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-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BENIHANA INC.
(Exact name of Registrant as specified in its charter)
Delaware 5812 65-0538630
(State or other (Primary standard (I.R.S.employer
jurisdiction of industrial classification identification
incorporation) code number) number)
8685 Northwest 53rd Terrace
Miami, Florida 33166
(305) 593-0770
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
Joel A. Schwartz, President
Benihana Inc.
8685 Northwest 53rd Terrace
Miami, Florida 33166
(305) 593-0770
(Name, address and telephone number of agent for service)
Copies to:
Herschel S. Weinstein, Esq.
Dornbush Mensch Mandelstam & Schaeffer, LLP
747 Third Avenue
New York, New York 10017
(212) 759-3300
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
securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. | X |
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Proposed Proposed
Title of each Class of Amount of Maximum Maximum
Securities to be Securities to Offering Aggregate Amount of
Registered (1) be Registered Price Per Offering Price Registration
Share (2) (2) Fee
- ---------------------- ------------- --------- -------------- ------------
<S> <C> <C> <C> <C>
Common Stock, par
value $.10 per share (1) 32,500 Shs. $13.00 $ 422,500 $ 145.69
Class A Common
Stock, par value $.10
per share (1) 500,000 Shs. $ 9.1875 $4,593,750 $1,584.05
---------
Total $1,729.74
=========
</TABLE>
(1) All of such shares will be sold by selling stockholders.
(2) 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 Common Stock and the Class A Common Stock,
respectively of Benihana Inc. as reported on the NASDAQ National Market System
on October 7, 1996.
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 due 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.
ii
<PAGE>
Subject to Completion October 10, 1996
P R O S P E C T U S
BENIHANA INC.
32,500 Shares of Common Stock
500,000 Shares of Class A Common Stock
This Prospectus relates to 32,500 shares of Common Stock, par
value $.10 per share (the "Common Stock"), and 500,000 shares of Class A Common
Stock, par value $.10 per share (the "Class A Stock"), of Benihana Inc., a
Delaware corporation (the "Company"). The shares of Common Stock and Class A
Stock offered hereby are collectively referred to herein as the "Shares". All of
the Shares may be offered and sold from time to time by the Selling Stockholders
named herein. See "SELLING STOCKHOLDERS."
The Shares offered by this Prospectus may be sold from time to
time by the Selling Stockholders, or by transferees at any time after the date
of this Prospectus. No underwriting arrangements have been entered into by any
of the Selling Stockholders. The distribution of the Shares by the Selling
Stockholders may be effected in one or more transactions that may take place on
the over-the-counter market, including ordinary broker's transactions,
privately-negotiated transactions or through sales to one or more dealers for
resale of such shares as principals, at market prices prevailing at the time of
sale, at prices related to such prevailing market prices or negotiated prices.
Usual and customary or specifically negotiated brokerage fees or commissions may
be paid by the Selling Stockholders in connection with sales of the Shares.
The Company will not receive any of the proceeds from the sale
of Shares by the Selling Stockholders. See "Selling Stockholders." The Common
Stock and the Class A Stock are traded on the National Market System of the
National Association of Securities Dealers under the symbols BNHN and BNHNA,
respectively.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE 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 , 1996
----------
- 1 -
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934 ("Exchange Act") and in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at its Northeast Regional Office, 7
World Trade Center, 13th Floor, New York, New York 10048 and Chicago Regional
Office, Suite 1400, 500 West Madison Street, Chicago, Illinois 60661-2511.
Copies can be obtained by mail at prescribed rates. Requests should be directed
to the Commission's Public Reference Section, 450 Fifth Street, N.W.,
Washington, D.C. 20549. The Commission also contains a Web Site
(http://www.sec.gov) that contains reports, proxy statements and other
information.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year
ended March 31, 1996, and Quarterly Report on Form 10-Q for the three-month
period ended July 21, 1996 (Commission File Number O-21644) are incorporated
herein by reference. All documents filed pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus shall be
deemed to be incorporated by reference in this Prospectus and to be part hereof
from the date of filing of such documents.
The Company undertakes to provide without charge to each
person to whom a copy of this Prospectus has been delivered copies of the above
documents, other than exhibits thereto, upon request of any such person to the
Secretary of the Company, 8685 Northwest 53rd Terrace, Miami, Florida 33166
(telephone number (305) 593-0770).
- 2 -
<PAGE>
THE COMPANY
Benihana Inc. and its subsidiaries (the "Company") own and
operate 38 Benihana and Benihana Grill dinnerhouse restaurants and licenses ten
other such restaurants. The Company has the exclusive rights to own, develop and
license Benihana and Benihana Grill restaurants in the United States (subject to
certain rights owned by an affiliate, Benihana of Tokyo, Inc., ("BOT") in the
State of Hawaii), Central and South America and the islands of the Caribbean
Sea, and owns the related United States trademarks and service marks.
