes should be
discussed privately with the Committee.
4.3. Minutes. Minutes of each meeting of the Committee shall be kept to
document the discharge by the Committee of its responsibilities and a copy
thereof shall be sent to the members of the Board.
4.4. Quorum. A quorum shall consist of a majority of the Committee's
members. The act of a majority of the Committee members present at a meeting at
which a quorum is present shall be the act of the Committee.
4.5. Agenda. The Chairperson of the Committee shall prepare an agenda for
each meeting of the Committee in consultation with Committee members and any
appropriate member of the Company's management or staff. Appropriate members of
the Company management and staff shall assist the Chairperson with the
preparation of any background materials necessary for any Committee meeting.
4.6. Presiding Officer. The Chairperson of the Committee shall preside at
all Committee meetings. If the Chairperson is absent at a meeting, a majority of
the Committee members present at a meeting shall appoint a different presiding
officer for that meeting.
5. General Oversight. The Committee's responsibilities shall include
review of (i) major issues regarding accounting principles and financial
statement presentation, including any significant changes in the Company's
selection or application of accounting principles, and major issues as to the
adequacy of the Company's internal controls and any special audit steps adopted
in light of material control deficiencies, (ii) any analyses prepared by
management or the External Auditor setting forth significant financial reporting
issues and judgments made in connection with the preparation of the Company's
financial statements, including any analyses of the effects of alternative
generally accepted accounting principles ("GAAP") methods on the presentation of
the Company's financial statements, (iii) the effect of regulatory and
accounting industry initiatives, as well as off-balance sheet structures, on the
Company's financial statements, and (iv) press releases that contain information
with respect to the historical or projected financial performance of the Company
(with particular attention on the use of "pro forma," or "adjusted" non-GAAP,
information), as well as any other financial information provided to a financial
analyst or a rating agency.
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6. External Auditor Oversight.
6.1. Selection and Evaluation. The Committee shall have the
responsibility and sole authority for the appointment, retention, oversight,
termination and replacement of the External Auditor and for the approval of all
audit and engagement fees. The Committee shall annually, following the
completion of the audit reports and at such other times as it deems appropriate,
evaluate the performance of the External Auditor, including a specific
evaluation of the External Auditor's lead (or coordinating) audit partner having
primary responsibility for the Company's audit.
6.2. Pre-Approval of External Auditor Services.
6.2.1. Committee Pre-Approval. No audit services or non-audit
services shall be performed by the External Auditor for the Company unless
first pre-approved by the Committee and unless permitted by applicable
federal securities laws and the rules and regulations of the SEC. If the
Committee approves an audit service within the scope of the engagement of
the External Auditor, such audit service shall be deemed to have been
pre-approved for purposes of this Section.
6.2.2. Delegation of Pre-Approval Authority. The Committee may
delegate to one (1) or more members of the Committee the authority to grant
pre-approval of non-audit services required by this Section. The decision
of any member to whom such authority is delegated to pre-approve non-audit
services shall be reported to the full Committee at its next scheduled
meeting.
6.3. Independence. The Committee shall periodically meet with the
External Auditor to assess and satisfy itself that the External Auditor is
"independent" in accordance with the rules and regulations of the SEC. The
Committee shall annually obtain from the External Auditor a written statement
delineating (i) all relationships between the External Auditor and the Company
that may impact the External Auditor's objectivity and independence, (ii)
confirmation that the Company's CEO, controller, CFO, chief accounting officer,
Internal Auditor, or any person serving in an equivalent position to any of the
foregoing for the Company, was not employed by the External Auditor and
participated in any capacity in the audit of the Company during the one (1) year
period preceding the date of the initiation of the audit for which the External
Auditor is engaged, and (iii) all the disclosures required by Independence
Standards Board Standard No. 1. The Committee shall establish a policy regarding
the Company's hiring of any former employee of the External Auditor.
6.4. Quality Control. The Committee shall annually obtain from the
External Auditor a written report describing (i) the External Auditor's internal
quality-control procedures, and (ii) any material issues raised by (a) the
External Auditor's most recent internal quality-control review, or peer review
or (b) any inquiry or investigation by governmental or professional authorities,
in each case, within the preceding five years, respecting one or more
independent audits carried out by the External Auditor, and any steps taken to
deal with any such issues.
6.5. Audit Partner Rotation. The Committee shall annually obtain from the
External Auditor a written statement confirming that the lead (or coordinating)
audit partner having primary responsibility for the Company's audit has not
performed any audit services for the Company in each of the Company's five (5)
previous fiscal years.
6.6. Review of External Auditor Reports. The Committee shall review with
management, the Internal Auditor and the External Auditor all reports required
to be made by the External Auditor under applicable federal securities laws and
the rules and regulations of the SEC regarding (i) all critical accounting
policies and practices used by the Company, (ii) all alternative treatments of
the Company's financial information within GAAP that have been discussed with
management, the ramifications of the use of such alternative disclosures and
treatments and the treatment preferred by the External Auditor, (iii) all other
material written communications between the External Auditor and management,
such as any management letter or schedule of unadjusted differences, and (iv)
management's assessment of the Company's internal controls.
