AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
This AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT ("Agreement") is
executed as of March , 1999, by and among Samstock, L.L.C., a Delaware
limited liability company ("Samstock"), Samstock/ZFT, L.L.C., a Delaware
limited liability company ("ZFT"), EGI-Chart House Investors, L.L.C., a
Delaware limited liability company, f/k/a Chart House Investors, L.L.C.
("CHI"), 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 individually a
"Stockholder" and collectively the "Stockholders") (each of Samstock, ZFT and
CHI, individually an "SZ Affiliate" and collectively the "SZ Affiliates")
(each of Handy and FPH Trustee individually a "Handy Affiliate" and
collectively the "Handy Affiliates") and, solely for purposes of Sections 1,
2(g), 2(h), 3, 4(a) and 10 through 19 inclusive of this Agreement, Chart
House Enterprises, Inc., a Delaware corporation (the "Company").
R E C I T A L S
WHEREAS, reference is hereby made to (i) that certain Stock Purchase and
Sale Agreement, dated as of March 10, 1997, (the "Purchase Agreement") among
the Company, CHI and, solely for purposes of Section 4.13 of the Purchase
Agreement, Alpha/ZFT Partnership, an Illinois general partnership
("Alpha/ZFT"), pursuant to which CHI purchased an aggregate of 3,400,000
newly issued shares of common stock ("Common Stock") of the Company, par
value $.01 per share (such 3,400,000 shares of Common Stock, the "Original
CHI Shares"); (ii) that certain Stockholders' Agreement, dated as of October
1, 1997, among the parties hereto, together with certain other parties( such
other parties, collectively, the "Withdrawing Parties") (the "Original
Stockholders' Agreement"); and (iii) that certain Amended and Restated
Standstill Agreement, dated as of October 1, 1997, among the parties hereto,
the Withdrawing Parties and Alpha/ZFT (the "First Amended Standstill
Agreement"). Certain capitalized terms used and not otherwise defined herein
have the meanings ascribed to them in Section 9 below;
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, the parties hereto together with the Withdrawing Parties and
Alpha/ZFT have entered into a Consent to Termination dated as of the date
hereof ("Consent") evidencing the termination of the First Amended Standstill
Agreement and the Original Stockholders' Agreement as to the Withdrawing
Parties;
WHEREAS, as a result of (i) the termination of the Withdrawing Parties;
(ii) that certain purchase by Samstock of 75,000 Original CHI Shares owned by
one of the Withdrawing Parties on or about April 17, 1998; and (iii) that
certain sale by Samstock of 43,478 Original CHI Shares to Xx. Xxxxxxx Xxxxxx
as trustee of the Xxxxxxx Xxxxxx Revocable Trust U/T/A dated January 16,
1982, as amended ("Melman"), on or about June 30, 1998, the number of
Original CHI Shares has been reduced to 3,331,677 (the "CHI Shares");
WHEREAS, ZFT, Handy, FPH Trustee and MelChart have acquired from CHI or
its Affiliates, directly or indirectly, that number of CHI Shares, or options
to purchase CHI Shares, set forth opposite such Stockholder's name on EXHIBIT
A hereto;
WHEREAS, contemporaneously herewith the parties hereto and Alpha/ZFT
have entered into a Second Amended and Restated Standstill Agreement dated as
of the date hereof
(as such agreement may be amended, modified, supplemented, restated or
superseded, from time to time, the "Second Amended Standstill Agreement"),
which Second Amended Standstill Agreement amends, restates and supersedes the
First Amended Standstill Agreement in its entirety;
WHEREAS, all of the rights, benefits and remedies to which any
Stockholder may be entitled under the Purchase Agreement, the Second Amended
Standstill Agreement, the Company's Certificate of Incorporation, the
Company's By-laws, all of the other agreements, documents and instruments
entered into or delivered in connection with such agreements or the
consummation of the transactions contemplated thereby, excluding this
Agreement (collectively, the "Transaction Documents"), or by operation of law
with respect to the CHI Shares, whether now owned or hereafter acquired,
other than any rights, benefits or remedies conferred by this Agreement, are
hereinafter collectively referred to as "Stock Rights," and all of the
obligations, restrictions and liabilities to which any Stockholder may be
subject pursuant to the Transaction Documents or by operation of law with
respect to the CHI Shares, whether now owned or hereafter acquired, other
than any obligations, restrictions or liabilities created by this Agreement,
are hereinafter collectively referred to as "Stock Obligations"; and
