<PAGE>
As filed with the Securities and Exchange Commission on May 12, 1999
Registration No. 333-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
Under
the Securities Act of 1933
----------------------
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 3043
Minneapolis, Minnesota 55403
------------------------------- -----------
(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
----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================
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
- ------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 2,040,000
$.01 par value Shares $18.75 $38,250,000 $10,633.50
====================================================================================
</TABLE>
(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.
<PAGE>
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,
II-1
<PAGE>
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
------- -----------
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.
II-2
<PAGE>
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.
II-3
<PAGE>
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.
II-4
<PAGE>
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
----------------------------
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
--------- --------
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 )
- --------------------
* 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
-----------------------------
Greg A. Gadel,
Attorney-in-Fact
II-5
<PAGE>
Exhibit 5
May 11, 1999
BUCA, Inc.
1300 Nicollet Mall, Suite 3043
Minneapolis, MN 55403
Ladies and Gentlemen:
In connection with the Registration Statement on Form S-8 under the
Securities Act of 1933, as amended (the "Registration Statement"), relating to
the offering of 2,040,000 shares of Common Stock, par value $.01 per share (the
"Shares"), of BUCA, Inc., a Minnesota corporation (the "Company"), pursuant to
the 1996 Stock Incentive Plan of BUCA, Inc. and Affiliated Companies, the BUCA,
Inc. Stock Option Plan for Non-Employee Directors, and the BUCA, Inc. Employee
Stock Purchase Plan, we have examined such corporate records and other
documents, including the Registration Statement, and have reviewed such matters
of law as we have deemed relevant hereto, and, based upon such examination and
review, it is our opinion that all necessary corporate action on the part of the
Company has been taken to authorize the issuance and sale of the Shares and
that, when issued and sold as contemplated in the Registration Statement, the
Shares will be legally issued, fully paid and nonassessable under the current
laws of the State of Minnesota.
We are admitted to the practice of law in the State of Minnesota and
the foregoing opinions are limited to the laws of that state and the federal
laws of the United States of America.
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ FAEGRE & BENSON LLP
FAEGRE & BENSON LLP
<PAGE>
Exhibit 23.2
Independent Auditors' Consent
We consent to the incorporation by reference in this registration statement of
BUCA, Inc. on Form S-8 of our report dated February 17, 1999 included in the
BUCA, Inc. Prospectus dated April 20, 1999.
Minneapolis, Minnesota
May 11, 1999
/s/ Deloitte & Touche LLP
<PAGE>
Exhibit 23.3
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated March 14, 1997,
included in BUCA, Inc.'s previously filed Registration Statement File No.
333-72593, on the Company's consolidated statements of operations, shareholders'
deficit and cash flows for the year ended December 31, 1996 and to all
references to our Firm included in this registration statement.
Minneapolis, Minnesota
May 11, 1999
/s/ Arthur Andersen LLP
Arthur Andersen LLP
<PAGE>
Exhibit 24
BUCA, INC.
POWER OF ATTORNEY OF DIRECTOR AND/OR OFFICER
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of BUCA, Inc., a Minnesota corporation, does hereby make, constitute and
appoint Joseph P. Micatrotto and Greg A. Gadel, and each or any of them, the
undersigned's true and lawful attorneys-in-fact, with full power of substitution
and resubstitution for the undersigned in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Company to the Registration Statement or Registration Statements on Form
S-8 relating to the 1996 Stock Incentive Plan of BUCA, Inc. and Affiliated
Companies, the BUCA, Inc. Stock Option Plan for Non-Employee Directors, and the
BUCA, Inc. Employee Stock Purchase Plan, and all amendments (including
post-effective amendments) thereto, to be filed by said Company with the
Securities and Exchange Commission, and to file the same, with all exhibits
thereto and other supporting documents, with said Commission, granting unto said
attorneys-in-fact, and each of them, full power and authority to do and perform
any and all acts necessary or incidental to the performance and execution of the
power herein expressly granted, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact, or either of them, or any of their substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 7 day of May, 1999.
/s/ Joseph P. Micatrotto
- ------------------------------
Joseph P. Micatrotto
<PAGE>
BUCA, INC.
