<PAGE>
As Filed with the Securities and Exchange Commission on May 29, 1998
Registration No. 333-45009
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
Amendment No. 2
to
FORM S-3
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 of Incorporation) (I.R.S. Employer Identification Number)
115 South Acacia Avenue
Solana Beach, California 92075
(619) 755-8281
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
______________________
Richard D. Tipton
Vice President-Legal Affairs and General Counsel
Chart House Enterprises, Inc.
115 South Acacia Avenue
Solana Beach, California 92075
(619) 755-8281
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Larry A. Barden
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
(312) 853-7785
______________________
<PAGE>
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement as determined in
light of market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
================================================================================
<PAGE>
Subject to Completion, Dated May 29, 1998
Prospectus
4,877,575 Shares
Chart House Enterprises, Inc.
Common Stock ($.01 par value)
This Prospectus relates to 4,877,575 shares (the "Shares") of common stock, $.01
par value ("Common Stock"), of Chart House Enterprises, Inc., a Delaware
corporation (the "Company"), for reoffer and resale from time to time by certain
stockholders of the Company identified herein (the "Selling Stockholders"). See
"Selling Stockholders." The Company will not receive any proceeds from the sale
of Shares by the Selling Stockholders.
The Common Stock is listed on the New York Stock Exchange (the "NYSE") under the
trading symbol "CHT." On May 26, 1998, the closing price per share of
Common Stock on the NYSE was $8.875.
The Selling Stockholders intend to dispose of the Shares offered hereby from
time to time in one or more of the following transactions: (a) to underwriters
who will acquire the shares for their own account and resell them in one or more
transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale (any public offering
price and any discount or concessions allowed or reallowed or paid to dealers
may be changed from time to time); (b) through brokers, acting as principal or
agent, in transactions (which may involve crosses and block transactions) on the
NYSE, in special offerings, or otherwise, at market prices prevailing at the
time of sale, at prices related to such prevailing market prices, at negotiated
prices or at fixed prices; (c) directly or through brokers or agents in private
sales at negotiated prices, or (d) by any other legally available means. See
"Plan of Distribution."
Of the 4,877,575 Shares being offered hereby, 3,400,000 of such Shares represent
Shares initially issued by the Company to EGI-Chart House Investors, L.L.C., a
Delaware limited liability company ("EGI-CHI"), pursuant to a Stock Purchase and
Sale Agreement dated as of March 10, 1997 among the Company, EGI-CHI and
Alpha/ZFT Partnership, 3,134,990 of which Shares were subsequently or may be
acquired from EGI-CHI by certain of the Selling Stockholders. The remaining
1,477,575 Shares being offered hereby represent Shares acquired by Metropolitan
Life Insurance Company pursuant to a Distribution and Assignment Agreement dated
September 6, 1989. The Shares have been registered with the Securities and
Exchange Commission (the "SEC") pursuant to certain agreements to register the
Shares entered into in connection with the initial issuance of such Shares.
Pursuant to such registration agreements, the Company is required to bear and
pay substantially all of the expenses, currently estimated to be $29,763,
relating to such registration, provided, however, that the Selling Stockholders
will pay any applicable underwriters' discounts and commissions and, in the case
of all Selling Stockholders other than Metropolitan Life Insurance Company, the
fees and disbursements of counsel, if any, to such Selling Stockholders. Such
registration agreements also contain provisions requiring the Company to
indemnify the Selling Stockholders and any underwriters used by them against
certain liabilities, including liabilities under the Securities Act of 1933, as
amended (the "Securities Act"), and to contribute to payments the Selling
Stockholders or such underwriters may be required to make in respect thereof.
The Selling Stockholders and any broker-dealers, agents or underwriters which
participate in the distribution of the Shares may be deemed to be "underwriters"
within the meaning of the Securities Act and any commissions or purchase
discounts received by them may be deemed to be commissions or discounts under
the Securities Act. If required, the names of any underwriters, brokers,
dealers or agents involved in the sale of the Shares and the applicable
commission or discount, if any, will be set forth in an accompanying supplement
to this Prospectus.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is May __, 1998
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the SEC.
Such reports, proxy statements and other information can be inspected and copied
at the public reference facilities of the SEC at Room 1024, 450 Fifth Street,
N.W., Washington, D.C. 20549; New York Regional Office, Public Reference Room,
Seven World Trade Center, 13th Floor, New York, New York 10048; and Chicago
Regional Office, Suite 1400, 500 West Madison Street, Chicago, Illinois 60661.
Copies of such material can be obtained from the Public Reference Section of the
SEC at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates.
Additionally, copies of reports, proxy statements and other information filed
with the SEC electronically by the Company may be inspected by accessing the
SEC's Internet site at http://www.sec.gov. The Common Stock trades on the NYSE,
and reports, proxy statements and other information concerning the Company may
be inspected at the offices of the NYSE, 20 Broad Street, New York, New York
10015.
The Company has filed with the SEC a Registration Statement on Form S-3
(including all amendments thereto, the "Registration Statement") under the
Securities Act with respect to the securities offered hereby. This Prospectus
does not contain 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 SEC. Reference is made to the Registration Statement and the Exhibits
thereto for further information. Certain statements contained or incorporated by
reference herein concern the provisions of agreements or other documents filed
as Exhibits to the Registration Statement or which are otherwise filed with the
SEC and reference is hereby made to the copies thereof so filed for more
detailed information, each such statement being qualified in its entirety by
such reference.
This Prospectus incorporates by reference documents that are not presented
herein or delivered herewith. Copies of such documents (other than exhibits
thereto which are not specifically incorporated by reference herein) are
available, without charge, to any person, upon written or oral request to, the
Corporate Secretary of Chart House Enterprises, Inc., 115 South Acacia Avenue,
Solana Beach, California 92075, telephone (619) 755-8281.
INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the SEC
pursuant to the Exchange Act (file number 1-9684) are incorporated herein by
reference: (i) the Company's Annual Report on Form 10-K for the fiscal year
ended December 29, 1997; (ii) the Company's Quarterly Report on Form 10-Q for
the fiscal quarter ended March 30, 1998; and (iii) the description of the Common
Stock contained in the Registration Statement on Form 8-A filed by the Company
with the SEC on July 20, 1989, including any amendments or reports filed for the
purpose of updating such description.
All reports and other documents filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering made hereby shall be
deemed to be incorporated by reference herein and to be a part hereof
2
<PAGE>
from the dates of filing of such reports and documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein, or in any other subsequently filed
document which also is incorporated or deemed to be incorporated by reference
herein, modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
FORWARD-LOOKING STATEMENTS
Certain statements included or incorporated by reference herein may be
deemed to constitute "forward-looking statements" within the meaning of the
Private Securities Litigation Reform Act of 1995. The words "believe,"
"expect," "anticipate" and other similar expressions generally identify forward-
looking statements. Such forward-looking statements are based largely on the
Company's current expectations and involve known and unknown risks,
uncertainties and other factors which may cause the actual results, performance,
or achievements of the Company to be materially different from any future
results, performance, or achievements expressed or implied by such forward-
looking statements.