WHEREAS, the parties hereto are entering into this Agreement to restate
the terms of the relationships between them which continue to exist
notwithstanding the termination of the Original Stockholders' Agreement as to
the Withdrawing Parties, and intend for this Agreement to amend, restate and
supersede the Original Stockholders' Agreement in its entirety solely with
respect to the parties hereto;
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
Section 1. ASSIGNMENT OF PURCHASE AGREEMENT. The rights, interests,
remedies and obligations of CHI under the Purchase Agreement hereby are
assigned to, inure to the benefit of and are assumed by the SZ Affiliates on
a PRO RATA basis based on their respective relative ownership of CHI Shares
from time to time as of October 1, 1997; provided, however, in no event shall
such PRO RATA assignment in any way diminish the aggregate rights, interests
and remedies of the SZ Affiliates under the Purchase Agreement, as compared
to the rights, interests and remedies to which CHI would be entitled under
the Purchase Agreement if not for such assignment. The assumption by the SZ
Affiliates of any obligations or liabilities of CHI under the Purchase
Agreement shall not expand the rights or remedies of the Company or any third
party against the SZ Affiliates as compared to the rights and remedies which
the Company or such third party would have against CHI had the SZ Affiliates
not assumed any obligations or liabilities of CHI under the Purchase
Agreement. The Company hereby consents to the assignment and assumption
provided in this Section 1.
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Section 2. VOTING OF CHI SHARES / EXERCISE OF STOCK RIGHTS / RELATED
MATTERS.
(a) Each Stockholder does hereby constitute and appoint Samstock its
true and lawful attorney and proxy during the period that this Agreement
remains in force, to appear for, represent, and vote all CHI Shares held
by such Stockholder, whether now owned or hereafter acquired, for such
Stockholder at all meetings of the stockholders of the Company, with power
to vote upon any and all questions which may arise at any such meeting or
meetings, as fully and with the same effect as if such Stockholder had
voted such CHI Shares, subject, however, to the voting restrictions
contained in the Second Amended Standstill Agreement.
(b) Samstock may vote on behalf of each Stockholder in person or by
proxy, and, promptly upon request from Samstock, from time to time, each
Stockholder shall execute and deliver to Samstock a separate written proxy
conferring upon Samstock, or such other person as Samstock may designate,
the full, irrevocable authority to vote all of such Stockholder's CHI
Shares, whether now owned or hereafter acquired, at any specified meeting
of the stockholders of the Company, subject, however, to the voting
restrictions contained in the Second Amended Standstill Agreement.
(c) Irrespective of the grant of the proxies referred to in
subparagraphs (a) and (b) above, in each event where any Stockholder is
entitled to vote any CHI Shares, if and when requested by Samstock, such
Stockholder shall vote all of the CHI Shares, whether now owned or
hereafter acquired, held by such Stockholder which such Stockholder is
entitled to vote as directed by Samstock, subject, however, to the voting
restrictions contained in the Second Amended Standstill Agreement.
(d) No Stockholder shall exercise any Stock Rights or fulfill any
Stock Obligations (including, without limitation, with respect to (i)
selecting Company directors pursuant to Section 4 of the Second Amended
Standstill Agreement or otherwise, (ii) exercising any registration rights
under Section 5 of the Second Amended Standstill Agreement, (iii) voting of
any CHI Shares, (iv) exercising any remedial rights under Section 8 of the
Second Amended Standstill Agreement, (v) exercising any rights with respect
to CHI Shares whether under the Transaction Documents or arising by
operation of law, and (vi) amending, modifying, extending, terminating,
exercising or waiving any rights or remedies arising under the Transaction
Documents, as the same may be amended from time to time, or otherwise
arising by operation of law), except through Samstock as such Stockholder's
representative as directed or permitted by Samstock. Samstock shall act as
each Stockholder's sole representative with respect to the exercise of any
Stock Rights or the fulfillment of any Stock Obligations, and each
Stockholder hereby instructs the Company to take all directions regarding
the exercise of any Stock Rights or the fulfillment of any Stock
Obligations by such Stockholder only from Samstock.
