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Exhibit 10.4
OPTION AGREEMENT
BUCA
Key Employee Share Option Plan
1. Grant of Option: The Compensation Committee of the Board of Directors of
BUCA Inc. ("the Committee") hereby grants to the Participant named below an
Option to purchase Mutual Fund Shares from BUCA Inc. ("BUCA") at the Exercise
Price set forth in Paragraph 2 below:
Name of Participant: ______________________________________
Social Security No.: ______________________________________
Grant Date: _______________________________________________
The Mutual Fund Shares subject to this Option and the total Net Asset Value of
the Mutual Fund Shares as of the date of this grant will consist of the
following investment funds and that number of whole and fractional shares
represented by the total Net Asset Value shown below:
Name of Investment Funds
Subject to Option Total Net Asset Value
----------------- ---------------------
$
------------------------- ------------------
$
------------------------- ------------------
$
------------------------- ------------------
$
------------------------- ------------------
Total $
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Any property received (or deemed to be received) by BUCA through actual (or
deemed) reinvestment of cash dividends and distributions received with respect
to the Mutual Fund Shares shall be added to the Mutual Fund Shares that are
subject to this Option.
2. Exercise and Transfer of Option. The Option may be exercised only by the
Participant or the Beneficiary if the Participant has died, or the Permitted
Transferee, in whole or in part, subject to minimum exercise requirements
contained in the BUCA Key Employee Share Option Plan (the "Plan"). In addition,
under the terms of this Agreement, the transfer of an Option is not allowed
except in the very limited circumstances permitted by Section 3.8 of the Plan.
The Option shall not otherwise be transferred, assigned, pledged or hypothecated
(whether by operation of law or otherwise), except as provided therein, and no
Option shall be subject to execution, attachment or similar process.
Written notice of an election to exercise the Option, specifying the desired
Exercise Date, shall be mailed (by certified mail, postage prepaid), to the
Trustee at the following address no later than ten business days prior to the
desired Exercise Date:
Trustee (to be determined by the Board of Directors)
The initial Grant Date Exercise Price shall equal 25 percent of the total Net
Asset Value of the underlying Mutual Fund Shares on the Grant Date. Upon a
request to exercise the Option, the Exercise Price required to be paid by the
Participant shall be equal to the Exercise Price of the Mutual Fund Shares on
the Grant Date plus 25 percent of the accumulated ordinary income distributions
and short-term capital gain distributions received (or deemed to be received)
with respect to Mutual Fund Shares and reinvested (or deemed to be reinvested)
in additional Mutual Fund shares. For these purposes, the "Exercise Date" shall
be the date upon which the Participant's written Option Exercise Form is
approved by the Trustee after payment is received by the Trustee at its
principal business address (which is the address shown in this Agreement, unless
later changed).
3. Payment of Exercise Price. Payment of the Exercise Price shall be made by
bank certified, personal, or cashier's check or other means acceptable to the
Trustee (in accordance with the terms of the Plan) on or before the Exercise
Date, and the Participant must satisfy all federal, state and local withholding
tax requirements in the manner permitted under the Plan.
4. Time of Exercise. The Participant, the Participant's Beneficiary if the
Participant has died, or the Permitted Transferee (with respect to the portion
of the Option transferred to the Permitted Transferee) may exercise the Vested
Portion of an Option at any time during the period beginning six months after
the Grant Date and ending on the earliest of:
(a) 180 months after the Grant Date of the Option; or
(b) 24 months after the Participant's Termination of Service by reason
of Disability; or
(c) 24 months after the Participant's Termination of Service by reason
of death; or
(d) 24 months after the Participant's Termination of Service for any
reason not specified in paragraphs (a)-(c) or (e) if such Termination
of Service occurs before the Participant's attainment of age 50; or
(e) 90 days after the date of the Participant's Termination of Service,
if he or she is terminated involuntarily for Cause, as determined by
the Committee.
In no event shall the exercise period continue for less than 12 months after the
Participant's Termination of Service if such termination occurs by reason of
Participant's death.
5. Vested Portion of Option. Only the Vested Portion of an Option may be
exercised. The Vested Portion of the Option granted under this Agreement is
100%.
6. Rights and Privileges. No Participant, Beneficiary, or Permitted Transferee
shall have any of the rights and privileges of a shareholder with respect to any
Mutual Fund Shares that may be purchased or issued upon the exercise of an
Option unless and until such Option is exercised and the Exercise Price for the
Mutual Fund Shares has been paid in full and the Mutual Fund Shares have been
registered.
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7. Required Acceptance of Option Agreement. This Option is conditioned upon the
acceptance of this Agreement by the Participant as evidenced by the return to
the Committee of the original Agreement executed by the Participant no later
than 15 days after the Grant Date.