A-4
6.7. Internal Control Assessment. The Committee shall annually obtain
from the External Auditor a written report in which the External Auditor attests
to and reports on the assessment of the Company's internal controls made by the
Company's management.
6.8. Non-Audit Services. The Committee shall review with management and
decide whether to approve the retention of the External Auditor for any
non-auditing services proposed to be rendered to the Company, including
assessing their compatibility with maintaining the External Auditor's
independence. No non-audit services may be provided to the Company by the
External Auditor unless approved in advance by the Committee under Section 6.2
above. The External Auditor shall not provide to the Company, and the Committee
shall not have the authority to approve the provision to the Company by the
External Auditor of, those services described in Section 201 of the
Sarbanes-Oxley Act of 2002 (the "Act") or any other service that the Public
Accounting Oversight Board established under the Act determines, by regulation
may not be provided to the Company by the External Auditor.
6.9. Accountability. The External Auditor shall report directly to the
Committee and shall be ultimately accountable to the Committee. The Committee
shall obtain an annual written statement from the External Auditor confirming
its direct accountability to the Committee.
6.10. Audit Assessment. The Committee shall review with management, the
Internal Auditor and the External Auditor any problems or difficulties
encountered in connection with the audit process, including any restrictions on
the scope of the External Auditor's activities or on access to requested
information, any accounting adjustments that were noted or proposed by the
External Auditor but that were passed (as material or otherwise), any
communications between the External Auditor's team assigned to the Company's
audit and the External Auditor's national office respecting auditing or
accounting issues presented by the Company's audit, and any "management" or
"internal control" letter issued, or proposed to be issued, by the External
Auditor to the Company.
6.11. SAS 61. The Committee shall discuss with the External Auditor the
matters required to be discussed under Statement on Auditing Standards No. 61.
6.12. Disagreements. The Committee shall periodically inquire of
management and the External Auditor as to any disagreements that may have
occurred between them relating to the Company's financial statements or
disclosures. The Committee shall have sole responsibility for the resolution of
any disagreements between management and the External Auditor regarding
financial reporting.
7. Internal Auditing Oversight.
7.1. Internal Auditing Staff. The Committee shall annually evaluate the
performance of the Internal Auditor and the internal auditing department with
management and the External Auditor.
7.2. Internal Audit Process. The Committee shall meet periodically with
the Internal Auditor, the External Auditor and management to review (i) plans
for the internal audit program (including scope, responsibilities, budget and
staffing) for the coming year, (ii) the coordination of such plans with the work
of the External Auditor, and (iii) the progress and results of the internal
auditing process.
7.3. Internal Audit Reports. The Committee shall meet periodically with
the Internal Auditor to review any significant reports to management prepared by
the internal auditing staff. The Internal Auditor shall provide a summary of all
significant internal audit reports to the Committee each quarter.
8. Financial Statements and Disclosure Oversight.
8.1. SEC Filings and Earnings Releases and Guidance. Prior to the filing
by the Company with the SEC of any annual report on Form 10-K or any quarterly
report on Form 10-Q, the Committee shall review with management and the External
Auditor the financial statements and the disclosure under "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
contained therein. The Committee shall periodically review with management and
the External Auditor the Company's procedures (including types of information to
be disclosed and the type of presentation to be
A-5
made) with respect to press releases and with respect to financial information
and earnings guidance provided to financial analysts and rating agencies.
8.2. Accounting Changes. The Committee shall, before their
implementation, review with management and the External Auditor and approve all
significant changes proposed to be made in the Company's accounting principles
and practices.
8.3. Adequate Disclosure. The Committee shall periodically inquire of
management, the External Auditor, the General Counsel and, if the Committee
deems it appropriate, outside legal counsel as to whether the Company's
financial statements comport with the disclosure requirements of federal
securities laws, notwithstanding their conformity to accounting principles and
practices.
8.4. Criticisms. The Committee shall periodically inquire of management,
the General Counsel and the External Auditor as to their knowledge of any
criticism of the Company's financial statements or disclosures by any financial
analysts, rating agencies, media sources or other reliable third-party sources.
The Committee shall establish procedures for (i) the receipt, retention,
investigation and resolution of complaints received by the Company regarding
accounting, internal accounting controls or auditing matters, and (ii) the
confidential anonymous submission by the Company's employees of concerns
regarding questionable accounting or auditing matters.