______________________
As used herein, unless the context otherwise clearly requires, the term
"Company" refers to Chart House Enterprises, Inc. and its consolidated
subsidiaries.
All information contained or incorporated by reference herein with respect
to the Company has been provided by the Company and all information contained
herein with respect to the Selling Stockholders has been provided by one or more
of the Selling Stockholders.
3
<PAGE>
THE COMPANY
As of May 29, 1998, the Company operated 59 restaurants, consisting of
57 Chart Houses, one Peohe's and one Ono Island. In addition, the Company
operates a wholesale bakery under the name Solana Beach Baking Company. The
Company was incorporated in Delaware on July 25, 1985. The Company's principal
executive offices are located at 115 South Acacia Avenue, Solana Beach,
California 92075, and its telephone number is (619) 755-8281.
The Chart House restaurant in Weehawken, New Jersey (operated under a
management agreement with the owner of the property) was closed on May 24, 1998
for an indefinite period as a result of a fire which destroyed the building.
Management is currently evaluating the impact of this event.
Chart House restaurants are full-service, casual dinner houses with a menu
featuring fresh fish, seafood, steaks, chicken, prime rib, pasta dishes and as
much salad and bread as the customer desires. Many of the Chart House
restaurants feature an elaborate salad bar where the customer prepares his or
her own salad and some Chart Houses have a seafood bar which offers various
appetizers.
The Company places great emphasis upon the location and exterior and
interior design of each Chart House restaurant. Each Chart House is unique and
designed to fit within and complement its surroundings. The restaurant buildings
are environmentally sensitive and functional in design. Representative
exteriors of Chart House restaurants range from the restored 1887 Victorian
boathouse on Coronado Island in San Diego Bay to the modern three-tiered glass
restaurant in Philadelphia overlooking the Delaware River. With a few
exceptions, Chart House restaurants are free-standing buildings with dinner
seating capacities ranging from 92 to 350 and an average seating capacity of
196. The restaurant interiors are casual in design and decor and are accentuated
by nautical-themed and action/adventure oriented artwork.
The Company opened its Peohe's restaurant in January 1988 in Coronado,
California overlooking San Diego Bay and the San Diego city skyline. Although
similar to the Company's Chart House restaurants in many respects, Peohe's
opened under a different name in part to minimize confusion and competition with
nearby Chart House restaurants and also to provide Chart House management a
suitable vehicle for experimentation and development of different menu items,
restaurant design and operating concepts. Peohe's has a more extensive and
higher priced menu, higher level of service and greater variety of cooking
techniques than the typical Chart House restaurant.
The Company's new Ono Island restaurant opened in May 1998. The menu
features uniquely prepared entrees of fresh fish and seafood, steaks, chops and
prime rib, in a tropically-themed surrounding. The Ono Island location is a
conversion of a Chart House restaurant that was closed in April 1998.
The Company operates a wholesale bakery in a leased facility located in
Carlsbad, California under the trade name "Solana Beach Baking Company." The
wholesale bakery supplies bread and other baked goods to Chart House restaurants
and also supplies muffins, croissants and other bakery products to other retail,
grocery and wholesale club accounts. Sales to Starbucks Coffee Company
comprise approximately one-half of the bakery's revenues.
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USE OF PROCEEDS
All of the Shares are issued and outstanding shares of Common Stock, and
are being offered and sold by and on behalf of the Selling Stockholders. The
Company will not receive any proceeds from the sale of the Shares by the Selling
Stockholders.
SELLING STOCKHOLDERS
The Selling Stockholders are the owners of 4,877,575 shares of Common
Stock. From time to time, the Selling Stockholders will determine the number of
the Shares which they may sell. The determination to sell will depend on a
number of factors, including the price of the Common Stock from time to time.
The information in the following table sets forth the information provided by
each of the Selling Stockholders as of May 26, 1998, concerning the Selling
Stockholders' ownership of the Shares at such date concerning such
Stockholders.
<TABLE>
<CAPTION>
Beneficial Ownership Beneficial Ownership
Prior to the Offering (1) After the Offering
------------------------- ------------------
Shares Being
Name of Selling Stockholder Number Percent Offered Number (2) Percent (2)
- --------------------------- ------ ------- ----------- ---------- -----------
<S> <C> <C> <C> <C> <C>
Samstock L.L.C......................... 1,935,000 16.5% 1,935,000 0 0
Samstock/ZFT, L.L.C.................... 705,808 6.0% 705,808 0 0
EGI-Chart House Investors, L.L.C....... 265,010 (3) 2.3% 265,010 (3) 0 0
Melchart LLC........................... 202,217 1.7% 202,217 0 0
F. Philip Handy........................ 263,581 (4) 2.2% 263,581 (4) 0 0
F. Philip Handy, as trustee of the
Blaine Trust....................... 103,539 1.0% 103,539 0 0
Thomas and Donna Gaffney............... 20,708 * 20,708 0 0
Robert Saltsman........................ 4,137 * 4,137 0 0
Metropolitan Life Insurance Company.... 1,477,575 12.6% 1,477,575 0 0
</TABLE>
________________
* Less than 1.0%
(1) Based on beneficial ownership as of April 28, 1998. Does not reflect shares
subject to options exercisable more than 60 days after the date of this
Prospectus.
(2) Assuming each Selling Stockholder sells all of the Shares being offered by
such Selling Stockholder.
(3) EGI-Chart House Investors, L.L.C. ("EGI-CHI") has granted F. Philip Handy
("Handy") an option (the "Handy Option") to purchase from EGI-CHI an
aggregate 163,581 Shares. Beneficial ownership of Shares as set forth in
the table above with respect to EGI-CHI assumes that Handy has exercised in
full the Handy Option. To the extent that the Handy Option is not
exercised, the number of Shares beneficially owned prior to the offering by
EGI-CHI and the number of Shares being offered by EGI-CHI would
increase.
(4) Assumes the full exercise by F. Philip Handy of the Handy Option. To the
extent that the Handy Option is not exercised, the number of Shares
beneficially owned prior to the offering by Handy and the number of Shares
being offered by Handy would decrease. In addition, Mr. Handy holds an
option to purchase 100,000 shares of Common Stock of the Company pursuant to
a Stock Option Agreement dated May 19, 1997 between Mr. Handy and the
Company, which options vested upon approval by the stockholders of the
Company at the annual meeting on May 6, 1998.