8. Interpretation of Option Agreement and Indemnification. Except to the extent
preempted by federal law, the Option and this Agreement shall be construed and
interpreted according to the laws of the State of Minnesota without regard to
the choice of law principles of such state.
9. Incorporation by Reference. Except as specifically provided in this
Agreement, the rights of the Participant, or any other person entitled to
exercise the Option, are governed by the Plan (as amended from time to time),
which is incorporated by reference into this Agreement and hereto attached. All
capitalized terms used herein and not otherwise defined herein shall have the
meaning set forth in the Plan. The Participant agrees to be bound by the terms
of the Plan. Should a discrepancy exist between the terms of this Agreement and
the terms of the Plan, then the terms of the Plan will control.
10. Amendment and Termination. The Committee may amend this Agreement at any
time (i) to comply with applicable law or regulations, (ii) in connection with a
Plan termination or amendment, (iii) in connection with any substitution of
Mutual Fund Shares or (iv) with the consent of the Participant. In the event of
a termination of the Plan to comply with applicable laws or regulations, this
Option will be required to be exercised immediately. In the event of the
termination of the Plan for any other reason, the Committee may, in its sole
discretion and without the consent of the Participant, terminate this Option
within 60 days following the effective date of the Plan's termination by making
a cash payment to the Participant in an amount equal to the total Net Asset
Value of the Mutual Fund Shares subject to this Option, reduced by the Exercise
Price, and further reduced by the tax withholding required by Section 4.4 of the
Plan.
11. No Right to Continued Service. Nothing contained in this Agreement or in the
Plan shall be deemed to give any person the right to be retained in the service
of BUCA or any of its related entities or to interfere with the right of BUCA or
any of its related entities to discharge any person at any time without regard
to the effect that such discharge shall have upon such person's rights or
potential rights, if any, under the Plan. The provisions of the Plan are in
addition to, and not a limitation on, any rights that a Participant may have by
reason of any other agreement with BUCA or any of its related entities.
12. Securities Matters and Representations. The Participant hereby represents
and warrants to, and agrees with, BUCA as follows, with the understanding that
BUCA will rely on the representations in complying with its obligations under
applicable securities laws:
(a) The Participant has received a current copy of (i) the Plan and
(ii) the Plan Brochure. The Participant has additionally received copies of all
other documents and any other information requested from BUCA and has had an
opportunity to ask questions of and receive answers from the management of BUCA
concerning the terms and conditions of the Option and to obtain any additional
information desired, or has elected to waive such opportunity. The Participant
has reviewed and understands the terms and conditions of his or her
participation in the Plan. The Participant understands and acknowledges that the
exclusive sources for determining his or her benefits and rights under the Plan
are the provisions of the Plan and the Option Agreements entered into pursuant
to the Plan. The Participant has also received copies of, and reviewed, the
current prospectuses for the mutual funds identified on the first page of this
Agreement.
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(b) The Participant acknowledges that (i) the worth of the Option is
dependent upon the value of the underlying Mutual Fund Shares, (ii) the amount
exchanged for the Option (if any) and any rights of the Participant to the
Mutual Fund Shares prior to exercise will be subject to the claims of creditors
of BUCA, and, accordingly, (iii) BUCA makes no assurance whatsoever concerning
the present and prospective value of the Option.
(c) Either alone or with the assistance of a professional advisor, the
Participant has such knowledge and experience in financial and business matters
that he or she is capable of evaluating the merits and risks of accepting the
grant of the Option as well as making a decision to exercise such Option. The
Participant has obtained, to the extent he or she deemed necessary, personal
professional advice with respect to the risks inherent in, and the suitability
of, accepting the grant of the Option in light of the Participant's financial
condition and investment needs. The Participant is not relying on the advice or
representations of BUCA or anyone associated with BUCA on any legal or tax
matters and certifies that the Option (and the underlying mutual fund shares) is
suitable for his or her financial condition and investment needs.
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Participant Date
BUCA's Acknowledgment of Receipt: -------------------------------
Date
By:__________________________________
Authorized Representative
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SCHEDULE OF AWARDS TO BUCA'S EXECUTIVE OFFICERS
UNDER THE BUCA KEY EMPLOYEE SHARE OPTION PLAN
(AWARDS BASED ON DEFERRED COMPENSATION)
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VALUE OF OPTION GRANT LESS EXERCISE PRICE
NAME GRANT DATE AS OF THE DATE OF GRANT
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Xxxx X. Xxxxx March 11, 2002 $ 15,000
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Lane X. Xxxxxxxxxx March 11, 2002 $ 12,500
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