POWER OF ATTORNEY OF DIRECTOR AND/OR OFFICER
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of BUCA, Inc., a Minnesota corporation, does hereby make, constitute and
appoint Joseph P. Micatrotto and Greg A. Gadel, and each or any of them, the
undersigned's true and lawful attorneys-in-fact, with full power of substitution
and resubstitution for the undersigned in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Company to the Registration Statement or Registration Statements on Form
S-8 relating to the 1996 Stock Incentive Plan of BUCA, Inc. and Affiliated
Companies, the BUCA, Inc. Stock Option Plan for Non-Employee Directors, and the
BUCA, Inc. Employee Stock Purchase Plan, and all amendments (including
post-effective amendments) thereto, to be filed by said Company with the
Securities and Exchange Commission, and to file the same, with all exhibits
thereto and other supporting documents, with said Commission, granting unto said
attorneys-in-fact, and each of them, full power and authority to do and perform
any and all acts necessary or incidental to the performance and execution of the
power herein expressly granted, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact, or either of them, or any of their substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 6th day of May, 1999.
/s/ Greg A. Gadel
- ------------------------------
Greg A. Gadel
<PAGE>
BUCA, INC.
POWER OF ATTORNEY OF DIRECTOR AND/OR OFFICER
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of BUCA, Inc., a Minnesota corporation, does hereby make, constitute and
appoint Joseph P. Micatrotto and Greg A. Gadel, and each or any of them, the
undersigned's true and lawful attorneys-in-fact, with full power of substitution
and resubstitution for the undersigned in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Company to the Registration Statement or Registration Statements on Form
S-8 relating to the 1996 Stock Incentive Plan of BUCA, Inc. and Affiliated
Companies, the BUCA, Inc. Stock Option Plan for Non-Employee Directors, and the
BUCA, Inc. Employee Stock Purchase Plan, and all amendments (including
post-effective amendments) thereto, to be filed by said Company with the
Securities and Exchange Commission, and to file the same, with all exhibits
thereto and other supporting documents, with said Commission, granting unto said
attorneys-in-fact, and each of them, full power and authority to do and perform
any and all acts necessary or incidental to the performance and execution of the
power herein expressly granted, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact, or either of them, or any of their substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 7th day of May, 1999.
/s/ Philip A. Roberts
- ------------------------------
Philip A. Roberts
<PAGE>
BUCA, INC.
POWER OF ATTORNEY OF DIRECTOR AND/OR OFFICER
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of BUCA, Inc., a Minnesota corporation, does hereby make, constitute and
appoint Joseph P. Micatrotto and Greg A. Gadel, and each or any of them, the
undersigned's true and lawful attorneys-in-fact, with full power of substitution
and resubstitution for the undersigned in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Company to the Registration Statement or Registration Statements on Form
S-8 relating to the 1996 Stock Incentive Plan of BUCA, Inc. and Affiliated
Companies, the BUCA, Inc. Stock Option Plan for Non-Employee Directors, and the
BUCA, Inc. Employee Stock Purchase Plan, and all amendments (including
post-effective amendments) thereto, to be filed by said Company with the
Securities and Exchange Commission, and to file the same, with all exhibits
thereto and other supporting documents, with said Commission, granting unto said
attorneys-in-fact, and each of them, full power and authority to do and perform
any and all acts necessary or incidental to the performance and execution of the
power herein expressly granted, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact, or either of them, or any of their substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 7th day of May, 1999.
/s/ Peter J. Mihajlov
- ------------------------------
Peter J. Mihajlov
<PAGE>
BUCA, INC.
POWER OF ATTORNEY OF DIRECTOR AND/OR OFFICER
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of BUCA, Inc., a Minnesota corporation, does hereby make, constitute and
appoint Joseph P. Micatrotto and Greg A. Gadel, and each or any of them, the
undersigned's true and lawful attorneys-in-fact, with full power of substitution
and resubstitution for the undersigned in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Company to the Registration Statement or Registration Statements on Form
S-8 relating to the 1996 Stock Incentive Plan of BUCA, Inc. and Affiliated
Companies, the BUCA, Inc. Stock Option Plan for Non-Employee Directors, and the
BUCA, Inc. Employee Stock Purchase Plan, and all amendments (including
post-effective amendments) thereto, to be filed by said Company with the
Securities and Exchange Commission, and to file the same, with all exhibits
thereto and other supporting documents, with said Commission, granting unto said
attorneys-in-fact, and each of them, full power and authority to do and perform
any and all acts necessary or incidental to the performance and execution of the
power herein expressly granted, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact, or either of them, or any of their substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 7th day of May, 1999.