9. Internal Controls, Legal Compliance and Code of Ethics Oversight.
9.1. Internal Controls and Compliance Policies. For the purpose of
assessing their adequacy and effectiveness, the Committee (i) shall periodically
review and assess with management, the Internal Auditor, the General Counsel and
the External Auditor (a) the internal control systems of the Company, including
whether such controls are reasonably designed to ensure that appropriate
information comes to the attention of the Committee in a timely manner, prevent
violations of law and corporate policy and permit the Company to prepare
accurate and informative financial reports, (b) the Company's policies on
compliance with laws and regulations, (c) the Code of Ethics, and (d) the
methods and procedures for monitoring compliance with such policies, and (ii)
shall elicit from them any recommendations for the improvement of the Code of
Ethics and such controls, policies, methods and procedures. The Committee shall
review with management and the External Auditor, prior to its annual filing, the
internal control report (containing the annual assessment of the effectiveness
of the internal control Structure and procedures of the Company for financial
reporting) that is required to be filed by the Company with the SEC on Form
10-K.
9.2. Information Security. The Committee shall periodically review and
assess with management and the External Auditor the adequacy of the security for
the Company's information systems and the Company's contingency plans in the
event of a systems breakdown or security breach.
9.3. Code of Ethics. The Committee shall periodically inquire of
management, the Internal Auditor and the External Auditor as to their knowledge
of (i) any violation of the Code of Ethics, (ii) any waiver of compliance with
the Code of Ethics, and (iii) any investigations undertaken with regard to
compliance with the Code of Ethics. Any waiver of the Code of Ethics with
respect to a director or executive officer may only be granted by the Committee.
All waivers granted by the Committee shall be promptly reported to the entire
Board and disclosed as required by rules and regulations of the SEC and NYSE.
9.4. Misconduct Allegations. The Committee shall periodically inquire of
management and the General Counsel of their knowledge of any allegations of
director or officer misconduct or misconduct by the Company (whether made by
employees or third parties).
9.5. Disagreements. The Committee shall inquire of management, the
General Counsel and, if appropriate, outside legal counsel of any disagreements
that may have occurred between management and legal counsel regarding any public
disclosures or any other legal compliance issue.
A-6
10. Risk Management Oversight.
10.1. Risk Exposure. The Committee shall periodically meet with
management and the External Auditor to review the Company's major risks or
exposures and to assess the steps taken by management to monitor and control
such risks and exposures.
10.2. Insurance. The Committee shall periodically review and assess with
management and the General Counsel insurance coverage, including Directors and
Officers Liability, property and casualty loss, and surety bonds.
10.3. Special-Purpose Entities and Off-Balance Sheet Transactions. The
Committee shall periodically meet with management, the Internal Auditor, the
General Counsel and the External Auditor to review and assess all
"special-purpose" entities of the Company and all complex financing transactions
involving the Company, including all related off-balance sheet accounting
matters.
10.4. Consultation with Legal Counsel. The Committee shall periodically
receive reports from, and review with the General Counsel and, if the Committee
deems appropriate, outside legal counsel legal matters (including material
claims, pending legal proceedings, government investigations and material
reports, notices or inquiries received from governmental agencies) that may have
a significant impact on the Company's financial statements or risk management.
11. Reports and Assessments.
11.1. Board Reports. The Chairperson of the Committee shall report from
time to time to the Board on Committee actions and on the fulfillment of the
Committee's responsibilities under this Charter. Such reports shall include any
issues that arise with respect to the quality or integrity of the Company's
financial statements, the Company's compliance with legal or regulatory
requirements, the performance and independence of the Company's External
Auditors and the performance of the Company's internal audit function.
11.2. Charter Assessment. The Committee shall annually review and assess
the adequacy of this Charter and advise the Board and the Governance Committee
of its assessment and of its recommendation for any changes to the Charter.
11.3. Committee Self-Assessment. The Committee shall annually review and
make a self-assessment of its performance and shall report the results of such
self-assessment to the Board and the Governance Committee.
11.4. Proxy Statement Report. The Committee shall prepare an annual
report as required by the rules and regulations of the SEC and submit it to the
Board for inclusion in the Company's proxy statement prepared in connection with
its annual meeting of stockholders.
11.5. Recommend Action. The Committee shall annually make a determination
as to whether to recommend to the Board that the audited financials (certified
by the External Auditor) be included in the Company's Annual Report on Form 10-K
for filing with the SEC.
11.6. Board Access to External Auditor. The Committee shall, whenever the
Board of Directors or the Committee deems it appropriate, have the External
Auditor attend a meeting of the full Board to discuss specific issues and to
answer questions from the directors.
12. General.
12.1. Financial Statement Responsibility. The Company's management is
responsible for the preparation, presentation and integrity of the Company's
financial statements and disclosures, and the External Auditor is responsible
for auditing year-end financial statements and reviewing quarterly financial
statements and conducting other procedures. It is not the duty of the Committee
to certify the Company's financial statements, to guarantee the External
Auditor's report, or to plan or conduct audits. Since the primary function of
the Committee is oversight, the Committee shall be entitled to rely on the
expertise, skills and knowledge of management, the Internal Auditor and the
External Auditor and the accuracy of
A-7
information provided to the Committee by such persons in carrying out its
oversight responsibilities. Nothing in this Charter is intended to change the
responsibilities of management and the External Auditor.