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The Shares offered hereby by each of Samstock L.L.C., Samstock/ZFT, L.L.C.,
Melchart LLC, F. Philip Handy, as trustee of the Blaine Trust, Thomas and Donna
Gaffney and Robert Saltsman were acquired from EGI-CHI in September 1997. The
163,581 Shares offered by F. Philip Handy may be acquired by Mr. Handy pursuant
to the exercise of an option granted by EGI-CHI in September 1997 to purchase
Shares held by EGI-CHI. Mr. Handy is the Acting Chief Executive Officer and a
director of the Company. EGI-CHI acquired its Shares pursuant to a Stock
Purchase and Sale Agreement dated as of March 10, 1997 among the Company, EGI-
CHI and Alpha/ZFT Partnership. The sole member of Samstock L.L.C., a Delaware
limited liability company, is SZ Investments, L.L.C., an Illinois limited
liability company. The sole member of Samstock/ZFT, L.L.C., a Delaware limited
liability company, is ZFT Partnership, an Illinois general partnership. Samstock
L.L.C. and Samstock/ZFT, L.L.C. and their members are affiliates of Samuel Zell.
Mr. Zell is a director of the Company and the Chairman of the Board of Directors
of Equity Group Investments, Inc., a privately owned investment management firm.
Mr. Handy is also a Managing Director of Equity Group Investments, Inc. The
managing member of Melchart LLC, an Illinois limited liability company, is
Richard Melman.
The Company and each of the Selling Stockholders (other than Metropolitan
Life Insurance Company) are parties to an Amended and Restated Standstill
Agreement dated as of October 1, 1997 which, among other things, requires the
Company to register under the Securities Act the Shares of such Selling
Stockholders offered hereby. All such Shares have been registered in accordance
with the exercise by such Selling Stockholders of a registration right under the
Amended and Restated Standstill Agreement.
The Shares offered hereby by Metropolitan Life Insurance Company
("MetLife") were acquired from First Boston Mezzanine Investment Partnership
("FBMIP"). FBMIP acquired such Shares from the Company pursuant to a
Subscription Agreement dated as of November 27, 1985 between the Company and
FBMIP. In connection with such Subscription Agreement, the Company, FBMIP and
certain other investors entered into a Registration Rights Agreement dated as of
November 27, 1985 (the "Registration Rights Agreement") which obligates the
Company to register Shares held by FBMIP (or its transferees) in certain
circumstances. The 1,477,575 Shares of MetLife offered hereby have been
registered in accordance with the exercise by MetLife of a registration right
under the Registration Rights Agreement.
PLAN OF DISTRIBUTION
The Selling Stockholders have informed the Company that they intend to
dispose of the shares of Common Stock offered hereby from time to time in one or
more of the following transactions: (a) to underwriters who will acquire the
shares for their own account and resell them in one or more transactions,
including negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of sale (any public offering price and any
discount or concessions allowed or reallowed or paid to dealers may be changed
from time to time); (b) through brokers, acting as principal or agent, in
transactions (which may involve crosses and block transactions) on the NYSE, in
special offerings, or otherwise, at market prices prevailing at the time of
sale, at prices related to such prevailing market prices, at negotiated prices
or at fixed prices; (c) directly or through brokers or agents in private sales
at negotiated prices, or (d) by any other legally available means.
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Broker-dealers participating in any such transactions as agent may receive
commissions from Selling Stockholders (and, if they act as agent for the
purchaser of such shares, from such purchaser) and may effect resales through
other broker-dealers, in which case discounts or commissions may be allowed or
reallowed. Participating broker-dealers may agree with Selling Stockholders to
sell a specified number of shares at a stipulated price per share and, to the
extent such broker-dealer is unable to do so as agent for a Selling Stockholder,
to purchase as principal any unsold shares at the price required to fulfill the
broker-dealer's commitment to the Selling Stockholder.
The Selling Stockholders and any broker-dealers, agents or underwriters
which participate in the distribution of the Shares may be deemed to be
"underwriters" within the meaning of the Securities Act, and any commissions or
purchase discounts received by them may be deemed to be commissions or discounts
under the Securities Act. If required, the names of any underwriters, brokers,
dealers or agents involved in the sale of the Shares and the applicable
commission or discount, if any, will be set forth in an accompanying supplement
to this Prospectus.
Under the securities laws of certain jurisdictions, the Shares may not be
offered or sold in such jurisdictions except through persons who are registered
or licensed brokers or dealers in such jurisdictions.
No Selling Stockholder may bid for, purchase, or attempt to induce any
person to bid for or purchase, shares of Common Stock during a period commencing
one business day prior to the determination of the offering price of any Shares
and ending on such Selling Stockholder's completion of participation in the
distribution. In addition and without limiting the foregoing, the Selling
Stockholders will be subject to applicable provisions of the Exchange Act and
the rules and regulations thereunder including, without limitation, Regulation
M.
Pursuant to registration agreements covering the Shares offered hereby, the
Company is required to bear and pay substantially all of the expenses relating
to the registration of such Shares; provided, however that the Selling
Stockholders will pay any applicable underwriters' discounts and commissions
and, in the case of all Selling Stockholders other than MetLife, the fees and
disbursements of counsel, if any, to such Selling Stockholders. In connection
with such registration, the Company has agreed to indemnify the Selling
Stockholders and any such underwriter used against certain liabilities,
including liabilities under the Securities Act, and to contribute to payments
the Selling Stockholders or such underwriters may be required to make in respect
thereof.
EXPERTS
The audited consolidated financial statements and schedules of the Company
incorporated by reference in this Prospectus to the extent and for the periods
indicated in their reports have been audited by Arthur Andersen LLP, independent
public accountants, and have been incorporated by reference in this Prospectus
in reliance upon the authority of said firm as experts in auditing and
accounting in giving said reports.
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<PAGE>
LEGAL MATTERS
The validity of the issuance of the Common Stock offered hereby has been
passed upon for the Company by Richard D. Tipton, Vice President--Legal Affairs
and General Counsel of the Company. As of May 26, 1998, Mr. Tipton owned 123
shares of Common Stock and had the right to acquire 27,000 shares of Common
Stock through the exercise of options granted pursuant to stock option plans of
the Company.
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______________________
No person has been authorized to give any information or to make any
representations with respect to the matters described in this Prospectus than
those contained or incorporated by reference herein, and, if given or made, such
information or representations must not be relied upon as having been authorized
by either the Company or the Selling Stockholders. This Prospectus does not
constitute an offer to sell or the solicitation of an offer to buy any
securities in any jurisdiction to or from any person to whom it is unlawful to
make any such offer or solicitation in such jurisdiction. Neither the delivery
of this Prospectus nor any distribution of securities hereunder shall, under any
circumstances, create any implication that there has been no change in the
affairs of the Company since the date hereof or that the information contained
herein is correct as of any time subsequent to its date.
______________________
9
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated fees and expenses payable by the Company in connection with
the offering and distribution of the Common Stock registered hereunder are as
follows:
<TABLE>
<S> <C>
SEC registration fee............ $ 9,263
Legal fees and expenses......... $15,000*
Accounting fees and expenses.... $ 5,000*
Miscellaneous................... $ 500*
-------
Total fees and expenses...... $29,763*
</TABLE>
______________________
* Estimated
The Company has entered into Registration Rights Agreements with the
Selling Stockholders, each of which is filed as an Exhibit hereto and
incorporated by reference herein. Pursuant to such Registration Rights
Agreements, the Company is required to bear and pay substantially all of the
expenses, currently estimated to be $29,763, relating to such registration,
provided, however, that the Selling Stockholders will pay any applicable
underwriters' discounts and commissions, and, in the case of certain Selling
Stockholders, the fees and disbursements of counsel, if any, to such Selling
Stockholders.