The Benihana restaurants feature the teppanyaki style of
Japanese cooking in which the food is prepared by a Benihana chef on a grill
which forms part of the table on which the food is served. The Benihana Grills
are smaller versions of the Benihana restaurants suitable for smaller markets
and strip shopping centers.
The Company is incorporated under the laws of the State of
Delaware. The principal executive offices of the Company are located at 8685
Northwest 53rd Terrace, Miami, Florida 33166 and its telephone number is (305)
593-0770).
USE OF PROCEEDS
The Company will receive none of the net proceeds from the
sale of the Selling Stockholders Shares offered hereby. The Company is paying
all expenses of the registration of the Shares other than underwriting or
brokerage commission discounts and counsel fees.
PLAN OF DISTRIBUTION
The Selling Shareholders have advised the Company that they
may offer and sell the shares of Common Stock offered hereby (See "Selling
Stockholders") from time to time in broker's transactions, individually
negotiated transactions or a combination thereof at market prices prevailing
from time to time. The precise amounts and timing of sales, if any, of the
shares offered hereby will be determined from time to time by each Selling
Shareholders in their sole discretion.
The Company has agreed to bear the costs of registering the
Selling Shareholder shares offered hereby under the Securities Act of 1933, as
amended.
Each Selling Shareholder will deliver a Prospectus in
connection with the sale of the Shares offered hereby.
- 3 -
<PAGE>
SELLING STOCKHOLDERS
The Selling Stockholders are offering hereby a total of 32,500
shares of Common Stock and 500,000 shares of Class A Stock. Each of the Selling
Stockholders has a material relationship with the Company. The following table
sets forth the name of each person who is a Selling Stockholder, such person's
relationship with the Company, the number of Shares of such class now owned by
each such Selling Stockholder (including the number of shares each such Selling
Stockholder has the right to acquire through the exercise of options or the
conversion of Convertible Preferred Stock), the total number of Shares offered
hereby and the number of Shares and percentage of such class which will be owned
by such Selling Stockholder after completion of the Offering:
<TABLE>
<CAPTION>
Common Stock
Number of Number of Shares to Percentage
Shares of Shares of be Owned of Class
Class Class After After
Name Owned(1) Offered Offering(1) Offering
---- --------- --------- ----------- --------
<S> <C> <C> <C> <C>
John E. Abdo(2) 25,000 7,500(3) 17,500 *
Irwin K. Chapman(2) 20,750 12,500(3) 8,250 *
Darwin C. Dornbush(4) 16,000 12,500(3) 3,500 *
------- --------- --------
Total 61,750 32,500 29,250
======= ========= ========
<CAPTION>
Class A Stock
Number of Number of Shares to Percentage
Shares of Shares of be Owned of Class
Class Class After After
Name Owned(1) Offered Offering(1) Offering
---- --------- --------- ----------- ----------
<S> <C> <C> <C> <C>
Benihana of Tokyo, Inc.(5) 358,100(6) 300,000(7) 58,100 (6) 2.5%
Trust, u/t/a 3/15/76 f/b/o
John E. Abdo(8) 242,000(9) 200,000 42,000 (9) 1.8%
---------- --------- -----------
Total 600,100 500,000 100,100
========== ========= ===========
</TABLE>
* less than 1%
1) Includes shares which may be acquired through exercise of options or
through the conversion of the Company's Convertible Preferred Stock.
(2) Director of the Company.
(3) Represents shares which may be acquired through exercise of stock
options.
- 4 -
<PAGE>
(4) Director and Secretary of the Company.
(5) The principal stockholder of the Company, owning 1,830,405 shares
(52.1%) of Common Stock. Rocky H. Aoki, who is Chairman of the Board
and a director of the Company, is the beneficial owner of all of the
outstanding shares of the capital stock of BOT (the "BOT Stock"). The
BOT Stock is held in a voting trust of which Messrs. Aoki, Darwin C.
Dornbush, the Secretary and a Director of the Corporation, and Katsu
Aoki, Mr. Aoki's mother, are the trustees. By reason of such position
such individuals may be deemed to share beneficial ownership of the BOT
Stock and the shares of the Corporation owned by BOT.
(6) Includes 23,100 shares owned by, and 35,000 shares which may be
acquired through exercise of options held by, Rocky H. Aoki.
(7) Represents shares which may be acquired through conversion of 2,000
shares of the Company's Series A Convertible Preferred Stock owned
by BOT.
(8) John E. Abdo, who is sole trustee and beneficiary of this Trust, is a
director of the Company.
(9) Includes 42,000 shares owned by John E. Abdo.
LEGAL MATTERS
The legality of the securities being offered hereby will be
passed upon for the Company by Dornbush Mensch Mandelstam & Schaeffer, LLP, New
York, New York. Darwin C. Dornbush, a partner in Dornbush Mensch Mandelstam &
Schaeffer, LLP., is a director of the Company and owns, beneficially and of
record, 1,000 shares of the Company's Common Stock and options to purchase
15,000 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., 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 Stock.
