CHART HOUSE ENTERPRISES, INC.
SECOND AMENDED AND RESTATED STANDSTILL AGREEMENT
DATED AS OF MARCH 31, 1999
TABLE OF CONTENTS
PAGE NO.
Section 1. CERTAIN DEFINITIONS. . . . . . . . . . . . . . . . . . . . . .2
Section 2. REPRESENTATIONS AND WARRANTIES.. . . . . . . . . . . . . . . . .3
Section 3. COVENANTS WITH RESPECT TO CONFIDENTIAL MATERIAL AND OTHER
MATTERS. . . . . . . . . . . . . . . . . . . . . . . . . . . .5
3.1 CONFIDENTIAL MATERIAL. . . . . . . . . . . . . . . . . . . . .5
3.2 GUARANTEE BY ALPHA. . . . . . . . . . . . . . . . . . . . . . .7
Section 4. VOTING OF COMPANY SECURITIES AND OTHER RELATED MATTERS. . . . .7
Section 5. REGISTRATION RIGHTS. . . . . . . . . . . . . . . . . . . . . .9
5.1 DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . .9
5.2 REQUEST FOR REGISTRATION.. . . . . . . . . . . . . . . . . . . .9
5.2A SHELF REGISTRATION. . . . . . . . . . . . . . . . . . . . . . 10
5.3 PIGGYBACK REGISTRATION. . . . . . . . . . . . . . . . . . . . 11
5.4 OBLIGATIONS OF THE COMPANY. . . . . . . . . . . . . . . . . . 11
5.5 FURNISH INFORMATION. . . . . . . . . . . . . . . . . . . . . 12
5.6 EXPENSES OF DEMAND REGISTRATION AND SHELF
REGISTRATION. . . . . . . . . . . . . . . . . . . . . . 12
5.7 EXPENSES OF PIGGYBACK REGISTRATION. . . . . . . . . . . . . . 13
5.8 UNDERWRITING REQUIREMENTS. . . . . . . . . . . . . . . . . . 13
5.9 DELAY OF REGISTRATION. . . . . . . . . . . . . . . . . . . . 14
5.10 INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . 14
5.11 REPORTS UNDER THE EXCHANGE ACT. . . . . . . . . . . . . . . . 16
5.12 NO ASSIGNMENT OF REGISTRATION RIGHTS. . . . . . . . . . . . . 16
5.13 WAIVER PROCEDURES. . . . . . . . . . . . . . . . . . . . . . 16
5.14 "MARKET STAND-OFF" AGREEMENT. . . . . . . . . . . . . . . . . 17
Section 6. TERM OF AGREEMENT; CERTAIN PROVISIONS REGARDING TERMINATION. . 17
Section 7. LEGEND AND STOP TRANSFER ORDER. . . . . . . . . . . . . . . . 17
Section 8. REMEDIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 9. GENERAL PROVISIONS.. . . . . . . . . . . . . . . . . . . . . . 18
9.1 CONSENT TO JURISDICTION; SERVICE OF PROCESS. . . . . . . . . 18
9.2 ADDITIONAL XXXX GROUP PARTIES; JOINT AND SEVERAL
OBLIGATIONS. . . . . . . . . . . . . . . . . . . . . . . . . 18
9.3 NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . 18
9.4 SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . . . . 19
9.5 AMENDMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . 20
9.6 DESCRIPTIVE HEADINGS. . . . . . . . . . . . . . . . . . . . . 20
9.7 COUNTERPARTS; FACSIMILE SIGNATURES. . . . . . . . . . . . . . 20
9.8 SUCCESSORS AND ASSIGNS. . . . . . . . . . . . . . . . . . . . 20
SECOND AMENDED AND RESTATED STANDSTILL AGREEMENT
Second Amended and Restated Standstill Agreement dated as of March 31,
1999, (this "Agreement") among Chart House Enterprises, Inc., a Delaware
corporation (the "Company"), EGI-Chart House Investors, LLC, a Delaware limited
liability company (f/k/a Chart House Investors, LLC) ("CHI"), Samstock, L.L.C.,
a Delaware limited liability company ("Samstock"), Samstock/ZFT, L.L.C., a
Delaware limited liability company ("ZFT"), F. Xxxxxx Xxxxx, individually
("Handy"), F. Xxxxxx Xxxxx, as trustee of the Xxxxxx Trust ("FPH Trustee"), and
MelChart LLC, an Illinois limited liability company ("MelChart"), (each of the
foregoing parties, other than the Company, individually a "Stockholder" and
collectively the "Stockholders") and, solely for purposes of Section 3.2 hereof,
Alpha/ZFT Partnership, an Illinois general partnership ("Alpha").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to a Stock Purchase and Sale Agreement dated as of
March 10, 1997 (the "Stock Purchase and Sale Agreement") among the Company, CHI
and Alpha, CHI purchased from the Company, and the Company sold to CHI,
3,400,000 newly issued shares of the Company's Common Stock, par value $.01 per
share ("Common Stock"), representing approximately 29.2% of the Common Stock
then outstanding.
WHEREAS, Samstock, ZFT, FPH Trustee and MelChart have acquired from
CHI or its affiliates, directly or indirectly, the shares of Common Stock set
forth on EXHIBIT A hereto.
WHEREAS, Handy has entered into an Amended and Restated Option
Agreement with CHI, pursuant to which Handy has the option to acquire 163,581
shares of Common Stock from CHI (the "Handy Option Shares").
WHEREAS, reference is made to that certain Amended and Restated
Standstill Agreement, dated as of October 1, 1997, among the parties hereto (the
"First Amended Standstill Agreement").
WHEREAS, the parties hereto are entering into this Agreement to
establish certain arrangements with respect to the relationships between them,
and intend for this Agreement to amend, restate and supersede the First Amended
Standstill Agreement in its entirety.
WHEREAS, the Company believes that these arrangements will be in the
best interests of the Company and all of its stockholders.
