<PAGE>
As filed with the Securities and Exchange Commission on December 14, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
---------------------
Chart House Enterprises, Inc.
(Exact name of registrant as specified in its charter)
Delaware 33-0147725
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
640 North LaSalle, Suite 295
Chicago, Illinois 60610
(Address of principal executive offices) (Zip Code)
Chart House Enterprises, Inc.
1998 Employee Stock Purchase Plan
(Full title of the plan)
Susan Obuchowski
Secretary
Chart House Enterprises, Inc.
640 N. LaSalle, Suite 295
Chicago, Illinois 60610
(312) 266-1100
(Name, address, and telephone number,
including area code, of agent for service)
---------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to be to be Offering Aggregate Registration Fee
Registered Registered Price Per Offering
Share Price
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 250,000 shares (1) $5.3125 (2) $1,328,125.00 (2) $370.00
$.01 par value
==================================================================================================
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to
be offered pursuant to the employee benefit plan described herein.
(2) Estimated solely for the purpose of calculating the registration fee and,
pursuant to Rule 457(h) under the Securities Act of 1933, based upon the
average of the high and low sale prices of the common stock reported on the
New York Stock Exchange on December 8, 1998.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents (Commission File No. 1-9684) heretofore filed with
the Securities and Exchange Commission (the "Commission") by Chart House
Enterprises, Inc., a Delaware corporation (the "Company"), or the Chart House
Enterprises, Inc. 1998 Employee Stock Purchase Plan (the "Plan"), are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 29, 1997;
(b) The Company's Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 30, 1998, June 29, 1998 and September 28, 1998; and
(c) The description of the Company's Common Stock, $.01 par value, which is
contained in the Company's Registration Statement on Form 8-A filed
with the Commission on July 20, 1989, including any amendment or report
filed for the purpose of updating such description.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and all documents filed by the Plan pursuant to Section
15(d) of the Exchange Act, after the date of this registration statement and
prior to the filing of a post-effective amendment to this registration statement
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this registration statement and to be a part
hereof from the respective dates of filing of such documents (such documents,
and the documents enumerated above, being hereinafter referred to as
"Incorporated Documents").
Any statement contained in an Incorporated Document shall be deemed to be
modified or superseded for purposes of this registration statement to the extent
that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this registration statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
<PAGE>
Item 6. Indemnification of Directors and Officers.
The Certificate of Incorporation of the Company, as amended, (the
"Certificate of Incorporation") 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 (the "DGCL") (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 DGCL is 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 DGCL, 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 DGCL, the Company 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 Company) by reason
of the fact that such person is or was a director, officer, employee or agent of
the Company, or is or was serving at the request of the Company 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 Company and (ii) with
respect to any criminal action or proceeding, if such person had no reasonable
cause to believe such conduct was unlawful.
Also under Section 145 of the DGCL, the Company 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 Company 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 Company, or is or was serving at the
request of the Company 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 Company, 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 Company 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 Company 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
II-2
<PAGE>
person has met the applicable standard of conduct set forth above. Such
determination shall be made (i) by a majority vote of the directors who are not
parties to such action, suit or proceeding, even though less than a quorum or
(ii) if there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (iii) 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 Company 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 Company
as authorized in Section 145 of the DGCL. 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 DGCL are 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 the Company may
purchase and maintain insurance against liabilities asserted against any former
or current director, officer, employee or agent of the Company, or a person who
is or was serving at the request of the Company as a director, officer, employee
or agent of another Company partnership, joint venture, trust or other
enterprise whether or not the power to indemnify such person is provided by
Section 145 of the DGCL.
