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As filed with the Securities and Exchange Commission on February 27, 1997.
Registration No. 33-32501
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 2
TO
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.
1985 INCENTIVE STOCK OPTION PLAN
and
CHART HOUSE ENTERPRISES, INC.
1989 NON-QUALIFIED STOCK OPTION PLAN
(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)
================================================================================
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EXPLANATORY NOTE
----------------
The Registration Statement on Form S-8 being amended by this filing
was originally filed with the Securities and Exchange Commission on December 8,
1989, and amended by Pre-Effective Amendment No. 1 thereto filed with the
Securities and Exchange Commission on December 22, 1989, and further amended by
Post-Effective Amendment No. 1 thereto filed with the Securities and Exchange
Commission on March 27, 1991 (as so amended, the "Registration Statement"). The
Chart House Enterprises, Inc. 1985 Incentive Stock Option Plan (the "1985 Plan")
has expired by its terms and all options granted thereunder have been exercised
or have expired by their terms. This Post-Effective Amendment No. 2 to the
Registration Statement removes from registration an aggregate of 5,987 shares
which were unsold in connection with the 1985 Plan. The securities remaining
unsold relating to the Chart House Enterprises, Inc. 1989 Non-Qualified Stock
Option Plan are not affected by this Post-Effective Amendment No. 2 to the
Registration Statement.
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PART II
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
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Item 3. Incorporation of Documents by Reference
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Not applicable.
Item 4. Description of Securities
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Not applicable.
Item 5. Interests of Named Experts and Counsel
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Not applicable.
Item 6. Indemnification of Directors and Officers
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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,
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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 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
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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.
Item 7. Exemption from Registration
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Not applicable.
Item 8. Exhibits
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Not applicable.
Item 9. Undertakings
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(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 Securities Act of 1933, as amended (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
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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.
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(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 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.
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SIGNATURES
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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 Post-Effective Amendment No. 2
to the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Solana Beach, State of California, on
February 27, 1997.
CHART HOUSE ENTERPRISES, INC., a
Delaware corporation
By: /s/William R. Kuntz, Jr.
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William R. Kuntz, Jr.
Executive Vice President-Finance and
Administration
By: /s/Stephen J. McGillin
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Stephen J. McGillin
Executive Vice President-Operations
POWER OF ATTORNEY
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Each person whose signature appears below constitutes and appoints
William R. Kuntz, Jr. and Stephen J. McGillin, 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.
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Pursuant to the requirements of the 1933 Act, this Post-Effective
Amendment No. 2 to the Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
/s/William R. Kuntz, Jr. Executive Vice President-Finance
- ----------------------------- and Administration; Director February 19, 1997
William R. Kuntz, Jr. (Principal Executive Officer;
Principal Financial Officer)
/s/Stephen J. McGillin Executive Vice President-
- ----------------------------- Operations (Principal Executive February 19, 1997
Stephen J. McGillin Officer)
/s/James C. Wendler Vice President and Chief
- ----------------------------- Accounting Officer (Principal February 19, 1997
James C. Wendler Accounting Officer)
/s/Patrick W. Rose Chairman of the Board; Director
- ----------------------------- February 26, 1997
Patrick W. Rose
/s/William M. Diefenderfer III Director
- ----------------------------- February 20, 1997
William M. Diefenderfer III
/s/William E. Mayer Director
- ----------------------------- February 20, 1997
William E. Mayer
/s/Alan S. McDowell Director
- ----------------------------- February 20, 1997
Alan S. McDowell
/s/Arthur J. Nagle Director
- ----------------------------- February 20, 1997
Arthur J. Nagle
</TABLE>
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