As filed with the Securities and Exchange Commission on July 23, 1999.
Registration No. 333-
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 the 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 Maximum Maximum
Title of each Class Amount of Offering Aggregate Amount of
of Securities to be Securities to Price Per Offering Price Registration
Registered (1) be Registered Share (2) (2) Fee
- ------------------------ ------------- --------- -------------- ------------
<S> <C> <C> <C> <C>
Class A Common Stock, par
value $.10 per share 200,000 Shs. $13.625 $2,725,000 $757.55
========================= ============== ========== ============== ============
</TABLE>
(1) All of such shares will be sold by selling stockholder.
(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 July 19, 1999.
---------------
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 July 21, 1999
P R O S P E C T U S
BENIHANA INC.
200,000 Shares of Class A Common Stock
This Prospectus relates to 200,000 shares of Class A Common
Stock, par value $.10 per share (the "Class A Common Stock"), of Benihana Inc.,
a Delaware corporation (the "Company"). The shares of Class A Common Stock
offered hereby are referred to herein as the "Shares". All of the Shares may be
offered and sold from time to time by the Selling Stockholder named herein or
its transferees (the "Selling Stockholder") See "SELLING STOCKHOLDER."
The Shares offered by this Prospectus may be sold from time to
time by the Selling Stockholder, or by transferees, at any time after the date
of this Prospectus. No underwriting arrangements have been entered into by the
Selling Stockholder. The distribution of the Shares by the Selling Stockholder
may be effected in one or more transactions that may take place on the
over-the-counter market, including ordinary broker's transactions,
privatelynegotiated 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 Stockholder in connection with sales of the Shares.
The Company will not receive any of the proceeds from the sale
of Shares by the Selling Stockholder. See "Selling Stockholder." The Class A
Common Stock is traded on the National Market System of the National Association
of Securities Dealers under the symbol BNHNA. On ______ __, 1999 the closing
price for the Class A Common Stock on the National Market System was $____.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
=====================================================================
The Date of this Prospectus is _______ __, 1999
- 1 -
<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 Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Room 1024, Judiciary Plaza, Washington, D.C. 20549, and at
the Commission's Regional Offices at Citicorp Center, 500 West Madison, Suite
1400, Chicago, Illinois 60661 and 7 World Trade Center, Suite 1300, New York,
New York 10048. Copies of such material can be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Room 1024,
Judiciary Plaza, Washington, D.C. 20549, at prescribed rates. The Commission
maintains a World Wide Web site that contains reports, proxy and information
statements and other information regarding registrants that file electronically
with the Commission. The address of the site is http://www.sec.gov. The
Company's Class A Common Stock is traded on the Nasdaq National Market System,
and such reports, proxy statements and certain other information can also be
inspected at the National Association of Securities Dealers, Inc., 1735 K
Street, N.W., Washington, D.C. 20006.
The Company has filed with the Commission in Washington, D.C., a
Registration Statement on Form S-3 under the Securities Act, with respect to the
Class A Common Stock being offered hereby. This Prospectus does not contain all
of the information set forth in such Registration Statement and the exhibits and
schedules thereto to which reference is hereby made. The statements in this
Prospectus as to the contents of such Registration Statement are qualified in
their entirety by such reference. The Registration Statement, together with its
exhibits and schedules, may be inspected at the Public Reference Section of the
Commission in Washington, D.C. at the address noted above, and copies of all or
any part thereof may be obtained from the Commission upon payment of the
prescribed fees.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year
ended March 28, 1999 is 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") owns and
operates 51 Benihana and Benihana Grill dinnerhouse restaurants and franchises
twelve 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 has also opened its first new sushi
restaurant concept, "Sushi Doraku by Benihana."
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 Stockholder 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 Stockholder has advised the Company that it may
offer and sell the shares of Common Stock offered hereby (See "Selling
Stockholder") 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 the Selling
Stockholder in its sole discretion.
The Company has agreed to bear the costs of registering the
Selling Stockholder shares offered hereby under the Securities Act of 1933, as
amended.
The Selling Stockholder will deliver a Prospectus in
connection with the sale of the Shares offered hereby.
- 3 -
<PAGE>
SELLING STOCKHOLDER
The Selling Stockholder is offering hereby a total of 200,000
shares of Class A Common Stock. The following table sets forth the name of the
Selling Stockholder, such entity's relationship with the Company, the number of
Shares of such class now owned by the Selling Stockholder (including the number
of shares the Selling Stockholder has the right to acquire through the exercise
of warrants), the total number of Shares offered hereby and the number of Shares
and percentage of such class which will be owned by the Selling Stockholder
after completion of the Offering:
<TABLE>
<CAPTION>
Class A Common Stock
--------------------
Number of Number of Shares to Percentage
Shares of Shares of be Owned of Class
Class Class After After
Name Owned Offered Offering Offering
- ---- ---------- ---------- --------- ----------
<S> <C> <C> <C> <C>
Douglas M. Rudolph Partners, Ltd.1 200,0002 200,000 0 0
</TABLE>
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 Class A 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., which owns, beneficially and of record, of
1,830,405 shares of the Common Stock and 700 shares of the Company's Series A
Convertible Preferred Stock, which is convertible into 105,263 shares of the
Company's Class A Common Stock.
