As filed with the Securities and Exchange Commission on September 18, 1998
Registration No. 333-
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)
1997 Employees Class A Stock Option Plan
Directors' Stock Option 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 950,000 shares $ 7.125 $6,768,750 $1,996.78
========================== ================ =========== =============== ==============
</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 September 16, 1998.
<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 29, 1998 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 29, 1998.
(c) 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 the 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 17,500 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, 1,830,405 shares of the Common Stock and 1,000 shares of the Company's
Series A Convertible Preferred Stock, which is convertible into 150,000 shares
of the Company's Class A Common Stock, par value $.10 (the "Class A Stock").
II - 1
<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 directors' and officers' liability
insurance policy which provides for payment of expenses of the Company's
directors and officers in connection with certain threatened, or completed,
actions, suits and proceedings against them in their capacities as directors and
officers, 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 7. Exemption from Registration Claimed.
Not applicable.
II - 2
<PAGE>
Item 8. Exhibits.
Exhibit
Number Exhibit
- ------- -------
4.01 Relevant portion of the Company's Certificate of Incorporation
defining the rights of the holders of the Company's Class A
Common Stock. (Incorporated herein by reference to Exhibit
3.01 to the Registration Statement on Form S-4 of the
Company's predecessor, Benihana National Corp., Registration
No. 33-88295, made effective March 23, 1995 (the "S-4").
4.02 The Company's 1997 Employees Class A Stock Option Plan
(Incorporated herein by reference to Exhibit A to the
Company's Proxy Statement for its Annual Meeting held on
August 27, 1998).
4.03 The Company's Directors' Stock Option Plan. (Incorporated by
reference to Exhibit 10.08 to the S-4).
4.04 The Company's Amended and Restated Directors' Stock Option
Plan (Incorporated herein by reference to Exhibit B to the
Company's Proxy Statement for its Annual Meeting held on
August 27, 1998).
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.
(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.
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<PAGE>
(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
the 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 th day of
September, 1998.
BENIHANA INC.
By: /s/ Joel A. Schwartz
---------------------
Joel A. Schwartz, President
II - 4
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints 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/ Joel A. Schwartz President, Chief September 17, 1998
- ------------------------ Executive Officer
Joel A. Schwartz and Director
PRINCIPAL FINANCIAL AND
ACCOUNTING OFFICER:
/s/ Michael R. Burris Vice President- September 17, 1998
- ------------------------ Finance
Michael R. Burris
DIRECTORS:
/s/ Taka Yoshimoto Executive Vice September 17, 1998
- ------------------------ President-Operations
Taka Yoshimoto and Director
II - 5
<PAGE>
/s/ Robert B. Greenberg Director September 17, 1998
- -------------------------
Robert B. Greenberg
/s/ John E. Abdo Director September 17, 1998
- --------------------------
John E. Abdo
/s/ Norman Becker Director September 17, 1998
Norman Becker
/s/ Darwin C. Dornbush Director September 17, 1998
- ----------------------------
Darwin C. Dornbush
II - 6
<PAGE>
EXHIBIT INDEX
Exhibit Consecutively
Number Exhibit Numbered Page
5.01 - Opinion of Dornbush Mensch Mandelstam 10
& Schaeffer, LLP.
23.02 - Consent of Deloitte & Touche LLP. 11
<PAGE>
EXHIBIT 5.01
[Letterhead of Dornbush Mensch Mandelstam & Schaeffer, LLP]
September 17, 1998
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 950,000 shares (the "Shares")
of the Company's Class A Common Stock, par value $.10 (the "Class A Stock"),
750,000 of which shares may be issued by the Company pursuant to the Company's
1997 Employees Class A Stock Option Plan (the "1997 Plan") which was approved by
the stockholders of the Company at its Annual Meeting of Stockholders held
August 27, 1998, and 200,000 of which shares may be issued by the Company
pursuant to the Company's Directors' Class A Stock Option Plan (the "Directors
Plan") which was approved by the stockholders of the Company's predecessor at
its Special Meeting of Stockholders held May 5, 1995 and to which amendments
were approved by the stockholders of the Company at its Annual Meeting of
Stockholders held August 27, 1998.
In connection with this opinion, we have examined the Company's
Certificate of Incorporation and By-laws, the 1997 Plan, the Directors 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 1997 Plan and the
Directors Plan, respectively, will be duly authorized, 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,
/s/ Dornbush Mensch Mandelstam & Schaeffer, LLP
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 8, 1998, appearing in the
Annual Report on Form 10-K of Benihana Inc.
for the year ended March 29, 1998.
/s/ DELOITTE & TOUCHE LLP
Certified Public Accountants
Miami, Florida
September 17, 1998
<PAGE>
