As filed with the Securities and Exchange Commission on October 10, 1996
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BENIHANA INC.
(Exact name of Registrant as specified in its charter)
Delaware 65-0538630
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification no.)
8685 Northwest 53rd Terrace
Miami, Florida 33166
(Address of principal executive offices) (Zip Code)
1996 Class A Stock Option Plan
Benihana Incentive Compensation Plan
(Full title of the plans)
Joel A. Schwartz
Benihana Inc.
8685 Northwest 53rd Terrace
Miami, Florida 33166
(Name and address of agent for service)
(305) 593-0770
Telephone number, including area code, of agent for service
Copy to:
Herschel S. Weinstein, Esq.
Dornbush Mensch Mandelstam & Schaeffer, LLP
747 Third Avenue
New York, New York 10017
(212) 759-3300
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum Amount of
Title of Securities to Amount to be Price Aggregate Registration
be registered Registered Per Share* Offering Price* Fee
- ---------------------- ------------------- --------------------- --------------------------- ----------------------
<S> <C> <C> <C> <C>
Class A Common Stock,
par value $.10 per share 400,000 shares $ 9.1875 $3,675,000 $ 1,267.24
============================== ===================== ===================== =========================== ======================
</TABLE>
* Estimated solely for purposes of calculating the registration fee. Calculated
in accordance with Rule 457(c) under the Securities Act of 1933 based upon the
closing price of the Class A Common Stock of Benihana Inc. as reported on the
NASDAQ National Market System on October 7, 1996.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission are incorporated herein by reference:
(a) The Annual Report of Benihana Inc.
(the "Company") for the fiscal year ended
March 31, 1996 filed pursuant to Section 13(a)
of the Securities Exchange Act of 1934.
(b) All other reports of the Company filed pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of
1934 since the end of the fiscal year ended March 31, 1996.
(d) The Registration Statement of Benihana National
Corp., a predecessor of the Company on Form 8-A registering
the Class A Stock under Section 12 of Securities Exchange Act
of 1934, which contains a description of
the Class A Common Stock.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 prior
to the filing of a post-effective amendment indicating that all securities
offered hereby have been sold or deregistering all such securities then unsold,
shall be deemed to be incorporated by reference into this Registration Statement
and to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Darwin C. Dornbush, a partner in Dornbush Mensch Mandelstam &
Schaeffer, LLP., counsel to the Company, is a director of the Company and owns,
beneficially and of record, 1,000 shares of the Company's Common Stock, par
value $.10 per share (the "Common Stock") and options to purchase 12,500 shares
of the Common Stock. Mr. Dornbush is also a trustee of a voting trust which is
the record owner of all of the issued and outstanding stock of Benihana of Tokyo
Inc., a New York corporation ("BOT") which owns, beneficially and of record, of
1,838,405 shares of the Common Stock and 2,000 shares of the Company's Series A
Convertible Preferred Stock, which is convertible into 300,000 shares of the
Company's Class A Common Stock, par value $.10 (the "Class A Stock").
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<PAGE>
Item 6. Indemnification of Directors and Officers.
Under Section 145 of the Delaware General Corporation Law,
subject to various exceptions and limitations, the Company may indemnify its
directors or officers if such director or officer 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 (including
an action by or in the right of the Company by reason of the fact that he is or
was a director or officer of the Company, or is or was serving at the request of
the Company as a director or officer of another corporation) against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Company, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful, except, in the case of an action by or in the right of the
Company to procure a judgment in its favor, as to any matter in which such
person shall have been adjudged to be liable for negligence or misconduct in the
performance of his duty. The Company is required to indemnify its directors or
officers to the extent that they have been successful on the merits or otherwise
in defense of any such action, suit or proceeding, or in the defense of any such
action, suit or proceeding, or in the defense of any claim, issue or matter
therein, against expenses (including attorneys' fees) actually and reasonably
incurred by them in connection therewith. In addition, Delaware law permits a
corporation to limit or eliminate the liability of a director to the corporation
and its shareholders for negligent breaches of such directors' fiduciary duties
in certain circumstances. The foregoing statement is qualified in its entirety
by the detailed provisions of Sections 145 and 102 of the Delaware General
Corporation Law.
The Company's Certificate of Incorporation and By-Laws contain
provisions with respect to the indemnification of directors and officers which
provide for indemnification to the full extent provided by Delaware law as
described above and which eliminate the liability of directors for negligent
breaches of their fiduciary duties to the Company in certain circumstances to
the full extent permitted by the Delaware General Corporation Law.
