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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
/X/ Definitive Proxy Statement
/ / Definitive Additional Materials
/ / Soliciting Material Pursuant to sec. 240.14a-11(c) or sec. 240.14a-12
Dave & Buster's, Inc.
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(Name of Registrant as Specified in its Charter)
Alan L. Murray, Vice President and General Counsel
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(Name of Person Filing Proxy Statement)
Payment of Filing Fee:
/X/ $125 per Exchange Act Rules 0-11(c)(1)(ii), 14a-6(i)(1), or
14a-6(i)(2).
/ / $500 per each party to the controversy pursuant to Exchange Act Rule
14a-6(i)(3).
/ / Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and
0-11.
(1) Title of each class of securities to which transaction applies:
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(2) Aggregate number of securities to which transaction applies:
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(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11:
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(4) Proposed maximum aggregate value of transaction:
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/ / 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:
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DAVE & BUSTER'S, INC.
2751 ELECTRONIC LANE
DALLAS, TEXAS 75220
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD JUNE 11, 1996
To the holders of Common Stock of
Dave & Buster's, Inc.:
NOTICE IS HEREBY GIVEN that the Annual Meeting of Stockholders of Dave &
Buster's, Inc. (the "Company") will be held in The Show Room at Dave & Buster's,
10270 Composite Drive, Dallas, Texas, on June 11, 1996 at 2:00 p.m., local time,
for the following purposes:
(a) To elect one class of directors (consisting of three directors) of
the Company for a three year term; and
(b) To transact such other business as may properly come before the
meeting or any adjournment thereof.
Only stockholders of record at the close of business on May 15, 1996 are
entitled to notice of, and to vote at, the meeting or any adjournment thereof.
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 proxy card
in the enclosed envelope (which requires no postage if mailed in the United
States).
By Order of the Board of Directors
/s/ ALAN L. MURRAY
ALAN L. MURRAY
Secretary
Dallas, Texas
May 20, 1996
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DAVE & BUSTER'S, INC.
2751 ELECTRONIC LANE
DALLAS, TEXAS 75220
PROXY STATEMENT
FOR
ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD JUNE 11, 1996
This Proxy Statement is furnished to stockholders 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 Stockholders to be held on June 11, 1996, and at any and all adjournments or
postponements thereof. Proxies in the form enclosed will be voted at the
meeting, if properly executed, returned to the Company prior to the meeting and
not revoked. The proxy may be revoked at any time before it is voted by giving
written notice to the Secretary of the Company.
This Proxy Statement and accompanying form of proxy are being mailed to the
Company's stockholders on or about May 20, 1996. The Company's Annual Report,
covering the Company's 1995 fiscal year, is enclosed herewith but does not form
any part of the materials for solicitation of proxies.
ACTION TO BE TAKEN AT THE MEETING
Only holders of record of common stock at the close of business on May 15,
1996 (the "Record 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, approximately 7,267,056
shares of common stock. The presence, either in person or by properly executed
proxy, of the holders of record of a majority of the common stock outstanding on
the Record Date is necessary to constitute a quorum at the Annual Meeting.
At the Annual Meeting, holders of the Company's common stock will consider
and vote for the election of David O. Corriveau, Mark A. Levy and Martin Sneider
to a three year term as directors of the Company. Should any nominee become
unable or unwilling to accept nomination or election, the proxy holders may vote
the proxies for the election in his stead of any other person the Board of
Directors may recommend. Each nominee has expressed his intention to serve the
entire term of three years for which election is sought.
Holders of record of common stock are entitled to one vote per share. The
election as a director of each nominee for election as a director requires the
affirmative vote of the holders of record of a plurality of the outstanding
voting power of the shares of common stock represented, in person or by proxy,
at the Annual Meeting.
The accompanying proxy, unless the stockholder otherwise specifies in the
proxy, will be voted (i) for the election to a three year term as directors of
the Company of the three nominees set forth above; and (ii) at the discretion of
the proxy holders on any other matter that may properly come before the meeting
or any adjournment thereof. Where stockholders have appropriately specified how
their proxies are to be voted, they will be voted accordingly. Abstentions will
be included in vote totals and, as such, will have the same effect on any
proposal other than the election of directors as a negative vote. Broker
non-votes will not count for or against the matters to be voted on at the Annual
Meeting.
If any other matter or business is brought before the meeting, the proxy
holders may vote the proxies in their discretion. The directors do not know of
any such other matter or business.
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BENEFICIAL OWNERSHIP OF COMMON STOCK
The following table sets forth certain information regarding the beneficial
ownership of the Company's common stock as of March 31, 1996 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 of the Company, (iii) each of the
named executive officers, and (iv) all of the directors and officers of the
Company as a group. Except pursuant to applicable community property laws and
except as otherwise indicated, each stockholder identified in the table
possesses sole voting and investment power with respect to its or his shares.
SHARES BENEFICIALLY
OWNED(1)
-----------------------
NAME NUMBER PERCENT
-------------------------------------------------------------- ------- -------
5% OR MORE STOCKHOLDERS:
Raborn & Co., Inc............................................. 514,050 7.1%
777 E. Atlantic Avenue, Suite 301
Delray Beach, Florida 33483
DIRECTORS AND EXECUTIVE OFFICERS:
David O. Corriveau............................................ 371,312 5.1%
2751 Electronic Lane
Dallas, Texas 75220
James W. Corley............................................... 346,312 4.8%
Barry N. Carter............................................... 5,000 *
Charles M. Krauthamer, Jr..................................... 2,000 *
Charles Michel................................................ 578 *
Alan L. Murray................................................ 0 *
J. Michael Plunkett........................................... 8,000 *
Sterling R. Smith............................................. 9,000 *
Allen J. Bernstein............................................ 0 *
Peter A. Edison............................................... 50,817(2) *
Walter S. Henrion............................................. 44,080 *
Mark A. Levy.................................................. 0 *
Andrew E. Newman.............................................. 143,644(3) 2.0%
Martin K. Sneider............................................. 15,536(4) *
Mark B. Vittert............................................... 0 *
All directors and officers as a group (15 persons)............ 996,289 13.7%
---------------
* Indicates less than 1%.