12.2. Charter Guidelines. While the responsibilities of the Committee set
forth in Section 4 through 11 above are contemplated to be the principal
recurring activities of the Committee in carrying out its oversight function,
these responsibilities are to serve as a guide with the understanding that the
Committee may diverge from them as it deems appropriate given the circumstances.
A-8
ANNEX B
DAVE & BUSTER'S, INC.
COMPENSATION COMMITTEE CHARTER
ADOPTED APRIL 4, 2003
This Compensation Committee Charter (the "Charter") sets forth the purpose
and membership requirements of the Compensation Committee (the "Committee") of
the Board of Directors of Dave & Buster's Inc. (the "Board") and establishes the
authority and responsibilities delegated to it by the Board.
1. Purpose. The purpose of the Committee is to (i) assist the Board in
the discharge of its fiduciary responsibilities relating to the fair and
competitive compensation of the Company's Chief Executive Officer ("CEO") and
other executives and (ii) prepare an annual report on executive compensation for
inclusion in the Company's proxy statement for the annual meeting of
stockholders.
2. Committee Members.
2.1. Composition and Appointment. The Committee shall consist of three
(3) or more members of the Board. The members and Chairperson of the Committee
shall be appointed by the Board on the recommendation of the Nominating and
Corporate Governance Committee ("Governance Committee"). Membership on the
Committee shall rotate at the Board's discretion. The Board shall fill vacancies
on the Committee and may remove a Committee member from the membership of the
Committee at any time without cause. Members shall serve until their successors
are appointed by the Board.
2.2. Qualifications. Each member of the Committee shall be independent.
To be "independent," a director may not have a relationship with the Company or
its management or a private interest in the Company that in any way may
interfere with the exercise of such director's independence from the Company and
its management. In addition, each member of the Committee must meet the
independence requirements of the New York Stock Exchange ("NYSE") and applicable
federal securities laws, including the rules and regulations of the Securities
and Exchange Commission (the "SEC"), including the following requirements:
2.2.1. No director qualifies as "independent" unless the Board
affirmatively determines that the director has no material relationship
with the Company (either directly or as a partner, shareholder or officer
of an organization that has a relationship with the Company), other than
such director's capacity as a member of the Board, the Committee or any
other Board committee.
2.2.2. No director who is a former employee of the Company or any
affiliate of the Company shall be considered "independent" until five years
after such employment has ended. A director that was employed by a former
parent or predecessor of the Company shall not be considered "independent"
until five years after the relationship between the Company and the former
parent or predecessor has ended.
2.2.3. No director who is, or in the past five years has been,
affiliated with or employed by a present or former external auditor of the
Company (or present or former external auditor of any of the Company's
affiliates) shall be considered "independent" until five years after the
end of either the affiliation or the auditing relationship.
2.2.4. No director shall be considered "independent" if such director
is, or in the past five years has been, employed by any company for which
any officer of the Company serves or served as a member of its compensation
committee (or, in the absence of a compensation committee, the board
committee performing equivalent functions, or, in the absence of such
committee, the board of directors) during the time that such director is or
was so employed.
2.2.5. Directors with immediate family members in the categories
described in Sections 2.2.2, 2.2.3 and 2.2.4 are likewise subject to the
applicable five-year "cooling off" provisions of those Sections for
purposes of determining "independence." However, employment of an immediate
family
B-1
member of a director in a non-officer position (as defined with reference
to Rule 16a-1(f) under the Securities Exchange Act of 1934, as amended, or
any successor rule) does not preclude the Board from determining that such
director is "independent." The term "immediately family member" includes a
person's spouse, parents, children, siblings, mother and father-in-law,
sons and daughters-in-law, brothers and sisters-in-law, and anyone (other
than such person's employees) who shares such person's home.
3. Authority.
3.1. Advisors. The Committee shall have the sole authority to (i) retain,
at the Company's expense, an independent compensation consultant and other
expert advisors ("Advisors") as it deems necessary to fulfill its
responsibilities under this charter, (ii) determine the compensation and other
terms of the engagement of such Advisors and (iii) terminate the engagement of
such Advisors. The Advisors shall report directly to the Committee.
3.2. Subcommittees. The Committee may delegate authority and
responsibilities to subcommittees as it deems proper, provided that no
subcommittee shall consist of less than two members.
4. Meetings.
4.1. Frequency of Meetings. The Committee shall meet at least once per
fiscal quarter. The schedule for regular meetings of the Committee shall be
established by the Committee. The Chairperson of the Committee may call a
meeting at any time as he or she deems advisable.
4.2. Minutes. Minutes of each meeting of the Committee shall be kept to
document the discharge by the Committee of its responsibilities and a copy
thereof shall be sent to the members of the Board.