EXPERTS
The consolidated financial statements of the Company and its
subsidiaries as of March 31, 1996 and March 26, 1995 and for each of the three
years in the period ended March 31, 1996 incorporated by reference in this
Prospectus have been audited by Deloitte & Touche LLP, independent certified
public accountants, as stated in their reports thereon incorporated by reference
herein and elsewhere in the Registration Statement, and have been referred to
herein in reliance upon such reports given upon the authority of said firm as
experts in accounting and auditing.
- 5 -
<PAGE>
No dealer, salesman or any other person has been authorized to give any
information or to make any representations not contained in this Prospectus in
connection with the offering described herein and, if given or made, such
information or representation must not be relied upon as having been authorized
by the Company or any Underwriter. This Prospectus does not constitute an offer
of any securities other than those specifically offered hereby or of any of the
securities offered hereby in any jurisdiction to any person to whom it is
unlawful to make such offer or solicitation in such jurisdiction. Neither the
delivery of this Prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that there has been no change in the
affairs of the Company since the date hereof.
TABLE OF CONTENTS
Page
Available Information.......................................................2
Incorporation of Certain
Documents by Reference....................................................2
The Company.................................................................3
Use of Proceeds.............................................................3
Plan of Distribution........................................................3
Selling Shareholders........................................................3
Legal Matters...............................................................6
Experts.....................................................................6
BENIHANA INC.
32,500 Shares of
Common Stock
500,000 Shares of
Class A Common Stock
PROSPECTUS
---------, 1996
- 6 -
<PAGE>
PART II
Information Not Required in Prospectus
Item 14. Other Expenses of Issuance and Distribution
The estimated expenses payable by the Registrant in connection
with the issuance and distribution of the securities being registered (other
than broker's discounts or commissions to be paid by the Selling Stockholders)
are as follows:
Amount
SEC Registration Fee .................. $ 1,729.74
Accounting Fees and Expenses....... *
Legal Fees and Expenses.............. *
Miscellaneous Expenses............... *
-----------
Total .......................... $
===========
* To be completed by amendment
Item 15. 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
II-1
<PAGE>
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 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 16. Exhibits
(a) Exhibits
4.01 - Certificate of Incorporation of the Company defining the
respective rights of the Company's Common Stock and Class A
Common Stock. Incorporated by reference to Exhibit 3.01 of
the Company's Registration Statement on Form S-4,
Registration No. 3388295, made effective March 23, 1995.
(the "S-4")
4.02 - Form of Certificate representing shares of the Company's
Common Stock. Incorporated by reference to Exhibit 4.02 of
the S-4.
4.03 - Form of Certificate representing shares of the Company's
Class A Common Stock. Incorporated by reference to Exhibit
4.03 of the S-4.
5.01* - Opinion of Dornbush Mensch Mandelstam & Schaeffer LLP.
23.01 - Consent of Deloitte & Touche, LLP.
23.02*- Consent of Dornbush Mensch Mandelstam & Schaeffer, LLP.
Included in Exhibit 5.01.
24.01 - Power of Attorney (contained on Page II-5).
* To be filed by amendment.
Item 17. Undertakings
The Registrant hereby undertakes:
(1)(A) 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.
(B) 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.
(C) 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.
(2) The undersigned registrant undertakes that, for 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 (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.
(3)Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or controlling
persons of the Registrant pursuant to the foregoing provisions, 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
persons 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 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, as
amended, 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 the City of Miami, State of Florida on the 11th day of
September, 1996.
BENIHANA INC.
By: /s/ Joel A. Schwartz
---------------------------
Joel A. Schwartz, President
II-2
<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 Executive September 11, 1996
- ---------------------------- Officer and Director
Rocky H. Aoki
PRINCIPAL FINANCIAL AND
ACCOUNTING OFFICER:
/s/Michael R. Burris Vice President-Finance September 11, 1996
- ----------------------------
Michael R. Burris
DIRECTORS:
/s/Joel A. Schwartz President and a Director September 11, 1996
- ----------------------------
Joel A. Schwartz
/s/Taka Yoshimoto Executive Vice President- September 11, 1996
- ---------------------------- Operations and a Director
Taka Yoshimoto
/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
II-3
<PAGE>
EXHIBIT INDEX
Exhibit Consecutively
Number Numbered Page
23.01 - Consent of Deloitte & Touche, LLP. 16
II-4
<PAGE>
EXHIBIT 23.01
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Benihana Inc. on Forms S-3 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,
and to the reference to us under the heading "Experts" in the Prospectus,
which is part of this Registration Statement.
Deloitte & Touche LLP
Miami, Florida
October 8, 1996
