<PAGE>
As filed with the Securities and Exchange Commission on July 5, 1996.
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________________
CHART HOUSE ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
Delaware 33-0147725
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation of organization)
115 South Acacia Avenue
Solana Beach, California 92075
(Address of principal executive offices)
CHART HOUSE ENTERPRISES, INC.
1992 STOCK OPTION PLAN
and
CHART HOUSE ENTERPRISES, INC.
STOCK OPTION AGREEMENT DATED JUNE 1, 1988
(Full title of the plan)
WILLIAM R. KUNTZ, JR.
Executive Vice President, General Counsel and Secretary
Chart House Enterprises, Inc.
115 South Acacia Avenue
Solana Beach, California 92075
(619) 755-8281
(Name, address and telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================================
Title of securities Amount to Proposed maximum offering Proposed maximum aggregate Amount of
to be registered be registered price per share (3) offering price registration fee
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 52,000 shares(1) $ 5.875 $ 305,500
Par Value $.01 per share 60,000 shares(1) $ 6.25 $ 375,000
78,000 shares(1) $ 7.125 $ 555,750
45,000 shares(1) $ 7.25 $ 326,250
27,000 shares(1) $ 12.25 $ 330,750
48,000 shares(1) $ 12.875 $ 618,000
20,000 shares(1)(2) $ 2.31 $ 46,200
--------------- ----------
Total 330,000 shares(1) $2,557,450 $881.88
====================================================================================================================================
</TABLE>
(1) Pursuant to Rule 416(a), this Registration Statement also registers such
indeterminate number of additional shares of Common Stock as may become
issuable under the 1992 Stock Option Plan and the Stock Option Agreement
dated June 1, 1988 (the "1988 Option Agreement") by reason of any stock
dividend, stock split, recapitalization or other similar transaction
effected without the receipt of consideration which results in an increase
in the number of the registrant's outstanding shares of Common Stock.
(2) Represents 20,000 shares to be issued pursuant to an option granted outside
the 1992 Stock Option Plan to an executive officer of the registrant
pursuant to a Stock Option Agreement dated June 1, 1988 of which 10,000
shares have not been exercised as of the date hereof.
(3) As to shares subject to outstanding, but unexercised options, the price and
fee are computed based upon the price at which such options may be
exercised. As to the remaining shares, the price and fee are computed on
the basis of the average of the high and low selling prices per share of
the registrant's Common Stock on the New York Stock Exchange on June 28,
1996 as reported in The Wall Street Journal dated July 1, 1996.
================================================================================
<PAGE>
EXPLANATORY NOTE
----------------
This Registration Statement includes a form of prospectus to be used by certain
persons who may be deemed to be affiliates of the Registrant in connection with
the resale of shares of Common Stock received by such persons pursuant to this
Registration Statement.
(i)
<PAGE>
PROSPECTUS
----------
________________________________________________________________________________
CHART HOUSE ENTERPRISES, INC.
330,000 SHARES
COMMON STOCK
($.01 par value)
________________________________________________________________________________
This Prospectus relates to an aggregate of up to 330,000 shares of
Common Stock, $.01 par value per share (the "Shares"), of Chart House
Enterprises, Inc. (the "Company") which may be offered for sale from time to
time by any or all of the selling stockholders (the "Selling Stockholders")
named herein or to be named in the future by means of a supplement or
supplements to this Prospectus. See "SELLING STOCKHOLDERS". The method of sale
of Shares offered hereby is described under the heading "PLAN OF DISTRIBUTION".
Of the Shares, 310,000 of the Shares will be purchased by the Selling
Stockholders through the exercise of incentive stock options ("ISOs") and non-
qualified stock options ("NQSOs") granted to the Selling Stockholders pursuant
to the Company's 1992 Stock Option Plan (the "Plan"); 10,000 of the Shares will
be purchased by William R. Kuntz, Jr. through the exercise of an NQSO pursuant
to the Stock Option Agreement dated as of June 1, 1988 (the "1988 Option
Agreement") between the Company and William R. Kuntz, Jr.; and 10,000 shares
have been purchased by Mr. Kuntz through the exercise of an NQSO pursuant to the
1988 Option Agreement. Each option granted pursuant to the Plan is subject to
the terms, conditions and restrictions set forth in the Plan and the respective
stock option agreements entered into by each Selling Stockholder with the
Company pursuant to the Plan.
