As filed with the Securities and Exchange Commission on May 12, 1999
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
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1300 Nicollet Mall, Suite 3043
Minneapolis, Minnesota 55403
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(Address of principal executive offices) (Zip Code)
1996 Stock Incentive Plan of BUCA, Inc. and Affiliated Companies
AND
BUCA, Inc. Stock Option Plan for Non-Employee Directors
AND
BUCA, Inc. Employee Stock Purchase Plan
(Full title of the plans)
Joseph P. Micatrotto
BUCA, Inc.
1300 Nicollet Mall, Suite 3043
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 (1) per share (2) price (2) fee
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Common Stock, 2,040,000
$.01 par value Shares $18.75 $38,250,000 $10,633.50
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(1) Includes 1,500,000 shares pursuant to the 1996 Stock Incentive Plan of
BUCA, Inc. and Affiliated Companies, 40,000 shares pursuant to the
BUCA, Inc. Stock Option Plan for Non-Employee Directors, and 500,000
shares pursuant to the BUCA, Inc. Employee Stock Purchase Plan.
(2) Estimated solely for the purpose of the registration fee pursuant to
Rule 457(h)(1) based on the average of the high and low sales prices
per share of the Registrant's Common Stock on May 7, 1999, as reported
on the Nasdaq National Market.
BUCA, INC.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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 Company's Prospectus dated April 20, 1999, filed April 21,
1999 pursuant to Rule 424(b) of the Securities Act of 1933, as
amended (the "Securities Act"), which contains audited
financial statements for the Company's fiscal year ended
December 27, 1998, the latest fiscal year for which such
statements have been filed.
(2) All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), since the end of the fiscal year
ended December 27, 1998.
(3) The description of the Company's Common Stock which is
contained in the Registration Statement on Form 8-A filed
April 7, 1999 under the Exchange Act and all amendments and
reports filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all of the shares of Common Stock
offered have been sold or which deregisters all shares of the Common Stock 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.
Not Applicable.
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,
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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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4.1 Specimen of Common Stock certificate (incorporated by
reference to Exhibit 4.1 to Amendment No. 1 to the Company's
Registration Statement on Form S-1 (Registration No.
333-72593) filed with the Commission on March 24, 1999).
4.2 Amended and Restated Articles of Incorporation of the Company
(incorporated by reference to Exhibit 3.4 to Amendment No. 1
to the Company's Registration Statement on Form S-1
(Registration No. 333-72593) filed with the Commission on
March 24, 1999).
4.3 Amended and Restated By-Laws of the Company (incorporated by
reference to Exhibit 3.5 to Amendment No. 1 to the Company's
Registration Statement on Form S-1 (Registration No.
333-72593) filed with the Commission on March 24, 1999).
5 Opinion of Faegre & Benson LLP as to the legality of the
shares being registered.
23.1 Consent of Faegre & Benson LLP is contained in its opinion
filed as Exhibit 5 to this Registration Statement.
23.2 Consent of Deloitte & Touche LLP.
23.3 Consent of Arthur Andersen LLP.
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24 Powers of Attorney authorizing Joseph P. Micatrotto and Greg
A. Gadel to sign this Registration Statement on behalf of the
directors and certain officers of the Company.
99.1 1996 Stock Incentive Plan of BUCA, Inc. and Affiliated
Companies (incorporated by reference to Exhibit 10.1 to the
Company's Registration Statement on Form S-1 (Registration No.
333-72593) filed with the Commission on February 18, 1999).
99.2 BUCA, Inc. Stock Option Plan for Non-Employee Directors
(incorporated by reference to Exhibit 10.2 to the Company's
Registration Statement on Form S-1, Registration No.
333-72593) filed with the Commission on February 18, 1999).
99.3 BUCA, Inc. Employee Stock Purchase Plan
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.
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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.
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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 11th day of
May, 1999.
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 May 11, 1999.
Signature Capacity
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Joseph P. Micatrotto* President and Chief Executive Officer
- ------------------------------ (Principal Executive Officer) and Director
Joseph P. Micatrotto
/s/ Greg A. Gadel Chief Financial Officer, Treasurer and
- ------------------------------ Secretary
Greg A. Gadel (Principal Financial and Accounting Officer)
Don W. Hays* Director )
Peter J. Mihajlov* Director )
Philip A. Roberts* Director ) A majority of the
John P. Whaley* Director ) Board of Directors
David Yarnell* Director )
Paul Zepf* Director )
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* Greg A. Gadel, by signing his name hereto, does hereby sign this
document on behalf of each of the above-named officers and/or 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
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