Schedule 13DA

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BjMsHQRtfAlZEdznSYCmjfBKhXWkl9sQsx4j5UrIVefNu43jmBoJftK+kw5i23Cb xqo7TaIo6pWVPHrWreaWLw== 0000950123-10-078382.txt : 20100817 0000950123-10-078382.hdr.sgml : 20100817 20100817112146 ACCESSION NUMBER: 0000950123-10-078382 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20100817 DATE AS OF CHANGE: 20100817 GROUP MEMBERS: ADAM GRAY GROUP MEMBERS: BLACKWELL PARTNERS, LLC GROUP MEMBERS: CHRISTOPHER SHACKELTON GROUP MEMBERS: COLISEUM CAPITAL MANAGEMENT, LLC GROUP MEMBERS: COLISEUM CAPITAL PARTNERS, L.P. GROUP MEMBERS: COLISEUM CAPITAL, LLC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: BENIHANA INC CENTRAL INDEX KEY: 0000935226 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING PLACES [5812] IRS NUMBER: 650538630 STATE OF INCORPORATION: DE FISCAL YEAR END: 0330 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-48717 FILM NUMBER: 101022200 BUSINESS ADDRESS: STREET 1: 8685 NW 53RD TERRACE CITY: MIAMI STATE: FL ZIP: 33166 BUSINESS PHONE: 3055930770 MAIL ADDRESS: STREET 1: 8685 NW 53RD TERRACE CITY: MIAMI STATE: FL ZIP: 33166 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Coliseum Capital Management, LLC CENTRAL INDEX KEY: 0001409751 IRS NUMBER: 223918079 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 767 THIRD AVENUE STREET 2: 35TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: 212-488-5555 MAIL ADDRESS: STREET 1: 767 THIRD AVENUE STREET 2: 35TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 SC 13D/A 1 c05097sc13dza.htm SCHEDULE 13DA Schedule 13DA

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934
(Amendment No. 9 )*

Benihana Inc.

(Name of Issuer)

Class A Common Stock

(Title of Class of Securities)

082047200

(CUSIP Number)

Christopher Shackelton/Adam Gray
767 Third Avenue, 35th Floor
New York, NY 10017

(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)

Copy to:
Debevoise & Plimpton LLP
919 Third Avenue
New York, New York 10022
Attention: William D. Regner, Esq.
Telephone: (212) 909-6000

August 16, 2010

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).


CUSIP No.		082047200


1	NAMES OF REPORTING PERSONS Coliseum Capital Management, LLC


2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
	(a) o
	(b) þ

3	SEC USE ONLY



4	SOURCE OF FUNDS (SEE INSTRUCTIONS)

	AF

5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

	o

6	CITIZENSHIP OR PLACE OF ORGANIZATION

	Delaware

		7	SOLE VOTING POWER

NUMBER OF			0

SHARES		8	SHARED VOTING POWER
BENEFICIALLY
OWNED BY			1,463,883

EACH		9	SOLE DISPOSITIVE POWER
REPORTING
PERSON			0

WITH		10	SHARED DISPOSITIVE POWER

			1,463,883

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

	1,463,883

12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)

	o

13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

	14.9%

14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)

	OO, IA


CUSIP No.		082047200


1	NAMES OF REPORTING PERSONS Coliseum Capital, LLC


2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
	(a) o
	(b) þ

3	SEC USE ONLY



4	SOURCE OF FUNDS (SEE INSTRUCTIONS)

	AF

5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

	o

6	CITIZENSHIP OR PLACE OF ORGANIZATION

	Delaware

		7	SOLE VOTING POWER

NUMBER OF			0

SHARES		8	SHARED VOTING POWER
BENEFICIALLY
OWNED BY			734,162

EACH		9	SOLE DISPOSITIVE POWER
REPORTING
PERSON			0

WITH		10	SHARED DISPOSITIVE POWER

			734,162

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

	734,162

12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)

	o

13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

	7.5%

14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)

	OO


CUSIP No.		082047200


1	NAMES OF REPORTING PERSONS Coliseum Capital Partners, L.P.


2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
	(a) o
	(b) þ

3	SEC USE ONLY



4	SOURCE OF FUNDS (SEE INSTRUCTIONS)

	WC

5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

	o

6	CITIZENSHIP OR PLACE OF ORGANIZATION

	Delaware

		7	SOLE VOTING POWER

NUMBER OF			0

SHARES		8	SHARED VOTING POWER
BENEFICIALLY
OWNED BY			734,162

EACH		9	SOLE DISPOSITIVE POWER
REPORTING
PERSON			0

WITH		10	SHARED DISPOSITIVE POWER

			734,162

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

	734,162

12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)

	o

13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

	7.5%

14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)