4.3. Quorum. A quorum shall consist of a majority of the Committee's
members. The act of a majority of the Committee members present at a meeting at
which a quorum is present shall be the act of the Committee. However, the
package of compensation for the CEO must be approved unanimously by the standing
members of the Committee.
4.4. Agenda. The Chairperson of the Committee shall prepare an agenda for
each meeting in consultation with Committee members and any appropriate member
of the Company's management or staff. Appropriate members of Company management
and staff shall assist the Chairperson with the preparation of any background
materials necessary for any Committee meeting.
4.5. Presiding Officer. The Chairperson of the Committee shall preside at
all Committee meetings. If the Chairperson is absent at a meeting, a majority of
the Committee members present at a meeting shall appoint a different presiding
officer for that meeting.
5. Executive Compensation.
5.1. Compensation Philosophy and Strategy. The Committee shall review the
compensation philosophy and strategy of the Company and its subsidiaries and
consult with the CEO, as needed, regarding the role of the Company's
compensation strategy in achieving the Company's objectives and performance
goals and the long-term interests of the Company's stockholders.
5.2. Comparison Analysis. The Committee shall annually review market and
industry data to assess the Company's competitive position with respect to the
individual elements of total executive compensation to ensure the attraction,
retention and appropriate reward of the Company's executive officers.
5.3. Administration of Plans. The Committee shall administer the
Company's incentive compensation and stock option and other equity based plans
(including specific provisions) in which the CEO and other executive officers
may be participants and recommend to the Board amendments to such plans or
adoption of new plans. In connection with administering such plans, the
Committee shall have the authority to (i) approve option guidelines and general
size of overall grants, (ii) make grants, (iii) interpret the plans, (iv)
determine the rules and regulations relating to the plans, (v) modify or cancel
existing grants and substitute new grants (with the consent of grantees), (vi)
designate employees
B-2
eligible to participate in the plans and (vii) impose limitations, restrictions
and conditions upon any award as the Committee deems appropriate and as
permitted under the applicable plan.
5.4. Executive Compensation. The Committee shall annually review and
establish the base salary, incentive compensation, deferred compensation, stock
options, performance units and other equity based awards for the CEO. The
Committee shall annually review with the CEO his or her decision as to the
compensation of the Company's other executive officers.
6. CEO Performance. The Committee shall annually evaluate the CEO's
performance and take into account such performance evaluation in establishing
the CEO's compensation.
7. Special Recommendations to the Board. The Committee shall review and
make recommendations to the Board regarding (i) any employment agreement,
severance agreement, change in control agreement or provision, or separation
agreement, or any amendment to the same, that is proposed to be entered into
with the CEO or any other executive officer and (ii) any deferred compensation
arrangement that is proposed to be entered into with the CEO or any other
executive officer.
8. Director Compensation Oversight.
8.1. Review of Director Compensation. The Committee shall annually review
and make recommendations to the Board regarding the compensation paid to the
Company's directors. Such review shall include any fees paid for attendance at
meetings of the Board and any of its committees and grants of stock options or
stock.
8.2. Compliance with Restrictions. The Committee shall monitor the amount
of compensation proposed to be paid to any director for compliance with the
Company's equity compensation plans. In addition, the Committee shall monitor
the effect that compensation proposed to be paid to a director will have on the
director's ability to be considered "independent" under the requirements of the
NYSE and applicable federal securities laws, including the rules and regulations
of the SEC. The Committee shall advise the Board if any compensation proposed to
be paid to a director would violate the Company's equity compensation plans or
have an undesirable impact on the director's independence. In fulfilling its
responsibilities hereunder, the Committee shall give due consideration to the
different definitions of "independent" that apply to the Board and its different
committees and any requirement that the Board or a Board committee contain a
majority of, or be entirely composed of, "independent" directors.
9. Reports and Assessments.
9.1. Board Reports. The Chairperson of the Committee shall report from
time to time to the Board on Committee actions and on the fulfillment of the
Committee's responsibilities under this Charter.
9.2. Charter Assessment. The Committee shall annually review and assess
the adequacy of this Charter and advise the Board and the Governance Committee
of its assessment and of its recommendation for any changes to the Charter.
9.3. Committee Self-Assessment. The Committee shall annually review and
make a self-assessment of its performance and shall report the results of such
self-assessment to the Board and the Governance Committee.
9.4. Annual Report on Compensation. The Committee shall annually advise
the Board as to whether the Company's executive officer compensation
arrangements are appropriate.
9.5. Proxy Statement Report. The Committee shall prepare an annual report
on executive compensation as required by the rules and regulations of the SEC
and submit it to the Board for inclusion in the Company's proxy statement
prepared in connection with its annual meeting of stockholders.
B-3
ANNEX C
DAVE & BUSTER'S, INC.
NOMINATING AND CORPORATE GOVERNANCE COMMITTEE CHARTER
ADOPTED APRIL 4, 2003
This Nominating and Corporate Governance Committee Charter (the "Charter")
sets forth the purpose and membership requirements of the Nominating and
Corporate Governance Committee (the "Committee") of the Board of Directors of
Dave & Buster's Inc. (the "Board") and establishes the authority and
responsibilities delegated to it by the Board.