(e) In the event of any exercise of Stock Rights or the fulfillment
of any Stock Obligations in accordance with this Section 2, each
Stockholder shall execute and deliver such agreements, documents or
instruments and shall do such other acts or things as Samstock may
reasonably request in connection with such exercise or fulfillment.
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(f) Each of the Stockholders hereby agrees that: (i) Samstock may
appoint any Affiliate of Samstock to act on Samstock's behalf or as
Samstock's successor under this Section 2 with the same power and authority
conferred on Samstock; and (ii) all power and authority conferred on
Samstock by this Section 2 is coupled with an interest and is irrevocable
and, to the extent not prohibited by law, shall not be terminated by any
act of any Stockholder or by operation of law or by the occurrence of any
event whatsoever, including without limitation, the death, incapacity,
dissolution, liquidation, termination, bankruptcy, dissolution of marital
relationship or insolvency of any Stockholder (including, without,
limitation, Samstock) or any similar event.
(g) Each Stockholder and the Company acknowledge that the Company
shall be entitled to rely conclusively on any written direction or
instruction received from Samstock regarding any exercise of Stock Rights,
fulfillment of Stock Obligations or any other matters referred to in this
Section 2 as they relate to any Stockholder. The Company agrees that it
will not recognize any purported exercise of Stock Rights, fulfillment of
Stock Obligations or any other act, matter or thing referred to in this
Section 2 as they relate to any Stockholder, except pursuant to written
direction or instruction received from Samstock.
(h) Notwithstanding anything to the contrary in this Agreement,
neither MelChart nor any Permitted Transferee of MelChart shall be entitled
to exercise any right, satisfy any obligation or otherwise take any action
or do anything under this Agreement, except through Melman (or Melman's
duly appointed representative, in the event of Melman's death or
incapacity), as such party's exclusive representative. MelChart and each
Permitted Transferee of MelChart acknowledge that each Stockholder and the
Company shall be entitled to rely conclusively on any written direction or
instruction received from Melman (or Melman's duly appointed
representative, in the event of Melman's death or incapacity) regarding the
exercise of any right, the satisfaction of any obligation or the taking of
any other action under this Agreement by MelChart or any Permitted
Transferee of MelChart or any other matters pertaining to this Agreement as
they relate to MelChart or any Permitted Transferee of MelChart. Each
Stockholder and the Company agree that they will not recognize any
purported exercise of any right, satisfaction of any obligation or the
taking of any other action under this Agreement by MelChart or any
Permitted Transferee of MelChart or any other matters pertaining to this
Agreement as they relate to MelChart or any Permitted Transferee of
MelChart, except pursuant to written direction or instruction received from
Melman (or Melman's duly appointed representative, in the event of Melman's
death or incapacity).
Section 3. PRUDENT BUSINESS JUDGMENT/NO LIABILITY. Samstock shall use
prudent business judgment in making decisions or taking actions in accordance
with Section 2 hereof. Notwithstanding the foregoing, whenever pursuant to
this Agreement Samstock is permitted or required to make a decision or to
take any action on behalf of any other Stockholder, Samstock shall be
entitled to make such decision or to take such action in its sole discretion
and to consider such interests and factors as it desires, including its own
interests, and shall have no duty or obligation to give any consideration to
any interest of or factors affecting any other Stockholder or the Company,
regardless of any conflict of interest which may exist or arise between
Samstock and any other Stockholder or the Company. In any event, neither
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Samstock nor any officer, member, manager, representative, agent or Affiliate
of Samstock shall have any liability or obligation whatsoever to any
Stockholder or the Company deriving from or resulting in connection with any
such decision or action.