	PN


CUSIP No.		082047200


1	NAMES OF REPORTING PERSONS Blackwell Partners, LLC


2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
	(a) o
	(b) þ

3	SEC USE ONLY



4	SOURCE OF FUNDS (SEE INSTRUCTIONS)

	WC

5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

	o

6	CITIZENSHIP OR PLACE OF ORGANIZATION

	Georgia

		7	SOLE VOTING POWER

NUMBER OF			0

SHARES		8	SHARED VOTING POWER
BENEFICIALLY
OWNED BY			729,721

EACH		9	SOLE DISPOSITIVE POWER
REPORTING
PERSON			0

WITH		10	SHARED DISPOSITIVE POWER

			729,721

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

	729,721

12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)

	o

13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

	7.4%

14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)

	OO


CUSIP No.		082047200


1	NAMES OF REPORTING PERSONS Adam Gray


2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
	(a) o
	(b) þ

3	SEC USE ONLY



4	SOURCE OF FUNDS (SEE INSTRUCTIONS)

	AF

5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

	o

6	CITIZENSHIP OR PLACE OF ORGANIZATION

	United States

		7	SOLE VOTING POWER

NUMBER OF			0

SHARES		8	SHARED VOTING POWER
BENEFICIALLY
OWNED BY			1,463,883

EACH		9	SOLE DISPOSITIVE POWER
REPORTING
PERSON			0

WITH		10	SHARED DISPOSITIVE POWER

			1,463,883

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

	1,463,883

12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)

	o

13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

	14.9%

14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)

	IN


CUSIP No.		082047200


1	NAMES OF REPORTING PERSONS Christopher Shackelton


2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
	(a) o
	(b) þ

3	SEC USE ONLY



4	SOURCE OF FUNDS (SEE INSTRUCTIONS)

	AF

5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)

	o

6	CITIZENSHIP OR PLACE OF ORGANIZATION

	United States

		7	SOLE VOTING POWER

NUMBER OF			0

SHARES		8	SHARED VOTING POWER
BENEFICIALLY
OWNED BY			1,463,883

EACH		9	SOLE DISPOSITIVE POWER
REPORTING
PERSON			0

WITH		10	SHARED DISPOSITIVE POWER

			1,463,883

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

	1,463,883

12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)

	o

13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

	14.9%

14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)

	IN

Explanatory Note: This Amendment No. 9 (this “Amendment”), to the Schedule 13D (the “Initial 13D”) filed by the Filers (as defined below in Item 2) with the U.S. Securities and Exchange Commission (the “Commission”) on February 17, 2010, as amended and supplemented by Amendment No. 1 to the Initial 13D filed on April 15, 2010 (“Amendment No. 1”), Amendment No. 2 to the Initial 13D filed on May 26, 2010 (“Amendment No. 2”), Amendment No. 3 to the Initial 13D filed on July 1, 2010 (“Amendment No. 3”), Amendment No. 4 to the Initial 13D filed on July 15, 2010 (“Amendment No. 4”), Amendment No. 5 to the Initial 13D filed on July 23, 2010 (“Amendment No. 5”), Amendment No. 6 to the Initial 13D filed on August 2, 2010 (“Amendment No. 6”), Amendment No. 7 to the Initial 13D filed on August 4, 2010 (“Amendment No. 7”) and Amendment No. 8 to the Initial 13D filed on August 6, 2010 (“Amendment No. 8”), amends and supplements the items set forth herein. This Amendment relates to shares of Class A Common Stock, $0.10 par value per share (the “Class A Common Stock”) of Benihana Inc. (the “Issuer”). Since the filing of Amendment No. 3, the Filers have not acquired beneficial ownership over additional shares of the Issuer’s Common Stock, $0.10 par value per share (the “Common Stock”). The Filers do not beneficially own more than 5% of the Common Stock and do not have a separate reporting obligation under Section 13(d) of the Securities Exchange Act of 1934, as amended, with respect to the Common Stock.


Item 1.		Security and Issuer

This statement relates to shares of Class A Common Stock of the Issuer. The principal executive office of the Issuer is located at 8685 Northwest 53rd Terrace, Miami, FL 33166.