The Selling Stockholders and any brokers executing selling orders on
behalf of the Selling Stockholders may be deemed to be "underwriters" as defined
by the Securities Act of 1933, as amended (the "1933 Act"), in which event
commissions received by such brokers may be deemed to be underwriting
commissions under the 1933 Act. See "PLAN OF DISTRIBUTION". The Company will
pay all expenses incident to the offering and sale of the Shares to the public
other than commissions and discounts of underwriters, dealers or agents. The
Company will not receive any of the proceeds of the sale of Shares by the
Selling Stockholders.
One or more supplements to this Prospectus will be filed pursuant to
Rule 424, or otherwise, under the 1933 Act to describe any material arrangements
for sale of the Shares when such arrangements are entered into by the Selling
Stockholders. There is no assurance that any of the Selling Stockholders will
sell any or all of the Shares.
The Company's Common Stock is listed for trading on the New York Stock
Exchange. On June 28, 1996, the closing price of the Company's Common Stock was
$7.125 per share on such Exchange.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Reoffer Prospectus is July 5, 1996.
-1-
<PAGE>
No person has been authorized to give any information or make any
representations, other than as contained herein, and if given or made, such
information or representations must not be relied upon as having been authorized
by the Company. This Prospectus does not constitute an offer to sell, or a
solicitation of an offer to purchase, nor shall there be any sales of the Shares
by anyone, in any state in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws of any
state, or in which the person making such offer or sale is not qualified to do
so or to any person to whom it is unlawful to make such offer or solicitation in
such state or jurisdiction. Neither the delivery of this Prospectus nor any
sale made hereunder shall under any circumstances create any implication that
there has been no change in the affairs of the Company since the date hereof.
_________________________
-2-
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
<S> <C>
AVAILABLE INFORMATION................................................ 3
DOCUMENTS INCORPORATED BY REFERENCE.................................. 4
GENERAL INFORMATION.................................................. 4
USE OF PROCEEDS...................................................... 4
SELLING STOCKHOLDERS................................................. 5
PLAN OF DISTRIBUTION................................................. 5
INDEMNIFICATION...................................................... 6
INTERESTS OF NAMED EXPERTS AND COUNSEL............................... 8
</TABLE>
AVAILABLE INFORMATION
---------------------
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "1934 Act") and in accordance
therewith files periodic reports and other information with the Securities and
Exchange Commission (the "Commission"). Reports, proxy statements and other
information filed by the Company may be inspected and copied at the Commission's
Public Reference Section, Room 1024, 450 Fifth Street, N.W., Washington, D.C.
20549, where copies may be obtained at prescribed rates, as well as at the
following regional offices: New York Regional Office, 75 Park Place, Room 1228,
New York, New York 10007; and Chicago Regional Office, Northwest Atrium Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60621-2511.
The Company's Common Stock is listed on the New York Stock Exchange.
Copies of such reports, proxy statements and other information concerning the
Company may also be inspected at the office of such Exchange, 20 Broad Street,
New York, New York 10015. The principal executive offices of the Company are
located at 115 South Acacia Avenue, Solana Beach, California 92075 and its
telephone number is (619) 755-8281.
The Company has filed with the Commission a registration statement on
Form S-8 (of which this Prospectus is a part) under the 1933 Act with respect to
the securities offered hereby (the "Registration Statement"). This Prospectus
does not include all of the information set forth in the Registration Statement,
certain parts of which are omitted in accordance with the rules and regulations
of the Commission. For additional information regarding the Plan, the 1988
Option Agreement and the securities offered hereby, reference is made to the
Registration Statement, including the exhibits filed therewith. Such
information may be inspected, and copies thereof may be obtained, at the places
and in the manner set forth above.