NOW, THEREFORE, intending to be legally bound, the parties hereto
agree as follows:
Section 1. CERTAIN DEFINITIONS. As used in this Agreement, the following
terms shall have the following meanings:
1.1 "Company Voting Securities" shall mean, collectively, Common
Stock, any preferred stock of the Company that is entitled to vote generally for
the election of directors, any other class or series of Company securities that
is entitled to vote generally for the election of directors and any other
securities, warrants, options or rights of any nature (whether or not issued by
the Company) that are convertible into, exchangeable for, or exercisable for the
purchase of, or otherwise give the holder thereof any rights in respect of,
Common Stock, Company preferred stock that is entitled to vote generally for the
election of directors, or any other class or series of Company securities that
is entitled to vote generally for the election of directors.
1.2 The "Combined Voting Power" at any measurement date shall mean
the total number of votes which could have been cast in an election of directors
of the Company had a meeting of the stockholders of the Company been duly held
based upon a record date as of the measurement date if all Company Voting
Securities then outstanding and entitled to vote at such meeting were present
and voted to the fullest extent possible at such meeting.
1.3 The terms "beneficial ownership," "person" and "group" shall
have the respective meanings ascribed to such terms pursuant to Regulation 13D-G
adopted by the Securities and Exchange Commission (the "SEC") under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as in effect
on the date hereof. The term "affiliate" shall have the meaning ascribed to
such term pursuant to Rule 12b-2 under the Exchange Act, as in effect on the
date hereof.
1.4 "Xxxx Affiliate" means CHI, Samstock, ZFT, Handy, FPH Trustee
and any of their respective affiliates (exclusive of MelChart and its
affiliates).
1.5 "Xxxx Group" means each Stockholder and any corporations,
partnerships, limited liability companies or other entities that are their
affiliates, collectively; provided, however, that publicly held entities that
might fall within this definition as a result of their affiliation with any Xxxx
Affiliate (a "Public Xxxx Affiliate") shall not be treated as affiliates of any
Xxxx Affiliate hereunder unless its affiliates took any action, directly or
indirectly, to suggest, encourage or assist such entity in taking the relevant
action to be attributed to the Xxxx Group hereunder. For purposes of the
preceding sentence and the similar clause appearing in the second sentence of
Section 3.1, the failure of any Xxxx Affiliate or any of its affiliates, upon
learning of a Public Xxxx Affiliate's action, to request that such Public Xxxx
Affiliate refrain from taking such action because of the provisions of this
Agreement will be deemed to constitute "encouraging or assisting" in such
action.
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1.6 "Independent Director" means directors of the Company who (i)
are not employees or officers of the Company, (ii) are not serving as designees
of Samstock pursuant to Section 4 hereof, and (iii) have no financial interest
in and are not otherwise associated with CHI, Samstock, ZFT, any Public Xxxx
Affiliate or their affiliates, excluding however any equity interest of not more
than 2% of any publicly-held entity. The term "associated" means having a
business, financial or familial relationship that might reasonably be expected
to affect the individual's judgment with respect to matters in which a member of
the Xxxx Group might be interested.
1.7 "Disinterested Director" means Independent Directors who are
"disinterested directors" as that term is used in Section 144 of the Delaware
General Corporate Law.
Section 2. REPRESENTATIONS AND WARRANTIES.
2.1 CHI, Samstock and ZFT jointly and severally represent and
warrant to the Company as follows:
(a) Each of CHI, Samstock and ZFT is a limited liability company
duly organized, validly existing and in good standing under the laws of
Delaware. Alpha is a validly existing partnership under the laws of Illinois.
Each of CHI, Samstock, ZFT and Alpha has the power and authority to enter into
this Agreement and perform its respective obligations hereunder.
(b) This Agreement has been duly authorized, executed and
delivered by CHI, Samstock, ZFT and Alpha and constitutes the legal, valid and
binding agreement of CHI, Samstock, ZFT and Alpha, enforceable against them in
accordance with the terms hereof.
(c) Neither the execution and delivery of this Agreement nor the
performance of its obligations hereunder will conflict with, or result in a
breach of, or constitute a default under, any law, rule, regulation, judgment,
order or decree of any court, arbitrator or governmental agency or
instrumentality, or of any agreement or instrument to which CHI, Samstock, ZFT
or Alpha is bound or by which it is affected or of any charter documents of CHI,
Samstock, ZFT or Alpha.
(d) As of the date hereof, no shares of Common Stock are currently
beneficially owned by any member of the Xxxx Group (other than Handy, FPH
Trustee and MelChart and their respective affiliates), except for those shares
of Common Stock originally acquired by CHI pursuant to the Stock Purchase and
Sale Agreement and set forth on EXHIBIT A hereto (exclusive of any options
granted by the Company).
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2.2 Handy and FPH Trustee jointly and severally represent and
warrant to the Company as follows:
(a) He has the legal capacity to enter into this Agreement and
perform his respective obligations hereunder both for himself individually and
on behalf of the Xxxxxx Trust.
(b) This Agreement has been duly executed and delivered by him
both for himself and on behalf of the Xxxxxx Trust and constitutes his legal,
valid and binding agreement enforceable against him in accordance with the terms
hereof both in his individual capacity and in his capacity as trustee of the
Xxxxxx Trust.
(c) Neither the execution and delivery of this Agreement nor the
performance of his obligations hereunder will conflict with, or result in a
breach of, or constitute a default under, any law, rule, regulation, judgment,
order or decree of any court, arbitrator or governmental agency or
instrumentality, or of any agreement or instrument to which he is bound or by
which he is affected, both in his individual capacity and in his capacity as
trustee of the Xxxxxx Trust.
(d) As of the date hereof, no shares of Common Stock are currently
beneficially owned by him or his affiliates, except for those shares of Common
Stock set forth on EXHIBIT A hereto (exclusive of the Handy Option Shares and
any stock options granted by the Company).
2.3 MelChart represents and warrants to the Company as follows:
(a) MelChart is a limited liability company duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization. MelChart has the power and authority to enter into this Agreement
and perform its obligations hereunder.
