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EXHIBIT 3.1
AMENDED AND RESTATED
OPTION AGREEMENT
THIS AMENDED AND RESTATED OPTION AGREEMENT, dated as of October 1,
1997, by and between F. XXXXXX XXXXX, a resident of the State of Florida
("Handy"), ALPHABET PARTNERS, an Illinois general partnership ("Alphabet"), ZFT
PARTNERSHIP, an Illinois general partnership ("ZFT"), and CHART HOUSE
INVESTORS, LLC, a Delaware limited liability company ("CHI").
W I T N E S S E T H:
WHEREAS, Handy, Alphabet and ZFT have entered into an Option Agreement
dated as of May 12, 1997 (the "Original Option Agreement"), pursuant to which
Alphabet and ZFT granted to Handy the option to purchase 5% of their membership
interests in CHI;
WHEREAS, CHI was formed for the purpose of acquiring shares of common
stock of Chart House Enterprises, Inc., a Delaware corporation (the "Chart
House Shares"), and CHI has acquired 3,400,000 Chart House Shares, of which
certain Chart House Shares have been transferred to other parties and certain
Chart House Shares have been retained by CHI;
WHEREAS, Handy, Alphabet, ZFT and CHI have agreed that the option
granted to Handy pursuant to the Original Option Agreement will apply to the
Chart House Shares retained by CHI; and
WHEREAS, Handy, Alphabet, ZFT and CHI intend for this Agreement to
amend, restate and supersede the Original Option Agreement in its entirety.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties agree
as follows:
1. Option to Purchase Chart House Shares.
(a) CHI hereby grants to Handy the option to purchase
(the "Option") up to 163,581 Chart House Shares (the "Option Shares"). Such
purchases may be made on more than one occasion, provided that CHI shall not be
obligated to sell to Handy (i) less than 32,716 Option Shares on any occasion,
or (ii) more than 163,581 Option Shares in the aggregate.
(b) The purchase price upon an exercise of the Option
shall be equal to the "Price Per Share" (as defined below), multiplied by the
number of Option Shares that Handy is then purchasing upon exercise of the
Option.
(c) Initially, the "Price Per Share" shall be $5.75,
provided that such price shall be increased at the rate of 6% per annum,
compounded annually, for the period which
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shall have elapsed from March 11, 1997 to the date of the respective Closing
(as defined below); and further provided that such price shall be subject to
adjustment as set forth in subsection (d) below.
(d) If at any time the Chart House Shares shall be
subdivided (by any stock split, stock dividend, recapitalization or otherwise)
into a greater number of shares, the Per Share Price in effect immediately
prior to such subdivision will be proportionately reduced and the number of
Option Shares that may be purchased hereunder will be proportionately
increased. If at any time the Chart House Shares shall be combined (by reverse
stock split or otherwise) into a smaller number of shares, the Per Share Price
in effect immediately prior to such combination will be proportionately
increased and the number of Option Shares that may be purchased hereunder will
be proportionately reduced.
(e) The Option shall expire and be of no further force
and effect 30 days after written notice by CHI to Handy of the intention of CHI
to dispose of all or any substantial amount of the Option Shares then held by
CHI. The date of such expiration is hereinafter referred to as the "Expiration
Date."
(f) The Option may be exercised by Handy at any time and
from time to time after the date hereof, and prior to the Expiration Date, by
written notice to CHI, and shall terminate at 5:00 P.M., Chicago time, on the
Expiration Date, after which time exercise of the Option shall be ineffective.
Subject to the foregoing, the closing of a purchase of Option Shares upon
exercise of the Option (the "Closing") shall take place at 10:00 a.m., Chicago
time, at the offices of CHI, on the first business day which is 30 days
following notice to CHI of an exercise of the Option, or at such other time and
place, or on such other date, as the parties may agree. Handy shall pay for
the Option Shares being purchased at the Closing by wire transfer of
immediately available funds to such account or accounts as shall be designated
by CHI.
2. Representations and Warranties of CHI. CHI hereby represents
to Handy as follows:
(a) CHI is a validly existing limited liability company
under the laws of the State of Delaware.
(b) CHI has full power and authority to enter into this
Agreement and to carry out the transactions contemplated hereby. This
Agreement has been duly authorized by all necessary action on the part of CHI
and has been duly executed and delivered by CHI. This Agreement is the legal,
valid and binding obligation of CHI, enforceable against CHI in accordance with
its terms.
3. Representations and Warranties of Handy. Handy hereby
represents to CHI as follows:
(a) Handy is an "accredited investor" within the meaning
of Regulation D under the Securities Act of 1933, as amended.
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(b) Handy has full power and authority to enter into this
Agreement and to carry out the transactions contemplated hereby. This
Agreement has been duly authorized by all necessary action on the part of Handy
and has been duly executed and delivered by Handy. This Agreement is the
legal, valid and binding obligation of Handy, enforceable against Handy in
accordance with its terms.
4. Miscellaneous.
(a) This Agreement may not be modified, amended, altered
or supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto.
(b) All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally or mailed by
registered or certified mail (return receipt requested) to the parties at the
following addresses:
(i) if to Handy, to
Mr. F. Xxxxxx Xxxxx
000 Xxxx Xxxxxxxx
Xxxxxx Xxxx, Xxxxxxx 00000
(for personal delivery)
- or -
Mr. F. Xxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxx Xxxx, Xxxxxxx 00000
(for mail)
(ii) if to CHI, to
Chart House Investors, LLC
Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt.
(c) This Agreement shall be governed by and construed in
accordance with the substantive law of the State of Illinois, without giving
effect to the principles of conflict of laws thereof.
(d) This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
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A facsimile copy of a signature of a party to this Agreement shall be fully
effective as if an original signature.
(e) Neither this Agreement, nor any of the parties'
rights, interests or obligations hereunder, shall be assignable or otherwise
transferable by any party hereto without the prior written consent of the other
parties hereto.
(f) Upon execution of this Amended and Restated Option
Agreement by all of the parties hereto, the Original Option Agreement shall be
amended, restated and superseded in its entirety hereby and shall be of no
continuing force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
/s/ F. Xxxxxx Xxxxx
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F. XXXXXX XXXXX
ALPHABET PARTNERS
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Trustee of a general
partner
ZFT PARTNERSHIP
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Trustee of a general
partner
CHART HOUSE INVESTORS, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Trustee of a general
partner of its
managing member