The Company carries an officers' and directors' liability
insurance policy which provides for payment of expenses of the Company's
officers and directors in connection with certain threatened, or completed,
actions, suits and proceedings against them in their capacities as officers and
directors, in accordance with the Company's By-Laws and the General Corporation
Law of Delaware.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, the Company has
been informed that, in the opinion of the Securities and Exchange Commission,
such indemnification is
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<PAGE>
against public policy as expressed in the Securities Act of 1933 and is
therefore unenforceable. Furthermore, the Company has given certain undertakings
with respect to indemnification in connection with this Registration Statement.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.01 - The Company's 1996 Class A Stock Option Plan
(Incorporated herein by reference to Schedule
A to the Company's Proxy Statement for its
Annual Meeting held on July 19, 1996).
4.02 - Form of Stock Option Agreement under the
Company's 1996 Class A Stock Option Plan.
4.03 - The Benihana Incentive Compensation Plan.
(Incorporated herein by reference to
Exhibit 10.12 to the Company's
Annual Report on Form 10-K for the
Fiscal Year ended March 31, 1996.)
5.01 - Opinion of Dornbush Mensch Mandelstam &
Schaeffer, LLP.
23.01 - Consent of Dornbush Mensch Mandelstam &
Schaeffer, LLP (included in Exhibit 5.01).
23.02 - Consent of Deloitte & Touche LLP.
24.01 - Power of Attorney (included in signature
page).
Item 9. Undertakings.
(a) The undersigned 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
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.
(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.
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<PAGE>
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned Company hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Company's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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) Insofar as indemnification for liabilities arising under
Securities Act of 1933 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 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 payment by the Company of expenses paid or
incurred 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 Act and will be governed by the final adjudication of
such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
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 Miami and State of Florida, on the 11th day of
September, 1996.
BENIHANA, INC.
By: /s/ Joel A. Schwartz
----------------------------
Joel A. Schwartz, President
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<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Rocky H. Aoki and Joel A.
Schwartz and Darwin C. Dornbush, and each 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
or 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 Securities and Exchange Commission, granting
unto said attorneys-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 in and about the premises, 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 substitutes may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
PRINCIPAL EXECUTIVE
OFFICER:
/s/Rocky H. Aoki Chairman, Chief September 11, 1996
- ----------------------- Executive Officer
Rocky H. Aoki and Director
PRINCIPAL FINANCIAL AND
ACCOUNTING OFFICER:
/s/Michael Burris Vice President- September 11, 1996
- ----------------------- Finance
Michael Burris
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<PAGE>
DIRECTORS:
/s/Joel A. Schwartz President and a September 11, 1996
- ----------------------- Director
Joel A. Schwartz
/s/Taka Yoshimoto Executive Vice September 11, 1996
- ----------------------- President-Operations
Taka Yoshimoto and a Director
/s/Irwin K. Chapman Director September 12, 1996
- -----------------------
Irwin K. Chapman
/s/Robert B. Greenberg Director September 12, 1996
- ------------------------
Robert B. Greenberg
/s/John E. Abdo Director September 12, 1996
- ------------------------
John E. Abdo
/s/Darwin C. Dornbush Director September 13, 1996
- ------------------------
Darwin C. Dornbush
- 6 -
<PAGE>
EXHIBIT INDEX
Exhibit Consecutively
Number Exhibit Numbered Page
4.02 - Form of Stock Option Agreement under 9
the Company's 1996 Class A Stock
Option Plan.
5.01 - Opinion of Dornbush Mensch Mandelstam 13
& Schaeffer, LLP.
23.02 - Consent of Deloitte & Touche LLP. 14
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<PAGE>
EXHIBIT 4.02
BENIHANA INC.
STOCK OPTION AGREEMENT FOR OPTIONS GRANTED
1996 CLASS A STOCK OPTION PLAN
STOCK OPTION AGREEMENT, made and entered into as of the
day of , 199 (the "Date of Grant") by and between BENIHANA
INC., a Delaware corporation (the "Company") and , an employee of the Company
(the "Option Holder").
Attached hereto as Exhibit A is a true and correct copy of the
Company's 1996 Class A Stock Option Plan (the "Plan"). This Agreement is
subject, in all respects, to the terms of the Plan, which has been duly adopted
by the Board of Directors of the Company.
NOW, THEREFORE, in consideration of the mutual promises herein
contained and for other good and valuable consideration, the parties hereto
agree as follows:
1. OPTION GRANT. Subject to the terms and
conditions of the Plan, the Company grants to the Option Holder an option (the
"Option") to purchase shares (subject to adjustment as provided in paragraph 10
of this Agreement) of the Company's Class A Common Stock, par value $.10 a share
(the "Class A Stock"). It is intended that the Options granted hereby be
"Incentive Stock Options" as defined in the Internal Revenue Code of 1986, as
amended.