(b) This Agreement has been duly authorized, executed and
delivered by MelChart and constitutes the legal, valid and binding agreement of
MelChart enforceable against MelChart in accordance with the terms hereof.
(c) Neither the execution and delivery of this Agreement nor the
performance of its obligations hereunder will conflict with, or result in a
breach of, or constitute a default under, any law, rule, regulation, judgment,
order or decree of any court, arbitrator or governmental agency or
instrumentality, or of any agreement or instrument to which MelChart is bound or
by which MelChart is affected or of any charter documents of MelChart.
(d) As of the date hereof, no shares of Common Stock are currently
beneficially owned by MelChart or any of its affiliates, except for those shares
of Common Stock set forth on EXHIBIT A hereto.
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2.4 The Company represents and warrants to the Stockholders and
Alpha as follows:
(a) The Company is a validly existing corporation under the laws
of the jurisdiction of its organization and has the corporate power and
authority to enter into this Agreement and perform its obligations hereunder.
(b) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the legal, valid and binding agreement
of the Company, enforceable against the Company in accordance with the terms
hereof.
(c) Neither the execution and delivery of this Agreement nor the
performance of its obligations hereunder will conflict with, or result in a
breach of, or constitute a default under, any law, rule, regulation, judgment,
order or decree of any court, arbitrator or governmental agency or
instrumentality, or of any agreement or instrument to which the Company is bound
or by which it is affected or of any charter documents of the Company.
Section 3. COVENANTS WITH RESPECT TO CONFIDENTIAL MATERIAL AND OTHER
MATTERS. CHI, Samstock and ZFT hereby agree with respect to all members of the
Xxxx Group, other than Handy, FPH Trustee and MelChart and any of their
respective affiliates, and each of Handy, FPH Trustee and MelChart agree with
respect to themselves and their respective affiliates, as follows:
3.1 CONFIDENTIAL MATERIAL.
(a) DEFINITIONS. For purposes of this Section:
(i) The term "Confidential Material" means all information,
whether oral, written or otherwise (including any information furnished prior to
the execution of this Agreement), furnished by the Company to any member of the
Xxxx Group or any of the Representatives (as defined below), and all notes,
reports, analyses, compilations, studies and other materials prepared by the
Xxxx Group or any of the Representatives (in whatever form maintained, whether
documentary, computer storage or otherwise) containing or based upon, in whole
or in part, any such information, and the fact that such information has been
delivered to the Xxxx Group or any of its Representatives. The term
"Confidential Material" does not include information which is or becomes
generally available to the public other than as a result of a disclosure by any
member of the Xxxx Group or any of the Representatives or becomes available to
any member of the Xxxx Group or any of the Representatives on a non-confidential
basis from any source that is not known by such member of the Xxxx Group or such
Representative to be bound by an obligation of confidentiality to the Company.
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(ii) The term "Representatives" shall mean any and all
employees, agents, financial advisors, partners, affiliates or other
representatives of any member of the Xxxx Group.
(b) Each member of the Xxxx Group and each of the Representatives
will preserve the confidentiality of the Confidential Material and will not
disclose any of the Confidential Material in any manner whatsoever; PROVIDED,
HOWEVER, that (i) the Xxxx Group may make any disclosure of such information to
which the Company gives its prior consent, (ii) any of such information may be
disclosed to the Representatives who need to know such information, and who are
informed of the confidential nature of the Confidential Material and of the
terms of this Section 3.1 and who agree to keep such information confidential,
(iii) any Xxxx Affiliate may make any disclosure of such information in
connection with any activity which such Xxxx Affiliate reasonably believes to be
in the best interests of the Company and not prohibited by this Agreement,
provided the recipient of such information is informed of the confidential
nature of the Confidential Material and of the terms of this Section 3.1 and
agrees in writing to keep such information confidential and otherwise to be
fully subject to the terms of this Section 3.1, and (iv) any member of the Xxxx
Group may make any disclosure of such information to any other member of the
Xxxx Group. In any event, the Xxxx Group will be responsible for any actions by
the Representatives which are not in accordance with the provisions hereof.
(c) If any member of the Xxxx Group or any of the Representatives
are requested or required (by oral questions, interrogatories, requests for
information or documents, subpoena, civil investigative demand, any informal or
formal investigation by any government or governmental agency or authority or
otherwise) to disclose any Confidential Material or such person's opinion,
judgment, view or recommendation concerning the Company as developed from the
Confidential Material, the Xxxx Group agrees (i) to promptly notify the Company
of the existence, terms and circumstances surrounding such a request, (ii) to
the extent possible, to consult with the Company on the advisability of taking
legally available steps to resist or narrow such request and (iii) if disclosure
of such information is required, to furnish only that portion of the
Confidential Material which, in the opinion of counsel to the Xxxx Group, the
Xxxx Group is legally compelled to disclose, and to cooperate with any action by
the Company to obtain an appropriate protective order or other reliable
assurance that confidential treatment will be accorded the Confidential
Material.
(d) The Stockholders hereby acknowledge that the United States
securities laws prohibit, in certain circumstances, any person who has received
from an issuer material, non-public information, including certain information
that may be part of the Confidential Material, while such information is
non-public, from purchasing or selling securities of such issuer or from
communicating such information to any other person under circumstances in which
it is reasonably foreseeable that such person is likely to purchase or sell such
securities.
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(e) This Section 3.1 shall survive until the earlier of June 30,
2004 or two years following the date of termination of this Agreement.
3.2 GUARANTEE BY ALPHA. Alpha hereby irrevocably and
unconditionally guarantees the performance by CHI, Samstock and ZFT of all of
their obligations hereunder and under the other agreements and documents
contemplated hereby.
Section 4. VOTING OF COMPANY SECURITIES AND OTHER RELATED MATTERS. CHI,
Samstock and ZFT hereby agree with respect to all members of the Xxxx Group,
other than Handy, FPH Trustee and MelChart and any of their respective
affiliates, and each of Handy, FPH Trustee and MelChart agree with respect to
themselves and their respective affiliates, as follows:
(a) Each member of the Xxxx Group that is a holder of record of
Company Voting Securities shall be present, and each member of the Xxxx Group
that is a beneficial owner of Company Voting Securities shall cause the holder
of record to be present, in person or by proxy, at all meetings of stockholders
of the Company so that all Company Voting Securities owned of record or
beneficially by the Xxxx Group may be counted for the purpose of determining the
presence of a quorum at such meetings.
