Registration No. 333-
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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)
Delawar 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)
Non-Qualified Stock Option issued to John E. Abdo
Non-Qualified Stock Option issued to Darwin C. Dornbush
(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
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Proposed Proposed
Maximum Maximum Amount of
Title of Securities Amount to be Price Aggregate Registration
to be registered Registered Per Share* Offering Price* Fee
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Common Stock, par
value $.10 per share 20,000 shares $ 5.75 $115,000 $ 30.36
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* Estimated solely for purposes of calculating the registration fee. Calculated
in accordance with Rule 457(h)(1) under the Securities Act of 1933. As all
shares are subject to outstanding but unexercised options, the price is computed
on the basis of the weighted average of the exercise prices of such options.
P R O S P E C T U S
BENIHANA INC.
20,000 Shares of Common Stock
This Prospectus relates to 20,000 shares of Common Stock, par
value $.10 per share (the "Common Stock"), of Benihana Inc., a Delaware
corporation (the "Company"). The shares of 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 Stockholders named herein or their transferees
(the "Selling Stockholders") 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 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 is traded on the National Market System of the National Association of
Securities Dealers under the symbol BNHN. On March 29, 2000 the last trade price
for the Common Stock on the National Market System was $14 1/2.
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 March 30, 2000
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 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-8 under the Securities Act, with respect to the
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 following documents are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal
year ended March 28, 1999;
2. The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended July 18, 1999, October 10, 1999 and January 2, 2000; and
3. The Company's proxy statement for the Company's Annual Meeting of
Stockholders held on August 5, 1999.
<PAGE>
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).
THE COMPANY
Benihana Inc. and its subsidiaries (the "Company") own and
operate 53 Japanese teppanyaki-style and sushi restaurants and franchise 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
Company has also opened its first new sushi restaurant concept, "Sushi Doraku by
Benihana," and has acquired two sushi restaurants in New York City called
"Haru."
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 for the Selling Stockholders.
PLAN OF DISTRIBUTION
The Selling Stockholders 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 the Selling
Stockholders in their sole discretion.
The Company has agreed to bear the costs of registering the
Selling Stockholders Shares offered hereby under the Securities Act of 1933, as
amended.
The Selling Stockholders will deliver a Prospectus in
connection with the sale of the Shares offered hereby.
SELLING STOCKHOLDERS
The Selling Stockholders are offering hereby a total of 20,000
shares of Common Stock. The following table sets forth the name of each of the
Selling Stockholders, such person's relationship with the Company, the number of
Shares of such class now owned by each Selling Stockholder (including the number
of shares the Selling Stockholder has the right to acquire through the exercise
of options and warrants), the total number of Shares offered hereby and the
number of Shares and percentage of such class which will be owned by each of the
Selling Stockholders after completion of the Offering:
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
---- --------- --------- -------- ----------
John E. Abdo1 27,5002 7,500 20,000 *
Darwin C. Dornbush3 17,5004 12,500 5,000 *
- ---------------------------
1 Mr. Abdo is a director of the Company.
2 Includes 17,500 shares receivable through exercise of options. 3 Mr.
Dornbush is a director and the Secretary of the Company 4 Consists of
17,500 shares receivable through exercise of options.
* Less than 1%.
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 and the Secretary 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 Company's Common Stock and 20,000
shares of the Company's Class A Common Stock and is a Selling Stockholder. 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, 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 Stock.
EXPERTS
The consolidated financial statements incorporated in this
Prospectus by reference from the Company's Annual Report on Form 10-K for the
year ended March 28, 1999 have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report, which is incorporated herein by
reference, and have been so incorporated in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
--------------------------------- ----------------
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 BENIHANA INC.
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 12,500 Shares of
Company or any Underwriter. This Prospectus does not Class A Common Stock
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.
