-----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, UsZs/LLNcPLFyxVtN+FiEGqt8i0ezx6szw7Ysth7ewTGdAN+T9TKE2GFdPBmoj8y oFMPXLju9K1PK9p4UKTrUg== 0001019056-06-000233.txt : 20060303 0001019056-06-000233.hdr.sgml : 20060303 20060303164116 ACCESSION NUMBER: 0001019056-06-000233 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20060303 DATE AS OF CHANGE: 20060303 GROUP MEMBERS: BENIHANA OF TOKYO INC GROUP MEMBERS: BENIHANA PROTECTIVE TRUST 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: 0328 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-48717 FILM NUMBER: 06664431 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: BENIHANA OF TOKYO INC CENTRAL INDEX KEY: 0001265915 IRS NUMBER: 131998703 STATE OF INCORPORATION: NY FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 2005 KALIA ROAD CITY: HONOLULU STATE: HI ZIP: 96815 BUSINESS PHONE: 808-955-5955 MAIL ADDRESS: STREET 1: 2005 KALIA ROAD CITY: HONOLULU STATE: HI ZIP: 96815 SC 13D/A 1 beni_classa13da3.txt SCHEDULE 13D/A UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) (Amendment No. 3) * BENIHANA INC. - -------------------------------------------------------------------------------- (Name of Issuer) Class A Common Stock, par value $.10 per share - -------------------------------------------------------------------------------- (Title of Class of Securities) 082047200 - -------------------------------------------------------------------------------- (CUSIP Number) David H. Wollmuth, Esq. Wollmuth Maher & Deutsch LLP 500 Fifth Avenue, Suite 1200 New York, New York 10110 212-382-3300 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) March 1, 2006 - -------------------------------------------------------------------------------- (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 Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [ ]. NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) 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 Page 2 of 9 - -------------------------------------------------------------------------------- This Amendment No. 3 to Schedule 13D relating to Benihana Inc., a Delaware corporation (the "Issuer"), is being filed on behalf of the undersigned to amend the Schedule 13D filed with the Securities and Exchange Commission ("Commission") on June 8, 1998, as amended by Amendment No. 1 thereto filed with the Commission on June 4, 2001 and Amendment No. 2 thereto filed with the Commission on August 4, 2004. - -------------- ----------------------------------------------------------------- Names of Reporting Persons / I.R.S. Identification No. of Above Person (entities only): 1 TRUST U/A JUNE 8, 1998, BETWEEN ROCKY H. AOKI, AS GRANTOR, AND KEVIN AOKI, KANA AOKI NOOTENBOOM F/K/A KANA GRACE AOKI, KYLE AOKI AND KENNETH PODZIBA, AS TRUSTEES. I.R.S. IDENTIFICATION NUMBER 13-7141606 - -------------- ----------------------------------------------------------------- 2 Check the Appropriate Box if a Member of a Group (See Instructions) (a) [X] (b) [ ] - -------------- ----------------------------------------------------------------- SEC Use Only 3 - -------------- ----------------------------------------------------------------- Source of Funds (See Instructions) 4 NOT APPLICABLE - -------------- ----------------------------------------------------------------- Check if Disclosure of Legal Proceedings is Required Pursuant 5 to Items 2(d) or 2(e) [ ] - -------------- ----------------------------------------------------------------- Citizenship or Place of Organization 6 New York - ---------------------------- ------- ------------------------------------------- Sole voting power 7 None ------- ------------------------------------------- Number of Shares Shared voting power Beneficially 8 1,435,668* Owned by Each Reporting Person with * Consists of 1,435,668 shares of Common Stock that are convertible at any time into shares of Class A Common Stock at the option of the holder. ------- ------------------------------------------- Sole dispositive power 9 None ------- ------------------------------------------- Shared dispositive power 10 1,435,668* - -------------- ----------------------------------------------------------------- Aggregate Amount Beneficially Owned by Each Reporting Person 11 1,435,668* - -------------- ----------------------------------------------------------------- Check