/s/ Don W. Hays
- ------------------------------
Don W. Hays
<PAGE>
BUCA, INC.
POWER OF ATTORNEY OF DIRECTOR AND/OR OFFICER
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of BUCA, Inc., a Minnesota corporation, does hereby make, constitute and
appoint Joseph P. Micatrotto and Greg A. Gadel, and each or any of them, the
undersigned's true and lawful attorneys-in-fact, with full power of substitution
and resubstitution for the undersigned in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Company to the Registration Statement or Registration Statements on Form
S-8 relating to the 1996 Stock Incentive Plan of BUCA, Inc. and Affiliated
Companies, the BUCA, Inc. Stock Option Plan for Non-Employee Directors, and the
BUCA, Inc. Employee Stock Purchase Plan, and all amendments (including
post-effective amendments) thereto, to be filed by said Company with the
Securities and Exchange Commission, and to file the same, with all exhibits
thereto and other supporting documents, with said Commission, granting unto said
attorneys-in-fact, and each of them, full power and authority to do and perform
any and all acts necessary or incidental to the performance and execution of the
power herein expressly granted, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact, or either of them, or any of their substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 7th day of May, 1999.
/s/ John P. Whaley
- ------------------------------
John P. Whaley
<PAGE>
BUCA, INC.
POWER OF ATTORNEY OF DIRECTOR AND/OR OFFICER
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of BUCA, Inc., a Minnesota corporation, does hereby make, constitute and
appoint Joseph P. Micatrotto and Greg A. Gadel, and each or any of them, the
undersigned's true and lawful attorneys-in-fact, with full power of substitution
and resubstitution for the undersigned in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Company to the Registration Statement or Registration Statements on Form
S-8 relating to the 1996 Stock Incentive Plan of BUCA, Inc. and Affiliated
Companies, the BUCA, Inc. Stock Option Plan for Non-Employee Directors, and the
BUCA, Inc. Employee Stock Purchase Plan, and all amendments (including
post-effective amendments) thereto, to be filed by said Company with the
Securities and Exchange Commission, and to file the same, with all exhibits
thereto and other supporting documents, with said Commission, granting unto said
attorneys-in-fact, and each of them, full power and authority to do and perform
any and all acts necessary or incidental to the performance and execution of the
power herein expressly granted, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact, or either of them, or any of their substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 10th day of May, 1999.
/s/ David Yarnell
- ------------------------------
David Yarnell
<PAGE>
BUCA, INC.
POWER OF ATTORNEY OF DIRECTOR AND/OR OFFICER
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of BUCA, Inc., a Minnesota corporation, does hereby make, constitute and
appoint Joseph P. Micatrotto and Greg A. Gadel, and each or any of them, the
undersigned's true and lawful attorneys-in-fact, with full power of substitution
and resubstitution for the undersigned in the undersigned's name, place and
stead, to sign and affix the undersigned's name as such director and/or officer
of said Company to the Registration Statement or Registration Statements on Form
S-8 relating to the 1996 Stock Incentive Plan of BUCA, Inc. and Affiliated
Companies, the BUCA, Inc. Stock Option Plan for Non-Employee Directors, and the
BUCA, Inc. Employee Stock Purchase Plan, and all amendments (including
post-effective amendments) thereto, to be filed by said Company with the
Securities and Exchange Commission, and to file the same, with all exhibits
thereto and other supporting documents, with said Commission, granting unto said
attorneys-in-fact, and each of them, full power and authority to do and perform
any and all acts necessary or incidental to the performance and execution of the
power herein expressly granted, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact, or either of them, or any of their substitutes, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned's
hand this 7th day of May, 1999.
/s/ Paul Zepf
- ------------------------------
Paul Zepf
<PAGE>
EXHIBIT 99.3
BUCA, INC.
EMPLOYEE STOCK PURCHASE PLAN
1. Purpose and Scope of Plan. The purpose of this BUCA, Inc. Employee
Stock Purchase Plan (the "Plan") is to provide the employees of BUCA, Inc. (the
"Company") and its subsidiaries with an opportunity to acquire a proprietary
interest in the Company through the purchase of its common stock and, thus, to
develop a stronger incentive to work for the continued success of the Company.