Section 4. RESTRICTIONS ON TRANSFER AND PURCHASE / PERMITTED TRANSFEREES.
(a) No Stockholder shall Transfer any CHI Shares except for a Transfer
to a Permitted Transferee pursuant to Section 4(b) or a Transfer in
compliance with Section 5, 6, 7 or 8, as applicable. If any Transfer is made
or attempted contrary to the provisions of this Agreement, such purported
Transfer shall be void AB INITIO; and both the Stockholders not involved in
such purported Transfer and the Company shall refuse to recognize any such
purported transferee of CHI Shares as a holder of CHI Shares for any purpose.
Notwithstanding the foregoing, any SZ Affiliate may Transfer CHI Shares to
another Stockholder or another Person (subject to Section 7 and 8 hereof),
provided in the event of a Transfer to a person other than a Stockholder,
such Person concurrently with the Transfer executes a joinder to this
Agreement, agreeing to be bound by all of the terms and conditions of this
Agreement as if such Person were a Stockholder hereunder.
(b) Notwithstanding anything to the contrary in Section 4(a) hereof,
for purposes of this Agreement, a Stockholder may Transfer CHI Shares to a
Permitted Transferee of such Stockholder without complying with the
provisions of Sections 5, 6, or 7. As a condition to the effectiveness of
any Transfer of CHI Shares to a Permitted Transferee, the Permitted
Transferee shall execute a counterpart to this Agreement, whereupon the
Permitted Transferee shall hold CHI Shares subject to all of the provisions
of this Agreement, as if the Stockholder who Transferred the CHI Shares to
the Permitted Transferee were the holder of the CHI Shares actually held by
the Permitted Transferee. Notwithstanding anything to the contrary in this
Agreement: (i) all rights and benefits originally granted to the Stockholders
under this Agreement shall remain with each of them (or such Stockholder's
duly appointed representative, in the event of such Stockholder's death or
incapacity), and shall not be assigned or transferred to their Permitted
Transferees, notwithstanding any Transfer of CHI Shares by them to their
Permitted Transferees, as if the Stockholders who Transferred CHI Shares to
their Permitted Transferee were the holders of the CHI Shares actually held
by their Permitted Transferee; and (ii) no Permitted Transferee shall be
entitled to exercise any right, satisfy any obligation or otherwise take any
action or do anything under this Agreement, except through the Stockholder
who Transferred CHI Shares to its Permitted Transferee (or such Stockholder's
duly appointed representative, in the event of such Stockholder's death or
incapacity), as the representative for all of such party's Permitted
Transferees.
Section 5. RIGHT OF FIRST OFFER ON PRIVATE TRANSFER. In the event that
any Stockholder other than an SZ Affiliate (the "Selling Stockholder") wishes
to sell for cash in a bona fide transaction with an independent third party
all or any portion of the CHI Shares now owned or hereafter acquired by the
Selling Stockholder, other than in a Public Sale, the Selling Stockholder
shall first notify the other Stockholders (the "Non-Selling Stockholders") in
writing of the number of CHI Shares for sale by the Selling Stockholder (the
"Offered CHI Shares") and the proposed price and other terms of sale. The
Non-Selling Stockholders thereupon shall have the right to purchase all (but
not less than all) of the Offered CHI Shares at the proposed price in cash
and on the other proposed terms of sale. In order to exercise their purchase
rights, within thirty (30) days after receiving written notice from the
Selling Stockholder, each of the Non-Selling Stockholders shall deliver to
the Selling Stockholder a written election to purchase so many of the Offered
CHI Shares as each may desire to purchase. If the total number of Offered
CHI Shares that all Non-Selling Stockholders desire to purchase exceeds the
number of available Offered CHI Shares subject to purchase by them, each such
Non-Selling Stockholder who elects to purchase Offered CHI Shares shall have
the right to purchase
