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EXHIBIT 2.2
STOCKHOLDERS' AGREEMENT
DATED OCTOBER 1, 1997
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TABLE OF CONTENTS
PAGE NO.
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Section 1. Assignment of Purchase Agreement .............. 2
Section 2. Voting of CHI Shares/Exercise of Stock Rights/
Related Matters ............................... 2
Section 3. Prudent Business Judgment/No Liability ........ 4
Section 4. Restrictions on Transfer and Purchase/
Permitted Transferees ......................... 4
Section 5. Right of First Offer on Private Transfer ...... 5
Section 6. Right of First Offer on Public Sale ........... 6
Section 7. Co-Sale Rights ................................ 6
Section 8. Drag-Along Rights ............................. 7
Section 9. Certain Definitions ........................... 8
Section 10. Notices ....................................... 9
Section 11. Remedies ...................................... 11
Section 12. Entire Agreement .............................. 11
Section 13. Non-Waiver .................................... 11
Section 14. Counterparts .................................. 11
Section 15. Severability .................................. 11
Section 16. Applicable Law ................................ 11
Section 17. Binding Effect; Benefit, Non-circumvention .... 12
Section 18. Assignability ................................. 12
Section 19. Headings ...................................... 12
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STOCKHOLDERS' AGREEMENT
This STOCKHOLDERS' AGREEMENT ("Agreement") is executed as of October 1,
1997, by and among Samstock, L.L.C., a Delaware limited liability company
("Samstock"), Samstock/ZFT, L.L.C., a Delaware limited liability company
("ZFT"), Chart House Investors, L.L.C., a Delaware limited liability company
("CHI"), F. Xxxxxx Xxxxx, individually ("Handy"), F. Xxxxxx Xxxxx, as trustee
of the Xxxxxx Trust ("FPH Trustee"), Xxxxxx Xxxxxxxx ("Xxxxxxxx"), Xxxxxx
Xxxxxxx and Xxxxx Xxxxxxx, as tenants by the entirety (collectively,
"Xxxxxxx"), Xxxxxxx Xxxxxx ("Xxxxxx"), 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").
RECITALS
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 Partnership, an Illinois general partnership ("Alpha"),
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 "CHI Shares"); and (ii) that certain
Standstill Agreement, dated as of March 10, 1997, among the Company, CHI and
Alpha (the "Original 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 by the parties, Samstock, ZFT, Handy, FPH Trustee, Saltsman, Gaffney,
Xxxxxx 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, the parties contemporaneously herewith have entered into 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 "Standstill Agreement"), which Standstill Agreement amends,
restates and supersedes the Original 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 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
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(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 desire that each of the other Stockholders grant
Samstock an irrevocable proxy to vote all CHI Shares now or hereafter held by
such Stockholder and otherwise direct and control all decisions and actions
with respect to the exercise of Stock Rights and fulfillment of Stock
Obligations, on the terms set forth in this Agreement.
AGREEMENT
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; 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.
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 Standstill Agreement.
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(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 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 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 Standstill
Agreement or otherwise, (ii) exercising any registration rights under
Section 5 of the Standstill Agreement, (iii) voting of any CHI Shares,
(iv) exercising any remedial rights under Section 8 of the 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.
(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,
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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 Xx.
Xxxxxxx Xxxxxx ("Xxxxxx") (or Xxxxxx'x 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 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.
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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 pursuant to
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.
(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.
(c) Notwithstanding anything to the contrary in this Agreement, in
order to ensure compliance with Section 3.1 of the Standstill Agreement,
prior to June 30, 2002, no Stockholder, other than any SZ Affiliate or any
Affiliate of any SZ Affiliate, shall, directly or indirectly, acquire,
offer to acquire, agree to acquire, become the beneficial owner of or
obtain any rights in respect of any Company Voting Securities (other than
CHI Shares acquired from other Stockholders), by purchase or otherwise, or
take any action in furtherance thereof, or permit any of their respective
Affiliates to do so, without the prior written consent of Samstock. In
addition, notwithstanding anything to the contrary in this Agreement, in
order to ensure compliance with Section 3.2 of the Standstill Agreement,
prior to June 30, 2002, no Stockholder, other than any SZ Affiliate or any
Affiliate of any SZ Affiliate, shall, directly or indirectly, sell,
transfer any beneficial interest in, or otherwise dispose of or transfer
any Company Voting Securities other than to another Stockholder, or take
any action in furtherance thereof, or permit any of their respective
Affiliates to do so, if such sale, transfer or other disposition, either
taken alone or taken together with any other such sale, transfer or
disposition of Company Voting
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Securities by any other Stockholders, including without limitation, any SZ
Affiliates, or any of their respective Affiliates, would result in a violation
of Section 3.2 of the Standstill Agreement.