Item 15. 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) for unlawful payment of dividends or unlawful stock repurchase or
redemption 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),
II-1
<PAGE>
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
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 By-laws 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
II-2
<PAGE>
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.
Item 16. Exhibits.
The following is a list of Exhibits included as part of this Registration
Statement.
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
4.1 Restated Certificate of Incorporation of the Company, as
amended, is hereby incorporated by reference to an exhibit to
Amendment No. 1 to the Company's Registration Statement on Form
S-1, dated October 6, 1987, Registration No. 33-16795.
4.2 Certificate of Amendment of Restated Certificate of
Incorporation of the Company, is hereby incorporated by
reference to an exhibit to the Company's Registration
Statement on Form S-1 dated October 14, 1989, Registration No.
33-30089.
4.3 Certificate of Amendment of Certificate of Incorporation of the
Company dated May 6, 1998, filed herewith.
4.4 Amended and Restated By-laws of the Company, filed herewith.
4.5 Second Amended and Restated Credit Agreement dated as of June
27, 1997 among Chart House, Inc., as borrower, the Company and
Big Wave, Inc., as guarantors, and BankBoston, N.A., as agent,
and Sumitomo Bank of California, as security agent, is hereby
incorporated by reference to Exhibit 10.1(1) to the Company's
Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 1997.
5* Opinion of Richard D. Tipton, Vice President - Legal Affairs and
General Counsel of the Company
23.1 Consent of Arthur Andersen LLP, filed herewith.
23.2* Consent of Richard D. Tipton (contained in Exhibit 5 hereto)
24* Powers of Attorney
</TABLE>
_________________
* Previously filed.
II-3
<PAGE>
Item 17. Undertakings.
(a) Rule 415 Offering
The undersigned registrant hereby undertakes:
Section 1. To file, during any period in which offers or sales are being
made, a post-effective amendment to the Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(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.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement.
(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;
Section 2. That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
Section 3. To remove from registration by means of a post-effective
amendment to the Registration Statement any of the securities being registered
which remain unsold at the termination of the offering.
(b) Filings Incorporating Subsequent Exchange Act Documents by Reference.
The undersigned registrant hereby undertakes that, for the purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 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.
(c) Policy Regarding Indemnification.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers, and controlling persons of the
registrant pursuant to the foregoing
II-4
<PAGE>
provisions described under Item 15, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the 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 its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Solana Beach, California on the 29th day of May, 1998.
CHART HOUSE ENTERPRISES, INC.
By: /s/ F. PHILIP HANDY
------------------------------
F. Philip Handy
Acting Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/s/ F. PHILIP HANDY
- ------------------------------- Acting Chief Executive Officer (principal May 28, 1998
F. Philip Handy executive officer); Director
/s/ THOMAS J. WALTERS
- ------------------------------- President and Chief Operating Officer; May 27, 1998
Thomas J. Walters Director
/s/ JAMES C. WENDLER
- ------------------------------- Vice President--Finance and Chief Financial May 27, 1998
James C. Wendler Officer (principal financial officer and
principal accounting officer)
/s/ BARBARA R. ALLEN
- ------------------------------- Director May 28, 1998
Barbara R. Allen
/s/ LINDA WALKER BYNOE
- ------------------------------- Director May 28, 1998
Linda Walker Bynoe
*
- ------------------------------- Director May 27, 1998
William M. Diefenderfer III
/s/ STEPHEN OTTMANN
- ------------------------------ Director May 28, 1988
Stephen Ottmann
*
- ------------------------------- Director May 27, 1998
Samuel Zell
/s/ RICHARD D. TIPTON
- ------------------------------- May 27, 1998
* Richard D. Tipton
Attorney in Fact
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
The following is a list of Exhibits included as part of this Registration
Statement.
<TABLE>
<CAPTION>
Exhibit
Number Description
- --------- -----------
<C> <S>
4.1 Restated Certificate of Incorporation of the Company, as amended, is hereby
incorporated by reference to an exhibit to Amendment No. 1 to the Company's
Registration Statement on Form S-1 dated October 6, 1987, Registration
No. 33-16795.
4.2 Certificate of Amendment of Restated Certificate of Incorporation of the
Company, is hereby incorporated by reference to an exhibit to the Company's
Registration Statement on Form S-1 dated October 14, 1989, Registration
No. 33-30089.
4.3 Certificate of Amendment of Certificate of Incorporation of the Company dated
May 6, 1998, filed herewith.
4.4 Amended and Restated By-laws of the Company, filed herewith.
4.5 Second Amended and Restated Credit Agreement dated as of June 27, 1997 among
Chart House, Inc., as borrower, the Company and Big Wave, Inc., as
guarantors, and BankBoston, N.A., as agent, and Sumitomo Bank of California,
as security agent, is hereby incorporated by reference to Exhibit 10.1(1) to
the Company's Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 1997.
5* Opinion of Richard D. Tipton, Vice President - Legal Affairs and General
Counsel of the Company
23.1 Consent of Arthur Andersen LLP, filed herewith.
23.2* Consent of Richard D. Tipton (contained in Exhibit 5 hereto)
24* Powers of Attorney
</TABLE>
________________
* Previously filed.
<PAGE>
EXHIBIT 4.3
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
CHART HOUSE ENTERPRISES, INC.
Chart House Enterprises, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"),
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the Corporation duly adopted
resolutions declaring advisable the following amendment to the Restated
Certificate of Incorporation of the Corporation:
RESOLVED, that it is hereby declared advisable and in the
best interests of the Corporation that the Certificate of
Incorporation of the Corporation be amended by changing Article
Sixth thereof so that, as amended, said Article Sixth shall read
in its entirety as follows:
SIXTH:
A. The number of directors shall initially be seven
and, thereafter, shall be fixed from time to time
exclusively by the Board of Directors pursuant to a
resolution adopted by a majority of the total number of
authorized directors (whether or not there exist any
vacancies in previously authorized directorships at the time
any such resolution is presented to the Board for adoption).
Each director shall be elected by the stockholders at each
annual meeting.
B. Subject to the rights of the holders of any series
of Preferred Stock then outstanding, newly created
directorships re-
<PAGE>
sulting from any increase in the authorized number of
directors or vacancies in the Board of Directors resulting
from death, resignation, retirement, disqualification,
removal from office or other cause may be filled only by a
majority vote of the directors then in office though less
than a quorum, and directors so chosen shall hold office for
a term expiring at the next annual meeting of stockholders.
No decrease in the number of directors shall shorten the
term of any incumbent director.
SECOND: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Section 242 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, Chart House Enterprises, Inc. has caused this
Certificate to be signed by its duly authorized officer this 6/th/ day of May,
1998.
CHART HOUSE ENTERPRISES, INC.
