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FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
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DAVE & BUSTER'S, INC.
(Exact name of registrant as specified in its charter)
Missouri 43-1532756
(State of incorporation (IRS Employer
or organization) Identification Number)
2481 Manana Drive
Dallas, Texas 75220
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
Common Stock, $.01 par value New York Stock Exchange, Inc.
If this Form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [X]
If this Form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [ ]
Securities Act registration statement file number to which this form
relates: (if applicable)
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Securities to be registered pursuant to Section 12(g) of the
Act:
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(Title of Class)
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Item 1. Description of Registrant's Securities to be Registered.
COMMON STOCK, $.01 PAR VALUE
AUTHORIZED CAPITAL STOCK
Under the Articles of Incorporation of Dave & Buster's, Inc. (the
"Company"), the Company's authorized capital stock consists of 50,000,000
shares of common stock, par value $.01 per share ("Common Stock"), and
10,000,000 shares of preferred stock, par value $.01 per share. All of the
outstanding shares of Common Stock, which are to be listed on the New York
Stock Exchange, Inc. on or about June 4, 1999, are fully paid and
nonassessable. Subject to the prior rights of the holders of any shares of
preferred stock which subsequently may be issued and outstanding, the holders
of Common Stock are entitled to receive dividends as and when declared by the
Board of Directors out of funds legally available therefor, and, in the event
of liquidation, dissolution, or winding up of the Company, to share ratably in
all assets remaining after payment of liabilities. Each holder of Common Stock
is entitled to one vote for each share held of record on all matters presented
to a vote of stockholders. Holders of Common Stock do not have preemptive
rights to purchase or subscribe for any stock or other securities and there are
no conversion rights or redemption or sinking fund provisions with respect to
such stock. Additional shares of authorized Common Stock may be issued without
stockholder approval.
The Board has the authority to issue shares of preferred stock from
time to time in one or more series without stockholder approval. The Board of
Directors has the authority to prescribe for each series of preferred stock it
establishes the number of shares in that series, the dividend rate, and the
voting rights, conversion privileges, redemption and liquidation rights, if
any, and any other rights, preferences and limitations of the particular
series. The Company has no plans to issue any preferred stock. One of the
effects of the existence of unissued and unreserved preferred stock may be to
enable the Board of Directors to issue shares to persons friendly to current
management, which could render more difficult or discourage an attempt to
obtain control of the Company by means of a merger, tender offer, proxy
contest, or otherwise, and thereby protect the continuity of the Company's
management and possibly deprive the stockholders of opportunities to sell their
shares of Common Stock at prices higher than the prevailing market prices. Such
additional shares also could be used to dilute the stock ownership of persons
seeking to obtain control of the Company. Further, the issuance of preferred
stock could, depending upon the rights assigned to such preferred stock, have
an adverse effect on the holders of Common Stock by delaying or preventing a
change of control of the Company, making removal of the present management of
the Company more difficult, or resulting in restrictions upon the payment of
dividends and other distributions to the holders of Common Stock.
TRANSFER AGENT
The transfer agent and registrar for the Common Stock is ChaseMellon
Shareholder Services, L.L.C.
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CERTAIN ANTI-TAKEOVER PROVISIONS
Size of Board, Election of Directors, Classified Board, Removal of
Directors and Filling Vacancies. The Articles provide that the number of
directors that constitute the Board of Directors shall be fixed from time to
time as provided in the Bylaws. The Bylaws provide for a Board of Directors of
nine directors and permit the Board of Directors to change the number of
directors by a majority vote.
In order for a stockholder to nominate a candidate for director, the
Bylaws require that timely notice be given to the Company in advance of the
meeting. Such notice must generally be given not less than 60 days nor more
than 90 days before the annual meeting at which such director is to be up for
election. The stockholder filing the notice of nomination must provide various
information regarding the nominee, including, without limitation, his or her
name, address, occupation, and shares held.
The Articles and Bylaws provide that the Board shall be divided into
three classes, with the classes to be as nearly equal in number as possible,
and that one class shall be elected each year and serve for a three-year term.
The Company's Articles do not provide for cumulative voting in the
election of directors or for any other matter.
Missouri law provides that, unless a corporation's articles of
incorporation provide otherwise, the holders of a majority of the corporation's
voting stock may remove any director from office. The Articles provide that,
except as described below, a director may be removed by stockholders only "for
cause" and only with the approval of the holders of 85% of the Company's voting
stock.
The Articles provide that, subject to the rights, if any, of the
holders of any class of preferred stock then outstanding and except as
described below, any vacancies on the Board of Directors, including any
vacancies resulting from an increase in the number of directors, shall be
filled by the vote of a majority of the remaining directors even if that number
is less than a quorum.