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that portion of the available Offered CHI Shares that the ratio of the number
of CHI Shares owned by such Non-Selling Stockholder bears to the number of
CHI Shares owned by all Non-Selling Stockholders who elect to purchase
Offered CHI Shares or in such other proportions agreed upon by all such
Non-Selling Stockholders. If the Non-Selling Stockholders together do not
exercise their purchase rights with respect to all (and not less than all) of
the Offered CHI Shares within the time period as provided herein with respect
to all of the Offered CHI Shares, the Selling Stockholder shall be free for a
period of sixty (60) days thereafter to complete a sale of the Offered CHI
Shares to any Person at or above the price in cash and on substantially the
same other terms as set forth in the Selling Stockholder's notice of intended
sale. If such a sale is not consummated within such sixty (60) day period by
the Selling Stockholder, the Offered CHI Shares shall again be subject to a
right of first offer by the Non-Selling Stockholders under the provisions of
this Section 5. Except as provided herein, the Selling Stockholder shall be
bound by the restrictions and limitations imposed by this Agreement after any
notice of a desire to sell is given and whether or not any such sale actually
occurs. As a condition precedent to the effectiveness of any Transfer of the
Offered CHI Shares to any Person that is not a party to this Agreement, such
transferee shall execute a counterpart to this Agreement and, thereupon,
shall be included as a "Stockholder" pursuant to the terms hereof.
Section 6. RIGHT OF FIRST OFFER ON PUBLIC SALE. In the event that any
Stockholder other than any SZ Affiliate (the "Selling Stockholder") wishes to
sell for cash in a bona fide transaction all or any portion of the CHI Shares
now owned or hereafter acquired by the Selling Stockholder through a Public
Sale, the Selling Stockholder shall first notify the other Stockholders (the
"Non-Selling Stockholders") in writing (the "Notice of Intended Sale") of the
number of CHI Shares for sale by the Selling Stockholder (the "Offered CHI
Shares"). The Non-Selling Stockholders thereupon shall have the right to
purchase all or any part of the Offered CHI Shares for cash at their Market
Price. In order to exercise their purchase rights, within five (5) business
days after receiving the Notice of Intended Sale from the Selling
Stockholder, each of the Non-Selling Stockholders shall deliver to the
Selling Stockholder a written election to purchase so many of the Offered CHI
Shares as each may desire to purchase. If the total number of Offered CHI
Shares that all Non-Selling Stockholders desire to purchase exceeds the
number of available Offered CHI Shares subject to purchase by them, each such
Non-Selling Stockholder who elects to purchase Offered CHI Shares shall have
the right to purchase that portion of the available Offered CHI Shares that
the ratio of the number of CHI Shares owned by such Non-Selling Stockholder
bears to the number of CHI Shares owned by all Non-Selling Stockholders who
elect to purchase Offered CHI Shares or in such other proportions agreed upon
by all such Non-Selling Stockholders. If the Non-Selling Stockholders
together do not exercise their purchase rights with respect to all of the
Offered CHI Shares within the time period as provided herein, the Selling
Stockholder shall be free for a period of ten (10) days thereafter to
complete a Public Sale of that number of Offered CHI Shares with respect to
which the Non-Selling Stockholders failed to exercise their purchase rights.
If such Public Sale is not consummated within such ten (10) day period by the
Selling Stockholder, the Offered CHI Shares shall again be subject to a right
of first offer by the Non-Selling Stockholders under the provisions of this
Section 6. Except as provided herein, the Selling Stockholder shall be bound
by the restrictions and limitations imposed by this Agreement after the
Notice of Intended Sale is given and whether or not any such sale actually
occurs.