1. Purpose. The purpose of the Committee is to (i) identify and recommend
to the Board individuals qualified to be nominated for election to the Board,
(ii) recommend to the Board the members and Chairperson for each Board
committee, (iii) periodically review and assess the Company's Corporate
Governance Principles and the Company's Code of Business Ethics and Conduct and
make recommendations for changes thereto to the Board and (iv) oversee the
annual self-evaluation of the performance of the Board.
2. Committee Members.
2.1. Composition and Appointment. The Committee shall consist of three
(3) or more members of the Board. The members and Chairperson of the Committee
shall be appointed by the Board on the recommendation of the Committee.
Membership on the Committee shall rotate at the full Board's discretion. The
Board shall fill vacancies on the Committee and may remove a Committee member
from the membership of the Committee at any time without cause. Members shall
serve until their successors are appointed by the Board.
2.2. Qualifications. Each member of the Committee shall be independent.
To be "independent," a director may not have a relationship with the Company or
its management or a private interest in the Company that in any way may
interfere with the exercise of such director's independence from the Company and
its management. In addition, each member of the Committee must meet the
independence requirements of the New York Stock Exchange ("NYSE") and applicable
federal securities law, including the rules and regulations of the SEC,
including the following requirements:
2.2.1. No director qualifies as "independent" unless the Board
affirmatively determines that the director has no material relationship
with the Company (either directly or as a partner, shareholder or officer
of an organization that has a relationship with the Company), other than
such director's capacity as a member of the Board, the Committee or any
other Board committee.
2.2.2. No director who is a former employee of the Company or any
affiliate of the Company shall be considered "independent" until five years
after such employment has ended. A director that was employed by a former
parent or predecessor of the Company shall not be considered "independent"
until five years after the relationship between the Company and the former
parent or predecessor has ended.
2.2.3. No director who is, or in the past five years has been,
affiliated with or employed by a present or former external auditor of the
Company (or present or former external auditor of any of the Company's
affiliates) shall be considered "independent" until five years after the
end of either the affiliation or the auditing relationship.
2.2.4. No director shall be considered "independent" if such director
is, or in the past five years has been, employed by any company for which
any officer of the Company serves or served as a member of its compensation
committee (or, in the absence of a compensation committee, the board
committee performing equivalent functions, or, in the absence of such
committee, the board of directors) during the time that such director is or
was so employed.
C-1
2.2.5. Directors with immediate family members in the categories
described in Sections 2.2.2, 2.2.3 and 2.2.4 are likewise subject to the
applicable five-year "cooling off" provisions of those Sections for
purposes of determining "independence." However, employment of an immediate
family member of a director in a non-officer position (as defined with
reference to Rule 16a-1(f) under the Securities Exchange Act of 1934, as
amended, or any successor rule) does not preclude the Board from
determining that such director is "independent." The term "immediately
family member" includes a person's spouse, parents, children, siblings,
mother and father-in-law, sons and daughters-in-law, brothers and
sisters-in-law, and anyone (other than such person's employees) who shares
such person's home.
3. Authority.
3.1. Advisors. The Committee shall have the sole authority to (i) retain,
at the Company's expense, independent advisors ("Advisors") as it deems
necessary to fulfill its responsibilities under this charter, (ii) determine the
compensation of such Advisors and (iii) terminate the engagement of such
Advisors.
3.2. Subcommittees. The Committee shall have the authority to delegate
authority and responsibilities to subcommittees as it deems proper, provided
that no subcommittee shall consist of less than two members.
4. Meetings.
4.1. Frequency of Meetings. The Committee shall meet at least once per
fiscal quarter. The schedule for regular meetings of the Committee for each year
shall be established by the Committee. The Chairperson of the Committee may call
a special meeting at any time as he or she deems advisable.
4.2. Minutes. Minutes of each meeting of the Committee shall be kept to
document the discharge by the Committee of its responsibilities and a copy
thereof shall be sent to the members of the Board.
4.3. Quorum. A quorum shall consist of a majority of the Committee's
members. The act of a majority of the Committee members present at a meeting at
which a quorum is present shall be the act of the Committee, except that
nominations for directors that are submitted to the Board shall be approved by
the two-thirds vote of the standing members of the Committee.
4.4. Agenda. The Chairperson of the Committee shall prepare an agenda for
each meeting in consultation with Committee members and any appropriate member
of the Company's management or staff. Appropriate members of Company management
and staff shall assist the Chairperson with the preparation of any background
materials necessary for any Committee meeting.
4.5. Presiding Officer. The Chairperson of the Committee shall preside at
all Committee meetings. If the Chairperson is absent at a meeting, a majority of
the Committee members present at a meeting shall appoint a different presiding
officer for that meeting.