The Bylaws of the Company (the "Bylaws") provide that (i) the Company is
required to indemnify its officers and directors to the fullest extent permitted
by law, including those circumstances in which indemnification would otherwise
be discretionary; (ii) the Company is required to advance expenses to its
officers and directors as incurred, provided that they undertake to repay the
amount advanced if it is ultimately determined that they are not entitled to
indemnification; (iii) an officer or director may bring suit against the Company
if a claim for indemnification is not timely paid; and (iv) the stockholders and
directors of the Company may not retroactively amend the Bylaw provisions
relating to the indemnification of officers and directors of the Company in a
way which is adverse to its officers or directors or former officers and
directors. Moreover, the Bylaws provide that the Company must maintain insurance
to the extent reasonably available, at its expense, to protect itself and any
director, officer, employee or agent of the Company against any such loss,
expense or liability whether or not the Company would have the power to
indemnify such person against such loss, expense or liability.
The Company maintains an officers' and directors' liability insurance
policy insuring the Company's officers and directors against certain liabilities
and expenses incurred by such persons in such capacities. In addition, the
Bylaws authorize the Company to enter into indemnification agreements with its
directors, officers, employees or agents. Although the Company has no present
intention of entering into indemnification agreements, it may do so in the
future.
II-3
<PAGE>
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
No. Description
------- -----------
4.1 Restated Certificate of Incorporation of the Company
(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 (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 (incorporated by reference to
Exhibit 4.3 to Amendment No. 2 to the Company's Registration
Statement on Form S-3, dated May 29, 1998 (Registration
No. 33-16795)).
4.4 Amended and Restated By-laws of the Company (incorporated by
reference to Exhibit 4.4 to Amendment No. 2 to the Company's
Registration Statement on Form S-3, dated May 29, 1998
(Registration No. 33-16795)).
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
(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).
4.6* Chart House Enterprises, Inc. 1998 Employee Stock Purchase
Plan.
5* Opinion of Sidley & Austin.
23.1* Consent of Arthur Andersen LLP.
23.2* Consent of Sidley & Austin (contained in Exhibit 5).
24* Power of Attorney (included on the signature page of this
registration statement).
- -------------------
* Filed herewith.
Item 9. Undertakings.
(a) The Company 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 "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this registration statement (or the most recent
post-effective amendment hereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in this registration
II-4
<PAGE>
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 percent 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 this registration statement
or any material change to such information in this registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the Company
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
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 remained unsold at the termination of
the offering.
(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in this
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) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company 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 whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
II-5
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act, the
Company certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Chicago, State of Illinois on this 14th day of
December, 1998.
CHART HOUSE ENTERPRISES, INC.
By: THOMAS J. WALTERS
--------------------------------------
Thomas J. Walters
President and Chief Executive Officer
II-6
<PAGE>
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
immediately below constitutes and appoints Thomas J. Walters and Cynthia T.
Quigley, and each or either of them, his true and lawful attorney-in-fact and
agent, 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 to
file the same with all exhibits thereto and other documents in connection
therewith with the Commission, granting unto said attorney-in-fact and agents,
and each of them, 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 any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities indicated,
on this 14th day of December, 1998.
Signature Title
--------- -----
THOMAS J. WALTERS Director, President and
- -------------------------------------- Chief Executive Officer
Thomas J. Walters (principal executive officer)
CYNTHIA T. QUIGLEY Chief Financial Officer
- -------------------------------------- (principal financial and accounting
Cynthia T. Quigley officer)
F. PHILIP HANDY Director
- --------------------------------------
F. Philip Handy
BARBARA R. ALLEN Director
- --------------------------------------
Barbara R. Allen
LINDA WALKER BYNOE Director
- --------------------------------------
Linda Walker Bynoe
WILLIAM M. DIEFENDERFER III Director
- --------------------------------------
William M. Diefenderfer III
STEPHEN OTTMANN Director
- --------------------------------------
Stephen Ottmann
SAMUEL ZELL Director
- --------------------------------------
Samuel Zell
II-7
<PAGE>
The Plan. Pursuant to the requirements of the Securities Act, the trustees
(or other persons who administer the employee benefit plan) have duly caused
this registration statement to be signed on their respective behalf by the
undersigned, thereunto duly authorized, in the City of Chicago, State of
Illinois, on this 14th day of December, 1998.