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TABLE OF CONTENTS PROSPECTUS
--------
Page
----
Available Information....................................2
Incorporation of Certain
Documents by Reference.................................2
The Company..............................................3 March 30, 2000
Use of Proceeds..........................................3
Plan of Distribution.....................................3
Selling Stockholders.....................................4
Legal Matters............................................4
Experts..................................................5
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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 28, 1999 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 28, 1999.
(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 and Secretary 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 and 20,000 shares of the Company's
Class A Common Stock, par value $.10 (the "Class A Stock"). Mr. Dornbush is a
Selling Stockholder hereunder. 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 700 shares of the Company's
Series A Convertible Preferred Stock, which is convertible into 105,263 shares
of the Company's Class A Stock.
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 against public policy as expressed in the Securities Act
of 1933 and is therefore unenforceable. Furthermore, the Company has given
ertain undertakings with respect to indemnification in connection with this
Registration Statement.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.01 - Stock Option Agreement dated July 1, 1992
between Benihana National Corp., a
predecessor of the Company, and John E.
Abdo.
4.02 - Stock Option Agreement dated August 4, 1995 between
the Company and Darwin C. Dornbush.
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.
<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
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 29th day of
March, 2000.
BENIHANA, INC.
By: /s/ Joel A. Schwartz
------------------------------
Joel A. Schwartz, President
POWER OF ATTORNEY
<PAGE>
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Joel A. Schwartz, Michael R.
Burris 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 March 29, 2000
---------------------- Executive Officer
Joel A. Schwartz and Director
Principal Financial and
Accounting Officer:
/s/ Michael R. Burris Vice President- March 29, 2000
------------------------ Finance
Michael R. Burris
<PAGE>
DIRECTORS:
/s/ Taka Yoshimoto Executive Vice President- March 29, 2000
--------------------- Operations and a Director
Taka Yoshimoto
/s/ Kevin Aoki Vice President-Marketing March 29, 2000
----------------------- and a Director
Kevin Aoki
/s/ Norman Becker Director March 29, 2000
------------------------
Norman Becker
/s/ Robert B. Greenberg Director March 29, 2000
- --------------------------
Robert B. Greenberg
/s/ John E. Abdo Director March 29, 2000
--------------------------
John E. Abdo
/s/ Darwin C. Dornbush Director March 29, 2000
---------------------------
Darwin C. Dornbush
<PAGE>
EXHIBIT INDEX
Exhibit Consecutively
Number Exhibit Numbered Page
- ------- ------- --------------
4.01 - Stock Option Agreement dated July 1, 1992 15
between Benihana National Corp., a predecessor
of the Company, and John E. Abdo.
4.02 - Stock Option Agreement dated August 4, 1995 24
between the Company and Darwin C. Dornbush.
5.01 - Opinion of Dornbush Mensch Mandelstam 32
& Schaeffer, LLP.
23.02 - Consent of Deloitte & Touche LLP. 33
<PAGE>
EXHIBIT 4.01
BENIHANA NATIONAL CORP.
INDIVIDUAL STOCK OPTION AGREEMENT FOR OPTIONS GRANTED
STOCK OPTION AGREEMENT, made and entered into as of the 1st day of
July, 1992 (the "Date of Grant"), by and between BENIHANA NATIONAL CORP., a
Delaware corporation (the "Company") and JOHN E. ABDO a director of the Company
(the "Option Holder").
NOW THEREFORE, in consideration of the mutual premises herein contained
and for other good and valuable consideration, the parties hereto agree as
follows:
1. OPTION GRANT. The Company grants to the Option Holder an option (the
"Option") to purchase 7,5000 shares (subject to adjustment as provided in
Paragraph 11 of this Agreement) of the Company Common Stock, par value $.10 a
share (the "Common Stock").
2. OPTION PRICE. The Option exercise price of the shares of Common Stock
covered by the Option shall be $1.375 per share.