-3-
<PAGE>
DOCUMENTS INCORPORATED BY REFERENCE
-----------------------------------
The following documents of the Company filed with the Commission are
incorporated by reference in this Prospectus.
A. The Company's Annual Report on Form 10-K for the Company's fiscal
year ended December 31, 1995 (the "1995 10-K"), filed pursuant to Section 13(a)
or 15(d) of the 1934 Act.
B. All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the 1934 Act since the end of the fiscal year ended December 31,
1995.
C. The description of the Common Stock of the Company contained in
the Company's Registration Statement on Form 8-A (Registration No. 1-9684) filed
with the Commission on July 20, 1989 pursuant to Section 12 of the 1934 Act,
including any amendment or report filed for the purpose of updating such
description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act prior to the
filing of a post-effective amendment which indicates that all securities offered
hereby have been sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference herein and to be a part hereof
from the date of the filing of such documents.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus has been delivered, on the
written or oral request of such person, a copy of any and all of the information
that has been or may be incorporated by reference in this Prospectus (not
including exhibits to the information that is incorporated by reference unless
such exhibits are specifically incorporated by reference into the information
that this Prospectus incorporates). Written requests for such copies should be
directed to the Secretary, Chart House Enterprises, Inc., 115 South Acacia
Avenue, Solana Beach, California 92075 at (619) 755-8281.
GENERAL INFORMATION
-------------------
The Company was incorporated in Delaware on July 25, 1985. As of May
15, 1996, the Company operated 65 restaurants, including 64 Chart Houses and one
Peohe's, and a wholesale bakery through its subsidiaries, Chart House, Inc. and
Solana Beach Baking Company, Inc.
The principal executive offices of the Company are located at 115
South Acacia Avenue, Solana Beach, California 92075 and its telephone number is
(619) 755-8281.
USE OF PROCEEDS
---------------
The Company will not receive any of the proceeds of the sale of Shares
by the Selling Stockholders.
-4-
<PAGE>
SELLING STOCKHOLDERS
--------------------
The Selling Stockholders will all be "affiliates" of the Company, as
such term is defined under the 1933 Act. Once any options have been exercised
pursuant to the Plan by any of the Selling Stockholders who contemplate the use
of this Prospectus in connection with the sale of any Shares acquired upon such
exercise and immediately prior to offering for their account, a table will be
attached hereto as Exhibit A by means of a supplement to this Prospectus. Such
table shall include the nature of any position, office or other material
relationship which the Selling Stockholder has had within the past three years
with the Company or any of its predecessors or affiliates, the number of shares
of Common Stock beneficially owned by each of them prior to the offering
described herein, the amount to be offered for each Selling Stockholder's
account and the amount and (if one percent or more) the percentage of Common
Stock to be owned by such Selling Stockholder after completion of the offering
described herein.
PLAN OF DISTRIBUTION
--------------------
The Shares may be sold from time to time by the Selling Stockholders
(or by their respective pledgees, donees, transferees or other successors in
interest) without any volume limitations imposed under Rule 144 of the 1933 Act.
Such sales may be made on the New York Stock Exchange at prices and at terms
then prevailing or at prices related to the then current market price or in
negotiated transactions. The Shares may be sold by one or more of the following
methods: (a) a block trade in which the broker-dealer so engaged will attempt
to sell the Shares as agent but may position and resell a portion of the block
as principal to facilitate the transactions; (b) purchases by a broker-dealer as
principal and resale by such broker-dealer for its account pursuant to this
Prospectus; (c) an exchange distribution in accordance with the rules of the New
York Stock Exchange; (d) ordinary brokerage transactions and transactions in
which the broker-dealer solicits purchasers; and (e) face-to-face transactions
between sellers and purchasers without a broker-dealer. In effecting sales of
the Shares, broker-dealers engaged by the Selling Stockholders may arrange for
the participation of other broker-dealers. Broker-dealers may receive
compensation in the form of underwriting discounts, concessions or commissions
from the Selling Stockholders in amounts to be negotiated immediately prior to
the sale. Such broker-dealers and any other participating broker-dealers may be
deemed to be "underwriters" within the meaning of the 1933 Act in connection
with such sales, and any commissions received by them and any profit on the
resale of Shares positioned by them may be deemed to be underwriting discounts
and commissions under the 1933 Act.