(b) At all times prior to June 30, 2002, except to the extent
otherwise provided herein, the Company shall take all necessary or appropriate
action to assist in the nomination and election as directors of (i) that number
of individuals specified in Section 4(d) below designated by Samstock to be
elected as directors of the Company, provided such designees are reasonably
acceptable to the Independent Directors at the time of their designation, and
(ii) so long as Samstock is entitled to designate one or two directors,
Independent Directors constituting a majority of the total number of directors
of the Company. All persons to be so designated as Independent Directors shall
be individuals selected by a majority of the Independent Directors then in
office, except that one of the Independent Directors shall be an individual
mutually acceptable to Samstock on the one hand and a majority of the
Independent Directors on the other hand. The Company hereby agrees and
acknowledges that Xxx Xxxx and F. Xxxxxx Xxxxx are reasonably acceptable to the
Independent Directors as directors of the Company. The Company further agrees
that one position on the Board of Directors of the Company is intended to be
filled by the chief executive officer to be selected by the Board of Directors
of the Company. Samstock shall cause its designees on the Board of Directors of
the Company to take all necessary or appropriate action to assist in the
nomination and election as directors of all such nominees as may be selected to
serve as Independent Directors in the manner described above. The Xxxx Group
and the directors designated by Samstock shall not vote (as stockholders or
directors) in favor of, and shall not take any other action in furtherance of or
seeking to cause, a reduction of the number of directors of the Company below
seven directors, the removal of any directors, or a majority of the directors
not consisting of Independent Directors. Notwithstanding the foregoing, the
Company hereby waives the requirements contained in this Section 4(b) relating
to a majority of the directors consisting of Independent Directors, to the
extent that such
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requirements would not be satisfied as the result of Xxxxxxx Xxxxxx
("Xxxxxx") being a director of the Company.
(c) For purposes of this Agreement, directors "designated by
Samstock" shall include directors designated by Samstock as anticipated by this
Section 4, and any other directors of the Company affiliated or associated with
any member of the Xxxx Group, but, notwithstanding the foregoing, shall not
include Xxxxxx.
(d) At all times prior to June 30, 2002, Samstock shall be
entitled to designate the following number of directors pursuant to Section 4(b)
hereof:
(i) so long as the members of the Xxxx Group that have
executed this Agreement as parties (the "Xxxx Contracting Parties") beneficially
own at least 15% of the Combined Voting Power of all Company Voting Securities
(calculated in accordance with Section 3.1 hereof), Samstock shall have the
right to designate two directors of the Company (it being understood that Xxxxxx
shall not count as one of such two directors), provided such designees are
reasonably acceptable to the Independent Directors at the time of their
designation; and
(ii) so long as the Xxxx Contracting Parties beneficially
own less than 15%, but at least 7.5% of the Combined Voting Power of all Company
Voting Securities (as so calculated), Samstock shall have the right to designate
one director of the Company (it being understood that Xxxxxx shall not count as
such director), provided such designee is reasonably acceptable to the
Independent Directors at the time of his or her designation;
PROVIDED, HOWEVER, that at any time when the Xxxx Contracting Parties shall no
longer beneficially own at least 15% of the Combined Voting Power of all Company
Voting Securities (as so calculated), Samstock shall cause one of its two
designees to resign forthwith such that only one designee remains on the Board
of Directors of the Company; and PROVIDED, FURTHER, that at any time when the
Xxxx Contracting Parties shall no longer beneficially own at least 7.5% of the
Combined Voting Power of all Company Voting Securities (as so calculated),
Samstock shall not have the right to designate any directors of the Company,
Samstock's rights under this Section 4 shall terminate, Samstock shall cause its
designees to resign forthwith such that no designee of Samstock remains on the
Board of Directors of the Company and all of the covenants under Section 3 of
this Agreement shall lapse and no longer be of any force or effect. In
addition, all of the covenants under Section 3 of this Agreement shall lapse and
no longer be of any force or effect if for any reason any of the director
designees designated by Samstock pursuant to the rights granted by Section 4(b)
shall not be nominated for election as a director of the Company with the
unanimous recommendation of all of the directors of the Company (other than
those directors designated by Samstock pursuant to Section 4(b)) at the next
election of directors of the Company following Samstock's designation. At any
time when Samstock shall have the right to designate one or two directors, as
the case may be, pursuant to this Section 4, the Company shall
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not increase the number of directors to more than seven directors without the
prior written consent of Samstock.
Section 5. REGISTRATION RIGHTS. The Company covenants and agrees as
follows:
5.1 DEFINITIONS. For purposes of this Section 5:
(a) The term "register," "registered" and "registration" refer to
a registration effected by preparing and filing a registration statement in
compliance with the Securities Act of 1933, as amended (the "Act").
(b) The term "Registrable Securities" means the shares of Common
Stock held, from time to time, by the Xxxx Group.
(c) The term "Holder" means any Xxxx Contracting Party who owns of
record Registrable Securities.
(d) The term "Rule 415 Offering" means an offering on a delayed or
continuous basis pursuant to Rule 415 (or any successor rule to similar effect)
promulgated under the Act.
(e) The term "Shelf Registration Statement" means a registration
statement intended to effect a shelf registration in connection with a Rule 415
Offering.
5.2 REQUEST FOR REGISTRATION.
(a) If the Company shall at any time receive a written request
from any Xxxx Affiliates who are the Holders of at least 500,000 shares of
Common Stock that the Company file a registration statement under the Act
covering the registration of at least 500,000 shares of Common Stock, then the
Company shall, within 10 days after the receipt thereof, give written notice of
such request to all Holders, and shall, subject to the limitations of Section
5.2(b), effect as soon as practicable after the receipt of such request the
registration under the Act of all Registrable Securities which the Holders
request to be registered within 15 days after the mailing of such notice by the
Company in accordance with Section 9.3.