<PAGE>
3. TIME OF EXERCISE. The Option shall become exercisable commencing one
year from the date hereof. The Option may be exercised from time to time and at
any time or times prior to its expiration with respect to all, or any whole
number, of the shares of stock for which it shall have become exercisable,
subject, however, to the provisions of Paragraphs 9 and 10 of this Agreement as
to earlier expiration of the Option by reason of the Option Holder's death or
termination of his services as a director. No omission to exercise the Option
with respect to any shares shall result in lapse of the Option with respect
thereto until the Option has expired as provided in this Agreement.
4. EXPIRATION OF OPTION. Subject to the provisions of Paragraphs 9 and 10
of this Agreement, the Option shall expire at 5:00 p.m. (New York City time) ten
(10) years from the Date of Grant.
<PAGE>
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 A. 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 Company's Board of Directors
pay the Option price (or balance thereof) by tendering to the Company shares of
the Company's Common Stock owned by him and having a fair market value (as
determined by the Board 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 Board be entitled to pay the
Option price by tendering to the Company cash in an amount equal to one-tenth of
such price and an interest bearing promissory note, in form satisfactory to
counsel to the Company, in the principal amount of the remainder (the "Note").
This Note will mature and be payable in full on the ninth anniversary of
the exercise date. The Option Holder may prepay at any time the entire and, from
time to time any portion of, the unpaid principal of the Note. Any such
prepayments shall be applied to the payments to be made under the Note in the
inverse order of their maturity. No such prepayment shall obligate the Company
to forgive or accelerate the forgiveness of any portion of the Note. The Company
has the right to require the Option Holder to pledge the shares acquired
pursuant to the exercise hereof as security for payment of the Note and to
require the Option Holder to enter into a pledge agreement with respect to such
shares in form and substance satisfactory to counsel to the Company.
<PAGE>
Upon termination of the Option Holder's services as a director of the
Company, or any of its subsidiaries, for any reason other than death, disability
or retirement, the entire unpaid balance due on the Note shall become
immediately due and payable, with accrued interest, on the sixtieth day after
such termination. Should the Option Holder's services as a director terminate
due to death, disability or retirement, the payment terms of the Note shall not
accelerate and the Note shall remain the obligation of the Option Holder or his
estate.
6. RIGHTS AS 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.
<PAGE>
7. PURCHASE FOR INVESTMENT. The Option Holder represents that he is
accepting the Option for his own account for investment and with no intention of
distributing or selling the shares covered by the Option. The Option Holder
agrees that, at such time as he exercises the Option and as a condition of its
exercise, if so requested by the Board, he shall deliver to the Company a
written representation (in form acceptable to the Board) that the shares as to
which the Option Holder is exercising the Option are being purchased for
investment and not with a view to their distribution, together with such other
or additional representations and agreements and information as the Board deems
necessary or desirable to assure compliance by the Company, on terms acceptable
to it, with the provisions of the Securities Act of 1933 and any other
applicable legal requirements, and the Option Holder also agrees that the
certificates representing the shares covered by the Option shall each bear a
legend in substantially the following form:
"The shares represented by this certificate have not
been registered under the Securities Act of 1933. The shares
may not be pledged or hypothecated and may not be sold or
transferred in the absence of an effective Registration
Statement for the shares under the Securities Act of 1933 or
an opinion of counsel to the Company that registration is
not required under said Act. In the event that a
Registration Statement becomes effective covering the shares
or counsel to the Company delivers a written opinion that
registration is not required under said Act, this
certificate may be exchanged for a certificate free from
this legend."
8. 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 transferrable except by will or by the laws of descent and
distribution.
<PAGE>
9. TERMINATION OF DIRECTORSHIP. No Option granted under the Plan shall be
exercisable after the date upon which the Option Holder ceases to serve as a
director of the Company for any reason other than death, except that an Option
may be exercised at any time within three months after the termination of such
directorship (or twelve months in the event of termination of such directorship
by reason of disability), 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 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 his services at any time.
10. DEATH OF OPTION HOLDER. In the event of the death of the Option Holder
while a director of the Company, 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 twelve months from the date of death of the Option
Holder, whichever is earlier.