CHART HOUSE ENTERPRISES, INC. 1998
EMPLOYEE STOCK PURCHASE PLAN
By: WILLIAM M. DIEFENDERFER III
--------------------------------------
William M. Diefenderfer III
A member of the Compensation Committee
of the Board of Directors of the
Company in its capacity as the
administrator for the Plan.
II-8
<PAGE>
EXHIBIT INDEX
-------------
Exhibit No. Description
- ----------- -----------
4.1 Restated Certificate of Incorporation of the Company (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 (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 (incorporated by reference to Exhibit
4.3 to Amendment No. 2 to the Company's Registration Statement on
Form S-3, dated May 29, 1998 (Registration No. 33-16795)).
4.4 Amended and Restated By-laws of the Company (incorporated by
reference to Exhibit 4.4 to Amendment No. 2 to the Company's
Registration Statement on Form S-3, dated May 29, 1998
(Registration No. 33-16795)).
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 (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).
4.6* Chart House Enterprises, Inc. 1998 Employee Stock Purchase Plan.
5* Opinion of Sidley & Austin.
23.1* Consent of Arthur Andersen LLP.
23.2* Consent of Sidley & Austin (contained in Exhibit 5).
24* Power of Attorney (included on the signature page of this
registration statement).
- -----------------------
*Filed herewith.
II-9
<PAGE>
Exhibit 4.6
CHART HOUSE ENTERPRISES, INC.
1998 EMPLOYEE STOCK PURCHASE PLAN
1. Purpose of the Plan. The Plan is intended as an incentive and to
encourage stock ownership by all eligible employees of Chart House
Enterprises, Inc., a Delaware corporation (the "Company"), and the Company's
Subsidiaries, so that they may share in the fortunes of the Company by
acquiring or increasing their proprietary interest in the Company. The Plan is
designed to encourage eligible employees to remain in the employ of the
Company. It is intended that options issued pursuant to this Plan shall
constitute options issued pursuant to an "employee stock purchase plan" within
the meaning of Section 423 of the Internal Revenue Code of 1986, as amended
(the "Code").
2. Definitions.
2.1 "Base Pay" means regular base compensation or straight time earnings.
2.2 "Common Stock" means the Company's Common Stock, $.01 par value.
2.3 "Fair Market Value" means the closing price for the Common Stock on a
national stock exchange or, if the stock is not traded on an exchange, the
last sale price for the Common Stock as reported on the NASDAQ National
Market.
2.4 "Investment Account" shall mean the separate account for each
participating employee reflecting the number of shares of Common Stock
purchased under the terms of the Plan that have not been withdrawn by the
employee.
2.5 "Offering Date" means the commencement date of the offering if such date
is a regular business day or the first business day following such
commencement date. A different date may be set by resolution of the Board of
Directors of the Company (the "Board").
2.6 "Parent" means any corporation, other than the Company, in an unbroken
chain of corporations ending with the Company if each of the corporations
other than the Company owns stock possessing fifty percent (50%) or more of
the total combined voting power of all classes of stock in one of the other
corporations in such chain.
2.7 "Payroll Deduction Account" shall mean the funds accumulated with
respect to an individual employee as a result of deductions from his or her
paycheck for the purpose of purchasing stock under this Plan. The funds
allocated to an employee's Payroll Deduction Account shall remain the property
of the respective employee at all times during each offering.
2.8 "Plan Year" means the calendar year.
2.9 "Subsidiary" or "Subsidiaries" means any corporation or corporations
other than the Company in an unbroken chain of corporations beginning with the
Company if each of the corporations other than the last corporation in the
unbroken chain owns stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
3. Employees Eligible to Participate. All employees of the Company and its
Subsidiaries that, from time to time, adopt the Plan with the approval of the
Plan Administrator shall be eligible to participate in the Plan with respect
to each offering, provided each of such employees:
(a) is customarily employed, as of the applicable Offering Date, for more
than 20 hours per week;
(b) has been employed, as of the applicable Offering Date, for at least 6
months;
(c) is employed on the applicable Offering Date and has a timely
completed Enrollment Agreement in effect for that offering; and
<PAGE>
(d) does not own, immediately after the right to purchase Shares under
the Plan is granted, stock possessing five percent (5%) or more of the
total combined voting power or value of all classes of stock of the Company
or a Subsidiary. In determining stock ownership for purposes of the
preceding sentence, the rules of Section 424(d) of the Code shall apply and
stock which the employee may purchase under outstanding options shall be
treated as stock owned by the employee.