Once the Company has been notified by a Selling Stockholder that any
material arrangement has been entered into with a broker-dealer for the sale of
Shares through a block trade, special offering, exchange or secondary
distribution or a purchase by a broker-dealer, a supplement to this Prospectus
will be filed, if required, pursuant to Rule 424(b)(3) and (c) under the 1933
Act, disclosing (a) the name of each such Selling Stockholder and the
participating broker-dealer(s); (b) the number of Shares involved; (c) the price
at which such Shares were sold; (d) the commissions paid or discounts or
concessions allowed to such broker-dealer(s), where applicable; (e) that such
broker-dealer(s) did not conduct any investigation to verify the information set
out or incorporated by reference in this Prospectus; and (f) other facts
material to the transaction.
-5-
<PAGE>
There is no assurance that any of the Selling Stockholders will sell
any or all of the Shares offered hereby.
The Company will pay all expenses incident to the offering and sale of
the Shares to the public other than commissions and discounts of underwriters,
dealers or agents.
INDEMNIFICATION
---------------
The Certificate of Incorporation of the Company, as amended, provides
that no director of the Company shall be personally liable to the Company or its
stockholders for monetary damages for any breach of fiduciary duty as a
director, except for liability: (i) for any breach of the director's duty of
loyalty to the Company or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law (involving
certain unlawful dividends or stock purchases or redemptions) or (iv) for any
transaction from which the director derived an improper personal benefit. The
Certificate of Incorporation further provides that if the Delaware General
Corporation Law is hereafter amended to authorize the further elimination or
limitation of the liability of a director, then the liability of a director of
the Company shall be further eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law, as so amended. The
Certificate of Incorporation also provides that any repeal or modification of
such provisions shall not adversely affect any right or protection of a director
of the Company for any act or omission occurring prior to the date when such
repeal or modification became effective.
Under Section 145 of the Delaware General Corporation Law, a
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation) by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding (i) if such person acted in
good faith and in a manner that such person reasonably believed to be in or not
opposed to the best interests of the corporation and (ii) with respect to any
criminal action or proceeding, if such person had no reasonable cause to believe
such conduct was unlawful. A corporation may indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection with the defense or settlement of such action or suit
if such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the corporation,
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation unless
-6-
<PAGE>
and only to the extent that the Court of Chancery of the State of Delaware or
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnification for such expenses which the Court of Chancery or such other
court shall deem proper. Any indemnification discussed above (unless ordered by
a court) shall be made by the corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee or agent is proper in the circumstances because such person has met the
applicable standard of conduct set forth above. Such determination shall be made
(1) by a majority vote of the directors who are not parties to such action, suit
or proceeding, even though less than a quorum or (2) if there are no such
directors, or if such directors so direct, by independent legal counsel in a
written opinion, or (3) by the stockholders. To the extent that any person has
been successful on the merits or otherwise in defending any action, suit or
proceeding referred to above, or in defense of any claim, issue or matter
therein, such person is entitled to indemnification for expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
therewith. Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it is ultimately determined that such officer or director is not entitled to be
indemnified by the corporation as authorized in Section 145 of the Delaware
General Corporation Law. Such expenses (including attorneys' fees) incurred by
other employees and agents may be so paid upon such terms and conditions, if
any, as the board of directors deems appropriate. The indemnification and
advancement of expenses provided for, or granted pursuant to, Section 145 of the
Delaware General Corporation Law is not exclusive of any other rights of
indemnification or advancement of expenses to which those seeking
indemnification or advancement of expenses may be entitled, and a corporation
may purchase and maintain insurance against liabilities asserted against any
former or current director, officer, employee or agent of the corporation, or a
person who is or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise whether or not the power to indemnify such person
is provided by Section 145 of the Delaware General Corporation Law.