The Plan is intended to be an "employee stock purchase plan" within the meaning
of Section 423(b) of the Internal Revenue Code of 1986, as amended, and shall be
interpreted and administered in a manner consistent with such intent.
2. Definitions.
2.1. The terms defined in this section are used (and
capitalized) elsewhere in this Plan:
(a) "Affiliate" means each domestic or foreign corporation
that is a "subsidiary corporation" of the Company, as defined
in Section 424(f) of the Code or any successor provision,
except that the term shall not include any "subsidiary
corporation" that the Board of Directors has expressly
determined should not participate in the Plan.
(b) "Board of Directors" means the Board of Directors of the
Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
(d) "Committee" means three or more Disinterested Persons
designated by the Board of Directors to administer the Plan
under Section 13.
(e) "Common Stock" means the common stock, par value $.01 per
share, of the Company.
(f) "Company" means BUCA, Inc.
(g) "Compensation" means the gross cash compensation
(including wage, salary, commission, bonus, and overtime
earnings) paid by the Company or any Affiliate to a
Participant in accordance with the terms of employment.
(h) "Disinterested Persons" means a member of the Board of
Directors who is considered a disinterested person within the
meaning of Exchange Act Rule 16b-3 or any successor
definition.
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(i) "Eligible Employee" means any employee of the Company or
an Affiliate whose customary employment is at least 20 hours
per week and who has been employed by the Company or an
Affiliate for at least 1 year on the first day of the Purchase
Period; provided, however, that "Eligible Employee" shall not
include any person who would be deemed, for purposes of
Section 423(b)(3) of the Code, to own stock possessing 5% or
more of the total combined voting power or value of all
classes of stock of the Company.
(j) "Exchange Act" means the Securities Exchange Act of 1934,
as amended from time to time.
(k) "Fair Market Value" of a share of Common Stock as of any
date means, if the Company's Common Stock is listed on a
national securities exchange or traded in the national market
system, the mean between the high and low sale prices for such
Common Stock on such exchange or market on said date, or, if
no sale has been made on such exchange or market on said date,
on the last preceding day on which any sale shall have been
made. The determination of Fair Market Value shall be subject
to adjustment as provided in Section 14.
(l) "Participant" means an Eligible Employee who has elected
to participate in the Plan in the manner set forth in Section
4.
(m) "Plan" means this BUCA, Inc. Employee Stock Purchase Plan,
as amended from time to time.
(n) "Purchase Period" means the four or five week period
coinciding with the Company's monthly accounting cycle or such
other period as may be selected by the Committee.
(o) "Recordkeeping Account" means the account maintained in
the books and records of the Company recording the amount
withheld from each Participant through payroll deductions made
under the Plan.
3. Scope of the Plan. Shares of Common Stock may be sold by the Company
to Eligible Employees at any time after the Plan has been approved by the
stockholders of the Company, but not more than 500,000 shares of Common Stock
(subject to adjustment as provided in Section 14) shall be sold to Eligible
Employees pursuant to this Plan. All sales of Common Stock pursuant to this Plan
shall be subject to the same terms, conditions, rights and privileges. The
shares of Common Stock delivered by the Company pursuant to this Plan may
consist of any combination of authorized but unissued shares or newly issued
shares.
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4. Eligibility and Participation. To be eligible to participate in the
Plan for a given Purchase Period, an employee must be an Eligible Employee on
the first day of such Purchase Period. An Eligible Employee may elect to
participate in the Plan by filing an enrollment form with the Company that
authorizes regular payroll deductions from Compensation beginning with the first
payday following the effective date of such election and continuing until the
Eligible Employee withdraws from the Plan, modifies his or her authorization, or
ceases to be an Eligible Employee, as hereinafter provided.