5. Director Nominees.
5.1. Nominee Criteria and Qualifications. The Committee shall establish
criteria for persons to be nominated for election to the Board and its
committees, taking into account the composition of the Board as a whole. At a
minimum, the criteria should include a candidate's qualification as
"independent," under the various standards applicable to the Board and each of
its committees, as well as a candidate's depth of experience and availability,
the balance of the business interest and experience of the incumbent or
nominated directors, and the need for any required expertise on the Board or one
of its committees. With respect to incumbent members of the Board, the Committee
shall also consider the performance of the incumbent director. In addition, the
Committee shall determine whether qualifications for membership on each
committee of the Board of Directors are met.
5.2. Identification of Board Candidates. When the circumstances require,
the Committee shall identify and recommend to the Board new persons qualified to
be nominated for election as directors. The
C-2
Committee shall also annually review each incumbent director's past performance
and recommend to the Board whether such director should be nominated for
reelection.
5.3. Recommendation of Board Nominees. Prior to each annual meeting of
the stockholders of the Company, the Committee shall, on a timely basis,
recommend to the full Board a slate of nominees for election to the Board.
6. Recommendation of Committee Members. The Committee shall annually
recommend to the Board the membership of each Board committee (including this
Committee) and a Chairperson for each committee. The Committee shall review the
qualifications of the members of each committee to ensure that each committee
has in membership that meets any applicable criteria of the rules and
regulations of the SEC and NYSE. There is no mandated policy limiting the length
of service on any committee.
7. Board Matters.
7.1. Director Orientation. The Committee shall, in consultation with the
Chief Executive Officer and appropriate members of management, periodically
review and approve the Company's orientation program for new directors in accord
with the Company's corporate governance principles.
7.2. Recruitment of Directors. The Committee shall evaluate the Company's
policies relating to the recruitment of directors, including compensation and
director and officer's insurance, as well as indemnification protections
provided in the Company's organizational documents, and make recommendations to
the Board or any appropriate Board committee regarding such matters.
8. Executive Officer Matters.
8.1. Management Succession. The Committee shall receive periodically from
the CEO recommendations regarding the CEO's successor, the development of other
executive talent and the executive management needs of the Company.
8.2. CEO Succession. The Committee shall recommend to the Board a
successor to the CEO when a vacancy occurs.
8.3. Appointment of Officers. The Committee shall review the CEO's
appointment of SEC reporting officers ("SEC reporting officers" are those
officers that file Forms 3 and 4 with the SEC under Section 16 of the Securities
Exchange Act of 1934) and make recommendations to the Board with respect to such
persons to be elected officers by the Board and review any proposed personnel
changes involving such officers.
9. Reports and Assessments.
9.1. Board Reports. The Chairperson of the Committee shall report from
time to time to the Board on Committee actions and on the fulfillment of the
Committee's responsibilities under this Charter.
9.2. Charter Assignment. The Committee shall annually review and assess
the adequacy of this Charter and advise the Board of its recommendation for any
changes to the Charter.
9.3. Committee Self-Assessment. The Committee shall annually review and
make a self-assessment of its performance, and shall report the results of such
self-assessment to the Board.
9.4. Assessment of Board. The Committee shall conduct an annual
self-assessment of the Board's performance. The Committee shall be responsible
for establishing the evaluation criteria and implementing the process for such
evaluation.
9.5. Evaluation of Committee Charters. The Committee shall conduct an
annual review of all committee charters and recommend to the Board any changes
it deems necessary. In connection therewith, the Committee shall review the
recommendations of each Board Committee regarding the charter of its committee.
C-3
9.6. Corporate Governance. The Committee shall conduct an annual review
and assessment of (i) the Company's corporate governance principles and (ii) the
Company's Business Ethics Policy and recommend to the Board any changes it deems
necessary.
C-4
YOUR VOTE IS IMPORTANT
PLEASE SIGN, DATE AND MAIL
YOUR WHITE PROXY CARD TODAY
(SEE REVERSE SIDE FOR INSTRUCTIONS)
PLEASE DETACH PROXY CARD
- --------------------------------------------------------------------------------
<Table>
[X] PLEASE MARK
YOUR VOTES AS
INDICATED IN THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" PROPOSALS 1 AND 2 AND "AGAINST" SHAREHOLDER
THIS EXAMPLE PROPOSAL 3. SHARES WILL BE SO VOTED UNLESS OTHERWISE INDICATED.
FOR AGAINST ABSTAIN
The Board of Directors recommends a vote 2. To ratify the appointment of Ernst & [ ] [ ] [ ]
FOR Proposals 1 and 2. Young LLP as Dave & Buster's
independent auditors for fiscal year
1. To elect three (3) members to the Board 2003.
of Directors of the Company to terms
expiring in 2006. The Board of Directors recommends a vote
AGAINST Shareholder Proposal 3.