The classification of directors, the advance notice requirements for
nominations, and the provisions in the Articles that limit the ability of
stockholders to change the size of the Board will have the effect of making it
more difficult for stockholders to change the composition of the Board. As a
result, at least two annual meetings of stockholders may be required for the
stockholders to change a majority of the directors, whether or not a change in
the Board would be beneficial to the Company and its stockholders and whether
or not a majority of the Company's stockholders believes that such change would
be desirable.
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Limitations on Stockholder Action by Written Consent; Limitations on
Calling Stockholder Meetings. As required by Missouri law, the Bylaws provide
that any action by written consent of stockholders in lieu of a meeting must be
unanimous. Under the Bylaws, except as described below, stockholders are not
permitted to call special meetings of stockholders or to require the Board to
call a special meeting of stockholders; a special meeting of stockholders may
be called only by a majority of the entire Board of Directors, the Chairman of
the Board, or the President. In order for a stockholder to bring a proposal
before a stockholder meeting, the Bylaws require that timely notice be given to
the Company in advance of the meeting. Ordinarily, such notice must be given
not less than 60 days nor more than 90 days before the date of the meeting at
which such proposal is to be acted upon. Such notice must include a description
of the proposal, the reasons therefor, and other specified matters. The Board
must reject any proposals that are not made in accordance with these procedures
or that are not a proper subject for stockholder action in accordance with
applicable law.
The provision of the Bylaws requiring unanimity for stockholder action
by written consent gives all the stockholders of the Company entitled to vote
on a proposed action the opportunity to participate in such action and will
prevent the holders of a majority of the voting power of the Company from using
the written consent procedure to take stockholder action. Moreover, a
stockholder cannot force stockholder consideration of a proposal over the
opposition of the Board of Directors by calling a special meeting of
stockholders.
These provisions are designed in part to make it more difficult and
time-consuming to obtain majority control of the Board of Directors of the
Company or otherwise bring a matter before stockholders without the Board's
consent, and thus reduce the vulnerability of the Company to an unsolicited
takeover proposal. These provisions are designed to enable the Company to
develop its business in a manner which will foster its long term growth, with
the threat of a takeover not deemed by the Board to be in the best interests of
the Company and its stockholders and the potential disruption entailed by such
a threat reduced to the extent practicable. On the other hand, these provisions
may have an adverse effect on the ability of stockholders to influence the
governance of the Company and on the possibility of stockholders receiving a
premium above market price for their securities from a potential acquirer who
is unfriendly to management.
The General and Business Corporation Law of Missouri also contains
certain provisions which may have such an effect, including control share
acquisition and business combination statutes. Under the control share
acquisition statute, a potential acquiror must notify the target corporation
that it has acquired or proposes to acquire capital stock ("control shares") of
the target corporation which would cause the acquiror to move into one of
several defined ranges of voting power (20% to 33%, 33% to 50%, 50% to 100%).
Without the approval of both a majority of all shares and a majority of the
outstanding shares not owned by the acquiror, officers or employee-directors,
the control shares do not receive voting rights.
Under the business combination statute, a corporation may not engage
in any business combination with a 20% stockholder (an "Interested
Stockholder") for 5 years following the date
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upon which such person became an Interested Stockholder ("Acquisition Date")
unless the combination or the purchase of stock resulting in the person
becoming an Interested Stockholder was approved by the board before the
Acquisition Date. After the 5 year period, the Interested Stockholder may
effect a combination only if (a) the combination is approved by a majority of
the outstanding shares not controlled by the Interested Stockholder, or (b) the
aggregate amount of the cash and market value of consideration other than cash
to be received by stockholders of the corporation in such combination meets
certain fair price criteria.
The foregoing statutes apply only to corporations which, among other
things, have a principal place of business, principal office or substantial
assets in Missouri. Whether the Company currently meets this requirement or
will meet it is not certain. Therefore, the Company may not be subject to such
statutes.
Item 2. Exhibits.
1 - Restated Articles of Incorporation of the Company (1)
2 - By-Laws of the Company (1)
3 - Rights Agreement between the Company and Rights Agent, dated June 16,
1995 (1)
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(1) Filed as an exhibit to the registrant's Form 10-Q for the 13-week
period ended April 30, 1995, and incorporated herein by reference.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
DAVE & BUSTER'S, INC.
By: /s/ Alan L. Murray
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Alan L. Murray
Vice President, General Counsel and
Secretary
Date: May 14, 1999
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