2. OPTION PRICE. The Option exercise price of the
shares of Class A Stock covered by the Option shall be $ per share subject to
adjustment as provided in paragraph 10 of this Agreement (the "Option Price").
3. TIME OF EXERCISE. The Option may be exercised
prior to its expiration from time to time and at any time or times commencing
(a) with respect to one-third (1/3) of the shares covered thereby (rounded down
to a whole number of shares), on the date hereof, (b) with respect to an
additional one-third (1/3) of the shares covered thereby (rounded down to a
whole number of shares), on the first anniversary of the date hereof, and (c)
with respect to the balance of the shares covered thereby, on the second
anniversary of the date hereof, subject however, to the provisions of Paragraphs
8 and 9 of this Agreement as to earlier expiration of the Option by reason of
the Option Holder's death or termination of employment and subject to the
provisions of Paragraph 18 of this Agreement with respect to stockholder
approval. No omission to exercise the Option with respect to any shares shall
result in the lapse of the Option with respect thereto until the Option has
expired as provided in this Agreement.
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<PAGE>
4. EXPIRATION OF OPTION. Subject to the provisions
of paragraphs 8 and 9 of this Agreement, the Option shall expire at 5:00 P.M.
(New York City time) ten (10) years from the date hereof.
5. MANNER OF EXERCISING OPTION. The Option is
exercisable only by written notice to the Company substantially in the form of
that attached to this Agreement as Exhibit B. Such notice shall be accompanied
by a certified or cashier's check, or postal or express money order payable to
the Company in payment of the full Option Price for the number of Shares as to
which the Option is being exercised; provided, however, that in lieu of payment
in full in cash, the Option Holder may,
(i) with the approval of the committee of the Company's Board
of Directors charged with administration of the Plan (the "Committee"),
pay the Option Price (or balance thereof) by tendering to the Company
shares of the Company's Class A Stock owned by the Option Holder and
having a fair market value (as determined by the Committee in its
absolute discretion) equal to the cash Option Price (or balance
thereof) for the number of Shares as to which the Option is being
exercised; or
(ii) with the approval of the Committee, be entitled to pay
the Option Price by tendering to the Company cash and an interest
bearing promissory note (the "Note") in accordance with the provisions
of Section 9(b) of the Plan.
6. RIGHTS AS A STOCKHOLDER. The Option Holder
shall have no rights as a stockholder with respect to any shares covered by the
Option until the issuance of a certificate or certificates to him for such
shares. No adjustments shall be made for dividends or other rights for which the
record date is prior to the date of issuance of such certificate or
certificates.
7. NON-ASSIGNABILITY. During the lifetime of the
Option Holder, the Option may be exercised only by him, and the Option evidenced
by this Agreement is not assignable or transferable except by will, by the laws
of descent and distribution or to members of an Option Holder's immediate
family, including trusts for the benefit of such family members and partnerships
in which such family members are the only partners. A transferred Option shall
be subject to all of the same terms and conditions (including the restrictions
on assignment contained in this Paragraph 7) as if such Option had not been
transferred.
8. TERMINATION OF EMPLOYMENT. No option granted
under the Plan shall be exercisable after the date of the Option Holder's
termination of employment from the Company or a subsidiary for any reason other
than death, except that an Option may be exercised at any time within three
months after the termination of employment, but in each case prior to the
expiration of the term of the Option, with respect to any or all shares for
which the Option Holder could have exercised prior to the date of termination.
Nothing in this Agreement, or the Option, shall confer on the
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<PAGE>
Option Holder any right to continue in the employ of or perform services for the
Company or any subsidiary, or interfere in any way with the right of the Company
or any subsidiary to terminate the Option Holder's employment or services at any
time.
9. DEATH OF OPTION HOLDER. In the event of the
death of the Option Holder while an employee of the Company or a subsidiary, the
Option may be exercised, to the extent of the number of shares to which the
deceased Option Holder could have exercised it on the date of his death, by the
deceased's estate, a personal representative or a beneficiary who acquired the
right to exercise the Option by bequest or inheritance or by reason of the death
of the Option Holder, at any time prior to the Option expiration date or three
months from the date of the appointment of a personal representative for the
Option Holder, whichever is earlier.
10. CAPITAL ADJUSTMENTS. The number of shares of
Class A Stock covered by the Option, and the Option Price thereof, shall be
subject to such adjustment as the Board or the Committee may deem appropriate to
reflect any stock dividend, stock split, share combination, exchange of shares,
recapitalization, liquidation or the like, of or by the Company. In the event
the Company is merged or consolidated with another corporation (but subject to
any required action by stockholders), the Option shall pertain to the securities
to which a holder of the number of shares of Class A Stock subject to the Option
would have been entitled pursuant to such merger or consolidation.