Section 7. CO-SALE RIGHTS. In the event that one or more SZ Affiliates
or Handy Affiliates (the "Selling Stockholders") enter into an agreement to
sell to any purchaser or group of purchasers (other than any other SZ
Affiliate, Handy Affiliate or any of their Affiliates), in a
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single transaction or related series of transactions, other than a Public
Sale, such number of CHI Shares as equals or exceeds more than twenty percent
(20%) of the CHI Shares held by the SZ Affiliates and the Handy Affiliates in
the aggregate, the Selling Stockholders shall first notify the other
Stockholders (the "Tag-Along Stockholders") in writing, of the identity of
the proposed purchaser(s), the number of CHI Shares proposed to be sold and
the proposed purchase price and terms of sale. The Tag-Along Stockholders
thereupon shall have the right to participate in the proposed sale at the
same net price per share and other terms of sale as offered to the Selling
Stockholders. In order to exercise their co-sale rights, the Tag-Along
Stockholders, within ten (10) days after receiving notice from the Selling
Stockholders, shall deliver to the Selling Stockholders a written election to
participate in the sale to the extent allowed by this Section 7. If any
Tag-Along Stockholders have elected to participate in the proposed sale, each
participating Tag-Along Stockholder shall be entitled to sell in the proposed
sale a number of CHI Shares equal to the product of (i) the quotient (the
"Co-Sale Fraction") determined by dividing the percentage of CHI Shares owned
by such participating Tag-Along Stockholder by the aggregate percentage of
CHI Shares owned by the Selling Stockholders and the participating Tag-Along
Stockholders, multiplied by (ii) the total number of CHI Shares to be sold in
the proposed sale. Notwithstanding anything to the contrary in this Section
7, the sale proceeds to which any Tag-Along Stockholder would otherwise be
entitled by reason of its participation in a sale pursuant to this Section 7
shall be reduced by an amount equal to the product of such Tag-Along
Stockholder's Co-Sale Fraction multiplied by the sum of any costs, fees and
expenses, including, without limitation, attorneys', accountants' and
investment bankers' fees and expenses, incurred by the Selling Stockholders
in connection with the sale or the exercise of the Tag-Along Stockholders'
rights under this Section 7. The participating Tag-Along Stockholders shall,
as promptly as practicable and as a condition to their participation, enter
into such agreements as shall be reasonably requested by the Selling
Stockholders for the sale of their CHI Shares in the proposed sale.
Section 8. DRAG-ALONG RIGHTS. Subject to Section 5 and Section 6, if
Stockholders owning more than fifty percent (50%) of the CHI Shares then held
by all Stockholders ("Control Group") enter into an agreement (including an
agreement in principle) to sell all of their CHI Shares to any purchaser or
group of purchasers (other than any Permitted Transferees or any then
existing Stockholders), in a single arms-length transaction or related series
of arms-length transactions, such Control Group may require that the other
Stockholders (the "Other Stockholders") sell all of their CHI Shares to such
purchaser or group of purchasers at a net price and on terms and conditions
the same as those on which the Control Group has agreed to sell their CHI
Shares. The Control Group shall give prompt notice to the Other Stockholders
that such Control Group has entered into an agreement of the type described
in this Section 8, and the Other Stockholders shall, as promptly as
practicable, enter into such agreements as shall be reasonably requested by
the Control Group for the sale of all the CHI Shares in the proposed sale.
Notwithstanding anything to the contrary in this Section 8, the sale proceeds
to which any of the Other Stockholders would otherwise be entitled by reason
of its participation in a sale pursuant to this Section 8 shall be reduced by
an amount equal to the product of (i) the percentage of CHI Shares to be sold
in the proposed sale owned by such Other Stockholder, multiplied by (ii) the
sum of any costs, fees and expenses, including, without limitation,
attorneys', accountants' and investment bankers' fees and expenses, incurred
by the Control Group in connection with the sale or the exercise of the
Control Group's rights under this Section 8.
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Section 9. CERTAIN DEFINITIONS.
"AFFILIATE" means, with respect to a specified Person, any Person that
directly or indirectly controls, is controlled by, or is under common control
with, the specified Person; "CONTROL" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through ownership of voting securities, by
contract or otherwise.
"HANDY FAMILY ENTITY" means any corporation, partnership, limited
liability company or trust wholly controlled by Handy and wholly owned
beneficially and of record by Handy and Handy's wife, children, grandchildren
and/or parents or a trust established for their benefit, provided such trust
is wholly controlled by Handy.