(1) Includes shares issuable upon exercise of stock options which are vested or
will be vested prior to May 31, 1996.
(2) Mr. Edison has sole voting and dispositive power with respect to 11,210
shares and shared voting and dispositive power with respect to 39,607
shares.
(3) Mr. Newman has sole voting and dispositive power with respect to 44,296
shares and shared voting and dispositive power with respect to 99,348
shares.
(4) Mr. Sneider has sole voting and dispositive power with respect to 15,530
shares and shared voting and dispositive power with respect to 6 shares.
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DIRECTORS AND EXECUTIVE OFFICERS
A brief description of each director and executive officer of the Company
is provided below. Directors hold office until the next annual meeting of the
stockholders or until their successors are elected and qualified. All officers
serve at the discretion of the Board of Directors, except as provided below.
Mr. Corriveau, a co-founder of the Dave & Buster's concept in 1982, has
served as Co-Chief Executive Officer and President since June 1995, and as a
director of the Company since May 1995 and as Co-Chairman of the Board since
February 1996. 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. Corley, a co-founder of the Dave & Buster's concept in 1982, has served
as Co-Chief Executive Officer and Chief Operating Officer since June 1995, and
as a director of the Company since May 1995 and as Co-Chairman of the Board
since February 1996. Mr. Corley served as Executive Vice President and Chief
Operating Officer of D&B Holding from 1989 through June 1995. From 1982 to 1989,
Messrs. Corley and Corriveau operated the Company's business.
Mr. Carter has served as Vice President, Director of Store Support, since
June 1995 and as Vice President and Director of Store Support of D&B Holding
from November 1994 to June 1995. From 1982 to November 1994, he served in
operating positions of increasing responsibilities for the Company and its
predecessors.
Mr. Krauthamer has served as Vice President, Director of Store Openings,
since December 1995. From 1991 to December 1995, Mr. Krauthamer served in
operating positions of increasing responsibilities for the Company and its
predecessors.
Mr. Michel has served as Vice President and Chief Financial Officer since
February 1996, as Chief Financial Officer of the Company since June 1995 and as
Chief Financial Officer of D&B Holding from November 1994 to June 1995. From
1992 to October 1994, Mr. Michel served as Vice President and Chief Financial
Officer of Sfuzzi, Inc., an Italian restaurant chain based in Dallas, Texas. Mr.
Michel was with the accounting firm of KPMG Peat Marwick from 1976 to 1992,
becoming a partner of such firm in 1986.
Mr. Murray has served as Vice President, Director of Legal and
Administration, since February 1996 and as Secretary and Director of Legal and
Administration since June 1995. Mr. Murray served as Director of Legal and
Administration of D&B Holding from November 1994 until June 1995. Mr. Murray
served as Vice President, Secretary, and General Counsel of Phillips Colleges,
Inc. from 1988 through 1994.
Mr. Plunkett has served as Vice President, Director of Training, of the
Company since June 1995 and as Vice President and Director of Training of D&B
Holding from November 1994 to June 1995. From 1982 to November 1994, he served
in operating positions of increasing responsibilities for the Company and its
predecessors.
Mr. Smith has served as Vice President, Director of Operations, of the
Company since June 1995 and as Vice President and Director of Operations of D&B
Holding from November 1994 to June 1995. From 1983 to July 1995, Mr. Smith
served in operating positions of increasing responsibilities for the Company and
its predecessors.
Mr. Bernstein is founder of Quantum Restaurant Group, Inc., a New York
Stock Exchange Company, and has been its Chairman of the Board and Chief
Executive Officer since its inception in October 1988. Quantum owns and operates
more than 70 restaurants, comprised of four distinct restaurant companies,
Morton's of Chicago Steak Houses, Mick's, Bertolini's and Peasant Restaurants.
Mr. Edison has been Senior Executive Vice President of Edison Brothers
Stores, Inc., a specialty retailer ("Edison Brothers") since April 1995 and
Director, Corporate Development of Edison Brothers since 1989. From 1992 to
April 1995, Mr. Edison was an Executive Vice President of Edison Brothers. He
was elected to the Board of Directors of Edison Brothers in 1990 and has served
as a director of the Company since
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December 1989. In November 1995, Edison Brothers filed for protection under
Chapter 11 of the Federal Bankruptcy Code.
Mr. Henrion has been a director of D&B Holding and, as a partner in Sandell
Investments, has served as a consultant to the Company's business since 1989,
and he has been a director of the Company since May 1995. He has also been a
consultant to the restaurant industry since 1983. From 1972 to 1981, Mr. Henrion
served as Executive Vice President and a director of TGI Friday's, Inc. Mr.
Henrion is also Chairman of the Board and Chief Executive Officer of The Waldon
Company, a corporation primarily engaged in real estate activities.
Mr. Levy has been Vice Chairman of the Board of Directors of The Levy
Restaurants and its parent entity, The Levy Organization, since 1978. The Levy
Organization is a real estate development company, and The Levy Restaurants
operates more than 40 restaurants, food service and special concession
operations throughout the United States.
