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Exhibit
10.10
DAVE &
BUSTER’S SELECT EXECUTIVE RETIREMENT PLAN
This Select Executive
Retirement Plan (the “Plan”) is amended and restated by
Dave & Buster’s I, L.P., effective, unless otherwise
provided for herein, as of January 1, 2005,
ARTICLE I
PURPOSE; FINANCING PLAN
BENEFITS
1.1 Purpose . The
purpose of this Plan is to provide a select group of management or
highly compensated Employees of the Employer with certain deferred
compensation benefits as described herein. The Employer intends
that the Plan shall constitute an “unfunded plan” for
purposes of the Code and Title I of ERISA, as amended, and that any
Participant or Beneficiary shall have the status of an unsecured
general creditor of the Employer as to the Plan and any trust fund
that may be established by the Employer, or asset identified
specifically by the Employer, as a reserve for the discharge of its
obligations under the Plan.
1.2 Financing Plan
Benefits . All Benefits under this Plan shall be paid or
provided directly by the Employer. Such Benefits shall be general
obligations of the Employer which shall not require the segregation
of any funds or property therefor. Notwithstanding the foregoing,
in the discretion of the Employer, the Employer’s obligations
hereunder may be satisfied from a grantor trust established by the
Employer, the terms of which will be substantially similar to the
terms of the model trust issued by the Internal Revenue Service in
Revenue Procedure 92-64, or from an insurance contract or contracts
owned by the Employer. The assets of any such trust and any such
insurance policy shall continue for all purposes to be a part of
the general funds of the Employer, shall be considered solely a
means to assist the Employer to meet its contractual obligations
under this Plan and shall not create a funded account or security
interest for the benefit of any Participant under this Plan. All
such assets shall be subject to the claims of the general creditors
of the Employer in the event the Employer is Insolvent. To the
extent that any person acquires a right to receive a payment from
the Employer under the Plan, such right shall be no greater than
the right of any unsecured general creditor of the Employer. If a
trust is established as provided for in this Section l.2, earnings
and/or losses of the trust attributable to amounts credited to a
Participant’s Account shall increase or, if applicable,
decrease such Participant’s Account for purposes of
determining the Participant’s Benefits payable hereunder, and
each Participant shall be given the opportunity to direct the
investment of the trust’s assets attributable to his Account
among investment options selected by the Employer from time to
time. Any such investment election by a Participant shall be
subject to the terms of the trust and the approval of the trustee
thereof.
ARTICLE II
DEFINITIONS
The following words and
phrases when used in this Plan shall have the respective meanings
set forth below unless the context clearly indicates
otherwise:
2.1 “ Account
” means the separate bookkeeping account established with
respect to each Participant to which his Benefits are credited in
accordance with Article IV hereof.
2.2 “
Administrator ” means the General Partner, except to
the extent that the General Partner has appointed another person or
persons to serve as the Administrator with respect to the
Plan.
2.3 “ Anniversary
Date ” means each December 31 during the term of
this Plan.
2.4 “
Beneficiary ” means the person designated in writing
by a Participant pursuant to Section 5.8 to receive his
Benefits in the event of his death.
2.5 “ Benefits
” mean amounts representing Participant’s Deferred
Compensation Elections and, for Periods of Service prior to
calendar year 2006, Special Deferred Compensation Elections
described in Sections 4.2 and 4.3, and the vested portion of
Employer Contributions described in Section 4.4 credited to
each Participant’s Account, plus earnings thereon and less
losses allocable thereto, if any, attributable to the investment of
such amounts, if applicable pursuant to Section 1.2
hereof.
2.6 “ Change of
Control ” means with respect to an Employer other than
Dave & Buster’s I, L.P., (i) a change in the
ownership of the Employer, (ii) a change in the effective
control of the Company, or (iii) a change in the ownership of
a substantial portion of the Employer’s assets, as defined in
each case under Section 409A of the Code and guidance issued
by the Internal Revenue Service under Section 409A of the
Code, including IRS Notice 2005-1 and Treasury regulations. With
respect to Dave & Buster’s I, L.P. “ Change
of Control ” means (i) the purchase or other
acquisition by any person, entity, or group of persons, within the
meaning of section 13(d) or 14(d) of the Securities Exchange Act of
1934 (“Act”), or any comparable successor provisions of
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Act) of more than fifty percent (50%) or more of the
profits or capital interest of Dave & Buster’s I,
L.P., (ii) the approval by the partners of Dave &
Buster’s I, L.P. of a reorganization, merger, or
consolidation, in each case, with respect to which persons who were
partners of Dave & Buster’s I, L.P. immediately
prior to such reorganization, merger or consolidation do not,
immediately thereafter, own more than fifty percent of the profits
or capital interest of Dave & Buster’s I, L.P., or
(iii) a liquidation or dissolution of Dave &
Buster’s I, L.P. or of the sale of all or substantially all
of the assets of Dave & Buster’s I, L.P.