The Bylaws of the Company provide that (i) the Company is required to
indemnify its officers and directors to the fullest extent permitted by law,
including those circumstances in which indemnification would otherwise be
discretionary; (ii) the Company is required to advance expenses to its officers
and directors as incurred, provided that they undertake to repay the amount
advanced if it is ultimately determined that they are not entitled to
indemnification; (iii) an officer or director may bring suit against the Company
if a claim for indemnification is not timely paid; and (iv) the stockholders and
directors of the Company may not retroactively amend the Bylaw provisions
relating to the indemnification of officers and directors of the Company in a
way which is adverse to its officers or directors or former officers and
directors. Moreover, the Bylaws provide that the Company must maintain
insurance to the extent reasonably available, at its expense, to protect itself
and any director, officer, employee or agent of the Company against any such
loss, expense or liability whether or not the Company would have the power to
indemnify such person against such loss, expense or liability. The Company
maintains an officers'
-7-
<PAGE>
and directors' liability insurance policy insuring the Company's officers and
directors against certain liabilities and expenses incurred by such persons in
such capacities. In addition, the Bylaws authorize the Company to enter into
indemnification agreements with its directors, officers, employees or agents.
Although the Company has no present intention of entering into indemnification
agreements, it may do so in the future.
Insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to Delaware General Corporation Law, the Company's Certificate of
Incorporation or Bylaws or otherwise, the Company has been informed that in the
opinion of the Commission, such indemnification is against public policy as
expressed in the 1933 Act and is, therefore, unenforceable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
--------------------------------------
Ten thousand Shares are being offered for resale by William R. Kuntz,
Jr., Executive Vice President, General Counsel and Secretary to the Company.
Such Shares were issued pursuant to the partial exercise of the 1988 Option
Agreement. As of the date of this Prospectus, and prior to the offering
described herein, Mr. Kuntz is the beneficial owner of 54,835 shares directly,
of which 10,000 Shares were acquired upon the partial exercise of the 1988
Option Agreement and 6,000 shares of the Common Stock of the Company are owned
by his minor children. In addition, Mr. Kuntz holds options to purchase an
aggregate of 140,000 shares, of which 10,000 Shares may be acquired upon the
exercise of the 1988 Option Agreement.
-8-
<PAGE>
PART II
-------
INFORMATION REQUIRED IN REGISTRATION STATEMENT
----------------------------------------------
Item 3. Incorporation of Documents by Reference
---------------------------------------
The following documents of Chart House Enterprises, Inc., a Delaware
corporation (the "Company"), filed with the Securities and Exchange Commission
(the "Commission") are incorporated by reference into this Registration
Statement:
(a) The Company's Annual Report on Form 10-K for the Company's fiscal
year ended December 31, 1995 (the "1995 10-K"), filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the "1934 Act").
(b) All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the 1934 Act since the date of the 1995 10-K.
(c) The description of the Common Stock of the Company contained in
the Company's Registration Statement on Form 8-A (Registration No. 1-9684) filed
with the Commission on July 20, 1989 pursuant to Section 12 of the 1934 Act,
including any amendment or report filed for the purpose of updating such
description.
All reports and other documents subsequently filed by the Company with
the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
Legal matters in connection with the shares of Common Stock of the
Company subject to issuance pursuant to the Company's 1992 Stock Option Plan and
1988 Option Agreement have been passed upon by William R. Kuntz, Jr., Executive
Vice President, General Counsel and Secretary to the Company. William R. Kuntz,
Jr. owns 54,835 shares of the Common Stock of the Company directly, of which
10,000 shares were acquired upon the partial exercise of the 1988 Option
Agreement and 6,000 shares of the Common Stock of the Company are owned by Mr.