Mr. Newman has been Chairman and Chief Executive Officer of Race Rock
International, a motor sports themed restaurant company, since July 1995. He
served as Chairman of the Board of Edison Brothers from 1987 to April 1995. He
served as Chairman of the Board of the Company from June 1995 to February 1996.
Mr. Newman has been a director of the Company since 1989 and a director of
Edison Brothers since 1978. He is also a director of Lee Enterprises, Inc. and
Sigma-Aldrich Corporation. In November 1995, Edison Brothers filed for
protection under Chapter 11 of the Federal Bankruptcy Code.
Mr. Sneider, adjunct Professor of Retailing at Washington University in St.
Louis, served as President of Edison Brothers from 1987 to April 1995. Mr.
Sneider has been a director of the Company since 1989 and a director of Edison
Brothers since 1978. He also serves as a director of Angelica Corporation, and
CPI Corporation. In November 1995, Edison Brothers filed for protection under
Chapter 11 of the Federal Bankruptcy Code.
Mr. Vittert has been a private investor for more than five years and is a
director of Munsingwear, Inc. and Lee Enterprises, Inc.
The Board of Directors held five meetings in fiscal 1995. No director
attended fewer than 75% of the meetings of the Board (and any committees
thereof) which they were required to attend.
COMMITTEES OF THE BOARD OF DIRECTORS
The Audit Committee, comprised of Messrs. Sneider (Chairman), Edison and
Levy, recommends to the Board of Directors the appointment of the Company's
independent auditors, reviews 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. The Audit Committee met one time during fiscal 1995.
The Compensation Committee, comprised of Messrs. Levy (Chairman), Bernstein
and Vittert, reviews and recommends compensation of officers and directors,
administers stock option plans and reviews major personnel matters. The
Compensation Committee met one time during fiscal 1995. See "Report of the
Compensation Committee" included elsewhere in this Proxy Statement.
The Executive Committee, comprised of Messrs. Corriveau, Corley, Levy,
Newman and Sneider, exercises all of the powers and authority of the Board of
Directors in the management and affairs of the Company when the Board of
Directors is not in session, except to the extent such authority is delegated to
another committee.
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SUMMARY OF EXECUTIVE COMPENSATION
The following table sets forth information concerning cash compensation
paid or accrued by the Company during fiscal 1995 (the Company was not
publicly-held prior to fiscal 1995) to or for the Company's Co-Chief Executive
Officers and the three other highest compensated executive officers of the
Company whose total salary and bonus exceeded $100,000.
ANNUAL COMPENSATION LONG-TERM COMPENSATION
-------------------- -------------------------
SECURITIES
RESTRICTED UNDERLYING
NAME AND STOCK OPTIONS/ ALL OTHER
PRINCIPAL POSITION SALARY BONUS AWARDS SAR'S COMPENSATION(1)
---------------------------------------- -------- ------- ---------- ---------- ---------------
David O. Corriveau...................... $255,256 (2) 0 0 0
(Co-CEO)
James W. Corley......................... 255,256 (2) 0 0 0
(Co-CEO)
Sterling R. Smith....................... 94,151 136,100 9,000 shs 0 0
(V.P.)
J. Michael Plunkett..................... 79,151 110,529 7,000 shs 0 0
(V.P.)
Barry N. Carter......................... 79,151 82,464 5,000 shs 0 0
(V.P.)
---------------
(1) None of the named executive officers received perquisites and other personal
benefits, securities or property in excess of the lesser of $50,000 or 10%
of such officer's total annual salary and bonus.
(2) See "Certain Transactions -- Spin-Off and Related Transactions" regarding
amounts paid in 1995 pursuant to 1989 acquisition agreements.
EMPLOYMENT AGREEMENTS
In June 1995, Edison Brothers consummated a spin-off (the "Spin-Off") to
its stockholders of its ownership position in the Company. In connection with
the Spin-Off, the Company entered into employment agreements with each of
Messrs. Corriveau and Corley (the "Employment Agreements") to supersede the
employment agreements entered in 1989. The Employment Agreements provide for
employment by the Company of Messrs. Corriveau and Corley at salaries at least
equal to their present salaries for a period of five years after the Spin-Off
and contain a covenant not to compete during such employment and for a period of
two years after such Employment Agreements' termination prior to expiration.
After the termination of an Employment Agreement by expiration, the two year
covenant not to compete remains in effect if the Company elects to pay the
employee the full amount of his then current salary for a period of one year
after such date of expiration. The Employment Agreements may be terminated upon
death, disability, for "cause" (as defined therein) or for a material breach of
such Employment Agreement. Pursuant to the terms of each Employment Agreement,
if either Mr. Corriveau's or Mr. Corley's employment is terminated prior to the
expiration of their respective Employment Agreement other than because of death,
certain disabilities, certain unlawful or dishonest acts or a breach of the
terms of such Employment Agreement, the Company will be obligated to continue to
provide such employee's current salary and benefits until the later of (i) one
year after the date of such termination or (ii) the earlier of (x) the
expiration date of the respective Employment Agreement or (y) three years from
the date of such termination. If, at any time during the term of either
Employment Agreement, the respective employee is removed from the Board of
Directors of the Company or at the expiration of his term as a director is not
nominated to serve as a director of the Company, and the cause of such removal
or failure to nominate is not the result of employee's unwillingness to serve as
a director of the Company or certain actions by the employee, then such employee
may elect to terminate his employment and treat such removal or failure to
nominate as a termination without cause.
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1995 STOCK OPTION PLAN
The Company's Board of Directors adopted the Dave & Buster's, Inc. 1995
Stock Option Plan (the "Option Plan") in order to encourage ownership of the
Company's common stock by key employees of the Company and its subsidiaries as
well as other persons providing services to the Company. The Board of Directors
believes that the Option Plan will enable the Company to attract and retain the
services of outstanding employees in competition with other employers.
