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Exhibit 3.2
SECOND AMENDED AND RESTATED
OPTION AGREEMENT
THIS SECOND AMENDED AND RESTATED OPTION AGREEMENT (this "Agreement"),
dated as of December 10, 1999, 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
Samstock/Alpha, L.L.C., a Delaware limited liability company ("Samstock/Alpha").
W I T N E S S E T H:
WHEREAS, Handy, Alphabet, ZFT and Chart House Investors, L.L.C., a
Delaware limited liability company ("CHI"), have entered into an Amended and
Restated Option Agreement dated as of October 1, 1997 (the "First Amended Option
Agreement"), pursuant to which CHI granted to Handy the option to purchase (the
"First Amended Option") up to 163,581 shares (the "Chart House Shares") of
Common Stock of Chart House Enterprises, Inc., a Delaware corporation ("Chart
House Common Stock");
WHEREAS, in connection with the dissolution of CHI, CHI has
distributed all shares of Chart House Common Stock held by it to its members,
including 198,203 Chart House Shares now held by Samstock/Alpha;
WHEREAS, Handy, Alphabet, ZFT and Samstock/Alpha have agreed that the
First Amended Option granted to Handy pursuant to the First Amended Option
Agreement will apply to the Chart House Shares now held by Samstock/Alpha
referred to above, and would not apply to any other shares of Chart House Common
Stock held by CHI immediately prior to the distribution referred to above; and
WHEREAS, Handy, Alphabet, ZFT and Samstock/Alpha 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) Samstock/Alpha 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 Samstock/Alpha
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 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.
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(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 Samstock/Alpha to Handy of the intention of
Samstock/Alpha to dispose of all or any substantial amount of the Option Shares
then held by Samstock/Alpha. 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 Samstock/Alpha, 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 Samstock/Alpha, on the first business day which is 30
days following notice to Samstock/Alpha 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 Samstock/Alpha.
2. Representations and Warranties of Samstock/Alpha. Samstock/Alpha
hereby represents to Handy as follows:
(a) Samstock/Alpha is a validly existing limited liability company
under the laws of the State of Delaware.
(b) Samstock/Alpha 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 Samstock/Alpha
and has been duly executed and delivered by Samstock/Alpha. This Agreement is
the legal, valid and binding obligation of Samstock/Alpha, enforceable against
Samstock/Alpha in accordance with its terms.
3. Representations and Warranties of Handy. Handy hereby represents
to Samstock/Alpha as follows:
(a) Handy is an "accredited investor" within the meaning of
Regulation D under the Securities Act of 1933, as amended.
(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.
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(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 Samstock/Alpha, to
Samstock/Alpha, L.L.C.
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. 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
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ALPHABET PARTNERS
By: /s/ Xxxxxx X. Xxxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxxx, as vice
president of Chai Trust Company, as
trustee of SZ Xxxxxx Trust, as general
partner of Alphabet Partners
ZFT PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxxx, as vice
president of Chai Trust Company, as
trustee of ZFT Xxxxxx Trust, as
general partner of ZFT Partnership
SAMSTOCK/ALPHA, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxxx, Vice President