Kuntz's minor children. In addition, Mr. Kuntz holds options to purchase an
aggregate of 140,000 shares of the Common Stock of the Company, of which 10,000
shares may be acquired upon the exercise of the 1988 Option Agreement.
II-1
<PAGE>
Item 6. Indemnification of Directors and Officers
-----------------------------------------
The Certificate of Incorporation of the Company, as amended, provides
that no director of the Company shall be personally liable to the Company or its
stockholders for monetary damages for any breach of fiduciary duty as a
director, except for liability: (i) for any breach of the director's duty of
loyalty to the Company or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law (involving
certain unlawful dividends or stock purchases or redemptions) or (iv) for any
transaction from which the director derived an improper personal benefit. The
Certificate of Incorporation further provides that if the Delaware General
Corporation Law is hereafter amended to authorize the further elimination or
limitation of the liability of a director, then the liability of a director of
the Company shall be further eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law, as so amended. The
Certificate of Incorporation also provides that any repeal or modification of
such provisions shall not adversely affect any right or protection of a director
of the Company for any act or omission occurring prior to the date when such
repeal or modification became effective.
Under Section 145 of the Delaware General Corporation Law, a
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation) by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding (i) if such person acted in
good faith and in a manner that such person reasonably believed to be in or not
opposed to the best interests of the corporation and (ii) with respect to any
criminal action or proceeding, if such person had no reasonable cause to believe
such conduct was unlawful. A corporation may indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection with the defense or settlement of such action or suit
if such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the corporation,
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery of the
State of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnification for such expenses which the Court of Chancery or
such other court shall deem proper. Any indemnification discussed above (unless
ordered by a court) shall be made by the corporation only as authorized in the
specific case upon a determination that
II-2
<PAGE>
indemnification of the director, officer, employee or agent is proper in the
circumstances because such person has met the applicable standard of conduct set
forth above. Such determination shall be made (1) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even though
less than a quorum or (2) if there are no such directors, or if such directors
so direct, by independent legal counsel in a written opinion, or (3) by the
stockholders. To the extent that any person has been successful on the merits or
otherwise in defending any action, suit or proceeding referred to above, or in
defense of any claim, issue or matter therein, such person is entitled to
indemnification for expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection therewith. Expenses (including attorneys'
fees) incurred by an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it is ultimately determined that such officer or
director is not entitled to be indemnified by the corporation as authorized in
Section 145 of the Delaware General Corporation Law. Such expenses (including
attorneys' fees) incurred by other employees and agents may be so paid upon such
terms and conditions, if any, as the board of directors deems appropriate. The
indemnification and advancement of expenses provided for, or granted pursuant
to, Section 145 of the Delaware General Corporation Law is not exclusive of any
other rights of indemnification or advancement of expenses to which those
seeking indemnification or advancement of expenses may be entitled, and a
corporation may purchase and maintain insurance against liabilities asserted
against any former or current director, officer, employee or agent of the
corporation, or a person who is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise whether or not the power to indemnify
such person is provided by Section 145 of the Delaware General Corporation Law.
The Bylaws of the Company provide that (i) the Company is required to
indemnify its officers and directors to the fullest extent permitted by law,
including those circumstances in which indemnification would otherwise be
discretionary; (ii) the Company is required to advance expenses to its officers
and directors as incurred, provided that they undertake to repay the amount
advanced if it is ultimately determined that they are not entitled to
indemnification; (iii) an officer or director may bring suit against the Company
if a claim for indemnification is not timely paid; and (iv) the stockholders and
directors of the Company may not retroactively amend the Bylaw provisions
relating to the indemnification of officers and directors of the Company in a
way which is adverse to its officers or directors or former officers and
directors. Moreover, the Bylaws provide that the Company must maintain
insurance to the extent reasonably available, at its expense, to protect itself
and any director, officer, employee or agent of the Company against any such
loss, expense or liability whether or not the Company would have the power to
indemnify such person against such loss, expense or liability. The Company
maintains an officers' and directors' liability insurance policy insuring the
Company's officers and directors against certain liabilities and expenses
incurred by such persons in such capacities. In addition, the Bylaws authorize
the Company to enter into indemnification agreements with its directors,
officers, employees or agents. Although the Company has no present intention of
entering into indemnification agreements, it may do so in the future.