By: /s/ RICHARD D. TIPTON
--------------------
Name: Richard D. Tipton
Office: Vice President Legal Affairs
and General Counsel
-2-
<PAGE>
EXHIBIT 4.4
CHART HOUSE ENTERPRISES, INC.
AMENDED AND RESTATED BYLAWS
ARTICLE I
Stockholders
Section 1. Annual Meeting. An annual meeting of the stockholders,
---------------
for the election of directors to succeed those whose terms expire and for the
transaction of such other business as may properly come before the meeting,
shall be held at such place, on such date, and at such time as the Board of
Directors shall each year fix, which date shall be within thirteen months
subsequent to the later of the date of incorporation or the last annual meeting
of stockholders.
Section 2. Special Meetings. Special meetings of the stockholders,
-----------------
for any purpose or purposes prescribed in the notice of the meeting, may be
called by the Board of Directors and shall be held at such place, on such date,
and at such time as they or he or she shall fix. Business transacted at special
meetings shall be confined to the purpose or purposes stated in the notice.
Section 3. Notice of Meetings. Written notice of the place, date,
-------------------
and time of all meetings of the stockholders shall be given, not less than ten
(10) nor more than sixty (60) days before the date on which the meeting is to be
held, to each stockholder entitled to vote at such meeting, except as otherwise
provided herein or required by law (meaning, here and below, as required from
time to time by the Delaware General Corporation Law or the Certificate of
Incorporation of the Corporation).
When a meeting is adjourned to another place, date or time, written
notice need not be given of the adjourned meeting if the place, date and time
thereof are announced at the meeting at which the adjournment is taken;
provided, however, that if the date of any adjourned meeting is more than thirty
(30) days after the date for which the meeting was originally noticed, or if a
new record date is fixed for the adjourned meeting, written notice of the place,
date, and time of the adjourned meeting shall be given in conformity herewith.
At any adjourned meeting, any business may be transacted which might have been
transacted at the original meeting.
Section 4. Quorum. At any meeting of the stockholders, the holders
-------
of a majority of all of the shares of the stock entitled to vote at the meeting,
present in person or by proxy, shall constitute a quorum for all purposes,
unless or except to the extent that the presence of a larger number may be
required by law.
If a quorum shall fail to attend any meeting, the chairman of the
meeting or the holders of a majority of the shares of stock entitled to vote who
are present, in person or by proxy, may adjourn the meeting to another place,
date, or time.
1
<PAGE>
If a notice of any adjourned special meeting of stockholders is sent
to all stockholders entitled to vote thereat, stating that it will be held with
those present constituting a quorum, then except as otherwise required by law,
those present at such adjourned meeting shall constitute a quorum, and all
matters shall be determined by a majority of the votes cast at such meeting.
Section 5. Organization. Such person as the Board of Directors may
-------------
have designated or, in the absence of such a person, the Chairman of the Board,
if any, or in his or her absence, the chief executive officer of the Corporation
or, in his or her absence, the President of the Corporation, or in his or her
absence, such person as may be chosen by the holders of a majority of the shares
entitled to vote who are present, in person or by proxy, shall call to order any
meeting of the stockholders and act as chairman of the meeting. In the absence
of the Secretary of the Corporation, the secretary of the meeting shall be such
person as the chairman appoints.
Section 6. Conduct of Business. The chairman of any meeting of
--------------------
stockholders shall determine the order of business and the procedure at the
meeting, including such regulation of the manner of voting and the conduct of
discussion as seem to him or her in order.
Section 7. Notice of Stockholder Business. At an annual or special
-------------------------------
meeting of the stockholders, only such business shall be conducted as shall have
been properly brought before the meeting. To be properly brought before a
meeting, business must be (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors, (b)
brought before the meeting by or at the direction of the Board of Directors, (c)
properly brought before an annual meeting by a stockholder or (d) if, and only
if, the notice of a special meeting provides for business to be brought before
the meeting by stockholders, properly brought before the meeting by a
stockholder. For business to be properly brought before a meeting by a
stockholder, the stockholder must have given timely notice thereof in writing to
the Secretary of the Corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than thirty-five (35) days prior to the meeting; provided
however, that in the event less than forty-five (45) days' notice or prior
public disclosure of the date of the meeting is given or made to stockholders,
notice by the stockholder to be timely must be so received not later than the
fifth day following the day on which such notice of the date of the meeting was
mailed or such disclosure was made. A stockholder's notice to the Secretary
shall set forth as to each matter the stockholder proposes to bring before the
meeting (a) a brief description of the business desired to be brought before the
meeting and the reasons for conducting such business at the meeting, (b) the
name and address, as they appear on the Corporation's books, of the stockholder
proposing such business, (c) the class and number of shares of the Corporation
which are beneficially owned by the stockholder, and (d) any material interest
of the stockholder in such business. Notwithstanding anything in the Bylaws to
the contrary, no business shall be conducted at a meeting except in accordance
with the procedures set forth in this Section 7. The chairman of a meeting
shall, if the facts
2
<PAGE>
warrant, determine that business was not properly brought before the meeting and
in accordance with the provisions of this Section 7, and if he or she should so
determine, he or she shall so declare to the meeting and any such business not
properly brought before the meeting shall not be transacted.
Section 8. Proxies and Voting. At any meeting of the stockholders,
-------------------
every stockholder entitled to vote may vote in person or by proxy authorized by
an instrument in writing filed in accordance with the procedure established for
the meeting.
Each stockholder shall have one vote for every share of stock entitled
to vote which is registered in his or her name on the record date for the
meeting, except as otherwise provided herein or required by law.
All voting, including on the election of directors but excepting where
otherwise required by law, may be by a voice vote; provided, however, that upon
demand therefor by a stockholder entitled to vote or his or her proxy, a stock
vote shall be taken. Every stock vote shall be taken by ballots, each of which
shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the meeting.
Every vote taken by ballots shall be counted by an inspector or inspectors
appointed by the chairman of the meeting.
All elections shall be determined by a plurality of the votes cast,
and except as otherwise required by law, the Certificate of Incorporation or
these Bylaws, all other matters shall be determined by a majority of the votes
cast.
Section 9. Stock List. A complete list of stockholders entitled to
-----------
vote at any meeting of stockholders, arranged in alphabetical order for each
class of stock and showing the address of each such stockholder and the number
of shares registered in his or her name, shall be open to the examination of any
such stockholder, for any purpose germane to the meeting, during ordinary
business hours for a period of at least ten (10) days prior to the meeting,
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or if not so specified, at the
place where the meeting is to be held.
The stock list shall also be kept at the place of the meeting during
the whole time thereof and shall be open to the examination of any such
stockholder who is present. This list shall presumptively determine the
identity of the stockholders entitled to vote at the meeting and the number of
shares held by each of them.
ARTICLE II
Board of Directors
Section 1. Number and Term of Office. The number of directors shall
--------------------------
initially be seven and, thereafter, shall be fixed from time to time exclusively
by the Board of Directors pursuant to a resolution adopted by a majority of the
total number of authorized directors (whether or not there exist any vacancies
in previously authorized
3
<PAGE>
directorships at the time any such resolution is presented to the Board for
adoption). Each director shall be elected by the stockholders at each annual
meeting.