4. Offerings. The first offering under this Plan shall commence on January
1, 1999 or on such later date as may be specified by the Company, and
terminate on June 30, 1999. Thereafter, offerings shall commence on July 1 and
terminate on the following December 31 and commence on January 1 and terminate
on the following June 30 until the Plan is terminated by the Board or no
additional shares of Common Stock of the Company are available for purchase
under the Plan.
5. Price. The purchase price per share shall be 85% of the average Fair
Market Value of the Common Stock during the offering, determined by averaging
the Fair Market Value of the Common Stock on each business day of the
offering, provided that the purchase price shall not be less than the lesser
of (1) 85% of the Fair Market Value of the Common Stock on the Offering Date;
and (2) 85% of the Fair Market Value of the Common Stock on the last business
day of the offering.
6. Stock Subject to the Plan. The stock subject to the plan shall be shares
of the Company's authorized but unissued Common Stock or shares of Common
Stock reacquired by the Company, including shares purchased in the open
market. The aggregate number of shares which may be issued pursuant to the
Plan is 250,000, subject to increase or decrease by reason of stock split-ups,
reclassifications, stock dividends, changes in par value and the like.
7. Changes in Capital Structure.
7.1 In the event that the outstanding shares of Common Stock of the Company
are hereafter increased or decreased or changed into or exchanged for a
different number or kind of shares or other securities of the Company or of
another corporation, by reason of any reorganization, merger, consolidation,
recapitalization, reclassification, stock split-up, combination of shares, or
dividend payable in shares, appropriate adjustment shall be made by the Board
in the number or kind of shares as to which an option granted under this Plan
shall be exercisable, to the end that the participant's proportionate interest
shall be maintained as before the occurrence of such event. Any such
adjustment made by the Board shall be conclusive.
7.2 If the Company is not the surviving or resulting corporation in any
reorganization, merger, consolidation or recapitalization, then immediately
prior to such reorganization, merger, consolidation or recapitalization, the
offering shall end, and the payroll deductions credited to each participant's
Payroll Deduction Account under the Plan shall be applied to purchase shares
of Common Stock pursuant to Section 11.
8. Participation. Except as provided in Paragraph 13.1, an eligible employee
may become a participant by completing, signing and filing an enrollment
agreement ("Enrollment Agreement") and any other necessary papers with the
Company at least ten days prior to the commencement of the initial, or any
subsequent, offering in which he or she wishes to participate. Any timely
filed Enrollment Agreement shall be effective for all subsequent offerings
unless earlier terminated by the employee as provided in Section 14, or as
otherwise provided in Paragraph 13.1. Except to the extent provided in the
foregoing sentence, participation in one offering under the Plan shall neither
limit, or require, participation in any other offering.
9. Payroll Deductions.
9.1 At the time a participant files his or her Enrollment Agreement, he or
she shall elect to have deductions made from his or her pay at such regular
intervals as may be determined by the Committee during the time he or she is a
participant in an offering at not less than $10 or more than the dollar amount
or percentage of his or her Base Pay during the offering period that is
designated by the participant, subject to the limitations under Section 10.
<PAGE>
9.2 All payroll deductions made for a participant shall be credited to his
or her Payroll Deduction Account under the Plan. A participant may not make
any separate cash payment into such Payroll Deduction Account nor may payment
for shares be made other than by payroll deduction.
9.3 A participant may discontinue his or her payroll deductions or
participation in the Plan as provided in Section 14, but no other change can
be made during an offering and, specifically, except as provided in
Section 14, a participant may not alter the rate of his or her payroll
deductions for that offering.