(b) If the Holders initiating the registration request hereunder
("Initiating Holders") intend to distribute the Registrable Securities covered
by their request by means of an underwriting, they shall so advise the Company
as a part of their request made pursuant to this Section 5.2 and the Company
shall include such information in the written notice referred to in Section
5.2(a). In such event, the right of any Holder to include Registrable
Securities in such registration shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided
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herein. All Holders proposing to distribute Registrable Securities through
such underwriting shall (together with the Company as provided in Section
5.4(e)) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by the Initiating
Holders and reasonably acceptable to the Company. The Company at its sole
discretion may offer a right to participate in any registration statement
filed pursuant to this Section 5.2 to other holders of Common Stock, and may
itself participate in any registration statement filed pursuant to this
Section 5.2. However, notwithstanding any other provision of this Section
5.2, if the offering is an underwritten offering and the lead managing
underwriter advises the Initiating Holders in writing that marketing factors
require a limitation of the number of shares of Common Stock to be
underwritten, then (subject to any contrary provisions in registration rights
agreements executed by the Company prior to the date hereof) the total number
of shares of Common Stock to be underwritten shall be reduced, with such
reduction coming first from selling stockholders who are not Holders, and
then from the Company. If further reduction is required, the Company shall
so advise all Holders of Registrable Securities that would have otherwise
been underwritten pursuant hereto, and the number of shares of Registrable
Securities that may be included in the underwriting shall be allocated among
all Holders thereof, including the Initiating Holders, in proportion (as
nearly as practicable) to the amount of Registrable Securities sought to be
registered by each Holder.
(c) The Company is obligated to effect only two such registrations
pursuant to this Section 5.2; PROVIDED, HOWEVER, that if, as a result of a
reduction in the size of an offering pursuant to Section 5.2(b), Holders are
prevented from registering, in the aggregate, one-half of all of their
Registrable Securities, then the Company shall be obligated to effect a third
such registration pursuant to this Section 5.2.
(d) Notwithstanding the foregoing, if the Company shall furnish to
Holders requesting a registration statement pursuant to this Section 5.2 a
certificate signed by the Chief Executive, Chief Operating, or Chief Financial
Officer of the Company stating that, in the good faith judgment of a majority of
the Disinterested Directors, it would be materially detrimental to the Company
for such registration statement to be filed, the Company shall have the right to
defer such filing for a period of not more than 120 days after receipt of the
request of the Initiating Holders; PROVIDED, HOWEVER, that the Company may not
utilize this right more than twice in any 12-month period.
5.2A SHELF REGISTRATION. If the Company shall at any time receive
a written request from any Xxxx Affiliates who are the Holders of at least
500,000 shares of Common Stock that the Company file a Shelf Registration
Statement, then the Company shall upon receipt of such notice prepare and file a
Shelf Registration Statement that shall include all Registrable Securities (and
shall include in the "plan of distribution" of such Shelf Registration
Statement, pledgees of any Holder), provided such Shelf Registration Statement
shall not include securities of the Company for sale for the Company's own
account. The Company shall use its reasonable best efforts to cause such Shelf
Registration Statement to be declared effective within 60 days of
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such written request. The Company shall keep such Shelf Registration
Statement effective until such time as all Registrable Securities have been
sold or disposed of thereunder or sold, transferred or otherwise disposed of
(other than pursuant to a pledge of such Registrable Securities) to a person
that is not a Holder. The Shelf Registration Statement shall not be counted
as a request for registration pursuant to Section 5. 2 hereof.
5.3 PIGGYBACK REGISTRATION. If (but without any obligation to do
so) the Company proposes to register any of its Common Stock under the Act in
connection with the public offering of such Common Stock by the Company solely
for cash (other than a registration relating solely to the sale of securities to
participants in a dividend reinvestment plan, stock plan or employee benefit
plan; a registration relating solely to the issuance of securities to the
security holders of an acquired company in connection with an acquisition; or a
registration on any form which does not permit inclusion of selling
stockholders), or the Company proposes to register any of its securities on
behalf of a holder exercising demand registration rights similar to those set
forth in Section 5.2, the Company shall, at such time, promptly give each Holder
written notice of such registration. Upon the written request of each Holder
given within 15 days after mailing of such notice by the Company in accordance
with Section 9.3, the Company shall, subject to the provisions of Section 5.8,
cause to be registered under the Act all of the Registrable Securities that each
such Holder has requested to be registered.
5.4 OBLIGATIONS OF THE COMPANY. Whenever required under this
Section 5 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its reasonable efforts to cause
such registration statement to become effective, and (other than with respect to
a Shelf Registration Statement), upon the request of the Holders of a majority
of the Registrable Securities registered thereunder, keep such registration
statement effective for up to 120 days.
(b) Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such states or other
11
jurisdictions as shall be reasonably requested by the Holders, provided that
the Company shall not be required to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the underwriters of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing, and then
use its best efforts to promptly correct such statement or omission.
Notwithstanding the foregoing and anything to the contrary set forth in this
Section 5.4, each Holder acknowledges that there may occasionally be times when
the Company must suspend the use of the prospectus forming a part of the
registration statement until such time as an amendment to the registration
statement has been filed by the Company and declared effective by the SEC, or
until such time as the Company has filed an appropriate report with the SEC
pursuant to the Exchange Act. Each Holder hereby covenants that it will (a)
keep any such notice strictly confidential, and (b) not sell any shares of
Common Stock pursuant to such prospectus during the period commencing at the
time at which the Company gives the Holder notice of the suspension of the use
of such prospectus and ending at the time the Company gives the Holder notice
that it may thereafter effect sales pursuant to such prospectus. The Company
shall only be able to suspend the use of such prospectus for periods aggregating
no more than 60 days in respect of any registration and, in any event, the
120-day period of effectiveness referred to in Section 5.4(a) shall be extended
one day for each day that sales are suspended under this Section 5.4(f).