Approximately 150 employees of the Company are eligible to receive options under
the Option Plan. Administration of the Option Plan is vested in the Compensation
Committee of the Company's Board of Directors (the "Committee").
A total of 450,000 shares of common stock of the Company is available for
the granting of options under the Option Plan. As of February 4, 1996, options
to purchase a total of 255,441 shares of common stock had been granted under the
Plan. If an option expires or terminates before it has been exercised in full,
the shares of common stock allocable to the unexercised portion of such option
will again be available for the grant of options under the Option Plan. The
maximum number of shares with respect to which the options may be granted to any
individual during any calendar year is 45,000.
The purchase price of the shares under each incentive stock option may not
be less than 100% of the fair market value of the common stock at the time of
grant. The purchase price under each non-qualified stock option may not be less
than 85% of the fair market value of the common stock at the time of grant. The
aggregate fair market value, determined at the time of grant, of the common
stock with respect to which incentive stock options (granted under the Option
Plan and any other stock option plan of the Company) first become exercisable by
an optionee in any calendar year may not exceed $100,000. The term of an option
may not be more than ten years from the date of grant. The Option Plan will
terminate on May 25, 2005; however, options outstanding at the termination of
the Option Plan will not be affected by such termination.
The Committee, in its sole discretion, may grant tax-offset bonus rights
("TOBRs") with respect to non-qualified options. A TOBR entitles the optionee to
receive from the Company, upon exercise of the related non-qualified options, an
amount in cash equal to (1) the excess, if any, of the aggregate market price
over the aggregate purchase price of the shares acquired by such exercise,
multiplied by (2) a percentage determined solely by the Committee. The Committee
is charged with determining all other terms and provisions of any TOBR.
The federal income tax consequences with respect to awards under the Option
Plan differ depending on the form of stock options granted and certain other
circumstances. Grants and exercises of incentive stock options are not taxable
events although the excess of the fair market value of the shares on the date of
exercise over the option price is an item of tax preference for purposes of
computing alternative minimum taxable income. However, upon the subsequent
disposition of shares acquired upon exercise, the optionee generally will
realize, as long-term capital gain or loss, the difference between the sale
price and the option price, provided the shares are held by the optionee for at
least one year after the date of exercise and two years after the date of grant;
however, if the shares are disposed of before the expiration of the one-year and
two-year holding periods, the optionee generally will realize ordinary
compensation income at the time of the disposition limited to the lesser of (a)
the gain, if any, or (b) the excess of the fair market value of the shares at
the time the option was exercised over the option price. The Company generally
will be entitled to a deduction equal to the ordinary compensation income
realized by the optionee. Grants of non-qualified stock options are not taxable
events. However, upon exercise, the optionee generally will realize ordinary
compensation income equal to the excess of the fair market value of the shares
so acquired over the option price. The Company generally will be entitled to a
deduction equal to the ordinary compensation income realized by the optionee.
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The following table sets forth information regarding the grant of stock
options during fiscal 1995 under the Option Plan to the executive officers named
in the above compensation table:
INDIVIDUAL GRANTS
-----------------------------------
PERCENT OF POTENTIAL REALIZABLE
TOTAL VALUE AT ASSUMED
OPTIONS/ ANNUAL RATES OF
SARS STOCK PRICE
OPTIONS/ GRANTED TO EXERCISE APPRECIATION FOR
SARS EMPLOYEES OR BASE OPTION TERM(1)
GRANTED IN FISCAL PRICE EXPIRATION ----------------------
NAME (#) YEAR ($/SH) DATE 5%($) 10%($)
--------------------------------------- ------- ---------- -------- ---------- -------- ----------
Mr. Corriveau.......................... 44,175 (2) 42.50% $15.00 6/20/05 $416,721 $1,056,054
Mr. Corley............................. 44,175 (2) 42.50% 15.00 6/20/05 416,721 1,056,054
Mr. Smith.............................. 10,500 6.93% 18.25 6/28/05 120,512 305,401
Mr. Plunkett........................... 10,500 6.93% 18.25 6/28/05 120,512 305,401
Mr. Carter............................. 10,500 6.93% 18.25 6/28/05 120,512 305,401
---------------
(1) The 5% and 10% assumed annual rates of appreciation are mandated by the
rules of the Securities and Exchange Commission and do not reflect the
Company's estimates or projections of future prices of the shares of the
Company's common stock. There can be no assurance that the amounts reflected
in this table will be achieved.
(2) The grant of options was made in connection with the Spin-Off and not as
compensatory options. See "Certain Transactions -- Spin-Off and Related
Transactions."
The following table sets forth certain information with respect to the
options held by the executive officers named in the above compensation table at
February 4, 1996:
VALUE OF UNEXERCISED
NUMBER OF UNEXERCISED IN-THE-MONEY
OPTIONS AT OPTION AT
FEBRUARY 4, 1996(1) FEBRUARY 4, 1996(2)
---------------------------- ----------------------------
NAME EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
-------------------------------------- ----------- ------------- ----------- -------------
Mr. Corriveau......................... -- 44,175 -- --
Mr. Corley............................ -- 44,175 -- --
Mr. Smith............................. -- 10,500 -- --
Mr. Plunkett.......................... -- 10,500 -- --
Mr. Carter............................ -- 10,500 -- --
---------------
(1) No options were exercised by the named executive officers during fiscal
1995.
(2) Based upon the closing price of the Common Stock of the Company on February
4, 1996, which price was $14.625 per share.