Section 2. Vacancies and Newly Created Directorships. Subject to
------------------------------------------
the rights of the holders of any series of Preferred Stock then outstanding,
newly created directorships resulting from any increase in the authorized number
of directors or vacancies in the Board of Directors resulting from death,
resignation, retirement, disqualification, removal from office or other cause
may be filled only by a majority vote of the directors then in office though
less than a quorum, and directors so chosen shall hold office for a term
expiring at the next annual meeting of stockholders. No decrease in the number
of directors shall shorten the term of any incumbent director.
Section 3. Regular Meetings. Regular meetings of the Board of
-----------------
Directors shall be held at such place or places, on such date or dates, and at
such time or times as shall have been established by the Board of Directors and
publicized among all directors. A notice of each regular meeting shall not be
required.
Section 4. Special Meetings. Special meetings of the Board of
-----------------
Directors may be called by one-third of the directors then in office (rounded up
to the nearest whole number) or by the chief executive officer and shall be held
at such place, on such date, and at such time as they or he or she shall fix.
Notice of any special meeting of directors shall be given to each director by
the Secretary of the Corporation or by the officer or one of the directors
calling the meeting. Notice shall be duly given to each director (i) by giving
notice to such director in person or by telephone at least 48 hours in advance
of the meeting, (ii) by sending a telegram, telex or facsimile transmission, or
delivering written notice by hand or by overnight delivery service, to his last
known business or home address at least 48 hours in advance of the meeting, or
(iii) by mailing written notice to his last known business or home address at
least 72 hours in advance of the meeting. No notice of a special meeting need be
given to any director who waives notice in writing or who attends the meeting,
except for the express purpose of objecting at the beginning of the meeting, to
the transaction of any business because the meeting is not lawfully called or
convened. A notice or waiver of notice of a meeting of the Board of Directors
need not specify the purpose of the meeting.
Section 5. Quorum. At any meeting of the Board of Directors, a
-------
majority of the total number of authorized directors shall constitute a quorum
for all purposes. If a quorum shall fail to attend any meeting, a majority of
those present may adjourn the meeting to another place, date, or time, without
further notice or waiver thereof.
Section 6. Participation in Meetings by Conference Telephone.
--------------------------------------------------
Members of the Board of Directors, or of any committee thereof, may participate
in a meeting of such Board or committee by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other and such participation shall constitute presence
in person at such meeting.
4
<PAGE>
Section 7. Conduct of Business. At any meeting of the Board of
--------------------
Directors, business shall be transacted in such order and manner as the Board
may from time to time determine, and all matters shall be determined by the vote
of a majority of the directors present, except as otherwise provided herein or
required by law. Meetings of the Board of Directors shall be presided over by
the Chairman of the Board, if any, or in his or her absence by the Chief
Executive Officer, or in his or her absence, by the President, or in their
absence, by a chairman chosen at the meeting. In the absence of the secretary of
the Corporation, the chairman of the meeting may appoint any person to act as
secretary of the meeting. Action may be taken by the Board of Directors without
a meeting if all members thereof consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors.
Section 8. Powers. The Board of Directors may, except as otherwise
-------
required by law, exercise all such powers and do all such acts and things as may
be exercised or done by the Corporation, including, without limiting the
generality of the foregoing, the unqualified power:
(1) To declare dividends from time to time in accordance with law;
(2) To purchase or otherwise acquire any property, rights or
privileges on such terms as it shall determine;
(3) To authorize the creation, making and issuance, in such form as it
may determine, of written obligations of every kind, negotiable or non-
negotiable, secured or unsecured, and to do all things necessary in
connection therewith;
(4) To remove any officer of the Corporation with or without cause,
and from time to time to devolve the powers and duties of any officer upon
any other person for the time being;
(5) To confer upon any officer of the Corporation the power to
appoint, remove and suspend subordinate officers, employees and agents;
(6) To adopt from time to time such stock, option, stock purchase,
bonus or other compensation plans for directors, officers, employees and
agents of the Corporation and its subsidiaries as it may determine;
(7) To adopt from time to time such insurance, retirement, and other
benefit plans for directors, officers, employees and agents of the
Corporation and its subsidiaries as it may determine; and
(8) To adopt from time to time regulations, not inconsistent with
these Bylaws, for the management of the Corporation's business and affairs.
Section 9. Compensation of Directors. Directors, as such, may
--------------------------
receive, pursuant to resolution of the Board of Directors, fixed fees and other
compensation for their services as directors, including, without limitation,
their services as members of committees of the Board of Directors.
5
<PAGE>
Section 10. Nomination of Director Candidates. Subject to the
------------------------------------
rights of holders of any class or series of stock having a preference over the
Common Stock as to dividends or upon liquidation, nominations for the election
of directors may be made by the Board of Directors or a proxy committee
appointed by the Board of Directors or by any stockholder entitled to vote in
the election of directors generally. However, any stockholder entitled to vote
in the election of directors generally may nominate one or more persons for
election as directors at a meeting only if timely notice of such stockholder's
intent to make such nomination or nominations has been given in writing to the
Secretary of the Corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive offices of the
Corporation not fewer than ninety (90) days prior to the meeting; provided,
however, that in the event that less than one hundred (100) days' notice or
prior public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received no
later than the close of business on the 10th day following the day on which such
notice of the date of the meeting was mailed or such public disclosure was made.
Each such notice shall set forth (a) the name and address of the stockholder who
intends to make the nomination and of the person or persons to be nominated; (b)
a representation that the stockholder is a holder of record of stock of the
Corporation entitled to vote for the election of directors on the date of such
notice and intends to appear in person or by proxy at the meeting to nominate
the person or persons specified in the notice; (c) a description of all
arrangements or understandings between the stockholder and each nominee and any
other person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder; (d) such other
information regarding each nominee proposed by such stockholders as would be
required to be included in a proxy statement filed pursuant to the proxy rules
of the Securities and Exchange Commission, had the nominee been nominated, or
intended to be nominated, by the Board of Directors; and (e) the consent of each
nominee to serve as a director of the Corporation if so elected.
In the event that a person is validly designated as a nominee in
accordance with this Section 10 and shall thereafter become unable or unwilling
to stand for election to the Board of Directors, the Board of Directors or the
stockholder who proposed such nominee, as the case may be, may designate a
substitute nominee upon delivery, not fewer than five days prior to the date of
the meeting for the election of such nominee of a written notice to the
Secretary setting forth such information regarding such substitute nominee as
would have been required to be delivered to the Secretary pursuant to this
Section 10 had such substitute nominee been initially proposed as nominee. Such
notice shall include a signed consent to serve as a director of the Corporation,
if elected, of each such substitute nominee.