Item 2.		Identity and Background

The persons filing this statement and the persons enumerated in Instruction C of Schedule 13D and, where applicable, their respective places of organization, general partners, directors, executive officers and controlling persons, and the information regarding them, are as follows:

(a)

As used in this statement, the term “Filers” collectively refers to:

	•		Coliseum Capital Management, LLC, a Delaware limited liability company (“CCM”);

	•		Coliseum Capital, LLC, a Delaware limited liability company (“CC”);

	•		Coliseum Capital Partners, L.P., a Delaware limited partnership (“CCP”);

	•		Blackwell Partners, LLC, a Georgia limited liability company (“Blackwell”);

	•		Adam Gray (“Gray”); and

	•		Christopher Shackelton (“Shackelton”)

(b)

The address of the principal business and office of the Filers (other than Blackwell) is 767 Third Avenue, 35th Floor, New York, NY 10017. The address of the principal business and office of Blackwell is c/o DUMAC, LLC, 406 Blackwell Street, Suite 300, Durham, NC 27701.

(c)		Present principal occupation or employment of the Filers and the name, principal business and address of any corporation or other organization in which such employment is conducted:

		CCM is the investment adviser to CCP, which is an investment limited partnership. CC is the General Partner of CCP, and Gray and Shackelton are the managers of CC. Blackwell is a separate account advisory client of CCM, and Gray and Shackelton are the managers of CCM. Blackwell has no voting or dispositive power with respect to the shares of Stock reported herein.

(d)		During the last five years, none of the Filers has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

(e)		During the last five years, none of the Filers was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

(f)		The citizenship or place of organization for each of the Filers is listed in Row 6 of the cover pages hereto.


Item 4.		Purpose of Transaction

Item 4 is amended and supplemented as follows:

On August 16, 2010, the Filers and the Issuer entered into an agreement (the “Agreement”) pursuant to which the Issuer agreed to nominate Adam L. Gray for election at the Issuer’s 2010 annual meeting of stockholders (the “2010 Annual Meeting”) as a Class III, Class A Common Stock member of its board of directors (the “Board”), in replacement of the nominee for such directorship previously identified by the Issuer.

The Issuer further agreed that if Mr. Gray is elected to the Board, the Board shall appoint him to the Nominating and Governance Committee, the Compensation and Stock Option Committee, the Audit Committee, and any other committee of the Board that is formed or to which responsibility is delegated for the purpose of evaluating the Issuer’s strategic alternatives or any material financing, acquisition, sale, disposition or other material transaction provided that Mr. Gray meets Nasdaq independence eligibility criteria for such committees.

As part of the Agreement, the Issuer also agreed to reimburse the Filers for all of the group’s reasonable, documented, out-of-pocket expenses (including legal fees and expenses) incurred in connection with its Section 13D filings, its nomination letter, dated July 22, 2010, its demand to inspect certain of the Issuer’s books and records pursuant to Section 220 of the Delaware General Corporation Law and certain other matters (including the negotiation and execution of the Agreement) but in no event in excess of $250,000.

The Issuer also agreed that that the Nominating and Governance Committee shall nominate for election at the 2011 annual meeting of stockholders, as a Class I, Common Stock director to fill the directorship that is currently vacant, a person who is “independent” pursuant to Nasdaq listing standards and who otherwise has no relationships with any affiliate of the Issuer (or any affiliate thereof).

Under the Agreement, the Issuer also agreed to hold its 2010 Annual Meeting on September 14, 2010 or as soon as reasonably possible after that date.

The Issuer further agreed that if Mr. Gray is elected as a director and can no longer serve on the Board because of death or disability before the expiration of his term, the Filers shall be entitled to recommend to the Nominating and Corporate Governance Committee a replacement director who will qualify as “independent” pursuant to Nasdaq listing standards and the Nominating and Corporate Governance Committee shall not unreasonably withhold acceptance of any such replacement director. If the Nominating and Corporate Governance Committee does not accept a replacement director recommended by the Filers, the Filers shall have the right to recommend one or more additional replacement directors for consideration by the Nominating and Corporate Governance Committee.

The Filers agreed to (i) withdraw its nomination letter, dated July 22, 2010, (ii) cease any proxy solicitation activities with respect to the 2010 Annual Meeting, (iii) withdraw its demand to inspect certain of the Issuer’s books and records pursuant to Section 220 of the Delaware General Corporation Law and (iv) vote all shares of Common Stock beneficially owned by it in favor of the Issuer’s nominees for election as directors at the 2010 Annual Meeting.