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 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
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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 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
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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.
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.
"Xxxxxxx Family Entity" means any corporation, partnership, limited
liability company or trust wholly controlled by Xxxxxxx and wholly owned
beneficially and of record by Xxxxxxx and Gaffney's children, grandchildren
and/or parents or a trust established for their benefit, provided such trust is
wholly controlled by Xxxxxxx.
"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
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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;
(iii) with respect to any Transfer of Shares by Xxxxxxxx, any
Xxxxxxxx Family Entity;
(iv) with respect to any Transfer of Shares by Xxxxxxx, any Xxxxxxx
Family Entity;
(v) with respect to the Transfer of CHI Shares by MelChart, any
Melman Controlled Entity; and
(vi) with respect to the Transfer of CHI Shares by Xxxxxx, any
Xxxxxx Family 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.
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"Xxxxxx Family Entity" means any corporation, partnership, limited
liability company or trust wholly controlled by Xxxxxx and wholly owned
beneficially and of record by Xxxxxx and Xxxxxx'x wife, children, grandchildren
and/or parents or a trust established for their benefit, provided such trust is
wholly controlled by Xxxxxx.
"Xxxxxxxx Family Entity" means any corporation, partnership, limited
liability company or trust wholly controlled by Xxxxxxxx and wholly owned
beneficially and of record by Xxxxxxxx and Xxxxxxxx'x wife, children,
grandchildren and/or parents or a trust established for their benefit, provided
such trust is wholly controlled by Xxxxxxxx.
"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
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 Xxxxxx Xxxxxx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Chief Executive Officer
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With a copy to:
Sidley & Austin
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx
If to any SZ Affiliate:
c/o Equity Group Investments, Inc.
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: Xxxxx X. Xxxxxx
If to any Handy Affiliate, Xxxxxxxx or Xxxxxxx:
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
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If to Xxxxxxx Xxxxxx:
Mr. Xxxxxxx Xxxxxx
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 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 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
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.
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15
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.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above written.
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
--------------------------------
Name: Xxxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
--------------------------
SAMSTOCK/ZFT, L.L.C., by ZFT PARTNERSHIP,
its sole member, by a general partner
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxxx
-----------------------------
Title: Trustee
----------------------------
CHART HOUSE INVESTORS, L.L.C., by ALPHABET
PARTNERS, its managing member, by a general
partner
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx
-----------------------------
Title: Trustee
----------------------------
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16
/s/ F. Xxxxxx Xxxxx
-----------------------------------------
F. Xxxxxx Xxxxx, individually
/s/ F. Xxxxxx Xxxxx
-----------------------------------------
F. Xxxxxx Xxxxx, as trustee of the Xxxxxx Trust
/s/ Xxxxxx Xxxxxxxx
-----------------------------------------
Xxxxxx Xxxxxxxx
/s/ Xxxxxx Xxxxxxx
-----------------------------------------
Xxxxxx Xxxxxxx
/s/ Xxxxx Xxxxxxx
-----------------------------------------
Xxxxx Xxxxxxx
MELCHART, LLC
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Xxxxxxx Xxxxxx, its manager, by Xxxxxxx
X. Xxx under Power of Attorney
/s/ Xxxxxxx Xxxxxx
-----------------------------------------
Xxxxxxx Xxxxxx
CHART HOUSE ENTERPRISES, INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
-----------------------------------
Title: President and Chief Executive Officer
--------------------------------------
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EXHIBIT A
OWNERSHIP OF CHI SHARES
As of the date of the Stockholders Agreement, the 3,400,000 shares of
common stock (the "CHI Shares") of Chart House Enterprises, Inc. (the
"Company") originally acquired by Chart House Investors, L.L.C. ("CHI") 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:
Number of
Stockholder CHI Shares Held Options
----------- --------------- -------
Samstock, L.L.C. 1,860,000 -
Samstock/ZFT, L.L.C. 705,808 -
Chart House Investors, L.L.C. 428,591 -
F. Xxxxxx Xxxxx, as Trustee
of the Xxxxxx Trust 103,539 -
F. Xxxxxx Xxxxx, individually - 163,581(1)
Xxxxxx Xxxxxxxx 4,137 -
Xxxxxx Xxxxxxx
and Xxxxx Xxxxxxx,
as tenants by the entirety 20,708 -
Xxxxxxx Xxxxxx 75,000 -
MelChart LLC 202,217 -
---------
Total 3,400,000
------------------------
(1) Represents options to acquire up to 163,581 CHI Shares held by Chart
House Investors, L.L.C.
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