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.
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. When participation in a Board or
committee meeting is by telephone, the fee paid is one-half of the amount
reported above.
In February 1996, the Company adopted a stock option plan for outside
directors (the "Directors Plan") to provide independent, outside directors
(excluding those directors who were stockholders prior to February 1996) with an
incentive for serving as a director by providing a proprietary interest in the
Company through the granting of options. Directors who are not employees are
entitled to participate in the Directors
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Plan. A total of 100,000 shares of common stock are subject to the Directors
Plan. Upon election to the Board of Directors of the Company, each eligible
director is granted an option to purchase 15,000 shares effective as of the date
of such election and vesting over a three year period. Accordingly, options have
been granted to each of Messrs. Bernstein, Levy and Vittert to purchase an
aggregate of 15,000 shares at an exercise price of $15.56 per share. The options
granted under the Directors Plan are not entitled to "incentive stock option"
treatment for federal income tax purposes. Accordingly, under federal income tax
laws, an optionee upon exercise of an option under the Directors Plan will
recognize ordinary income equal to the fair market value of the stock on the
date of exercise minus the exercise price.
CERTAIN FILINGS BY EXECUTIVE OFFICERS AND DIRECTORS
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. All of these filing requirements were satisfied during
fiscal 1995 except a filing on Form 5 by Peter A. Edison with respect to a
change in the nature of his beneficial ownership during fiscal 1995.
CERTAIN TRANSACTIONS
SPIN-OFF AND RELATED TRANSACTIONS
In December 1989, Edison Brothers formed the Company to acquire an 80%
interest in the operating business of Dave & Buster's and formed a real estate
holding company to hold 100% of the realty assets of the operating business.
Messrs. Corriveau and Corley, as well as the other three minority owners of the
Company (such five persons being collectively referred to as the "Minority
Owners") retained a 20% interest in the operating business of the Company. In
July 1994, in anticipation of the Spin-Off, Edison Brothers and the Minority
Owners entered into an agreement (the "Transaction Agreement") to, among other
things, combine the real estate and operating interests of the Company and to
exchange shares of the Company's common stock for the equity held by the
Minority Owners in the Company's principal operating subsidiary. As a result of
the foregoing exchange and combination, Messrs. Corriveau, Corley and the other
Minority Owners (which included Mr. Henrion) owned 15% of the combined entity
(with Edison Brothers owning the remaining 85%).
In connection with the December 1989 acquisition, the Minority Owners
received nominal cash consideration and, in lieu of cash consideration, entered
into employment and consulting agreements pursuant to which the Company agreed
to pay the Minority Owners certain compensation (the "Earn-out Compensation")
based upon an agreed formula applied to earnings for the one-year period ending
August 1, 1995. Based upon such formula, the Earn-out Compensation was $10.0
million. The Company paid such amount to the Minority Owners immediately prior
to the Spin-Off (less prior advances of approximately $2.7 million and the $0.5
foregone by the Minority Owners to fund the Special Distribution Employee Bonus
described below).
In July 1995, the Company purchased 0.75% of the Company's outstanding
shares, or 38,978 shares, from certain Minority Owners through the exercise of
an option under a 1989 option agreement. The Company then distributed such
shares to 32 of its management employees (other than Messrs. Corriveau and
Corley) as a Special Distribution Employee Bonus. The Minority Owners agreed
with the Company that a portion of the Earn-Out Compensation to which they were
otherwise entitled could be used to pay the exercise price of such option and to
make certain payments to such management employees in connection with the grant
of the Special Distribution Employee Bonus.
AGREEMENTS WITH EDISON BROTHERS
Edison Brothers and the Company also entered into certain agreements
described below providing for the Company's orderly transition during fiscal
1995 from an Edison Brothers' subsidiary to the status of an independent
publicly held company.
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Distribution Agreement. The Company and Edison Brothers entered into a
Distribution Agreement, which set forth the principal corporate transactions
required to effect the Spin-Off and agreements that govern certain other matters
following the Spin-Off. The Distribution Agreement provides that the Company
will defend and hold harmless Edison Brothers, its subsidiaries and each of
their respective directors, officers and affiliates (the "EBS Indemnitees") from
and against any and all damage, loss, liability and expense (including, without
limitation, reasonable expenses of investigation and reasonable attorneys' fees
and expenses) (collectively, "Indemnifiable Losses") incurred or suffered by any
of the EBS Indemnitees and arising out of, or due to the failure of the Company
to pay, perform or otherwise discharge, any of its liabilities under the
Distribution Agreement or otherwise.
The Distribution Agreement also provides that Edison Brothers will
indemnify, defend and hold harmless the Company, its subsidiaries and each of
their respective directors, officers and affiliates (the "D&B Indemnitees") from
and against any and all Indemnifiable Losses incurred or suffered by any of the
D&B Indemnitees and arising out of, or due to the failure of Edison Brothers to
pay, perform or otherwise discharge, any of its liabilities under the
Distribution Agreement or otherwise.
Pursuant to the terms of the Distribution Agreement, and except as
otherwise provided therein or in any other agreement between the parties, the
Company released each of the EBS Indemnities from and against any claim that the
Company may have against any such EBS Indemnitee which relates to events,
actions or omissions taken or occurring prior to the Spin-Off.
Loan Facility. In connection with the Spin-Off, Edison Brothers agreed to
provide certain financing for up to two additional Dave & Buster's
restaurant/entertainment complexes ("Complexes") and for the Company's costs
associated with the Spin-Off and a subsequent underwritten public offering of
common stock during fiscal 1995. The maximum amount borrowed by the Company
under this loan facility was $7,524,000. The loan facility was repaid in full in
September 1995 and thereafter terminated by the Company. Amounts borrowed under
the loan facility bore interest at an average annual rate of 7.93%.