The foregoing description of the Agreement is qualified in its entirety by reference to the Agreement, which is attached as Exhibit G hereto and is incorporated herein by reference.


Item 6.		Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

Item 6 is hereby amended to add the following:

The information set forth above in Item 4 is incorporated herein by reference.


Item 7.		Material to Be Filed as Exhibits

Item 7 is supplemented as follows:

Agreement, dated as of August 16, 2010, by and among Coliseum Capital Management, LLC, Coliseum Capital, LLC, Coliseum Capital Partners, L.P., Blackwell Partners, LLC, Adam Gray, Christopher Shackelton and Benihana Inc., set forth in Exhibit G.

SIGNATURES

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: August 17, 2010


COLISEUM CAPITAL MANAGEMENT, LLC		BLACKWELL PARTNERS, LLC

		By: Coliseum Capital Management, LLC, Attorney-in-fact

By:	/s/ Christopher Shackelton	/s/ Adam Gray

	Christopher Shackelton, Manager	Adam Gray, Manager

COLISEUM CAPITAL PARTNERS, L.P.		CHRISTOPHER SHACKELTON

By:	Coliseum Capital, LLC, General Partner

By:	/s/ Adam Gray	/s/ Christopher Shackelton

	Adam Gray, Manager	Christopher Shackelton

COLISEUM CAPITAL, LLC		ADAM GRAY

By:	/s/ Adam Gray	/s/ Adam Gray

	Adam Gray, Manager	Adam Gray

EX-99.G 2 c05097exv99wg.htm EXHIBIT G Exhibit G

EXHIBIT G

Agreement

This Agreement, dated as of August 16, 2010 (this “Agreement”), is by and among Coliseum Capital Partners, L.P., a Delaware limited partnership, Coliseum Capital Management, LLC, a Delaware limited liability company, Coliseum Capital, LLC, a Delaware limited liability company, Blackwell Partners, LLC, a Georgia limited liability company, Adam Gray and Christopher Shackelton (collectively, the “Coliseum Capital Group”, and each, individually, a “member” of the Coliseum Capital Group) and Benihana Inc. (the “Company”).

RECITALS

WHEREAS, the Coliseum Capital Group beneficially owns (as defined below) shares of the Company’s Class A Common Stock, par value, $0.10 par value per share (the “Class A Common Stock”) and the Company’s Common Stock, par value $0.10 per share (the “Common Stock”) as specified in Amendment No. 8 to the Schedule 13D filed by the Coliseum Capital Group with the Securities and Exchange Commission (the “SEC”) on August 6, 2010;

WHEREAS, Coliseum Capital Partners, L.P. delivered (i) a letter to the Company nominating Adam L. Gray (the “Nomination Letter”) for election to the Company’s Board of Directors (the “Board”) as a Class A Common Stock director at the 2010 annual meeting of stockholders of the Company (the “2010 Annual Meeting”) and (ii) a demand, pursuant to Section 220 of the Delaware General Corporation Law, to review certain of the Company’s books and records in connection with the 2010 Annual Meeting (the “Section 220 Demand”);

WHEREAS, on August 5, 2010, Coliseum Capital Partners, L.P. filed a preliminary proxy statement on Schedule 14A with the SEC related to the matters set forth in the Nomination Letter; and

WHEREAS, the Company and the members of the Coliseum Capital Group have determined to come to an agreement with respect to certain matters related to the 2010 Annual Meeting and certain other matters, as provided in this Agreement;

NOW, THEREFORE, in consideration of the promises, covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Party, intending to be legally bound, hereby agrees as follows:

ARTICLE I

DEFINITIONS

Section 1.1 Defined Terms. For purposes of this Agreement:

(a) “Affiliate” has the meaning set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act.

(b) The terms “beneficial owner” and “beneficially owns” have the meanings set forth in Rule 13d-3 promulgated by the SEC under the Exchange Act.

(d) “Person” means any individual, partnership, corporation, group, syndicate, trust, government or agency, or any other organization, entity or enterprise.

Section 1.2 Interpretation. When reference is made in this Agreement to a Section, such reference shall be to a Section of this Agreement unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The words “hereof,” “herein,” “hereby” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing an instrument to be drafted.