11. RESTRICTION ON EXERCISE. If at any time the
Board or the Committee determines that the listing, registration or
qualification of the shares subject to the Option upon any securities exchange
or under any state or federal law, or the consent or approval of any government
regulatory body, is necessary or desirable as a condition of, or in connection
with, the granting of the Option or the issue or purchase of such shares
hereunder, the Option may not be exercised in whole or in part unless such
listing, registration, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the Board or the
Committee, and any delay caused thereby shall in no way affect the date of
expiration of the Option. The Option Holder shall have no rights against the
Company if the Option is not exercisable or its exercise is delayed by virtue of
the foregoing sentence.
12. WITHHOLDING TAXES. The Company shall have the
right to require the Option Holder to remit to the Company an amount sufficient
to satisfy all applicable withholding tax requirements prior to the delivery of
any certificate or certificates for shares purchased by the Option Holder upon
exercise of the Option.
13. AMENDMENTS. This Agreement shall be subject to
any duly authorized amendments to the Plan, to the extent and as
provided in Section 13 of the Plan.
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<PAGE>
14. NOTICE. Notices under this Agreement shall be
in writing and, if to the Company, shall be delivered personally to the
Secretary or any Assistant Secretary of the Company or mailed to the then
principal office of the Company, addressed to the attention of the Secretary
and, if to the Option Holder, shall be delivered personally or mailed to the
Option Holder at his address as the same shall appear on the records of the
Company.
15. INTERPRETATION. All decisions and
interpretations made by the Board or the Committee with regard to any question
arising under this Agreement, or under the Plan, shall be binding and conclusive
on the Company and the Option Holder.
16. SUCCESSORS AND ASSIGNS. This Agreement shall
be binding upon and inure to the benefit of the parties hereto, the successors
and assigns of the Company and, to the extent provided in paragraphs 7 and 9 of
this Agreement, the estate, personal representatives and beneficiaries of the
Option Holder.
17. TAX CONSEQUENCES. The Option Holder shall
consult his own tax advisers regarding the tax consequences to him of any
particular exercise of the Option or sale of Option shares.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be signed by its duly authorized officer and the Option Holder has duly signed
this Agreement all on the day and year first above written.
BENIHANA INC.
By: ---------------------------
Vice President
ACCEPTED AND AGREED:
- ---------------------------
, Option Holder
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<PAGE>
EXHIBIT 5.01
[Letterhead of Dornbush Mensch Mandelstam & Schaeffer, LLP]
October 10, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Benihana Inc.
Registration Statement on Form S-8
----------------------------------
Gentlemen:
We have been requested by Benihana Inc., a Delaware corporation (the
"Company"), to furnish you with our opinion as to the matters hereinafter set
forth in connection with the above-captioned registration statement (the
"Registration Statement") covering an aggregate of 400,000 shares (the "Shares")
of the Company's Class A Common Stock, par value $.10, 300,000 of which may be
issued by the Company pursuant to the Company's 1996 Class A Stock Option Plan
(the "Plan") which was approved by the stockholders of the Company at its Annual
Meeting of Stockholders held July 19, 1996, and 100,000 of which are reserved
for issuance pursuant to the stock purchase provision of the Benihana Incentive
Compensation Plan (the "Compensation Plan") adopted by the Board of Directors of
the Company on March 20, 1996.
In connection with this opinion, we have examined the Company's
Certificate of Incorporation and By-laws, the Plan, the Compensation Plan,
copies of the records of corporate proceedings of the Company, and such other
documents as we have deemed necessary to enable us to render the opinion
hereinafter expressed.
Based upon and subject to the foregoing, we are of the opinion that the
Shares, when issued and paid for in accordance with the Plan and the
Compensation Plan, respectively, will be legally issued, fully paid and
non-assessable.
We render no opinion as to the laws of any jurisdiction other than the
internal laws of the State of New York and the internal corporate law of the
State of Delaware.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
DORNBUSH MENSCH MANDELSTAM & SCHAEFFER, LLP
<PAGE>
EXHIBIT 23.02
Independent Auditors' Consent
We consent to the incorporation by reference in the Registration
Statement of Benihana Inc. on Form S-8 of our report dated May 3, 1996 appearing
in the Annual Report on Form 10-K of Benihana Inc. for the year ended March 31,
1996.
Deloitte & Touche LLP
Miami, Florida
October 8, 1996
<PAGE>