WITHHOLD FOR AGAINST ABSTAIN
FOR AUTHORITY 3. Shareholder Proposal on Sale of the
ALL FOR ALL Company (see p. 18 of the Proxy Statement) [ ] [ ] [ ]
NOMINEES NOMINEES EXCEPTIONS
Nominees: James W. Corley
Peter A. Edison [ ] [ ] [ ]
Patricia P. Priest
(INSTRUCTIONS: TO WITHHOLD AUTHORITY TO VOTE FOR
ANY INDIVIDUAL NOMINEE, MARK THE 'EXCEPTIONS' BOX AND CHANGE OF ADDRESS MARK HERE [ ]
WRITE THAT NOMINEE'S NAME IN THE SPACE PROVIDED BELOW.)
Please sign exactly as your name appears hereon.
EXCEPTIONS: When signing in a representative capacity, please
--------------------- give full title.
Date: , 2003
----------------------------------------
----------------------------------------------------
Signature
----------------------------------------------------
Signature
PLEASE MARK, SIGN, DATE AND RETURN THIS WHITE PROXY
CARD PROMPTLY USING THE POSTAGE-PAID ENCLOSED
ENVELOPE.
</Table>
IMPORTANT
Your vote is important. No matter how many shares of Dave & Buster's, Inc.
common stock you own, please give DAVE & BUSTER'S your proxy FOR the election of
Management's nominees for director, FOR the ratification of Ernst & Young LLP as
Dave & Buster's independent auditors for fiscal year 2003, and AGAINST the
shareholder proposal requesting that the Board of Directors pursue a sale of
DAVE & BUSTER'S (see p. 18 of the Proxy Statement) by signing, dating and
returning DAVE & BUSTER'S WHITE proxy card today in the postage prepared
envelope provided.
Your Board of Directors urges you NOT to return any BLUE proxy cards you may
have received.
If you have already submitted a BLUE proxy, you may change your vote to a vote
"FOR" election of Management's nominees and "FOR" the ratification of Ernst &
Young as independent auditors by signing, dating and returning DAVE & BUSTERS
WHITE proxy card, which must be dated after any BLUE proxy you may have
submitted. Only your last proxy for the Annual Meeting will count at the
meeting. If any of your shares of Dave & Buster's are held in the name of a
brokerage firm, bank, nominee or other institution, only they can vote the
shares and only upon receipt of your specific instructions. Please, sign, date
and promptly mail the WHITE proxy card in the envelope provided by your broker,
bank nominee or other institution. REMEMBER, your shares cannot be voted unless
you sign and return an executed proxy card to your nominees.
If you have any questions or require any additional information or assistance,
please call our proxy solicitor, Georgeson Shareholder Communications, Inc. at
the numbers set forth below.
Georgeson GS Shareholder
17 STATE STREET, 10TH FLOOR
NEW YORK, NY 10004
(800) 605-6576 (TOLL FREE)
BANKS AND BROKERAGE FIRMS PLEASE CALL: 212-440-9800
PLEASE DETACH PROXY CARD HERE
- --------------------------------------------------------------------------------
PROXY
DAVE & BUSTERS, INC.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS FOR
THE ANNUAL MEETING OF SHAREHOLDERS
JUNE 10, 2003
The undersigned shareholder hereby appoints David O. Corriveau and James W.
Corley, or each of them, with full powers of substitution and revocation, to act
as attorneys and proxies of the undersigned and to vote on behalf of the
undersigned all shares of Common Stock of Dave & Buster's (the "Company"), which
the undersigned is entitled to vote at the Annual Meeting of Shareholders to be
held June 10, 2003 at 9:00 a.m. local time at The Show Room at Dave & Buster's,
10727 Composite Drive, Dallas, Texas, or at any adjournment thereof. The
undersigned hereby acknowledges receipt of the Notice of Annual Meeting and
Proxy Statement and hereby instructs said attorneys and proxies to vote as
indicated herein. Without otherwise limiting the general authorization given
hereby, said attorneys and proxies are instructed to vote as set forth on the
reverse.
THE PROXY IS REVOCABLE AND, WHEN PROPERLY EXECUTED, WILL BE VOTED IN THE MANNER
DIRECTED HEREIN BY THE UNDERSIGNED. IF NO DIRECTIONS ARE GIVEN, THIS PROXY (IF
SIGNED) WILL BE VOTED (1) FOR MANAGEMENT'S THREE NOMINEES FOR DIRECTOR, (2) FOR
RATIFICATION OF ERNST & YOUNG LLP AS THE COMPANY'S INDEPENDENT AUDITORS FOR
FISCAL YEAR 2003 AND (3) AGAINST THE SHAREHOLDER PROPOSAL TO SELL THE COMPANY.
THIS PROXY ALSO GRANTS TO THE HOLDERS THE DISCRETION TO VOTE ON ANY OTHER MATTER
THAT MAY PROPERLY COME BEFORE THE MEETING OR ANY ADJOURNMENT THEREOF.
(Please sign and date this WHITE proxy on the reverse side and return it in
enclosed envelope.)