ARTICLE II

BOARD NOMINATION

Section 2.1 2010 Annual Meeting. As promptly as practicable after the date hereof, (a) the Company shall nominate Adam L. Gray for election at the 2010 Annual Meeting as a Class III, Class A Common Stock director, in replacement of the nominee for such directorship previously identified by the Company, (b) the Board shall recommend that the Company’s stockholders vote in favor of the election at the 2010 Annual Meeting of Mr. Gray as a Class III, Class A Common Stock director, (c) the Company shall amend its preliminary proxy statement filed in connection with the 2010 Annual Meeting to reflect such nomination and recommendation, as well as the other matters set forth herein, and (d) the Company shall use its reasonable best efforts to solicit proxies in favor of the election at the 2010 Annual Meeting of Mr. Gray as a Class III, Class A Common Stock director.

Section 2.2 Additional Company Obligations.

(a) Upon Mr. Gray’s election as a director of the Company, the Board shall appoint Mr. Gray as a member of the Nominating and Governance Committee, the Compensation and Stock Option Committee, the Audit Committee, and any other committee of the Board that is formed or to which responsibility is delegated for the purpose of evaluating the Company’s strategic alternatives or any material financing, acquisition, sale, disposition or other material transaction provided that Mr. Gray meets Nasdaq independence eligibility criteria for such committees.

(b) The Company shall reimburse the Coliseum Capital Group for all of Coliseum Capital Group’s reasonable, documented, out-of-pocket expenses (including legal fees and expenses) incurred in connection with its Section 13D filings, the Nomination Letter, the Section 220 Demand and the other matters governed by this Agreement (including the negotiation and execution hereof) but in no event in excess of $250,000.

(c) The Nominating and Governance Committee shall nominate for election at the 2011 Annual Meeting, as a Class I, Common Stock Director to fill the directorship that is vacant as of the date hereof, a person who is “independent” pursuant to Nasdaq listing standards and who otherwise has no relationships with any Affiliate of the Company (or any Affiliate thereof).

(d) The Company will hold its 2010 Annual Meeting on September 14, 2010 or as soon as reasonably possible after that date.

Section 2.3 Death or Disability. If Mr. Gray is elected as a director and can no longer serve on the Board because of death or disability before the expiration of his term, the Coliseum Capital Group shall be entitled to recommend to the Nominating and Corporate Governance Committee a replacement director who will qualify as “independent” pursuant to Nasdaq listing standards. The Nominating and Corporate Governance Committee shall not unreasonably withhold acceptance of any such replacement director. If the Nominating and Corporate Governance Committee does not accept a replacement director recommended by the Coliseum Capital Group, the Coliseum Capital Group shall have the right to recommend one or more additional replacement directors for consideration by the Nominating and Corporate Governance Committee. Upon the acceptance of a replacement director nominee by the Nominating and Corporate Governance Committee, the Board will appoint such replacement director to the Board no later than five (5) business days after the Nominating and Corporate Governance Committee’s recommendation of such replacement director.

ARTICLE III

PROXY CONTEST AND OTHER MATTERS; PRESS RELEASE

Section 3.1 Undertakings by the Coliseum Capital Group. The Coliseum Capital Group hereby (a) withdraws the Nomination Letter, (b) agrees to cease its proxy solicitation activities with respect to the Company in connection with the 2010 Annual Meeting, (c) withdraws the Section 220 Demand, and (d) agrees to vote all shares of Common Stock beneficially owned by it in favor of the Company’s nominees for election as directors at the 2010 Annual Meeting. No later than the second business day after the date hereof, the Coliseum Capital Group shall file with the SEC an amendment to its Schedule 13D with respect to the Company disclosing the material contents of this Agreement.

Section 3.2 Press Release. In the event that the Company elects to make a press release pertaining to this Agreement, such press release will be mutually acceptable to both the Coliseum Capital Group and the Company.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES

Section 4.1 Representations and Warranties. Each Party represents and warrants to the other Parties that:

(a) such Party, if not a natural Person, has all requisite limited partnership, limited liability company or corporate authority and power to execute and deliver this Agreement and to perform such Party’s obligations hereunder;

(b) the execution and delivery of this Agreement by such Party and the performance of such Party’s obligations hereunder have been duly and validly authorized by all required limited partnership, limited liability company, corporate or other action on the part of such Party and no other proceedings on the part of such Party are necessary to authorize the execution and delivery of this Agreement by such Party or the performance of such Party’s obligations hereunder;

(c) this Agreement has been duly and validly executed and delivered by such Party and constitutes the valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and

(d) this execution and delivery by such Party of Agreement and the performance of such Party’s obligations hereunder will not result in a violation of any terms or provisions of any (i) organizational document of such Party, (ii) agreement to which such Party is a party or by which such Party may otherwise be bound or (iii) law, rule, license, regulation, judgment, order or decree governing or affecting such Party.