2.7 “ Code
” means the Internal Revenue Code of 1986, as
amended.
2.8 “ Committee
” means the Benefits Management Committee, as constituted
from time to time, appointed by the General Partner to perform the
duties and responsibilities
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allocated to it pursuant to the terms
hereof. The Committee shall consist of at least three members and
shall be entitled to act with respect to any matter hereunder for
which it is responsible in accordance with the decision of a
majority of its members. Upon the occurrence of a Change of
Control, the members of the Committee, as then constituted, may not
be removed for a period of two years following such event without
their written consent,
2.9 “
Compensation ” means, for Periods of Service beginning
after calendar year 2005, amounts paid to a Participant by the
Employer as base salary without regard to any bonus
payments.
2.10 “ Deferred
Compensation ” means the amount credited to a
Participant’s Account pursuant to a Participant’s
Deferred Compensation Elections in accordance with Section 4.2
hereof,
2.11 “ Deferred
Compensation Election ” means the election by a
Participant to defer his Compensation in accordance with Section
4.2.
2.12 “ Deferred
Compensation/Participation Agreement ” means the
individual agreement executed by each Participant under the Plan
pursuant to which the Participant designates a Beneficiary and
makes his Deferred Contribution Election and/or for Periods of
Service prior to calendar year 2006, his Special Deferred
Compensation Election. A Participant may direct the investment of
assets credited to his Account on the Deferred
Compensation/Participation Agreement, if permitted pursuant to
Section 1.2 hereof.
2.1.3 “ Designated
Employee ” means any Employee who has a job title with
the Employer of “President”, “Chief Executive
Officer”, “Vice President”, “Regional
Operations Director”, “Assistant Vice President”
or “General Manager.”
2.14 “
Disability ” means that the Participant is
(a) unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment
which can be expected to result in death or can be expected to last
for a continuous period of not less than 12 months, or (b) by
reason of any medically determinable physical or mental impairment
which can be expected to result in death or can be expected to last
for a continuous period of not less than 12 months, receiving
income replacement benefits for a period of not less than three
months under an accident and health plan covering employees of the
Participant’s Employer.
2.15 “ Eligible
Employee ” means each Designated Employee or any such
other Employee who has been designated as eligible to participate
in the Plan pursuant to Section 3.1 for a Period of
Service.
2.16 “ Employee
” means any person employed by the Employer who is included
on the Federal Insurance Contribution Act rolls of the
Employer.
2.17 “ Employer
” means Dave & Buster’s I, L.P.,
Dave & Buster’s Management Corporation, Inc.,
Dave & Buster’s, Inc., Dave &
Buster’s of California, Inc., Dave & Buster’s
of Pennsylvania, Inc., Dave & Buster’s of
Pittsburgh, Inc. and any successor or successors thereto that
adopts the Plan on behalf of its employees.
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2.18 “ Employer
Contributions ” means amounts credited to a
Participant’s Account pursuant to Section 4.4
hereof.
2.19 “ ERISA
” means the Employee Retirement Income Security Act of 1974,
as amended.
2.20 “ General
Partner ” means the general partner of Dave &
Buster’s I., L.P.
2.21 “ Insolvent
” means the Employer being unable to pay its debts as they
mature or being subject to a pending proceeding as a debtor under
the United States Bankruptcy Code.
2.22 “ Normal
Retirement Age ” means the date a Participant attains age
65.
2.23 “
Participant ” means a Designated Employee and any
other Employee who is selected by the General Partner to
participate in the Plan, as provided in each case in
Section 3.1 hereof and who has elected to participate in the
Plan by executing a Deferred Compensation/Participation Agreement
in accordance with Section 4.2 and/or for Periods of Service
prior to calendar year 2006, Section 4.3 hereof.
2.24 “ Period of
Service ” means the twelve-month period ending each
December 31, or such portion thereof that an Employee has been
designated as eligible to participate in the Plan.
2.25 “ Special
Deferred Compensation Election ” means the election by a
Participant for Periods of Service prior to calendar year 2006, to
defer a percentage or stated dollar amount of his bonus as
described in Section 4.3 hereof. No Special Deferred
Compensation Elections may be under the Plan with respect to
bonuses for services performed by a Participant after
2005.