5.5 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 5 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities and as may be required from time to time to keep such registration
current.
5.6 EXPENSES OF DEMAND REGISTRATION AND SHELF REGISTRATION. All
expenses incurred by or on behalf of the Company in connection with
registrations, filings or qualifications pursuant to Section 5.2 and Section
5.2A, including, without limitation, all registration, filing and qualification
fees, printers' and accounting fees, and fees and disbursements of counsel for
the Company, shall be borne by the Company; PROVIDED, HOWEVER,
12
that the Company shall not be required to pay for any expenses of any
registration begun pursuant to Section 5.2 if the registration request is
subsequently withdrawn at the request of the Holders of a majority of the
Registrable Securities to be registered (in which case all participating
Holders shall reimburse the Company promptly for all such reasonable
expenses), unless the Holders of a majority of the Registrable Securities
agree to forfeit their right to one demand registration pursuant to Section
5.2. In no event shall the Company be obligated to bear any underwriting
discounts or commissions relating to Registrable Securities or the fees and
expenses of counsel to the selling Holders.
5.7 EXPENSES OF PIGGYBACK REGISTRATION. The Company shall bear
and pay all expenses incurred by or on behalf of the Company in connection with
any registration, filing or qualification of Registrable Securities with respect
to the registrations pursuant to Section 5.3 for each Holder, including, without
limitation, all registration, filing, and qualification fees, printing and
accounting fees and fees and disbursements of counsel for the Company relating
or allocable thereto, but excluding any underwriting discounts or commissions
relating to Registrable Securities and the fees and disbursements of counsel to
the selling Holders.
5.8 UNDERWRITING REQUIREMENTS. In connection with any offering
involving an underwriting of shares being issued by the Company, the Company
shall not be required under Section 5.3 to include any of the Holders'
Registrable Securities in such underwriting or the registration statement
relating thereto unless they accept the terms of the underwriting as agreed upon
between the Company and the underwriters selected by the Company. If the total
amount of securities, including Registrable Securities, requested by Holders and
other stockholders to be included in such offering exceeds the amount of
securities offered other than by the Company that the underwriters reasonably
believe can be offered without jeopardizing the success of the offering, then
the Company shall be required to include in the offering only that number of
such securities, including Registrable Securities, which the underwriters
believe will not jeopardize the success of the offering. To achieve any
necessary reduction in the securities to be sold, the securities to be excluded
from the offering shall first be selected (in each case, pro rata among such
class of holders according to the total amount of securities proposed to be
included in the registration statement or in such other proportions as shall
mutually be agreed to by such class of holders) in the following order (subject
to any contrary provisions in registration rights agreements executed by the
Company prior to the date hereof): (i) first, securities being included on
behalf of holders other than members of the Xxxx Group shall be excluded, except
for securities of holders referred to in clause (iii) below; (ii) next, if
additional securities must be excluded, Registrable Securities included pursuant
to Section 5.3 shall be excluded; (iii) thereafter, if additional securities
must be excluded, securities included on behalf of a holder exercising demand
registration rights similar to those set forth in Section 5.2 shall be excluded;
and (iv) finally, if additional securities must be excluded, securities offered
by the Company shall be excluded.
13
5.9 DELAY OF REGISTRATION. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any registration
as the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 5.
5.10 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under this Section 5:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder and the affiliates of such Holder, and their
respective directors, officers, general and limited partners, agents and
representatives (and the directors, officers, affiliates and controlling persons
thereof), and each other person, if any, who controls such Holder within the
meaning of the Act, against any losses, claims, damages, or liabilities (joint
or several) to which they may become subject under the Act, the Exchange Act or
other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively a
"Violation"): (i) any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including any
preliminary prospectus (but only if such statement is not corrected in the final
prospectus) contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading (but
only if such omission is not corrected in the final prospectus), or (iii) any
violation or alleged violation by the Company in connection with the
registration of Registrable Securities under the Act, the Exchange Act, any
state securities law or any rule or regulation promulgated under the Act, the
Exchange Act or any state securities law; and the Company will pay to each such
Holder, affiliate or controlling person, as incurred, any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER,
that the indemnity agreement contained in this Section 5.10(a) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of the Company (which
consent shall not be unreasonably withheld), nor shall the Company be liable in
any such case for any such loss, claim, damage, liability or action to the
extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by any such Holder or controlling
person. Each indemnified party shall furnish such information regarding itself
or the claim in question as an indemnifying party may reasonably request in
writing and as shall be reasonably required in connection with defense of such
claim and litigation resulting therefrom.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Act, any underwriter, any other
Holder selling securities in such registration statement and any controlling
person of any such underwriter or other Holder, against any losses, claims,
damages
14
or liabilities (joint or several) to which any of the foregoing persons
may become subject, under the Act, the Exchange Act or other federal or state
law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by such Holder expressly
for use in connection with such registration; and each such Holder will pay, as
incurred, any legal or other expenses reasonably incurred by any person intended
to be indemnified pursuant to this Section 5.10(b) in connection with
investigating or defending any such loss, claim, damage, liability or action;
PROVIDED, HOWEVER, that the indemnity agreement contained in this Section
5.10(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of such Holder, which consent shall not be unreasonably withheld; PROVIDED,
that, in no event shall any indemnity under this section 5.10(b) exceed the
gross proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 5.10 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 5.10, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties. The failure to deliver written notice to the
indemnifying party within a reasonable time after the commencement of any such
action, if materially prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this Section 5.10 to the extent of such prejudice, but the omission so to
deliver written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under this
Section 5.10. The indemnified party shall have the right, but not the
obligation, to participate in the defense of any action referred to above
through counsel of its own choosing and shall have the right, but not the
obligation, to assert any and all separate defenses, cross claims or
counterclaims which it may have, and the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the employment of such
counsel has been specifically authorized in advance by the indemnifying party,
(ii) there is a conflict of interest that prevents counsel for the indemnifying
party from adequately representing the interests of the indemnified party or
there are defenses available to the indemnified party that are different from,
or additional to, the defenses that are available to the indemnifying party,
(iii) the indemnifying party does not employ counsel that is reasonably
satisfactory to the indemnified party, or (iv) the indemnifying party fails to
assume the defense or does not reasonably contest such action in good faith, in
which case, if the indemnified party notifies the indemnifying party that it
elects to employ separate counsel, the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party
and the reasonable fees and expenses of such separate counsel shall be borne by
the indemnifying party; PROVIDED, HOWEVER, that, the indemnifying party shall
not, in connection with any proceeding or related proceedings
15
in the same jurisdiction, be liable for the reasonable fees and expenses of
more than one separate firm (in addition to one firm acting as local counsel)
for all indemnified parties.
