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EXHIBIT 1.1
DISTRIBUTION AND CONTRIBUTION AGREEMENT
THIS DISTRIBUTION AND CONTRIBUTION AGREEMENT (this "Agreement") is
made and entered into as of October 1, 1997, by and among Chart House
Investors, L.L.C., a Delaware limited liability company ("CHI"), Alphabet
Partners, an Illinois general partnership ("Alphabet"), ZFT Partnership, an
Illinois general partnership ("ZFT"), HHS Partnership, a Florida general
partnership ("HHS"), SZ Investments, L.L.C., a Delaware limited liability
company ("SZI"), Samstock, L.L.C., a Delaware limited liability company
("Samstock"), and Samstock/ZFT, a Delaware limited liability company
("Samstock/ZFT").
R E C I T A L S
WHEREAS, reference is hereby made to that certain Stock Purchase and
Sale Agreement, dated as of March 10, 1997, among Chart House Enterprises,
Inc., a Delaware corporation (the "Company"), CHI and, solely for purposes of
Section 4.13 of the Purchase Agreement, Alpha Partnership, an Illinois general
partnership, pursuant to which CHI purchased an aggregate of 3,400,000 newly
issued shares of common stock of the Company, par value $.01 per share (such
3,400,000 shares of common stock thereby acquired by CHI, the "CHI Shares");
WHEREAS, immediately prior to the consummation of the transactions
contemplated by this Agreement, Alphabet, ZFT and HHS held respectively
48.112%, 48.112% and 3.776% of the economic interests in CHI;
WHEREAS, CHI desires to distribute to Alphabet, and Alphabet desires
to receive from CHI, 930,000 CHI Shares held by CHI; Alphabet desires to
contribute to SZI, and SZI desires to receive from Alphabet, all of said
930,000 CHI Shares; and SZI desires to contribute to Samstock, and Samstock
desires to receive from SZI, all of said 930,000 CHI Shares;
WHEREAS, CHI desires to distribute to ZFT, and ZFT desires to receive
from CHI, 1,635,808 CHI Shares held by CHI, in full redemption of ZFT's entire
economic and other interests in CHI; ZFT desires to contribute to SZI, and SZI
desires to receive from ZFT, 930,000 of said 1,635,808 CHI Shares; SZI desires
to contribute to Samstock, and Samstock desires to receive from SZI, all of
said 930,000 CHI Shares; and ZFT desires to contribute to Samstock/ZFT, and
Samstock/ZFT desires to receive from ZFT, the remaining 705,808 CHI Shares
distributed by CHI to ZFT and not contributed by ZFT to SZI;
WHEREAS, CHI desires to distribute to HHS, and HHS desires to receive
from CHI, 128,384 CHI Shares held by CHI, in full redemption of HHS's entire
economic and other interests in CHI; and HHS desires to distribute all of said
128,384 CHI Shares to its partners and to direct CHI to instruct the Company's
stock transfer agent to issue new stock certificates representing said 128,384
CHI Shares directly to HHS's partners; and
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WHEREAS, CHI, Samstock, Samstock/ZFT and HHS's partners
contemporaneously herewith have entered into (i) an 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
"Amended and Restated Standstill Agreement"), and (ii) a Stockholders'
Agreement dated as of the date hereof (as such agreement may be amended,
modified, supplemented, restated or superseded, from time to time, the
"Stockholders' Agreement");
NOW, THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. Distributions and Contributions of CHI Shares. The parties
do hereby distribute, contribute and/or accept CHI Shares as follows and in the
following order:
(a) CHI distributes to Alphabet, and Alphabet accepts from CHI,
930,000 CHI Shares held by CHI;
(b) CHI distributes to ZFT, and ZFT accepts from CHI, 1,635,808
CHI Shares held by CHI, in full redemption of ZFT's entire economic and other
interests in CHI;
(c) CHI distributes to HHS, and HHS accepts from CHI, 128,384 CHI
Shares held by CHI, in full redemption of HHS's entire economic and other
interests in CHI;
(d) Alphabet contributes to SZI, and SZI accepts from Alphabet,
930,000 CHI Shares;
(e) SZI contributes to Samstock, and Samstock accepts from SZI,
930,000 CHI Shares;
(f) ZFT contributes to SZI, and SZI accepts from ZFT, 930,000 CHI
Shares;
(g) SZI contributes to Samstock, and Samstock accepts from SZI,
930,000 CHI Shares;
(h) ZFT contributes to Samstock/ZFT, and Samstock/ZFT accepts from
ZFT, 705,808 CHI Shares; and