Tax Sharing Agreement. Through June 29, 1995 the Company's business
operations were included in the consolidated federal income tax returns of
Edison Brothers. As part of the Spin-Off, Edison Brothers and the Company
entered into a Tax Sharing Agreement (the "Tax Sharing Agreement") providing,
among other things, for the allocation among the parties thereto of federal,
state, local and foreign tax liabilities for all periods through June 29, 1995
and reimbursement by each party for any of its taxes which may have been paid or
advanced by the other. The Tax Sharing Agreement provides that the Company will
remain liable for tax liabilities attributable to it, its predecessors or its
subsidiaries, as determined by Edison Brothers, for the taxable year during
which the Spin-Off occurs and for the periods prior to the Spin-Off, together
with any applicable interest and penalties, provided that Edison Brothers shall
remain responsible for tax liabilities not arising as a result of the ordinary
operation of the Company and of a non-recurring nature. The Company is
responsible for all federal, state, local and foreign taxes attributable to the
businesses of the Company after the Spin-Off.
The Tax Sharing Agreement also generally provides that, subject to certain
limitations, (i) Edison Brothers will pay to the Company 80% of any federal or
state income or franchise tax benefit received from any permitted carryback of
certain tax attributes of the Company or any of its subsidiaries to tax years
beginning before the Spin-Off; (ii) the Company will pay to Edison Brothers any
federal income tax benefit received by the Company or any of its subsidiaries
from certain adjustments to the pre-Spin-Off tax liability of the Edison
Brothers consolidated group that result in a decrease of the federal income tax
liability of the Company or any of its subsidiaries; and (iii) Edison Brothers
will pay to the Company any federal income tax detriment to the Company from
certain adjustments to the pre-Spin-Off tax liability of the Edison Brothers
consolidated group that result in an increase in the Federal income tax
liability of the Company or any of its subsidiaries.
Transition Services Agreement. Pursuant to a Transition Services Agreement,
Edison Brothers continued to provide certain administrative services to the
Company, including but not limited to, financial and accounting services, human
resource services, legal services and lease administration, following the
Spin-Off. Charges for such services were equal to 10% over Edison Brothers'
internal costs (as reasonably determined by
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Edison Brothers) plus reimbursement for any out-of-pocket costs. The expenses
charged for these services subsequent to the Spin-Off were $368,000.
Lease Guarantee Agreement. Pursuant to a Lease Guarantee Agreement, Edison
Brothers has agreed to remain as guarantor of certain existing leases for the
Company's facilities (the "Guaranteed Leases") and the Company has agreed, among
other things, to (i) perform all of its obligations under each Guaranteed Lease,
(ii) indemnify Edison Brothers and its affiliates from and against any and all
damage, loss, liability or expense resulting from the failure of the Company to
perform such obligations, (iii) keep proper books and records with respect to
the Guaranteed Leases and (iv) maintain all of its property in good working
order and condition. In addition, the Company has agreed to promptly notify
Edison Brothers of the occurrence of certain events with respect to the
Guaranteed Leases. If the Company proposes to take action with respect to any
particular Guaranteed Lease that will, in Edison Brothers' good faith judgment,
violate the terms of the Guaranteed Lease or create a material risk that the
Company will not be able to satisfy its obligations thereunder, the Company may
be required to secure its obligation to indemnify Edison Brothers with respect
to the applicable Guaranteed Lease with an irrevocable letter of credit or
similar collateral satisfactory to Edison Brothers in an amount equal to 100% of
the present value of all payments guaranteed with respect to such Guaranteed
Lease. Without the prior written consent of Edison Brothers, the Company may not
amend, renew or extend the term of any Guaranteed Lease. If the Company fails to
perform its obligations under the Lease Guarantee Agreement or if there is a
"change of control" of the Company (as such term is defined in the Lease
Guarantee Agreement), then the Company is required to secure its obligation to
indemnify Edison Brothers with respect to the Guaranteed Leases
("Indemnification Obligation") with an irrevocable letter of credit or similar
collateral satisfactory to Edison Brothers in an amount equal to 100% of the
present value of the aggregate remaining rental and other payments guaranteed
with respect to the Guaranteed Leases ("Adequate Collateral").
As additional security for the Company's obligations under the Lease
Guarantee Agreement, the Company has granted Edison Brothers a security interest
in (i) the Company's leasehold interests in the Guaranteed Leases, (ii) all real
property owned by the Company on the date of execution of the Lease Guarantee
Agreement, and (iii) all personal property located in any of the existing
Complexes. Edison has agreed to subordinate its lien to a senior lender of the
Company which provided financing for the construction of certain new Complexes
for the Company. The obligations of Edison Brothers under certain guarantees of
Complex leases terminate or may be assigned upon the occurrence of specified
events including satisfaction by the Company of certain "net worth" targets. If,
at any time, the Company elects to secure its Indemnification Obligation with
Adequate Collateral, Edison Brothers has agreed to release its security
interests in the property of the Company. The Lease Guarantee Agreement will
terminate when all of Edison Brothers' obligations with respect to the
Guaranteed Leases are fully and finally discharged.
Standstill Restrictions. In connection with Spin-Off, the Company and the
Minority Owners entered a Standstill/Registration Rights Agreement (the
"Standstill Agreement") which restricts the sale, assignment, transfer, pledge
or other disposition by the Minority Owners and their affiliates of the shares
of the common stock issued to the Minority Owners in connection with the
Spin-Off (the "Spin-Off Shares") and provides the Minority Owners and their
affiliates certain rights and obligations with respect thereto.