box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) 12 [ ] - -------------- ----------------------------------------------------------------- Percent of Class Represented by Amount in Row (11) 13 17.6%** **Based on the number of shares outstanding as of January 31, 2006 as set forth in the Issuer's Form 10-Q filed with the Securities and Exchange Commission on February 10, 2006 plus the 100,000 shares of Common Stock subsequently converted by the undersigned into Class A Common Stock of the Issuer and assuming the conversion of the 1,435,668 shares of Common Stock owned by the Reporting Persons. - -------------------------------------------------------------------------------- Type of Reporting Person (See Instructions) 14 OO - -------------- ----------------------------------------------------------------- - -------------------------------------------------------------------------------- CUSIP No. 082047200 Page 3 of 9 - -------------------------------------------------------------------------------- - -------------- ----------------------------------------------------------------- Names of Reporting Persons/I.R.S. Identification No. of Above Person (entities only) 1 BENIHANA OF TOKYO, INC. I.R.S. IDENTIFICATION NUMBER 13-1998703 - -------------- ----------------------------------------------------------------- 2 Check the Appropriate Box if a Member of a Group (See Instructions) (a) [X] (b) [ ] - -------------- ----------------------------------------------------------------- SEC Use Only 3 - -------------- ----------------------------------------------------------------- Source of Funds (See Instructions) 4 NOT APPLICABLE - -------------- ----------------------------------------------------------------- Check if Disclosure of Legal Proceedings is Required Pursuant 5 to Items 2(d) or 2(e) [ ] - -------------- ----------------------------------------------------------------- Citizenship or Place of Organization 6 New York - ---------------------------- ------- ------------------------------------------- Sole voting power 7 None ------- ------------------------------------------- Number of Shares Shared voting power Beneficially 8 1,435,668* Owned by Each Reporting Person with * Consists of 1,435,668 shares of Common Stock that are convertible at any time into shares of Class A Common Stock at the option of the holder. ------- ------------------------------------------- Sole dispositive power 9 None ------- ------------------------------------------- Shared dispositive power 10 1,435,668* - -------------- ----------------------------------------------------------------- Aggregate Amount Beneficially Owned by Each Reporting Person 11 1,435,668 - -------------- ----------------------------------------------------------------- Check box if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) 12 [ ] - -------------- ----------------------------------------------------------------- Percent of Class Represented by Amount in Row (11) 13 17.6%** **Based on the number of shares outstanding as of January 31, 2006 as set forth in the Issuer's Form 10-Q filed with the Securities and Exchange Commission on February 10, 2006 plus the 100,000 shares of Common Stock subsequently converted by the undersigned into Class A Common Stock of the Issuer and assuming the conversion of the 1,435,668 shares of Common Stock owned by Reporting Persons. - -------------- ----------------------------------------------------------------- Type of Reporting Person (See Instructions) 14 CO - -------------- ----------------------------------------------------------------- - -------------------------------------------------------------------------------- CUSIP No. 082047200 Page 4 of 9 - -------------------------------------------------------------------------------- ITEM 2. IDENTITY AND BACKGROUND. (a) Name of Reporting Persons Filing: Trust U/A June 8, 1998, between Rocky H. Aoki, as Grantor, and Kevin Aoki, Kana Aoki Nootenboom f/k/a Kana Grace Aoki, Kyle Aoki and Kenneth Podziba, as Trustees (the "Trust"). The Trust was formed under the laws of New York to hold certain Voting Trust Certificates (and, indirectly, the 1,435,668 shares of Issuer's common stock (the "Shares")). Benihana of Tokyo, Inc., a New York corporation, owns all of the Shares. All of the issued and outstanding capital stock of Benihana of Tokyo, Inc.