ARTICLE V

OTHER PROVISIONS

Section 5.1 Remedies; Governing Law.

(a) The Parties agree that any breach of this Agreement would cause irreparable harm to the other Parties, that money damages alone would not be a sufficient remedy and that the Parties shall be entitled to equitable relief, including injunction and specific performance, in the event of any breach or threatened breach of the provisions of this Agreement. The Parties shall not oppose the granting of such relief, and shall waive any requirement for the securing or posting of any bond in connection with such remedy. Equitable relief shall not be deemed to be the exclusive remedy for breach of this agreement, but shall be in addition to all other remedies available at law or in equity.

(b) The Parties agree that the Court of Chancery or federal court of the State of Delaware shall have exclusive jurisdiction with respect to all actions and proceedings arising out of or relating to this Agreement, Each Parties hereby (i) consents to submit itself to the personal jurisdiction of the Court of Chancery or federal court of the State of Delaware in the event any dispute between the Parties arises out or relates of this Agreement, (ii) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, (iii) agrees that it shall not bring any action relating to this Agreement in any other court and irrevocably waives the right to trial by jury in the event of any such dispute and (iv) irrevocably consents to service of process by delivery of notice complying with Section 5.3.

(c) THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITHOUT LIMITATION VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO THE CHOICE OF LAW RULES OR PRINCIPLES OF SUCH STATE THAT WOULD PERMIT OR COMPEL THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.

Section 5.2 Entire Agreement. This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof and may be amended only by an agreement in writing executed by the Parties.

Section 5.3 Notices. All notices, consents, requests, instructions, approvals and other communications provided for herein and all legal process in regard hereto shall be in writing and shall be deemed validly given, made or served, if when actually received during normal business hours at the address specified in this subsection:

if to the Company, to:

Benihana Inc.
8685 Northwest 53rd Terrace
Miami, Florida 33166.
Attention: General Counsel

if to any member of the Coliseum Capital Group, to:

Coliseum Capital Management, LLC
767 Third Avenue, 35th Floor
New York, NY 10017
Attention: Christopher Shackelton

with a copy to:

Debevoise & Plimpton LLP
919 Third Avenue
New York, NY 10022
Attention: William D. Regner

or to such other address as any party hereto may, from time to time, designate in writing delivered pursuant to the terms of this Section 5.3.

Section 5.4 Severability. If any provision of this Agreement shall be held by any court of competent jurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect, but the illegality or unenforceability of such provision shall have no effect upon the legality or enforceability of any other provision of this Agreement.

Section 5.5 Counterparts. This Agreement may be executed in two or more counterparts (including by facsimile or PDF) which together shall constitute a single agreement.

Section 5.6 Successors and Assigns. This Agreement shall not be assignable by any Party but shall be binding on successors of the Parties.

Section 5.7 No Third Party Beneficiaries. This Agreement is solely for the benefit of the Parties hereto and is not enforceable by any other Person.

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.


BENIHANA INC.
By:	/s/ Alan B. Levan
	Name:	Alan B. Levan
	Title:	Director

COLISEUM CAPITAL MANAGEMENT, LLC
By:	/s/ Christopher Shackelton
	Name:	Christopher Shackelton
	Title:	Manager

COLISEUM CAPITAL PARTNERS, L.P.
By:	Coliseum Capital, LLC, General Partner

By:	/s/ Christopher Shackelton
	Name:	Christopher Shackelton
	Title:	Manager

COLISEUM CAPITAL, LLC
By:	/s/ Christopher Shackelton
	Name:	Christopher Shackelton
	Title:	Manager

BLACKWELL PARTNERS, LLC
By:	Coliseum Capital Management, LLC,
	Attorney-in-fact

	/s/ Adam Gray
	Name:	Adam Gray
	Title:	Manager


	CHRISTOPHER SHACKELTON
		/s/ Christopher Shackelton
		Christopher Shackelton


	ADAM GRAY
		/s/ Adam Gray
		Adam Gray

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