5. Amount of Common Stock Each Eligible Employee May Purchase.
5.1. Subject to the provisions of this Plan, each Eligible
Employee shall be offered the right to purchase on the last day of the
Purchase Period the maximum number of shares of Common Stock (not
including fractional shares) that can be purchased at the price
specified in Section 5.2 with the entire credit balance in the
Participant's Recordkeeping Account; provided, however, that (i) no
more than 500 shares of Common Stock may be purchased under the Plan by
any Participant for a given Purchase Period and (ii) no more than
$25,000 in Fair Market Value (determined at the beginning of each
Purchase Period) of shares of Common Stock may be purchased under the
Plan and all other employee stock purchase plans, if any, of the
Company and its subsidiary corporations (as defined in Section 424(f)
of the Code) by any Participant for each calendar year. If the
purchases by all Participants would otherwise cause the aggregate
number of shares of Common Stock to be sold under the Plan to exceed
the number specified in Section 3, however, each Participant shall be
allocated a ratable portion of the maximum number of shares of Common
Stock which may be sold.
5.2. The purchase price of each share of Common Stock sold
pursuant to this Plan will be the lesser of the following:
(a) 85% of the Fair Market Value of such share on the
first day of the Purchase Period; or
(b) 85% of the Fair Market Value of such share on the
last day of the Purchase Period.
6. Method of Participation.
6.1. The Company shall give notice to each Eligible Employee
of the opportunity to purchase shares of Common Stock pursuant to this
Plan and the terms and conditions for such offering. Such notice is
subject to revision by the Company at any time prior to the date of
purchase of such shares. The Company contemplates that for tax purposes
the first day of a Purchase Period will be the date of the offering of
such shares.
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6.2. Each Eligible Employee who desires to participate in the
Plan for a Purchase Period shall signify his or her election to do so
by signing an election form developed by the Committee. An Eligible
Employee may elect to have any whole percent of Compensation withheld,
but not exceeding 15% per pay period. An election to participate in the
Plan and to authorize payroll deductions as described herein shall
remain in effect until such Participant withdraws from the Plan,
modifies his or her authorization, or ceases to be an Eligible
Employee.
7. Recordkeeping Account.
7.1. The Company shall maintain a Recordkeeping Account for
each Participant. Payroll deductions pursuant to Section 6 will be
credited to such Recordkeeping Accounts on each payday.
7.2. No interest will be credited to a Participant's
Recordkeeping Account.
7.3. The Recordkeeping Account is established solely for
accounting purposes, and all amounts credited to the Recordkeeping
Account will remain part of the general assets of the Company.
7.4. A Participant may not make any separate cash payment into
a Recordkeeping Account.
8. Right to Adjust Participation or to Withdraw.
8.1. A Participant may, at any time during a Purchase Period,
direct the Company to increase or decrease the percentage amount of
such deductions from future Compensation, subject to the limitation in
Section 6.2. Upon any such action, future payroll deductions with
respect to such Participant shall be increased or decreased in
accordance with the Participant's direction. A Participant may not
change the percentage amount of deductions more than once during any
Purchase Period.
8.2. At any time before the end of a Purchase Period, any
Participant may withdraw from the Plan. In such event, all future
payroll deductions shall cease and the entire credit balance in the
Participant's Recordkeeping Account will be paid to the Participant,
without interest, in cash within 15 days.
8.3. Notification of a Participant's election to increase,
decrease, or terminate deductions, or to withdraw from the Plan, shall
be made by filing an appropriate form with the Company.
9. Termination of Employment. If the employment of a Participant is
terminated for any reason, including death, disability, or retirement, the
entire balance in the Participant's Recordkeeping Account at the date of such
termination of employment will be paid to the
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Participant in cash within 15 days after termination of employment and may not
be used to purchase shares of Common Stock pursuant to the Plan.
10. Purchase of Shares.
10.1. As of the last day of each Purchase Period, the entire
credit balance in each Participant's Recordkeeping Account will be used
to purchase shares (not including fractional shares) of Common Stock
(subject to the limitations of Section 5) unless the Participant has
filed an appropriate form with the Company in advance of that date
(which either elects to purchase a specified number of shares which is
less than the number described above or elects to receive the entire
credit balance in cash). Any amount in a Participant's Recordkeeping
Account that is not used to purchase shares pursuant to this Section
10.1 will be refunded to the Participant, except that any balance in
such Recordkeeping Account resulting from the inability to purchase
fractional shares shall be carried over to the immediately following
Purchase Period unless the Participant elects to have such balance paid
in cash.
10.2. Certificates for the number of whole shares of Common
Stock purchased by each Participant shall be issued and delivered to
him or her promptly after the end of each Purchase Period.