(i) HHS distributes to its partners (A) F. Xxxxxx Xxxxx, as
trustee of the Xxxxxx Trust, (B) Xxxxxx Xxxxxxxx, and (C) Xxxxxx Xxxxxxx and
Xxxxx Xxxxxxx, as tenants by the entirety, respectively, 103,539, 4,137 and
20,708 CHI Shares;
such that immediately after the consummation of all of the transactions
contemplated by this Section 1, all of the CHI Shares distributed and/or
contributed as described herein shall be held as follows:
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Holder Number of CHI Shares
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Samstock, L.L.C. 1,860,000
Samstock/ZFT, L.L.C. 705,808
F. Xxxxxx Xxxxx, as Trustee
of the Xxxxxx Trust 103,539
Xxxxxx Xxxxxxxx 4,137
Xxxxxx Xxxxxxx and Xxxxx Xxxxxxx,
as tenants by the entirety 20,708
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Total 2,694,192
2. Stock Certificates. The parties agree that promptly upon the
execution and delivery of this Agreement, CHI shall direct the Company's stock
transfer agent to issue stock certificates directly to the holders identified
in the chart in Section 1 above representing the number of CHI Shares set forth
opposite such holders' names in such chart.
3. Legend. The parties agree to the placing on certificates
representing CHI Shares of a legend, in substantially the following form:
"The securities evidenced by this certificate have not
been registered under the Securities Act of 1933, as amended
(the "ACT") or applicable state securities laws and may not be
sold, transferred, assigned, offered, pledged or otherwise
disposed of unless (i) there is an effective registration
statement under such Act and such laws covering such securities
or (ii) such sale, transfer, assignment, offer, pledge or other
disposition is exempt form the registration and prospectus
delivery requirements of the Securities Act and such laws. The
securities evidenced by this certificate are subject to the
restrictions contained in the Amended and Restated Standstill
Agreement dated as of October 1, 1997, and the Stockholders'
Agreement dated as of October 1, 1997, in each case, to which
the Company is a party, as amended, supplemented or otherwise
modified from time to time, and may not be transferred except
in compliance therewith."
5. Miscellaneous. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois, without giving
effect to conflict of law principles. If any provision of this Agreement is
held invalid, the remainder of this Agreement shall not be affected thereby.
This Agreement, together with the Amended and Restated Standstill Agreement and
the Stockholders' Agreement, sets forth the entire agreement of the parties,
with respect to the subject matter hereof, and no waivers, modifications or
amendments shall be effective unless the same are in writing signed by the
party to be charged. This Agreement may be executed in counterparts, each of
which when so executed shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
CHART HOUSE INVESTORS, L.L.C., by
ALPHABET PARTNERS, its managing
member, by a general partner
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name/Title: Xxxxxx X. Xxxxxxxxx, Trustee
ALPHABET PARTNERS, by a general partner
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name/Title: Xxxxxx X. Xxxxxxxxx, Trustee
ZFT PARTNERSHIP, by a general partner
By: /s/ Xxxxx X. Xxxxxxxxx
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Name/Title: Xxxxx X. Xxxxxxxxx, Trustee
HHS PARTNERSHIP
By: /s/ F. Xxxxxx Xxxxx
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Name/Title: F. Xxxxxx Xxxxx, a general partner
SZ INVESTMENTS, L.L.C., BY XXXX GENERAL
PARTNERSHIP, INC., its managing member
By: /s/ Xxxxx X. Xxxxxxxxx
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Name/Title: Xxxxx X. Xxxxxxxxx, Vice President
SAMSTOCK, L.L.C., by SZ INVESTMENTS,
L.L.C., its sole member, by XXXX
GENERAL PARTNERSHIP, INC., its sole member
By: /s/ Xxxxx X. Xxxxxxxxx
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Name/Title: Xxxxx X. Xxxxxxxxx, Vice President
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SAMSTOCK/ZFT, L.L.C., by ZFT PARTNERSHIP,
its sole member, by a general partner
By: /s/ Xxxxx X. Xxxxxxxxx
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Name/Title: Xxxxx X. Xxxxxxxxx, Trustee
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