<PAGE>
11. CAPITAL ADJUSTMENTS. The number of shares of Common Stock covered by
the Option, and the Option price thereof, shall be subject to such adjustment as
the Board 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 the stockholders),
the Option shall pertain to the securities to which a holder of the number of
shares of Common Stock subject to the Option would have been entitled pursuant
to such merger or consolidation.
12. RESTRICTION ON EXERCISE. If at any time the Board 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
part unless such listing, registration, qualification, consent or approval shall
have been effective or obtained free of any conditions not acceptable to the
Board, 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.
<PAGE>
13. 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.
14. AMENDMENTS. This Agreement may not be amended or modified without
written consent of the Option Holder.
15. 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.
16. INTERPRETATION. All decisions and interpretations made by the Board
with regard to any question arising under this Agreement shall be binding and
conclusive on the Company and the Option Holder.
17. 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 8 and 10 of this Agreement, the
estate, personal representatives and beneficiaries of the Option Holder.
<PAGE>
18. 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 date and year first above written.
BENIHANA NATIONAL CORP.
By:
----------------------------
-------------------------------
Option Holder
<PAGE>
EXHIBIT 4.02
BENIHANA INC.
INDIVIDUAL STOCK OPTION AGREEMENT FOR OPTIONS GRANTED
--------------
STOCK OPTION AGREEMENT, made and entered into as of the 4th
day of August, 1995 (the "Date of Grant"), by and between BENIHANA INC., a
Delaware corporation (the "Company"), and DARWIN C. DORNBUSH, a director of the
Company (the "Option Holder").
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. Pursuant to the terms and
conditions of this Agreement, the Company hereby grants to the Option Holder an
Option (the "Option") to purchase 12,500 shares (subject to adjustment as
provided in Paragraph 11 of this Agreement) of the Company's Common Stock, par
value $.10 a share (the "Common Stock").
2. OPTION PRICE. The Option exercise price of
the shares of Common Stock covered by the Option shall be $8.375 per share.
<PAGE>
3. TIME OF EXERCISE. The Option shall become
exercisable with respect to 6,250 shares of Common Stock commencing one year
from the date hereof and with respect to the remaining 6,250 shares of Common
Stock commencing two years from the date hereof. The Option may be exercised
from time to time and at any time or times prior to its expiration with respect
to all, or any whole number, of the shares of stock for which it shall have
become exercisable, subject however, to the provisions of Paragraphs 9 and 10 of
this Agreement as to earlier expiration of the Option by reason of the Option
Holder's death or termination of his services as a director. No omission to
exercise the Option with respect to any shares shall result in lapse of the
Option with respect thereto until the Option has expired as provided in this
Agreement.
40 EXPIRATION OF OPTION. Subject to the
provisions of Paragraphs 9 and 10 of this Agreement, the Option shall expire at
5:00 P.M. (New York City time) ten (10) years from the date hereof.
<PAGE>
50 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 A. Such notice shall be accompanied
by a certified or cashiers 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, with the approval of the Company's Board
of Directors (the "Board"), pay the Option price (or balance thereof) by
tendering to the Company shares of the Company's Common Stock owned by him and
having a fair market value (as determined by the Board 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.
60 RIGHTS AS 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.
<PAGE>
70 PURCHASE FOR INVESTMENT. The Option Holder
represent that he is accepting the Option for his own account for investment and
with no intention of distributing or selling the shares covered by the Option.
The Option Holder agrees that, at such time or times as he exercises the Option
and as a condition of its exercise, if so requested by the Board or Committee,
he shall deliver to the Company a written representation (in form acceptable to
the Board or Committee) that the shares as to which the Option Holder is
exercising the Option are being purchased for investment and not with a view to
their distribution, together with such other or additional representations and
agreements and information as the Board or Committee deems necessary or
desirable to assure compliance by the Company, on terms acceptable to it, with
the provisions of the Securities Act of 1933 and any other applicable legal
requirements, and the Option Holder also agrees that the certificates
representing the shares covered by the Option shall each bear a legend in
substantially the following form:
"The Shares represented by this certificate have not been
registered under the Securities Act of 1933. The shares may
not be pledged or hypothecated and may not be sold or
transferred in the absence of an effective Registration
Statement for the shares under the Securities Act of 1933 or
an opinion of counsel to the Company that registration is
not required under said Act. In the event that a
Registration Statement becomes effective covering the shares
or counsel to the Company delivers a written opinion that
registration is not required under said Act, this
certificate may be exchanged for a certificate free from
this legend."