10. Granting of Option.
10.1 On the Offering Date, this Plan shall be deemed to have granted to the
participant an option for as many full shares as he or she will be able to
purchase with the payroll deductions credited to his or her Payroll Deduction
Account during his or her participation in that offering; provided that the
maximum number of shares that a participant may purchase under an offering
shall be 5,000.
10.2 Notwithstanding the foregoing, no employee shall be granted an option
which permits his or her rights to purchase Common Stock under the Plan and
any similar employee stock purchase plans of the Company and, if applicable, a
Subsidiary and, if applicable, a Parent to accrue at a rate which exceeds
$25,000 of Fair Market Value of such stock (determined at the time such option
is granted) for each calendar year which such option is outstanding at any
time. The purpose of the limitation in the preceding sentence is to comply
with Section 423(b)(8) of the Code.
10.3 If the total number of shares for which options are to be granted on
any date in accordance with Paragraph 10.1 exceeds the number of shares than
available under the Plan (after deduction of all shares for which options have
been exercised or are then outstanding), the Company shall make a pro rata
allocation of the shares remaining available in as nearly a uniform manner as
shall be practical and as it shall determine to be equitable.
11. Exercise of Option. Each employee who continues to be a participant in
an offering on the last business day of that offering shall be deemed to have
exercised his or her option on such date and shall be deemed to have purchased
from the Company such number of full shares of Common Stock (subject to the
limitations under Section 10) reserved for the purpose of the Plan as his or
her accumulated payroll deductions on such date will pay for at the purchase
price. All such shares purchased shall be credited to the participant's
Investment Account. The Company, or its designated agent, shall hold in its
name or in the name of its nominee all certificates for shares purchased until
shares are withdrawn by the Participant under Section 13.
12. Employee's Rights as a Stockholder.
12.1 No participating employee shall have any right as a stockholder with
respect to any shares under the Plan until the shares have been purchased in
accordance with Section 11 above and the stock certificate has actually been
issued.
12.2 All cash dividends paid with respect to shares of Common Stock in a
participant's Investment Account shall, unless otherwise directed by the
Committee, be used to purchase additional shares of Common Stock on the next
date shares are purchased pursuant to Section 11, subject to the limitations
in Section 10. Such shares shall be added to the participant's Investment
Account.
12.3 Each participant shall be entitled to direct the Company, or its
designated agent, as to the voting of any shares of Common Stock held in the
participant's Investment Account.
<PAGE>
13. Withdrawal from Investment Account.
13.1 A participant shall have the right to request, not more than once per
calendar quarter, that a certificate be issued for all or a portion of the
Common Stock credited to his or her Investment Account by giving notice to the
Company; provided that if any of the Common Stock with respect to which a
certificate has been requested has been credited to the participant's
Investment Account for less than one year, the participant shall not be
permitted to participate in the offering that commences immediately after such
certificate is issued.
13.2 Each certificate withdrawn by a participant may be registered only in
the name of the participant, or if the participant so directs, in the names of
the participant and one other person, as joint tenants with right of
survivorship, tenants in common, or as community property, to the extent and
in the manner permitted by applicable law.
14. Withdrawal from Payroll Deduction Account.
14.1 An employee may withdraw from the Plan, in whole but not in part, at
any time prior to the last business day of each offering by delivering a
withdrawal notice ("Withdrawal Notice") to the Company, in which event the
Company will refund the entire balance of his or her Payroll Deduction Account
as soon as practicable thereafter.
14.2 To re-enter the Plan, an employee who has previously withdrawn must
file a new Enrollment Agreement in accordance with Section 8. His or her re-
entry into the Plan cannot, however, become effective before the beginning of
the next offering following his or her withdrawal.
14.3 An employee may elect to discontinue his or her payroll deductions
during the course of a particular offering, at any time prior to the last
business day preceding the final pay day during such offering by delivering an
election to discontinue deductions to the Company, and such election shall not
constitute a withdrawal for the purposes of this Section 14. In the event that
an employee elects to discontinue his or her payroll deductions pursuant to
this Paragraph 14.3, the employee shall remain a participant in such offering
and shall be entitled to purchase from the Company such number of full shares
of Common Stock as set forth and in accordance with Section 11 of the Plan.