If the chairman of the meeting for the election of directors
determines that a nomination of any candidate for election as a director at such
meeting was not made in accordance with the applicable provisions of this
Section 10, such nomination shall be void; provided, however, that nothing in
this Section 10 shall be deemed to limit any voting rights upon the occurrence
of dividend arrearages provided to holders of Preferred Stock pursuant to the
Preferred Stock designation for any series of Preferred Stock.
6
<PAGE>
ARTICLE III
Committees
Section 1. Committees of the Board of Directors. The Board of
-------------------------------------
Directors, by a vote of a majority of the whole Board, may from time to time
designate committees of the Board, with such lawfully delegable powers and
duties as it thereby confers, to serve at the pleasure of the Board and shall,
for those committees and any others provided for herein, elect a director or
directors to serve as the member or members, designating, if it desires, other
directors as alternate members who may replace any absent or disqualified member
at any meeting of the committee. Any committee so designated may exercise the
power and authority of the Board of Directors to declare a dividend, to
authorize the issuance of stock or to adopt a certificate of ownership and
merger pursuant to Section 253 of the Delaware General Corporation Law if the
resolution which designates the committee or a supplemental resolution of the
Board of Directors shall so provide. In the absence or disqualification of any
member of any committee and any alternate member in his or her place, the member
or members of the committee present at the meeting and not disqualified from
voting, whether or not he or she or they constitute a quorum, may by unanimous
vote appoint another member of the Board of Directors to act at the meeting in
the place of the absent or disqualified member.
Section 2. Conduct of Business. Each committee may determine the
--------------------
procedural rules for meeting and conducting its business and shall act in
accordance therewith, except as otherwise provided herein or required by law.
Adequate provision shall be made for notice to members of all meetings; one-
third of the authorized members shall constitute a quorum unless the committee
shall consist of one or two members, in which event one member shall constitute
a quorum; and all matters shall be determined by a majority vote of the members
present. Action may be taken by any committee without a meeting if all members
thereof consent thereto in writing, and the writing or writings are filed with
the minutes of the proceedings of such committee.
ARTICLE IV
Officers
Section 1. Generally. The officers of the Corporation shall
----------
consist of a President, one or more Vice Presidents, a Secretary, a Treasurer
and such other offices as may from time to time be appointed by the Board of
Directors, including a Chairman of the Board and a Chief Executive Officer.
Officers shall be elected by the Board of Directors, which shall consider that
subject at its first meeting after every annual meeting of stockholders. Each
officer shall hold office until his or her successor is elected and qualified or
until his or her earlier resignation or removal. Any number of offices may be
held by the same person.
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Section 2. President. Subject to such supervisory powers, if any,
----------
as may be given by the Board of Directors to the Chairman of the Board, if there
be such an officer, the President shall, subject to the control of the Board of
Directors, have general supervision, direction, and control of the business and
the officers of the corporation. The President may also be designated as the
chief executive officer of the Corporation. The chief executive officer, or in
his absence, the President shall preside at all meetings of the stockholders
and, in the absence of the Chairman of the Board, or if there be none, at all
meetings of the Board of Directors. The President shall have the general powers
and duties of management usually vested in the office of president of a
corporation, and shall have such other powers and duties as may be prescribed by
the Board of Directors or the by-laws.
Section 3. Chairman of the Board. The Board of Directors may
----------------------
appoint a Chairman of the Board and may designate the Chairman of the Board as
chief executive officer of the Corporation. If the Board of Directors appoints a
Chairman of the Board, he or she shall perform such duties and possess such
powers as are assigned by the Board of Directors. The Chairman of the Board, if
any, shall preside at all meetings of the stockholders and at all meetings of
the Board of Directors.
Section 4. Vice President. Each Vice President shall have such
---------------
powers and duties as may be delegated to him or her by the Board of Directors.
One Vice President shall be designated by the Board to perform the duties and
exercise the powers of the President in the event of the President's absence or
disability.
Section 5. Treasurer (Chief Financial Officer). The Treasurer
------------------------------------
shall have the responsibility for maintaining the financial records of the
Corporation and shall have custody of all monies and securities of the
Corporation. He or she shall make such disbursements of the funds of the
Corporation as are authorized and shall render from time to time an account of
all such transactions and of the financial condition of the Corporation. The
Treasurer shall also perform such other duties as the Board of Directors may
from time to time prescribe.
Section 6. Secretary. The secretary shall issue all authorized
----------
notices for, and shall keep minutes of, all meetings of the stockholders and the
Board of Directors. He or she shall have charge of the corporate books and shall
perform such other duties as the Board of Directors may from time to time
prescribe.
Section 7. Delegation of Authority. The Board of Directors may
------------------------
from time to time delegate the powers or duties of any officer to any other
officers or agents, notwithstanding any provision hereof.
Section 8. Removal. Any officer of the Corporation may be removed
--------
at any time, with or without cause, by the Board of Directors.
Section 9. Action With Respect to Securities of Other Corporations.
--------------------------------------------------------
Unless otherwise directed by the Board of Directors, the President or any
officer of the
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Corporation authorized by the President shall have power to vote and otherwise
act on behalf of the Corporation, in person or by proxy, at any meeting of
stockholders of or with respect to any action of stockholders of any other
corporation in which this Corporation may hold securities and otherwise to
exercise any and all rights and powers which this corporation may possess by
reason of its ownership of securities in such other corporation.
ARTICLE V
Stock
Section 1. Certificates of Stock. Each stockholder shall be
----------------------
entitled to a certificate signed by, or in the name of the Corporation by, the
President or a Vice President, and by the Secretary or an Assistant Secretary,
or the Treasurer or an Assistant Treasurer, certifying the number of shares
owned by him or her. Any or all of the signatures on the certificate may be
facsimile.
Section 2. Transfers of Stock. Transfers of stock shall be made
-------------------
only upon the transfer books of the Corporation kept at an office of the
Corporation or by transfer agents designated to transfer shares of the stock of
the Corporation. Except where a certificate is issued in accordance with Section
4 of Article V of these Bylaws, an outstanding certificate for the number of
shares involved shall be surrendered for cancellation before a new certificate
is issued therefor.
Section 3. Record Date. The Board of Directors may fix a record
------------
date, which shall not be more than sixty nor fewer than ten days before the date
of any meeting of stockholders, nor more than sixty days prior to the time for
the other action hereinafter described, as of which there shall be determined
the stockholders who are entitled: to notice of or to vote at any meeting of
stockholders or any adjournment thereof; to express consent to corporate action
in writing without a meeting; to receive payment of any dividend or other
distribution or allotment of any rights; or to exercise any rights with respect
to any change, conversion or exchange of stock or with respect to any other
lawful action.
Section 4. Lost, Stolen or Destroyed Certificates. In the event of
---------------------------------------
the loss, theft or destruction of any certificate of stock, another may be
issued in its place pursuant to such regulations as the Board of Directors may
establish concerning proof of such loss, theft or destruction and concerning the
giving of a satisfactory bond or bonds of indemnity.
Section 5. Regulations. The issue, transfer, conversion, and
------------
registration of certificates of stock shall be governed by such other
regulations as the Board of Directors may establish.