80 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 or
by the laws of descent and distribution.
<PAGE>
90 TERMINATION OF EMPLOYMENT. No option shall
be exercisable after the date which is three months after the date upon which
the Option Holder ceases to serve as a director of the Company for any reason
including death, disability or resignation, except that in the even such
termination results from the death of the Option Holder, an Option may be
exercised at any time within three months after the appointment and
qualification of the Option Holder's legal representative, but in each case
prior to the expiration of the form 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
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 his services at any time.
100 DEATH OF OPTION HOLDER. In the event of
the death of the Option Holder while a director of the Company, 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 twelve months
from the date of death of the Option Holder, whichever is earlier.
<PAGE>
110 CAPITAL ADJUSTMENTS. The number of shares
of Common Stock covered by the Option, and the Option price thereof, shall be
subject to such adjustment as the Board 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 Common Stock subject to the Option
would have been entitled pursuant to such merger or consolidation.
120 RESTRICTION OF 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 mat 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.
<PAGE>
130 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.
140 AMENDMENTS. This Agreement shall be subject
to any duly authorized amendments applicable to options issued under the
Company's Directors' Stock Option Plan (the "Plan"), to the extent and as
provided in Section 13 of the Plan.
(1) NOTICES. 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.
150 INTERPRETATION. All decisions and
interpretations made by the Board with regard to any question arising under this
Agreement or the Plan shall be binding and conclusive on the Company and the
Option Holder.
<PAGE>
160 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
8 and 10 of this Agreement, the estate, personal representatives and
beneficiaries of the Option Holder.
170 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.
180 ENTIRE AGREEMENT. Although this Option is
not granted under the Plan, the provisions of the Plan, except for Sections 2, 4
and 12 thereof, are incorporated herein by reference and are a part of this
Agreement. The Plan and this Agreement constitute the entire agreement between
the parties relating to the grant of the Options contemplated hereby and
supersedes all prior and contemporaneous agreements, both written and oral, with
respect to the subject matter hereof. In the event of conflict between the
provisions of the Plan and the provisions of this Agreement, the provisions of
the Plan shall be controlling .
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 as of the day and year first above-written.
BENIHANA INC.
By: /S/ Joel A. Schwartz
-------------------------
Name: Joel A. Schwartz
Title: President
/s/ Darwin C. Dornbush
-------------------------
Option Holder
<PAGE>
EXHIBIT 5.01
[Letterhead of Dornbush Mensch Mandelstam & Schaeffer, LLP]
March 29, 2000
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 20,000 shares (the "Shares")
of the Company's Common Stock, par value $.10, which may be issued by the
Company pursuant to the terms of a Stock Option Agreement dated July 1, 1992
between John E. Abdo and Benihana National Corp., a predecessor of the Company,
and a Stock Option Agreement dated August 4, 1996 between the Company and Darwin
C. Dornbush (collectively, the "Stock Option Agreements"). Mr. Dornbush is a
member of this firm.
In connection with this opinion, we have examined the Company's
Certificate of Incorporation and By-laws, the Stock Option Agreements, 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 Stock Option Agreements,
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,
/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 7, 1999, appearing in the
Annual Report on Form 10-K of Benihana Inc. and subsidiaries for the year ended
March 28, 1999, and to the reference to us under the heading "Experts" in such
Registration Statement.
/S/ DELOITTE & TOUCHE LLP
Certified Public Accountants
Miami, Florida
March 27, 2000