II-3
<PAGE>
Item 7. Exemption from Registration
---------------------------
Ten thousand shares of Common Stock have been issued pursuant to the
exercise of an option granted to William R. Kuntz, Jr. on June 1, 1988 pursuant
to the 1988 Option Agreement. The issuance of such shares of Common Stock was
exempt from the registration requirements of the Securities Act of 1933, as
amended (the "1933 Act"), pursuant to the provisions of Section 4(2) of the 1933
Act.
Item 8. Exhibits
--------
The following is a list of exhibits filed as part of this Registration
Statement. Where so indicated, exhibits which were previously filed are
incorporated by reference.
<TABLE>
<CAPTION>
Exhibit Description
------- -----------
<S> <C>
4(a) Restated Certificate of Incorporation of the
Company (filed as an exhibit to Pre-Effective
Amendment No. 1 to the Company's Registration
Statement on Form S-1 dated October 6, 1987
(Registration No. 33-16795)).
4(b) Certificate of Amendment of Restated Certificate
of Incorporation of the Company (filed as an
exhibit to Pre-Effective Amendment No. 2 to the
Company's Registration Statement on Form S-1
dated August 25, 1989 (Registration No.
33-30089) (as amended, the "1989 S-1")).
4(c) Amended and Restated Bylaws of the Company
(filed as an exhibit to the Company's
Registration Statement on Form S-1 dated August
27, 1987 or amendments thereto dated October 6,
1987 and October 14, 1987 (Registration No.
33-16795)).
4(d) Specimen Stock Certificate (filed as an exhibit
to the Company's 1989 S-1).
4(e) Section 203 of the Delaware General Corporation
Law (filed as an exhibit to the 1989 S-1).
5 Opinion of William R. Kuntz, Jr., General
Counsel to the Company
23(a) Consent of Arthur Andersen LLP
23(b) Consent of William R. Kuntz, Jr., General
Counsel to the Company (included in Exhibit 5)
24 Power of Attorney (included on the signature
page of this Registration Statement)
</TABLE>
II-4
<PAGE>
Item 9. Undertakings
------------
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the 1933 Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
-------- -------
the Registration Statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to the Commission
by the registrant pursuant to Section 13 or Section 15(d) of the 1934 Act
that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
1933 Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the 1934 Act) that is incorporated by reference in
the Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the 1933
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the 1933 Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the
II-5
<PAGE>
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the 1933 Act and
will be governed by the final adjudication of such issue.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the 1933 Act, the registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Solana Beach, State of California, on July 5, 1996.