ARTICLE VI
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Notices
Section 1. Notices. Except as otherwise specifically provided
--------
herein or required by law, all notices required to be given to any stockholder,
director, officer, employee or agent shall be in writing and may in every
instance be effectively given by hand delivery to the recipient thereof, by
depositing such notice in the mails, postage paid, or by sending such notice by
prepaid telegram or mailgram. Any such notice shall be addressed to such
stockholder, director, officer, employee or agent at his or her last known
address as the same appears on the books of the Corporation. The time when such
notice is received by such stockholder, director, officer, employee or agent, or
by any person accepting such notice on behalf of such person, if hand delivered,
or dispatched, if delivered through the mails or by telegram or mailgram, shall
be the time of the giving of the notice.
Section 2. Waivers. A written waiver of any notice, signed by a
--------
stockholder, director, officer, employee or agent, whether before or after the
time of the event for which notice is to be given, shall be deemed equivalent to
the notice required to be given to such stockholder, director, officer, employee
or agent. Neither the business nor the purpose of any meeting need be specified
in such a waiver.
ARTICLE VII
Miscellaneous
Section 1. Facsimile Signatures. In addition to the provisions for
---------------------
use of facsimile signatures elsewhere specifically authorized in these Bylaws,
facsimile signatures of any officer or officers of the Corporation may be used
whenever and as authorized by the Board of Directors or a committee thereof.
Section 2. Corporate Seal. The Board of Directors may provide a
---------------
suitable seal, containing the name of the Corporation, which seal shall be in
the charge of the Secretary. If and when so directed by the Board of Directors
or a committee thereof, duplicates of the seal may be kept and used by the
Treasurer or by an Assistant Secretary or Assistant Treasurer.
Section 3. Reliance Upon Books, Reports and Records. Each director,
-----------------------------------------
each member of any committee designated by the Board of Directors, and each
officer of the Corporation shall, in the performance of his duties, be fully
protected in relying in good faith upon the books of account or other records of
the Corporation, including reports made to the Corporation by any of its
officers, by an independent certified public accountant, or by an appraiser
selected with reasonable care.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be
------------
as fixed by the Board of Directors.
Section 5. Time Periods. In applying any provision of these Bylaws
-------------
which require that an act be done or not done a specified number of days prior
to an event
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or that an act be done during a period of a specified number of days prior to an
event, calendar days shall be used, the day of the doing of the act shall be
excluded, and the day of the event shall be included.
ARTICLE VIII
Indemnification of Directors and Officers
Section 1. Right to Indemnification. Each person who was or is
-------------------------
made a party or is threatened to be made a party to or is involved in any
action, suit or proceeding whether civil, criminal, administrative or
investigative ("proceeding"), by reason of the fact that he or she or a person
of whom he or she is the legal representative, is or was a director, officer or
employee of the Corporation or is or was serving at the request of the
Corporation as a director, officer or employee of another corporation, or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer or employee or in
any other capacity while serving as a director, officer or employee, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by Delaware Law, as the same exists or may hereafter be amended (but,
in the case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than that Law
permitted the Corporation to provide prior to such amendment) against all
expenses, liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties, amounts paid or to be paid in settlement and amounts
expended in seeking indemnification granted to such person under applicable law,
this Bylaw or any agreement with the Corporation) reasonably incurred or
suffered by such person in connection therewith and such indemnification shall
continue as to a person who has ceased to be a director, officer or employee and
shall inure to the benefit of his or her heirs, executors and administrators;
provided however, that, except as provided in Section 2 of this Article VIII,
- -------- -------
the Corporation shall indemnify any such person seeking indemnity in connection
with an action, suit or proceeding (or part thereof) initiated by such person
only if such action, suit or proceeding (or part thereof) was authorized by the
Board of Directors of the Corporation. Such right shall be a contract right and
shall include the right to be paid by the Corporation expenses incurred in
defending any such proceeding in advance of its final disposition; provided
--------
however, that if the Delaware General Corporation Law then so requires, the
- -------
payment of such expenses incurred by a director or officer of the Corporation in
his or her capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of such proceeding, shall be made only upon delivery to
the Corporation of an undertaking, by or on behalf of such director or officer,
to repay all amounts so advanced if it should be determined ultimately that such
director or officer is not entitled to be indemnified under this Section or
otherwise.
Section 2. Right of Claimant to Bring Suit. If a claim under
--------------------------------
Section 1 is not paid in full by the Corporation within twenty (20) days after a
written claim has been received by the Corporation, the claimant may at any time
thereafter bring suit
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against the Corporation to recover the unpaid amount of the claim and, if such
suit is not frivolous or brought in bad faith, the claimant shall be entitled to
be paid also the expense of prosecuting such claim. It shall be a defense to any
such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition where
the required undertaking, if any, has been tendered to this Corporation) that
the claimant has not met the standards of conduct which make it permissible
under the Delaware General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including its Board
of Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that claimant has not met the applicable standard of
conduct.
Section 3. Non-Exclusivity of Rights. The rights conferred on any
--------------------------
person in Sections 1 and 2 shall not be exclusive of any other right which such
persons may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, Bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
Section 4. Indemnification Contracts. The Board of Directors is
--------------------------
authorized to enter into a contract with any director, officer, employee or
agent of the Corporation, or any person serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including employee
benefit plans, providing for indemnification rights equivalent to, or, if the
Board of Directors so determines, greater than, those provided for in this
Article VIII.
Section 5. Insurance. The Corporation shall maintain insurance to
----------
the extent reasonably available, at its expense, to protect itself and any such
director, officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise against any such expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the Delaware
General Corporation Law.
Section 6. Effect of Amendment. Any amendment, repeal or
--------------------
modification of any provision of this Article VIII by the stockholders and the
directors of the Corporation shall not adversely affect any right or protection
of a director or officer of the Corporation existing at the time of such
amendment, repeal or modification.
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ARTICLE IX
Amendments
The Board of Directors is expressly empowered to adopt, amend or
repeal Bylaws of the Corporation. Any adoption, amendment or repeal of Bylaws
of the Corporation by the Board of Directors shall require the approval of a
majority of the total number of authorized directors (whether or not there exist
any vacancies in previously authorized directorships at the time any resolution
providing for adoption, amendment or repeal is presented to the Board). The
stockholders shall also have power to adopt, amend or repeal the Bylaws of the
Corporation. In addition to any vote of the holders of any class or series of
stock of this Corporation required by law or by these Bylaws, the affirmative
vote of the holders of at least sixty-six and two-thirds percent (66-2/3%) of
the voting power of all of the then outstanding shares of the capital stock of
the Corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required to adopt, amend or repeal any
provisions of the Bylaws of the Corporation.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement Form S-3 of our report dated January
30, 1998 incorporated by reference in Chart House Enterprises Inc.'s Form 10-K
for the year ended December 29, 1997 and to all references to our Firm included
in this registration statement.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
San Diego, California
May 29, 1998
