As filed with the Securities and Exchange Commission on March 6, 2002
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BUCA, INC.
(Exact name of Registrant as specified in its charter)
MINNESOTA 41-1802364
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1300 NICOLLET MALL, SUITE 5003
MINNEAPOLIS, MINNESOTA 55403
(Address of principal executive offices) (Zip Code)
BUCA KEY EMPLOYEE SHARE OPTION PLAN
(Full title of the plan)
JOSEPH P. MICATROTTO
BUCA, INC.
1300 NICOLLET MALL, SUITE 5003
MINNEAPOLIS, MINNESOTA 55403
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (612) 288-2382
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CALCULATION OF REGISTRATION FEE
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Proposed
Proposed maximum
Title of Amount maximum aggregate Amount of
securities to to be offering price offering registration
be registered registered per share price fee
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BUCA Key Employee Share
Option Plan Obligations (1) $7,000,000 N/A $7,000,000 $644
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(1) The BUCA Key Employee Share Option Plan Obligations are unsecured
obligations of BUCA, Inc. to pay deferred compensation in the future in
accordance with the terms of the plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of BUCA, Inc. (the "Company"), previously filed
with the Securities and Exchange Commission (the "Commission") as of their
respective dates, are incorporated in this Registration Statement by reference
and made a part hereof:
(1) The Annual Report on Form 10-K of the Company for the fiscal year
ended December 31, 2000 (File No. 0-25721).
(2) The Company's Quarterly Reports on Form 10-Q for the quarters ended
April 1, July 1, and September 30, 2001.
(3) The Company's Current Reports on Form 8-K, and Amended Current Reports
on Form 8-K/A, filed March 1, 2, and 12, June 7, October 5 and 24, and
December 17, 2001 and January 15, and 28, 2002.
(4) The description of the Company's Common Stock that is contained in the
Company's Registration Statement on Form 8-A filed April 7, 1999 under
the Securities Exchange Act and all amendments and reports filed for
the purpose of updating that description.
All reports and other documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act after the
date of this Registration Statement and before the filing of a post-effective
amendment indicating that all of the securities offered hereby have been sold or
that deregisters all shares of the securities then remaining unsold shall be
deemed to be incorporated by reference in and a part of this Registration
Statement from the date of filing of such documents.
Any statement contained in a document incorporated, or deemed to be
incorporated, by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or incorporated herein by reference or in any other
subsequently filed document that also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
The BUCA Key Employee Share Option Plan (the "Plan") provides eligible
employees (each, a "Participant") of the Company and its subsidiaries with an
opportunity to defer a portion of their compensation and accumulate tax-deferred
earnings thereon. Deferred amounts will be replaced with options to purchase
shares of registered mutual funds selected by the Company. The Plan also
provides for outright awards of such options.
The obligations registered hereunder cannot be alienated, sold,
transferred, assigned, pledged, attached, garnished, or otherwise encumbered.
Benefits under the Plan will be made in the form of the optioned property, may
be received at any time after six months have elapsed from the date of grant,
and expire upon the earliest of: (a) a predetermined period following a
Participant's termination of employment, such periods varying from 90 days to
ten years (as described in the plan) based on the reason for the Participant's
termination of employment; and (b) ten years from the date the option was
granted. Income taxes on deferred amounts, including earnings thereon, will not
be required to be paid until such benefits are paid to the Participant or his or
her beneficiary. Participants are unsecured general creditors of the Company
with respect to their Plan benefits, including payments under the
obligations registered hereunder. Benefits are payable from the Company's
general assets, and are subject to the risk of corporate insolvency.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 4.01 of the Company's By-Laws, the Company indemnifies its
directors and officers to the extent permitted by Minnesota Statutes Section
302A.521. Section 302A.521 requires the Company to indemnify a person made or
threatened to be made a party to a proceeding, by a reason of the former or
present official capacity of the person with respect to the Company, against
judgments, penalties, fines, including without limitation, excise taxes assessed
against the person with respect to an employee benefit plan, settlements, and
reasonable expenses, including attorneys' fees and disbursements, if, with
respect to the acts or omissions of the person complained of in the proceeding,
such person (1) has not been indemnified by another organization or employee
benefit plan for the same judgments, penalties, fines, including without
limitation, excise taxes assessed against the person with respect to an employee
benefit plan, settlements, and reasonable expenses, including attorneys' fees
and disbursements, incurred by the person in connection with the proceeding with
respect to the same acts or omissions; (2) acted in good faith; (3) received no
improper personal benefit, and statutory procedure has been followed in the case
of any conflict of interest by a director; (4) in the case of a criminal
proceeding, had no reasonable cause to believe the conduct was unlawful; and (5)
in the case of acts or omissions occurring in the person's performance in the
official capacity of director or, for a person not a director, in the official
capacity of officer, committee member, employee or agent, reasonably believed
that the conduct was in the best interests of the Company, or in the case of
performance by a director, officer, employee or agent of the Company as a
director, officer, partner, trustee, employee or agent of another organization
or employee benefit plan, reasonably believed that the conduct was not opposed
to the best interests of the Company. In addition, Section 302A.521, subd. 3
requires payment by the Company, upon written request, of reasonable expenses in
advance of final disposition in certain instances. A decision as to required
indemnification is made by a majority of the disinterested Board of Directors
present at a meting at which a disinterested quorum is present, or by a
designated committee of disinterested directors, by special legal counsel, by
the disinterested shareholders, or by a court.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers or persons controlling the Company pursuant to
the foregoing provisions, the Company has been informed that in the opinion of
the Commission, such indemnification is against public policy as expressed in
the Act, and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Exhibit Description
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4 BUCA Key Employee Share Option Plan.
5 Opinion of Faegre & Benson LLP.
23.1 Consent of Faegre & Benson LLP (included in Exhibit 5).
23.2 Consent of Deloitte & Touche LLP.
24 Powers of Attorney.
ITEM 9. UNDERTAKINGS.
A. The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
Registration Statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if
the Registration Statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
B. The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Minneapolis, state of Minnesota, on this 5th day of
March, 2002.
BUCA, INC.
By /s/ Greg A. Gadel
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Greg A. Gadel
Chief Financial Officer, Treasurer
and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on March 5, 2002.
Signature Capacity
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Joseph P. Micatrotto* President and Chief Executive Officer
(Principal Executive Officer) and
Director
/s/ Greg A. Gadel Chief Financial Officer, Treasurer and
- -------------------------- Secretary (Principal Financial and
Greg A. Gadel Accounting Officer)
Peter J. Mihajlov* Director )
Philip A. Roberts* Director ) A majority of the
John P. Whaley* Director ) Board of Directors
Paul Zepf* Director )
* Greg A. Gadel, by signing his name hereto, does hereby sign this document
on behalf of each of the above-named officers and directors of the Company
pursuant to powers of attorney duly executed by such persons.
By /s/ Greg A. Gadel
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Greg A. Gadel,
Attorney-in-Fact