The Minority Owners have each agreed that the Minority Owners will not, and
will not permit any of their affiliates (collectively, the "Minority Group") to,
without the approval of a committee of the Company's independent directors,
sell, assign, transfer, pledge or otherwise dispose of the Spin-Off Shares
(except by operation of law) or grant any option, warrant or similar agreement
with respect to the Spin-Off Shares, provided, however, that (i) at any time
after June 29, 1997, any member of the Minority Group may make any sale of the
Spin-Off Shares in accordance with Rule 144 under the Securities Act of 1933, as
amended, (ii) at any time after three years from the Spin-Off any member of the
Minority Group may sell the Spin-Off Shares in a registered offering, (iii) any
member of the Minority Group may transfer the Spin-Off Shares to another member
of the Minority Group, (iv) any member of the Minority Group may transfer the
Spin-Off Shares to his spouse or children or any trust for the benefit of such
Minority Owner or such family members if such person agrees to be bound by the
Standstill Agreement, (v) any member of the Minority Group may sell the Spin-Off
Shares pursuant to any tender offer or exchange offer for any or all of the
shares of common stock
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which, in each case, is recommended by a committee of the Company's independent
directors, and (vi) any member of the Minority Group may make a good faith
pledge of the Spin-Off Shares under a borrowing agreement.
The Minority Owners have agreed that until June 2000 (i) each Minority
Owner will support the candidates selected by the majority of the Board of
Directors as nominees to the Board of Directors of the Company and will vote all
of his common stock in favor of the election of such nominees at all annual and
any special meetings of the shareholders of the Company; (ii) no member of the
Minority Group will, without the consent of a committee of the Company's
independent directors, proceed with or seek to cause, directly or indirectly,
the acquisition of the Company or substantially all of the equity securities or
assets of the Company, or participate in any group to accomplish the foregoing;
and (iii) no member of the Minority Group will seek, without the consent of a
committee of the Company's independent directors, directly or indirectly, to
control or influence the management, Board of Directors or policies of the
Company, through proxy solicitation, voting agreement or otherwise, or
participate in any group to accomplish the foregoing; provided, however, this
restriction shall not prevent any Minority Owner from influencing management,
the Board of Directors or the policies of the Company as an officer or director
of the Company.
The Standstill Agreement will terminate upon the earlier to occur of (i)
the mutual agreement of the parties thereto, (ii) the Minority Group ceasing to
own at least 5% of the total outstanding common stock of the Company, (iii) the
date (after June 29, 1998) on which no Minority Owner is an employee or
affiliate of the Company or (iv) on June 29, 2000.
CERTAIN OTHER TRANSACTIONS
Prior to July 1995, the Company had outstanding loans to Mr. Corriveau in
the amount of $190,000 and to Mr. Corley in the amount of $140,000. As required
by the Transaction Agreement, these loans were repaid in June 1995 out of the
bonuses paid to such individual. Each of these loans bore interest at the
applicable federal rate, which was the statutory interest rate provided from
time to time by the U.S. Treasury Department as the minimum rate of interest
which may be charged with respect to a given lending transaction without
subjecting such transaction to the imputed interest provisions of the Code. The
Company also had outstanding non-interest bearing advances of $175,000 each to
Mr. Corriveau and Mr. Corley. In addition, in connection with the execution of
the Transaction Agreement, the Company advanced $850,000 each to Mr. Corriveau
and Mr. Corley and $300,000 to Sandell Investments, a partnership in which Mr.
Henrion serves as a general partner, which bear interest at 8% per annum.
Pursuant to the Transaction Agreement, the Company paid an aggregate of $10
million (less prior advances of approximately $2.7 million) on June 29, 1995 to
Mr. Corriveau, Mr. Corley and Sandell Investments as a non-refundable advance
against the obligation to pay the Earn-Out Compensation. Such advance bore
interest at 8% per annum.
In connection with the Spin-Off in June 1995, the Company granted
non-qualified stock options to Sandell Investments to purchase 15,591 shares of
common stock at an exercise price of $15.00 per share. The options vest ratably
over a five-year period.
Pursuant to a consulting agreement between the Company and Sandell
Investments, the Company pays consulting fees to Sandell Investment for advisory
services relating to expansion and site selection for Complexes, market
analysis, improvement and enhancement of the Company's business and other
similar activities. The Company paid Sandell Investments the amount of $125,000
annually for each of fiscal 1993, 1994 and 1995, respectively, and will continue
to pay such amount through 1999 when the consulting agreement expires.
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STOCK PRICE PERFORMANCE
The Company's common stock has been traded publicly since June 26, 1995.
Prior to such date, there was no established market for its common stock. 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
from June 26, 1995 (the first day which the common stock was publicly traded)
through February 4, 1996 as contrasted with (i) the Standard & Poor's 500 Stock
Index and (ii) the Standard & Poor's Restaurant Stock Composite Index. Each
index assumes $100 invested at June 26, 1995 and is calculated assuming
reinvestment of dividends.
Measurement Period Dave & S&P Restau-
(Fiscal Year Covered) Buster's S&P 500 rants
06/26/95 100.00 100.00 100.00
02/04/96 132.95 116.85 127.12
STOCKHOLDERS' PROPOSALS
Any proposals that stockholders of the Company desire to have presented at
the 1997 annual meeting of stockholders must be received by the Company at its
principal executive offices no later than January 31, 1997.