11. Rights as a Stockholder. A Participant shall not be entitled to any
of the rights or privileges of a stockholder of the Company with respect to such
shares, including the right to receive any dividends which may be declared by
the Company, until (i) he or she actually has paid the purchase price for such
shares and (ii) certificates for such shares have been issued to him or her,
both as provided in Section 10.
12. Rights Not Transferable. A Participant's rights under this Plan are
exercisable only by the Participant during his or her lifetime, and may not be
sold, pledged, assigned or transferred in any manner other than by will or the
laws of descent and distribution. Any attempt to sell, pledge, assign or
transfer the same shall be null and void and without effect. The amounts
credited to a Recordkeeping Account may not be assigned, transferred, pledged or
hypothecated in any way, and any attempted assignment, transfer, pledge,
hypothecation or other disposition of such amounts will be null and void and
without effect.
13. Administration of the Plan. This Plan shall be administered by the
Committee, which is authorized to make such uniform rules as may be necessary to
carry out its provisions. The Committee shall determine any questions arising in
the administration, interpretation and application of this Plan, and all such
determinations shall be conclusive and binding on all parties.
14. Adjustment upon Changes in Capitalization. In the event of any
change in the Common Stock of the Company by reason of stock dividends,
split-ups, corporate separations, recapitalizations, mergers, consolidations,
combinations, exchanges of shares and the like, the
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aggregate number and class of shares available under this Plan and the number,
class and purchase price of shares available but not yet purchased under this
Plan, may be adjusted appropriately by the Committee.
15. Registration of Certificates. Stock certificates will be registered
in the name of the Participant, or jointly in the name of the Participant and
another person, as the Participant may direct on an appropriate form filed with
the Company.
16. Amendment of Plan. The Board of Directors may at any time amend
this Plan in any respect which shall not adversely affect the rights of
Participants pursuant to shares previously acquired under the Plan, except that,
without stockholder approval on the same basis as required by Section 20.1, no
amendment shall be made (i) to increase the number of shares to be reserved
under this Plan, (ii) to decrease the minimum purchase price, or (iii) to change
the definition of employees eligible to participate in the Plan.
17. Effective Date of Plan. This Plan shall be effective upon approval
by the stockholders of the Company. The initial Purchase Period will commence on
the date determined by the Board of Directors, but not before July 1, 1999. All
rights of Participants in any offering hereunder shall terminate at the earlier
of (i) the day that Participants become entitled to purchase a number of shares
of Common Stock equal to or greater than the number of shares remaining
available for purchase or (ii) at any time, at the discretion of the Board of
Directors. Upon termination of this Plan, shares of Common Stock shall be issued
to Participants in accordance with Section 10, and cash, if any, remaining in
the Participants' Recordkeeping Accounts shall be refunded to them, as if the
Plan were terminated at the end of a Purchase Period.
18. Governmental Regulations and Listing. All rights granted or to be
granted to Eligible Employees under this Plan are expressly subject to all
applicable laws and regulations and to the approval of all governmental
authorities required in connection with the authorization, issuance, sale or
transfer of the shares of Common Stock reserved for this Plan, including,
without limitation, there being a current registration statement of the Company
under the Securities Act of 1933, as amended, covering the shares of Common
Stock purchasable on the last day of the Purchase Period applicable to such
shares, and if such a registration statement shall not then be effective, the
term of such Purchase Period shall be extended until the first business day
after the effective date of such a registration statement, or post-effective
amendment thereto. If applicable, all such rights hereunder are also similarly
subject to effectiveness of an appropriate listing application to a national
securities exchange or a national market system, covering the shares of Common
Stock under the Plan upon official notice of issuance.
19. Miscellaneous.
19.1. This Plan shall not be deemed to constitute a contract
of employment between the Company and any Participant, nor shall it
interfere with the right of the
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Company to terminate any Participant and treat him or her without
regard to the effect which such treatment might have upon him or her
under this Plan.
19.2. Wherever appropriate as used herein, the masculine
gender may be read as the feminine gender, the feminine gender may be
read as the masculine gender, the singular may be read as the plural
and the plural may be read as the singular.
19.3. This Plan, and all agreements hereunder, shall be
construed in accordance with and governed by the laws of the State of
Minnesota.
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