<PAGE>
As Filed with the Securities and Exchange Commission on July 13, 1998
Registration No. 333-45009
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
POST-EFFECTIVE AMENDMENT NO. 1
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)
640 North LaSalle Street, Suite 295
Chicago, Illinois 60610-3783
(312) 266-1100
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
______________________
Cynthia T. Quigley
Chief Financial Officer
Chart House Enterprises, Inc.
640 North LaSalle Street, Suite 295
Chicago, Illinois 60610-3783
(312) 266-1100
(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>
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 July 10, 1998, the closing price per share of Common
Stock on the NYSE was $8.1875.
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 July 13, 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., 640 North LaSalle Street,
Suite 295, Chicago, Illinois 60610-3783, telephone (312) 266-1100.
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 July 9, 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 640 North LaSalle Street, Suite 295, Chicago,
Illinois 60610-3783, and its telephone number is (312) 266-1100.
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 July 6, 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% 163,581 (4) 100,000 1.0%
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 July 6, 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 Shares may be sold from time to time by the Selling Stockholders, or
by pledgees, donees, transferees or other successors in interest in and/or
outside of the United States in transactions through underwriters, brokers,
dealers or agents, or through privately negotiated transactions, including sales
or distributions to persons affiliated with the Selling Stockholders and direct
sales or distributions to one or more purchasers.
The Shares may be disposed of 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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<PAGE>
Broker-dealers participating in any such transactions as agent may receive
commissions from selling security holders (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 security holders
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 security
holder, to purchase as principal any unsold shares at the price required to
fulfill the broker-dealer's commitment to the selling security holder.
Selling security holders 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 security holder 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.
7
<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, Esq. As of the date Mr. Tipton
passed upon the validity of the issuance of the Common Stock offered hereby, Mr.
Tipton was the Vice-President-Legal Affairs and General Counsel of the Company
and 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.
8
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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.
4.4* Amended and Restated By-laws of the Company.
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, Esq.
23.1* Consent of Arthur Andersen LLP.
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 Chicago, Illinois on the 13th day of July, 1998.
CHART HOUSE ENTERPRISES, INC.
By: 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>
F. PHILIP HANDY July 13, 1998
- ------------------------------- Acting Chief Executive Officer (principal
F. Philip Handy executive officer); Director
THOMAS J. WALTERS July 13, 1998
- ------------------------------- President and Chief Operating Officer;
Thomas J. Walters Director
CYNTHIA T. QUIGLEY July 13, 1998
- ------------------------------- Chief Financial Officer (principal financial
Cynthia T. Quigley officer and principal accounting officer)
BARBARA R. ALLEN July 13, 1998
- ------------------------------- Director
Barbara R. Allen
LINDA WALKER BYNOE July 13, 1998
- ------------------------------- Director
Linda Walker Bynoe
*
- ------------------------------- Director
William M. Diefenderfer III
STEPHEN OTTMANN July 13, 1998
- ------------------------------ Director
Stephen Ottmann
*
- ------------------------------- Director
Samuel Zell
F. PHILIP HANDY July 13, 1998
- -------------------------------
* F. Philip Handy
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.
4.4* Amended and Restated By-laws of the Company.
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, Esq.
23.1* Consent of Arthur Andersen LLP.
23.2* Consent of Richard D. Tipton (contained in Exhibit 5 hereto)
24* Powers of Attorney
</TABLE>
________________
* Previously filed.