EXPERTS
The consolidated financial statements of the Company and its
subsidiaries for the years ended March 28, 1999, March 29, 1998 and March 30,
1997 incorporated by reference in this Prospectus have been audited by Deloitte
& Touche LLP, independent auditors, as stated in their report, which is
incorporated by reference herein, and has been incorporated in reliance upon the
report of such firm given upon their authority as experts in accounting and
auditing.
- --------
1 Stockholder.
2 Consists of 200,000 shares receivable through exercise of a warrant.
- 4 -
<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..........................................................4
Legal Matters.................................................................4
Experts.......................................................................4
BENIHANA INC.
200,000 Shares of
Class A Common Stock
PROSPECTUS
______ __, 1999
- 5 -
<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 Stockholder)
are as follows:
Amount
SEC Registration Fee ............... $757.55
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 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.
<PAGE>
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. 33-88295, 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.
4.04 - Warrant Agreement dated December 1, 1997 between Benihana Inc. and
Douglas M. Rudolph Incorporated by reference to Exhibit 4.1 to the
Company's current report on Form 8-K dated December 1, 1997.
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).
<PAGE>
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 Securities
Act of 1933 and will be governed by the final adjudication of such issue.
<PAGE>
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 23rd day of July,
1999.
BENIHANA INC.
By: /s/ Joel A. Schwartz
---------------------------
Joel A. Schwartz, President
<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 July 23, 1999
- ------------------------- Executive Officer
Joel A. Schwartz And Director
PRINCIPAL FINANCIAL AND
ACCOUNTING OFFICER:
/s/ Michael R. Burris Senior Vice President July 23, 1999
- ------------------------ of Finance and
Michael R. Burris Treasurer-Chief
Financial Officer
<PAGE>
DIRECTORS:
/s/ Joel A. Schwartz President, Chief Executive July 23, 1999
- ------------------------- Officer and a Director
Joel A. Schwartz
/s/ Taka Yoshimoto Executive Vice President- July 23, 1999
- ------------------------- Restaurant Operations and
Taka Yoshimoto a Director
/s/ Kevin Aoki Vice President-Marketing July 23, 1999
- ------------------------- and a Director
Kevin Aoki
/s/ Robert B. Greenberg Director July 23, 1999
- -------------------------
Robert B. Greenberg
/s/ John E. Abdo Director July 23, 1999
- -------------------------
John E. Abdo
/s/ Darwin C. Dornbush Director July 23, 1999
- --------------------------
Darwin C. Dornbush
/s/ Norman Becker Director July 23, 1999
- --------------------------
Norman Becker
<PAGE>
EXHIBIT INDEX
Exhibit Consecutively
Number Numbered Page
- ------- -------------
5.01 - Opinion of Dornbush Mensch Mandelstam &
Schaeffer, LLP 14
23.01 - Consent of Deloitte & Touche, LLP. 16
<PAGE>
Exhibit 5.01
[Letterhead of Dornbush Mensch Mandelstam & Schaeffer, LLP]
July 20, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Benihana Inc., Registration
Statement on Form S-3
---------------------------
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 200,000 shares
of the Company's Class A Common Stock, par value $.10 per share (the "Shares"),
which are to be acquired by the Selling Stockholder (the "Selling Stockholder")
named in the Registration Statement through the exercise of a warrant (the
"Warrant").
In connection with this opinion, we have examined the
Registration Statement, the Certificate of Incorporation and By-laws of the
Company, each as amended to date, copies of the records of corporate proceedings
of the Company, the terms of the Warrant 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 200,000 Shares to be issued upon exercise of the Warrant when issued in
accordance with the terms of the instruments governing such Warrant will be
validly authorized, legally issued, fully paid and non-assessable.
We render no opinion as to the laws of any jurisdiction other
than 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 and to the reference to our name under the caption
"Legal Opinions" in the prospectus included in the Registration Statement.
Very truly yours,
/s/ Dornbush Mensch Mandelstam & Schaeffer, LLP
DORNBUSH MENSCH MANDELSTAM & SCHAEFFER, LLP
- 1 -
<PAGE>
Exhibit 23.01
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Benihana Inc. on Form S-3 of our report dated May 7, 1999 appearing in the
Annual Report on Form 10-K of Benihana Inc. for the year ended March 28, 1999,
and to the reference to us under the heading "Experts" in the Prospectus, which
is a part of this Registration Statement.
Miami, Florida
July 22, 1999
- 2 -
<PAGE>