MISCELLANEOUS
The accompanying proxy is being solicited on behalf of the Board of
Directors of the Company. The expense of preparing, printing and mailing the
form of proxy and the material used in the solicitation thereof will be borne by
the Company. In addition to the use of the mails, proxies may be solicited by
personal interview, telephone and telegram by directors and regular officers and
employees of the Company. Arrangements may also be made with brokerage houses
and other custodians, nominees and fiduciaries for the forwarding of
solicitation material to the beneficial owners of stock held of record by such
persons, and the Company may reimburse them for reasonable out-of-pocket
expenses incurred by them in connection therewith.
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Representatives of Ernst & Young LLP, the Company's independent auditors,
are expected to be present at the Annual Meeting with the opportunity to make a
statement if they desire and to be available to respond to appropriate
questions.
By Order of the Board of Directors
/s/ ALAN L. MURRAY
ALAN L. MURRAY
Secretary
Dallas, Texas
May 20, 1996
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REPORT OF THE COMPENSATION COMMITTEE
The Compensation Committee is empowered to review, and to recommend to the
full Board of Directors, the annual compensation, long-term incentive
compensation and compensation procedures for all executive officers of the
Company. The Compensation Committee, composed solely of non-employee directors,
also administers the Option Plan.
As a matter of policy, the Compensation Committee believes that the annual
compensation of the executive officers should consist of both a base salary
component and bonus component. The base salary component should be based on
generally subjective factors and include the contribution the executive officer
made and is anticipated to make to the success of the Company, the level of
experience and responsibility of the executive officer, the competitive position
of the Company's executive compensation and the Company's historical levels of
compensation for executive officers. The Compensation Committee does not expect
to assign quantitative relative weights, however, to any of these factors. The
bonus component of the annual compensation of the executive officers should
provide executive officers with the opportunity to earn a significant portion of
their base salary in the form of incentive compensation, which therefore puts a
significant portion of their total compensation "at risk." This incentive
compensation is distributed upon the achievement of certain predetermined
earnings targets.
As described elsewhere in the proxy statement, the annual base salary for
the co-chief executive officers of the Company has been established pursuant to
arm's length negotiations between the co-chief executive officers and Edison
Brothers as a part of the spin-off of the Company from Edison Brothers and in
recognition of the 1989 agreements entered into in connection with the original
acquisition of the Company's business by Edison Brothers in 1989. In addition,
the incentive compensation paid in fiscal 1995 to such persons was established
pursuant to agreements negotiated in 1989. Accordingly, the Compensation
Committee did not separately review the compensation of the co-chief executive
officers during fiscal 1995.
The Company does not provide for any long-term compensation for executive
officers other than through the granting of stock options. Option grants are
made in the discretion of the Compensation Committee. The co-chief executive
officers were granted stock options during fiscal 1995 as a part of the arm's
length negotiations of the spin-off and not as compensatory options.
Accordingly, no additional options were granted to the Company's co-chief
executive officers in fiscal 1995.
Mark A. Levy, Chairman
Mark Vittert
Allen J. Bernstein
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[DAVE & BUSTER'S LOGO]
May 20, 1996
Dear Stockholder:
The annual meeting of stockholders of Dave & Buster's, Inc. will be
held in the Show Room at Dave & Buster's, 10270 Composite Drive, Dallas,
Texas., on June 11, 1996 at 2:00 p.m., local time.
It is important that your shares are represented at this meeting.
Whether or not you plan to attend the meeting, please review the enclosed proxy
materials., complete the attached proxy form below, and return it promptly in
the envelope provided.
Thank you.
PLEASE DETACH PROXY HERE, SIGN AND MAIL
PROXY
DAVE & BUSTER'S, INC.
The undersigned hereby (a) acknowledges receipt of the Notice
of Annual Meeting of Stockholders of Dave & Buster's, Inc. (the "Company") to
be held on June 11, 1996, at 2:00 p.m., local time, and the Proxy Statement in
connection therewith, and (b) appoints David O. Corriveau and James W. Corley,
or each of them, his proxies, with full power of substitution and revocation,
for and in the name, place and stead of the undersigned, to vote upon and act
with respect to all of the shares of Common Stock of the Company standing in
the name of the undersigned or with respect to which the undersigned is
entitled to vote and act at said meeting or at any adjournment thereof, and the
undersigned directs that his proxy be voted as follows:
ELECTION OF DIRECTORS / / FOR nominees listed below except as marked to the contrary below
/ / WITHHOLD AUTHORITY to vote for all nominees listed below
David O. Corriveau, Mark A. Levy and Martin Sneider
INSTRUCTION: To withhold authority to vote for any individual nominee, write that nominee's name in the
space below.
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If more than one of the proxies listed on the reverse side
shall be present in person or by substitute at the meeting or any adjournment
thereof, the majority of said proxies so present and voting, either in person
or by substitute, shall exercise all of the powers hereby given.
THIS PROXY WILL BE VOTED AS SPECIFIED ON THE REVERSE SIDE. IF
NO SPECIFICATION IS MADE, THIS PROXY WILL BE VOTED FOR ALL NOMINEES FOR
DIRECTORS.
The undersigned hereby revokes any proxy or proxies heretofore
given to vote upon or act with respect to such stock and hereby ratifies and
confirms all that said proxies, their substitutes, or any of them, may lawfully
do by virtue hereof.
Dated:
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Signature
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(Signature if held jointly)
Please date the proxy and sign your name
exactly as it appears hereon. Where there is
more than one owner, each should sign. When
signing as an attorney, administrator,
executor, guardian or trustee, please add
your title as such. If executed by a
corporation, the proxy should be signed by
a duly authorized officer. Please sign the
proxy and return it promptly whether or not
you expect to attend the meeting. You may
nevertheless vote in person if you do attend.