"MARKET PRICE" means the closing price of the Common Stock on the New
York Stock Exchange (or, if not trading on the New York Stock Exchange, such
other securities exchange or over the counter market on which the Company's
Common Stock is then trading) on the last trading day immediately prior to
the date of Samstock's receipt of the Notice of Intended Sale.
"MELMAN CONTROLLED ENTITY" means any corporation, partnership, limited
liability company or trust wholly controlled by Melman and at least in part
owned beneficially and of record by Melman and/or his wife, children,
grandchildren and/or parents or a trust established for their benefit,
provided such trust is wholly controlled by Melman.
"PERMITTED TRANSFEREE" means:
(i) with respect to the Transfer of CHI Shares by any SZ
Affiliate, any SZ Affiliate, any Affiliate of any SZ Affiliate, or any
stockholder, partner or member of any of the foregoing;
(ii) with respect to any Transfer of CHI Shares by Handy or FPH
Trustee, Handy or any Handy Family Entity; and
(iii) with respect to the Transfer of CHI Shares by MelChart, any
Melman Controlled Entity.
"PERSON" means an individual, a corporation, a partnership, a limited
liability company, a joint venture, an association, a joint-stock company, a
trust, a business trust, a government or any agency or any political
subdivision, any unincorporated organization or any other entity.
"PUBLIC SALE" means the sale of CHI Shares either in "broker's transactions"
within the meaning of Section 4(4) of the Securities Act of 1933, as amended,
or in transactions directly with a "market maker" as that term is defined in
Section 3(a)(38) of the Securities Exchange Act of 1934, as amended.
"TRANSFER" means any voluntary or involuntary, direct or indirect,
transfer, sale, assignment, donation, pledge, hypothecation, issuance, grant
of a security interest in or other disposition or attempted disposition of
CHI Shares or any right or interest whatsoever therein, including, without
limitation, by operation of law or otherwise, whether with or without
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consideration or value, and whether for cash, other securities or other property
and specifically including any share for share or similar exchange; provided,
however, that:
(i) any pledge or hypothecation of or grant of security interest
in CHI Shares by any Stockholder which is either approved by Samstock in
writing prior to the pledge, hypothecation or grant of security interest or
is effected by any SZ Affiliate shall not constitute a "Transfer" of CHI
Shares for any purpose under this Agreement; and
(ii) any Transfer effected as a result of a Stockholder's death,
pursuant to the laws of descent and distribution, by operation of law or
otherwise, to such Stockholder's spouse, children, grandchildren and/or
parents or a trust or trusts established for their benefit, shall not
constitute a "Transfer" of CHI Shares for any purpose under this Agreement,
provided each transferee of CHI Shares executes a counterpart to this
Agreement, whereupon such transferee shall hold such CHI Shares subject to
all of the provisions of this Agreement, as if the transferor were the
holder of CHI Shares held by the transferee.
Section 10. 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 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 Xxxxxx, 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 SZ Affiliate:
c/o Equity Group Investments, Inc.
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: F. Xxxxxx Xxxxx
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With a copy to:
Xxxxxxxxx & Xxxxxxxxxxx
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
If to any Handy Affiliate:
F. Xxxxxx Xxxxx
000 Xxxx Xxxxxxxx
Xxxxxx Xxxx, Xxxxxxx 00000
If to MelChart, LLC:
0000 X. Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxx
With a copy to:
Xxxxxxx Xxx, Esq.
000 X. Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
or to such other address as may be specified in a notice given pursuant to this
Section 10.
Section 11. REMEDIES. Any party having rights under this Agreement may
enforce such rights specifically to recover damages caused by reason of any
breach of any provision of this Agreement and to exercise all other rights
granted by law. The parties agree and acknowledge that money damages may not be
an adequate remedy for any breach of the provisions of this Agreement and,
accordingly, in addition to all other remedies available to any party, such
party may in its sole discretion apply to any court of law or equity of
competent jurisdiction for specific performance and/or injunctive relief in
order to enforce, or prevent any violation of, the provisions of this Agreement.