(d) The obligations of the Company and the holders under this
Section 5.10 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 5.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement (if any) entered into in connection with any underwritten public
offering of the Registrable Securities are in conflict with the foregoing
provisions, the provisions in such underwriting agreement shall control.
5.11 REPORTS UNDER THE EXCHANGE ACT. With a view to making
available to the holders the benefits of Rule 144 and any other rule or
regulation of the SEC that may at any time permit a Holder to sell securities of
the Company to the public without registration or pursuant to a registration on
Form S-3, the Company agrees to:
(a) use its best efforts to make and keep public information
available, as those terms are understood and defined in Rule 144;
(b) use its best efforts to file with the SEC in a timely manner
all reports and other documents required under the Act and the Exchange Act; and
(c) furnish to any Holder forthwith upon request (i) a written
statement by the Company as to its compliance with the reporting requirements of
Rule 144, or as to whether it qualifies as a registrant whose securities may be
resold pursuant to Form S-3, (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by the
Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such form.
5.12 NO ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register Registrable Securities pursuant to this Section 5 may only
be assigned by a Holder to a transferee or assignee of any Registrable
Securities if (i) such transferee or assignee is a Xxxx Contracting Party and
(ii) immediately following such transfer the further disposition of such
securities by the transferee or assignee is restricted under the Act.
5.13 WAIVER PROCEDURES. The observance by the Company of any
provision of this Section 5 may be waived (either generally or in a particular
instance and either retroactively or prospectively) with the written consent of
the Holders of a majority of the Registrable Securities, and any waiver effected
in accordance with this paragraph shall be binding upon each Holder of
Registrable Securities.
16
5.14 "MARKET STAND-OFF" AGREEMENT. Any Holder of Registrable
Securities, if requested by an underwriter of any registered public offering of
Company securities being sold in a firm commitment underwriting, agrees not to
sell or otherwise transfer or dispose of any Common Stock (or other Company
Voting Securities) held by such Holder other than shares of Registrable
Securities included in the registration during the seven days prior to, and
during a period of up to 120 days following, the effective date of the
registration statement. Such agreement shall be in writing in a form reasonably
satisfactory to the Company and such underwriter. The Company may impose
stop-transfer instructions with respect to the securities subject to the
foregoing restriction until the end of the required stand-off period.
Section 6. TERM OF AGREEMENT; CERTAIN PROVISIONS REGARDING TERMINATION.
Unless this Agreement specifically provides for earlier or later termination
with respect to any particular right or obligation, this Agreement shall
terminate if the Xxxx Group shall, at any time (in compliance with this
Agreement), sell or otherwise dispose of or otherwise cease to own Company
Voting Securities such that the Xxxx Group beneficially owns in the aggregate
Company Voting Securities representing less than 2% of the Combined Voting Power
of all Company Voting Securities.
Section 7. LEGEND AND STOP TRANSFER ORDER. To assist in effectuating the
provisions of this Agreement, each Stockholder hereby consents (i) to the
placement within 10 business days after any Company Voting Securities become
subject to the provisions of this Agreement, of the legend specified in Section
4.10(b) of the Stock Purchase and Sale Agreement on all certificates
representing ownership of Company Voting Securities owned of record or
beneficially by any member of the Xxxx Group, until such shares are sold,
transferred or disposed in a manner permitted hereby to a person who is not then
a member of the Xxxx Group, and (ii) to the entry of stop transfer orders with
the transfer agent or agents of Company Voting Securities against the transfer
of Company Voting Securities except in compliance with the requirements of this
Agreement. The Company agrees to remove promptly all legends and stop transfer
orders with respect to the transfer of Company Voting Securities being made to a
person who is not then a member of the Xxxx Group in compliance with the
provisions of this Agreement.
Section 8. REMEDIES.
The Stockholders and the Company acknowledge and agree that
(i) the provisions of this Agreement are reasonable and necessary to protect the
proper and legitimate interests of the parties hereto, and (ii) the parties
would be irreparably damaged in the event any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that, except as otherwise provided
in Section 5.9 hereof, each party shall be entitled to preliminary and permanent
injunctive relief to prevent breaches of the provisions of this Agreement by the
other party (or its affiliates) without the necessity of proving actual damages
or of posting any bond, and to enforce specifically the terms and provisions
hereof and thereof in any court of the United States or any state thereof
17
having jurisdiction, which rights shall be cumulative and in addition to any
other remedy to which the parties may be entitled hereunder or at law or
equity.
Section 9. GENERAL PROVISIONS.
9.1 CONSENT TO JURISDICTION; SERVICE OF PROCESS. This agreement
shall be governed by and interpreted and enforced in accordance with the laws of
the State of Delaware without giving effect to any conflicts of law provisions.
Each of the parties hereto irrevocably and unconditionally (a) agrees that any
suit, action or other legal proceeding (collectively, "suit") arising out of
this agreement shall be brought and adjudicated in the United States District
Court for the District of Delaware or the Northern District of Illinois, or, if
such courts will not accept jurisdiction, in any court of competent civil
jurisdiction sitting in either the State of Delaware or the City of Chicago,
Illinois, (b) submits to the jurisdiction of any such court for the purposes of
any such suit and (c) waives and agrees not to assert by way of motion, as a
defense or otherwise in any such suit, any claim that it is not subject to the
jurisdiction of the above courts, that such suit is brought in an inconvenient
forum or that the venue of such suit is improper. Each of the parties also
irrevocably and unconditionally consents to the service of any process,
pleadings, notices or other papers in a manner permitted by the notice
provisions of Section 9.3.