15. Carryover of Payroll Deduction Account. To the extent that, immediately
after shares of Common Stock have been purchased on the last day of the
Offering, the balance of a participant's Payroll Deduction Account consists of
an amount equal to less than the fair market value of one share of Common
Stock, the Company shall carryover the balance of the participant's Payroll
Deduction Account to the next offering unless the participant does not
participate in the next offering, in which event the balance of the
participant's Payroll Deduction Account shall be refunded to the participant.
If the balance of the participant's Payroll Deduction Account, determined
immediately after shares of Common Stock have been purchased on the last day
of the Offering, consists of an amount equal to or in excess of the fair
market value of one share of Common Stock, the Company shall refund to the
participant the balance of the participant's Payroll Deduction Account. In
addition, upon termination of the Plan, the balance of each participant's
Payroll Deduction Account shall be returned to the participant.
16. Interest. No interest will be paid or allowed on any money in the
Payroll Deduction Accounts of participating employees.
17. Rights Not Transferable. No participant shall be permitted to sell,
assign, transfer, pledge, or otherwise dispose of or encumber either the
payroll deductions credited to his or her Payroll Deduction Account, Common
Stock credited to his or her Investment account, or any rights with regard to
the exercise of an option or to receive shares under the Plan other than by
will or the laws of descent and distribution, and such right and interest
shall not be liable for, or subject to, the debts, contracts, or liabilities
of the employee. If any such action is taken by the participant, or any claim
is asserted by any other party in respect of such right and interest whether
by garnishment, levy, attachment or otherwise, such action or claim will be
treated as an election to withdraw in accordance with Sections 13 or 14,
whichever is applicable.
<PAGE>
18. Termination of Employee's Rights. An employee's rights under the Plan
will terminate when he or she ceases to be an employee because of resignation,
layoff, or discharge. A Withdrawal Notice will be considered as having been
received from the employee on the day his or her employment ceases, and all
payroll deductions not used will be refunded.
If an employee's employment shall be terminated (a) within 90 days of the
last day of the current offering by reason of retirement or disability or (b)
at any time during the current offering by reason of death, he or she (or his
or her designated beneficiary, in the event of his or her death, or if none,
his or her legal representative) shall have the right prior to the end of the
current offering to elect to have the balance of his or her Payroll Deduction
Account either paid to him or her in cash or applied at the end of the current
offering toward the purchase of Common Stock. If an employee's employment
shall be terminated more than 90 days from the last day of the current
offering by reason of retirement or disability, the balance of the employee's
Payroll Deduction Account shall be paid to him or her in cash.
19. Administration of the Plan. The Plan Administrator shall be a committee
consisting of not less than two directors who shall be appointed from time to
time by, and shall serve at the discretion of the Board (the "Committee"). To
the extent required to comply with Rule 16b-3 under the Securities Exchange
Act of 1934, as amended, each member of the Committee shall qualify as a "non-
employee director" as defined in Rule 16b-3 or any successor definition
adopted by the Securities and Exchange Commission.
Subject to the provisions of this Plan, and with a view to effecting its
purpose, the Plan Administrator shall have sole authority, in its absolute
discretion, to (a) designate from time to time the Subsidiaries who may adopt
the Plan so that its employees will be eligible to participate in the Plan;
(b) construe and interpret this Plan; (c) define the terms used in this Plan;
(d) prescribe, amend and rescind rules and regulations relating to this Plan;
(e) correct any defect, supply any omission or reconcile any inconsistency in
this Plan; (f) determine all other terms and conditions of options; and (g)
make all other determinations necessary or advisable for the administration of
this Plan. All decisions, determinations and interpretations made by the Plan
Administrator shall be binding and conclusive on all participants in this Plan
and on their legal representatives, heirs and beneficiaries. The Committee
may, in its sole discretion, delegate to an officer or officers of the Company
the administration of the Plan under this Section; provided, however, that no
such delegation by the Committee shall be made with respect to the
administration of the Plan as it affects officers of the Company or its
Subsidiaries and provided further that the Committee may not delegate its
authority to correct errors, omissions or inconsistencies in the Plan.