CHART HOUSE ENTERPRISES, INC., a Delaware
corporation
By: /s/ HARRY F. ROBERTS
-------------------------------------
Harry F. Roberts
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
William R. Kuntz, Jr. and Harry F. Roberts, and each of them acting alone, his
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement and any and all other documents and instruments
incidental thereto, and to file the same, with all exhibits thereto, and all
documents in connection therewith, with the Commission and any other regulatory
authority, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or their substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
II-7
<PAGE>
Pursuant to the requirements of the 1933 Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
<S> <C> <C>
/s/HARRY F. ROBERTS President, Chief Executive July 3, 1996
- ------------------------------ Officer, (Principal Executive
Harry F. Roberts Officer); Director
/s/HAROLD E. GAUBERT, JR. Vice President, Treasurer and July 2, 1996
- ------------------------------ Chief Financial Officer
Harold E. Gaubert, Jr. (Principal Financial Officer)
/s/JAMES C. WENDLER Vice President and Chief July 2, 1996
- ------------------------------ Accounting Officer (Principal
James C. Wendler Accounting Officer)
/s/WILLIAM R. KUNTZ, JR. Executive Vice President, July 2, 1996
- ------------------------------ General Counsel and Secretary;
William R. Kuntz, Jr. Director
/s/PATRICK W. ROSE Chairman of the Board; Director July 3, 1996
- ------------------------------
Patrick W. Rose
/s/WILLIAM M. DIEFENDERFER III Director July 3, 1996
- ------------------------------
William M. Diefenderfer III
/s/WILLIAM E. MAYER Director July 2, 1996
- ------------------------------
William E. Mayer
/s/ALAN S. MCDOWELL Director July 3, 1996
- ------------------------------
Alan S. McDowell
/s/ARTHUR J. NAGLE Director July 2, 1996
- ------------------------------
Arthur J. Nagle
</TABLE>
II-8
<PAGE>
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
Exhibit Number Description of Exhibits Sequentially Numbered Pages
- -------------- -------------------------------- ---------------------------
<S> <C> <C>
5 Opinion of William R. Kuntz, Jr.
General Counsel to the Company
23(a) Consent of Arthur Andersen LLP
23(b) Consent of William R. Kuntz, Jr.
General Counsel to the Company
(included in Exhibit 5)
24 Power of Attorney (included on the
signature page of this Registration
Statement)
</TABLE>
II-9
<PAGE>
EXHIBIT 5
[LETTERHEAD OF CHART HOUSE ENTERPRISES, INC.]
July 3, 1996
Chart House Enterprises, Inc.
115 South Acacia Ave.
Solana Beach, CA 92075
Re: Registration Statement on Form S-8
Gentlemen:
I am General Counsel to Chart House Enterprises, Inc., a Delaware
corporation (the "Company"), and in such capacity have examined the form of
Registration Statement (the "Registration Statement") to be filed by the Company
with the Securities and Exchange Commission (the "Commission") on July 3, 1996,
in connection with the registration under the Securities Act of 1933, as amended
(the "Act"), of an aggregate of 330,000 shares (the "Shares") consisting of: (1)
up to 310,000 shares of common stock, par value $.01 per share (the "Common
Stock") of the Company to be issued by the Company upon exercise of stock
options granted by the Company under its 1992 Stock Option Plan, and (2) 20,000
shares of Common Stock of the Company issued or to be issued by the Company upon
exercise of stock options granted by the Company under a Stock Option Agreement
dated June 1, 1988.
For purposes of this opinion, I have made those examinations and
investigations of legal and factual matters I deemed advisable and have examined
the originals, or copies certified to my satisfaction as being true copies, of
those corporate records, certificates, documents and other instruments which, in
my judgment, enable me to render the opinion expressed below. For these
purposes, I have relied upon certificates provided by public officials and by
officers of the Company as to certain factual matters. I have assumed the
genuineness of all originals, the conformity to the original documents of
documents submitted to me as certified or photostatic copies and the
authenticity of the originals of the latter documents.
On the basis of the foregoing, and relying solely thereon, I am of the
opinion that the Shares are duly authorized and when issued, delivered and paid
for in the manner and upon the terms contemplated by the Registration
Statement, will be validly issued, fully paid and nonassessable.
<PAGE>
Chart House Enterprises, Inc.
July 3, 1996
Page 2
I consent to the use of this opinion as an exhibit to the Registration
Statement. In giving such opinion, I do not thereby admit that I am acting
within the category of persons whose consent is required under Section 7 of the
1933 Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ WILLIAM R. KUNTZ, JR.
William R. Kuntz, Jr.
Executive Vice President
and General Counsel
<PAGE>
EXHIBIT 23.(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 25, 1996
(except with respect to the matter discussed in Note 14, as to which the date is
March 18, 1996) incorporated by reference in the Company's Form 10K for the year
ended December 31, 1995.
ARTHUR ANDERSEN LLP
San Diego, California
July 3, 1996