9.2 ADDITIONAL XXXX GROUP PARTIES; JOINT AND SEVERAL OBLIGATIONS.
All of the obligations of the Xxxx Group and its members (other than Handy, FPH
Trustee, MelChart and their affiliates) hereunder shall be joint and several.
All of the obligations of Handy, FPH Trustee, MelChart and their affiliates
hereunder shall be several and not joint. Each member of the Xxxx Group that
shall become or have the right to become the beneficial owner, within the
meaning and scope of Section 3.1 hereof, of Company Voting Securities shall,
promptly upon becoming such owner or holder, execute and deliver to the Company
a joinder agreement, agreeing to be legally bound by this Agreement to the same
extent as if it had signed this Agreement as an original signatory as a member
of the Xxxx Group; PROVIDED that failure to execute such an agreement shall not
excuse such member's non-compliance with any provision of this Agreement. No
member of the Xxxx Group shall transfer securities to another member of the Xxxx
Group unless the transferee shall agree to be bound by this Agreement in the
manner specified above in this Section 9.2.
9.3 NOTICES. All notices, consents, requests, instructions,
approvals and other communications provided for herein and all legal process in
regard hereto shall be in writing and
18
shall be decreed to be validly given, made or served when delivered
personally or deposited in the U.S. mail, postage prepaid, for delivery by
express, registered or certified mail, or delivered to a recognized overnight
courier service, addressed as follows:
If to the Company:
Chart House Enterprises, Inc.
000 Xxxxx XxXxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Chief Executive Officer
With a copy to:
Seyfarth, Shaw, Xxxxxxxxxxx & Xxxxxxxxx
00 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
If to any Stockholder or any member of the Xxxx Group:
Samstock, L.L.C.
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: F. Xxxxxx Xxxxx
With a copy to:
Xxxxxxxxx & Xxxxxxxxxxx
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
or to such other address as may be specified in a notice given pursuant to this
Section 9.3.
9.4 SEVERABILITY. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions shall remain in full force and effect
19
and shall in no way be affected, impaired or invalidated. The parties hereto
agree that they will use their best efforts at all times to support and
defend this Agreement.
9.5 AMENDMENTS. This Agreement may be amended only by an
agreement in writing signed by each of the parties hereto; PROVIDED, HOWEVER,
that any amendment executed by the Company must prior thereto be approved by a
majority of the Disinterested Directors then in office.
9.6 DESCRIPTIVE HEADINGS. Descriptive headings are for
convenience only and shall not control or affect the meaning or construction of
any provision of this Agreement.
9.7 COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement shall
become binding when one or more counterparts hereof, individually or taken
together, bears the signatures of each of the parties hereto. This Agreement
may be executed in any number of counterparts, each of which shall be an
original as against the party whose signature appears thereon, or on whose
behalf such counterpart is executed, but all of which taken together shall be
one and the same agreement. A facsimile copy of a signature of a party to this
Agreement or any such counterpart shall be fully effective as if an original
signature.
9.8 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the successors and assigns of
the parties hereto.
20
IN WITNESS WHEREOF, the parties hereto intending to be legally bound
have duly executed this Agreement, all as of the day and year first above
written.
Company: CHART HOUSE ENTERPRISES, INC.
By:
---------------------------------------------
Name:
Title:
CHI: EGI-CHART HOUSE INVESTORS, LLC, by ALPHABET PARTNERS,
its managing member, by a general partners
By:
---------------------------------------------
Name:
Title:
Samstock: SAMSTOCK, L.L.C., by SZ INVESTMENTS, L.L.C.,
its sole member, by XXXX GENERAL PARTNERSHIP,
INC., its sole member
By:
---------------------------------------------
Name:
Title:
ZFT: SAMSTOCK/ZFT, L.L.C., by ZFT PARTNERSHIP, its sole
member, by a general partner
By:
---------------------------------------------
Name:
Title:
21
Handy:
---------------------------------------------
F. Xxxxxx Xxxxx, individually
FPH Trustee:
---------------------------------------------
F. Xxxxxx Xxxxx, as Trustee of the Xxxxxx Trust
MelChart: MELCHART, LLC
By:
---------------------------------------------
Xxxxxxx Xxxxxx, manager, by Xxxxxxx X. Xxx
under Power of Attorney
Alpha: ALPHA/ZFT PARTNERSHIP, by a general partner
of one of its general partners, solely for purposes of
Section 3.2 hereof
By:
---------------------------------------------
Name:
Title:
22
EXHIBIT A
OWNERSHIP OF COMMON STOCK
As of the date of the Second Amended and Restated Standstill Agreement,
3,331,677 of the 3,400,000 shares of Common Stock of Chart House Enterprises,
Inc. (the "Company") originally acquired by EGI-Chart House Investors, LLC
(f/k/a Chart House Investors, LLC) from the Company pursuant to that certain
Stock Purchase and Sale Agreement dated as of March 10, 1997, and subsequently
acquired, directly or indirectly, by sale, distribution, contribution or
otherwise by other Stockholders, are held by the Stockholders as follows:
STOCKHOLDER NUMBER OF SHARES HELD
Samstock, L.L.C. 1,891,522
Samstock/ZFT, L.L.C. 705,808
EGI-Chart House Investors, LLC 428,591
F. Xxxxxx Xxxxx, as Trustee
of the Xxxxxx Trust 103,539
MelChart LLC 202,217(1)
------------ ----------
Total 3,331,677
(1) In addition, Xxxxxxx Xxxxxx as trustee of the Xxxxxxx Xxxxxx Revocable
Trust U/T/A dated January 16, 1982, as amended, acquired 43,478 shares of
Common Stock from Samstock on or about June 30, 1998, which shares are not
subject to this agreement.
23