Section 12. ENTIRE AGREEMENT. This Agreement, together with the Purchase
Agreement and the Second Amended Standstill Agreement, constitutes the entire
agreement between the parties with respect to the subject matter hereof and
shall be binding upon and inure to the benefit of the parties hereto and their
respective legal representatives, successors and permitted assigns. Any
amendments, or alternative or supplementary provisions to this Agreement must be
made in writing and duly executed by an authorized representative or agent of
each of the parties hereto.
Section 13. NON-WAIVER. The failure in any one or more instances of a
party to insist upon performance of any of the terms, covenants or conditions of
this Agreement, to exercise any right or privilege in this Agreement conferred,
or the waiver by said party of any breach of any of the terms, covenants or
conditions of this Agreement, shall not be construed as a
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subsequent waiver of any such terms, covenants, conditions, rights or
privileges, but the same shall continue and remain in full force and effect
as if no such forbearance or waiver had occurred. No waiver shall be
effective unless it is in writing and signed by an authorized representative
of the waiving party. A breach of any representation, warranty or covenant
shall not be affected by the fact that a more general or more specific
representation, warranty or covenant was not also breached.
Section 14. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, and all such
counterparts shall constitute but one instrument.
Section 15. SEVERABILITY. The invalidity of any provision of this
Agreement or portion of a provision shall not affect the validity of any
other provision of this Agreement or the remaining portion of the applicable
provision.
Section 16. APPLICABLE LAW. This Agreement shall be governed and
controlled as to validity, enforcement, interpretation, construction, effect
and in all other respects by the internal laws of the State of Illinois
applicable to contracts made in that State.
Section 17. BINDING EFFECT; BENEFIT, NON-CIRCUMVENTION. This Agreement
shall inure to the benefit of and be binding upon the parties hereto, and
their successors and permitted assigns. Nothing in this Agreement, express
or implied, is intended to confer on any person other than the parties
hereto, and their respective successors and permitted assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
No Stockholder shall take any action, alone or in concert with any other
person, to circumvent any of the provisions of this Agreement.
Section 18. ASSIGNABILITY. This Agreement shall not be assignable by
any party without the prior written consent of each of the other parties.
Section 19. HEADINGS. The headings contained in this Agreement are for
convenience of reference only and shall not affect the meaning or
interpretation of this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first above written.
SAMSTOCK, L.L.C.
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
SAMSTOCK/ZFT, L.L.C.
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
EGI-CHART HOUSE INVESTORS, L.L.C.
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
________________________________________________
F. Xxxxxx Xxxxx, individually
________________________________________________
F. Xxxxxx Xxxxx, as trustee of the Xxxxxx Trust
MELCHART, LLC
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
CHART HOUSE ENTERPRISES, INC.
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
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EXHIBIT A
OWNERSHIP OF CHI SHARES
As of the date of the Amended and Restated Stockholders' Agreement, the
remaining 3,331,677 shares of common stock (the "CHI Shares") of Chart House
Enterprises, Inc. (the "Company") out of the 3,400,000 shares of common stock
of the Company originally acquired by EGI-Chart House Investors, L.L.C.,
f/k/a Chart House Investors, L.L.C., 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, contribution,
distribution or otherwise by the other Stockholders are held by the
Stockholders as follows:
Stockholder Number of Options
CHI Shares Held
------------ ---------------- --------
Samstock, L.L.C. 1,891,522
Samstock/ZFT, L.L.C. 705,808
EGI-Chart House Investors, L.L.C. 428,591
F. Xxxxxx Xxxxx, as Trustee 103,539
of the Xxxxxx Trust
F. Xxxxxx Xxxxx, individually - 163,581 (1)
MelChart, LLC 202,217
------------- ----------------
Total 3,331,677
-------------------
(1) Represents options to acquire up to 163,581 CHI Shares held by Chart House
Investors, L.L.C.