ARTICLE III
ELIGIBILITY
3.1 Eligibility to
Participate . Each Designated Employee shall be eligible to
participate in the Plan. The General Partner shall, prior to each
Period of Service during the term of this Plan, irrevocably specify
the name of each other Employee who shall be entitled to
participate in the Plan for the immediately following Period of
Service. In addition, the General Partner may, during a Period of
Service, designate an individual who has become an Employee during
that Period of Service as eligible to participate in the Plan for
the remaining portion of that Period of Service. An Employee who
becomes a Designated Employee during a Period of Service shall be
eligible to participate in the Plan as of the date such Employee
becomes a Designated Employee for the remaining portion of that
Period of Service. An Employee shall be eligible to receive a
benefit hereunder if such Employee is a Designated Employee or has
been designated as an eligible Employee pursuant to the preceding
sentences of this Section 3.1 and has, in either case, entered
into a Deferred Compensation/Participation Agreement with the
Employer in accordance with Section 4.2 and/or for Periods of
Service prior to calendar year 2006, Section 4.3 hereof. If
the General Partner fails to designate an Employee, other than a
Designated Employee, as eligible to participate in the Plan for a
particular Period of Service and such Employee was eligible to
participate in the Plan for the immediately preceding Period of
Service, the General Partner shall notify the Employee in writing
of his ineligibility to participate in the Plan as soon as
administratively possible after making its decision regarding his
eligibility.
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3.2 Cessation of
Participation . A Participant will cease to be a Participant as
of the earlier of (i) the date on which the Plan terminates or
(ii) the date on which he ceases to be an eligible Employee
under Section 3.1
ARTICLE IV
PARTICIPATION, PLAN
BENEFITS AND VESTING
4.1 General . Subject
to the vesting provisions of Section 4.4 hereof and the
provisions of Article V, the Benefits to which a Participant and,
if applicable, his Beneficiary shall be entitled under the Plan
will consist of Deferred Compensation and Employer Contributions
credited to such Participant’s Account, plus earnings thereon
and less losses allocable thereto, if any, attributable to the
investment of such amounts pursuant to Section 1.2
hereof.
4.2 Participation
Election; Deferred Compensation Elections . Prior to each
Period of Service, the General Partner shall determine the maximum
percentage of Compensation and bonuses that an Eligible Employee
may elect to defer for the Period of Service. Subject, for Periods
of Service prior to calendar year 2006, to a Participant’s
Special Deferred Compensation Election with respect to bonuses as
described in Section 4.3, before the beginning of each Period
of Service for which Compensation is payable to an Eligible
Employee, the Employee must elect in writing the percentage of his
Compensation that will be deferred for such period by executing a
Deferred Compensation/Participation Agreement in such form as the
Administrator shall prescribe. Notwithstanding the preceding
sentence, for the first Period of Service in which an Employee
becomes Eligible to participate in the Plan, the Eligible Employee
may elect within 30 days after the date the Employee becomes
Eligible to participate in the Plan to defer Compensation with
respect to Compensation for services performed subsequent to the
election. From time to time during each Period of Service for which
a Participant has executed a Deferred Compensation/Participation
Agreement, the Employer will credit the amount of the
Participant’s Deferred Compensation to his Account. If an
Eligible Employee does not execute a Deferred
Compensation/Participation Agreement for a particular Period of
Service in accordance with this Section 4.2, he may not
participate in the Plan for that Period of Service with respect to
a Deferred Compensation Election, but he may make a separate
Special Deferred Compensation Election, for Periods of Service
prior to calendar year 2006, with respect to a bonus in accordance
with Section 4.3. Thereafter, he may elect to make a Deferred
Compensation Election and participate in the Plan with respect to
future Periods of Service, if he is then eligible to participate in
the Plan pursuant to Section 3.1 hereof, by executing a Deferred
Compensation/Participation Agreement and electing to defer a
percentage of Compensation prior to any such future Period of
Service.
4.3 Special Deferred
Compensation Election for Bonuses . For Periods of Service
prior to calendar year 2006, in addition to the Deferred
Compensation Election described in Section 4.2, an Eligible
Employee may make a Special Deferred Compensation Election with
respect to a discretionary bonus payable to an Eligible Employee
for any Period of Service, provided that an Eligible Employee makes
such election prior to the date the discretionary bonus
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is declared by executing a Deferred
Compensation/Participation Agreement setting forth his Special
Deferred Compensation Election. An Eligible Employee may elect to
defer a percentage or a stated dollar amount of a bonus as part of
his Special Deferred Compensation Election, or may elect not to
defer any portion of his bonus. If a Special Deferred Compensation
Election is not made by
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