20. Termination and Amendments to Plan. The Plan may be terminated at any
time by the Board. The Plan will terminate in any case on the date on which
all or substantially all of the unissued shares of Common Stock reserved for
the purpose of the Plan have been purchased. Upon termination of the Plan, all
payroll deductions not used to purchase Common Stock will be refunded.
The Board also reserves the right to amend the Plan from time to time in any
respects, provided, however, that no amendment shall be effective without
prior approval of the stockholders (a) which would, except as provided in
Section 6 and 7, increase the aggregate number of shares of Common Stock to be
issued under the Plan, (b) which would, except as provided in Section 3,
change the class of employees eligible to receive options under the Plan or
(c) if such amendment requires stockholder approval for any other reason in
order for the Plan to be eligible or continue to qualify for the benefits
conferred by Securities and Exchange Commission Rule 16b-3, as amended from
time to time, or any successor rule or regulatory requirements.
21. Effective Date. The effective date of the Plan is March 18, 1998.
<PAGE>
EXHIBIT 5
SIDLEY & AUSTIN
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
DALLAS One First National Plaza WASHINGTON, D.C.
------ Chicago, Illinois 60603 ------
LOS ANGELES Telephone 312 853 7000 LONDON
------ Facsimile 312 853 7036 ------
NEW YORK SINGAPORE
Founded 1866 -------
TOKYO
WRITER'S DIRECT NUMBER WRITER'S E-MAIL ADDRESS
December 14, 1998
Chart House Enterprises, Inc.
640 N. LaSalle Street
Suite 295
Chicago, IL 60610
Re: 250,000 Shares of Common Stock, $.01 par value
----------------------------------------------
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-8 (the "Registration
Statement") being filed by Chart House Enterprises, Inc., a Delaware corporation
(the "Company"), with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"), relating to the
registration of 250,000 shares of the Company's Common Stock, $.01 par value
(the "Registered Common Stock"), to be issued from time to time under the Chart
House Enterprises, Inc. 1998 Employee Stock Purchase Plan (the "Plan").
We are familiar with the proceedings to date with respect to the proposed
issuance of the Registered Common Stock under the Plan and have examined such
records, documents and questions of law, and satisfied ourselves as to such
matters of fact, as we have considered relevant and necessary as a basis for
this opinion.
Based on the foregoing, we are of the opinion that:
1. The Company is duly incorporated and validly existing under the laws of
the State of Delaware.
2. Each share of Registered Common Stock newly issued under the Plan will
be duly authorized, legally issued, fully paid and non-assessable when (i)
the Registration Statement shall have become effective under the Securities Act;
(ii) the Company's Board of Directors or a duly authorized committee thereof
shall have duly
<PAGE>
SIDLEY & AUSTIN CHICAGO
Chart House Enterprises, Inc.
December 11, 1998
Page 2
adopted final resolutions authorizing the issuance and sale thereof as
contemplated by the Plan; and (iii) a certificate representing such share shall
have been duly executed, countersigned and registered and duly delivered upon
payment of the agreed consideration therefor (not less than the par value
thereof) determined in accordance with the terms of the Plan.
We do not find it necessary for the purposes of this opinion letter to
cover, and accordingly we express no opinion as to, the application of the
securities or blue sky laws of the various states to the sale of the Registered
Common Stock.
This opinion letter is limited to the General Corporation Law of the State
of Delaware and the federal laws of the United States of America.
We hereby consent to the filing of this opinion letter as an Exhibit to the
Registration Statement and to all references to our Firm included in or made a
part of the Registration Statement, including the related prospectus.
Very truly yours,
/s/ SIDLEY & AUSTIN
<PAGE>
Arthur Andersen LLP
Exhibit 23
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 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
Chicago, Illinois
December 11, 1998