("BOT") is owned by the Trust and is no longer subject to the Voting Trust Agreement U/A dated as of February 2, 1983, among Rocky H. Aoki, as Grantor, Rocky H. Aoki, Katsu Aoki and Darwin C. Dornbush, as Trustees, and Benihana of Tokyo, Inc. Information as to the identity and background of the executive officers, directors and control persons of Benihana of Tokyo, Inc. and, to the best of the knowledge of the Reporting Persons, the trustees of the Trust are set forth on APPENDIX A attached hereto, which is incorporated herein by reference (collectively, the "Principals"). (b) The principal business address of the Reporting Persons is: c/o Benihana of Tokyo, Inc. 2005 Kalia Road Honolulu, Hawaii 96815 The principal business addresses of the Principals are set forth on Appendix A hereto. (c) The principal business of BOT is the operation of certain Benihana restaurants in Hawaii. The principal business of the Trust is to own all of the Shares of BOT. The present principal occupations or employment of the Principals are set forth on Appendix A hereto. (d) During the last five years, none of the Reporting Persons and, to the knowledge of the Reporting Persons, none of the Principals, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e) During the last five years, none of the Reporting Persons and, to the knowledge of the Reporting Persons, none of the Principals, has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws was issued nor a finding of any violation with respect to such laws was made. (f) To the knowledge of the Reporting Persons, all of the Principals are United States citizens. ITEM 4. PURPOSE OF TRANSACTION. The information is Item 4 is hereby amended and restated as follows: On July 2, 2004, Benihana of Tokyo, Inc. commenced an action styled BENIHANA OF TOKYO, INC. V. BENIHANA INC., ET AL. in the Court of Chancery of the State of Delaware against the Issuer, members of the Issuer's Board of Directors and BFC Financial Corporation ("BFC"). The action seeks temporary and permanent injunctive relief, and unspecified monetary damages and recovery of costs and expenses, in connection with the Issuer's recent closing of a $20,000,000 sale of a new class of convertible preferred stock of the Issuer to BFC. John E. Abdo, a director of the Issuer, serves as a Vice Chairman, director, and is a significant shareholder of BFC. The action seeks to, among other relief sought, declare the sale void AB INITIO as ULTRA VIRES, enjoin BFC from voting any shares obtained through the sale, and rescind the sale of preferred stock to BFC. On December 8, 2005, the Delaware Court of Chancery issued a decision denying all of BOT's requests for relief and damages. On January 20, 2006, BOT filed a notice of appeal with respect to such decision. - -------------------------------------------------------------------------------- CUSIP No. 082047200 Page 5 of 9 - -------------------------------------------------------------------------------- The Reporting Persons intend to monitor and evaluate their investment in the Issuer on a continuing basis. Except as set forth above, the Reporting Persons currently have no plans or proposals that relate to or would result in any of the matters referred to in paragraphs (a) through (j), of Item 4 of Schedule 13D. The Reporting Persons, however, may at any time and from time to time, review or reconsider their position with respect to any of such matters. The Reporting Persons retain the right to change their investment intent, make further acquisitions of shares of the Issuer's Common Stock or Class A Common Stock from one or more sellers in the open market or otherwise and/or dispose of all or a portion of their shares of Common Stock in the open market or otherwise either as Common Stock or following conversion of such shares into Class A Common Stock. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. (1)(a) Number of shares beneficially owned by Trust U/A June 8, 1998, between Rocky H. Aoki, as Grantor, and Kevin Aoki, Kana Aoki Nootenboom f/k/a Kana Grace Aoki, Kyle Aoki and Kenneth Podziba, as Trustees: 1,435,668* (17.6%** of the Class A Common Stock) (1)(b) Number of shares as to which such person has: (i) Sole power to vote or to direct the vote: None (ii) Shared power to vote or to direct the vote: 1,435,668* (iii) Sole power to dispose or to direct the disposition of: None (iv) Shared power to dispose or to direct the disposition of: 1,435,668** (1)(c) Trust U/A June 8, 1998, between Rocky H. Aoki, as Grantor, and Kevin Aoki, Kana Aoki Nootenboom f/k/a Kana Grace Aoki, Kyle Aoki and Kenneth Podziba, as Trustees, has not engaged in any transactions in the common stock during the past 60 days, except for the sales by Benihana of Tokyo, Inc. described in Item 2(c). (1)(d) No other person has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the common stock. * Consists of 1,435,668 shares of Common Stock that are convertible at any time into shares of Class A Common Stock at the option of the holder. ** Based on the number of shares outstanding as of January 31, 2006 as set forth in the Issuer's Form 10-Q filed with the Securities and Exchange Commission on February 10, 2006 plus the 100,000 shares of Common Stock subsequently converted by the undersigned into Class A Common Stock of the Issuer and assuming the conversion of the 1,435,668 shares of Common Stock owned by the Reporting Persons. (2)(a) Number of shares beneficially owned by Benihana of Tokyo, Inc.: 1,435,668* (17.6%** of the Class A Common Stock) (2)(b) Number of Shares as to which such person has: (i) Sole power to vote or to direct the vote: None (ii) Shared power to vote or o direct the vote: 1,435,668* (iii) Sole power to dispose or to direct the disposition of: None - -------------------------------------------------------------------------------- CUSIP No. 082047200 Page 6 of 9 - -------------------------------------------------------------------------------- (iv) Shared power to dispose or to direct the disposition of: 1,435,668* (2)(c) During the sixty days preceding the filing of this Amendment No. 3, Benihana of Tokyo, Inc. converted the following shares of Common Stock into an equivalent number of shares of Class A Common Stock of the Issuer and sold such shares of Class A Common Stock on the open market: Date Number of Shares Price Per Share ---- ---------------- --------------- 2/27/06 32,700 27.235 3/01/06 3,980 27.05 3/01/06 1,000 27.06 3/01/06 1,000 27.09 3/01/06 35,240 27.10 3/01/06 14,220 27.11 3/01/06 4,160 27.12 3/01/06 7,100 27.15 3/01/06 300 27.20 3/01/06 300 27.23 (2)(d) No person other than the Trust has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the common stock. * Consists of 1,435,668 shares of Common Stock that are convertible at any time into shares of Class A Common Stock at the option of the holder. ** Based on the number of shares outstanding as of January 31, 2006 as set forth in the Issuer's Form 10-Q filed with the Securities and Exchange Commission on February 10, 2006 plus the 100,000 shares converted by the undersigned into Class A Common Stock of the Issuer and assuming the conversion of the 1,435,668 shares of Common Stock owned by the Reporting Persons. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. Exhibit 1 - Joint Filing Agreement among Trust U/A June 8, 1998, between Rocky H. Aoki, as Grantor, and Kevin Aoki, Kana Aoki Nootenboom f/k/a Kana Grace Aoki, Kyle Aoki and Kenneth Podziba, as Trustees; and Benihana of Tokyo, Inc. - -------------------------------------------------------------------------------- CUSIP No. 082047200 Page 7 of 9 - -------------------------------------------------------------------------------- SIGNATURES After reasonable inquiry and to the best of the knowledge and belief, each of the undersigned persons certifies that the information set forth in this statement is true, complete and correct. Dated: March 3, 2006. TRUST U/A JUNE 8, 1998 BETWEEN ROCKY H. AOKI, AS GRANTOR, AND KEVIN AOKI, KANA AOKI NOOTENBOOM F/K/A KANA GRACE AOKI, KYLE AOKI AND KENNETH PODZIBA, AS TRUSTEES By: /s/ KANA AOKI NOOTENBOOM ------------------------------------ Name: Kana Aoki Nootenboom Title: Trustee BENIHANA OF TOKYO, INC. By: /s/ KANA AOKI NOOTENBOOM ------------------------------------ Name: Kana Aoki Nootenboom Title: Director - -------------------------------------------------------------------------------- CUSIP No. 082047200 Page 8 of 9 - -------------------------------------------------------------------------------- APPENDIX A IDENTITY AND BACKGROUND OF DIRECTORS AND EXECUTIVE OFFICERS OF BENIHANA OF TOKYO, INC. AND THE TRUST
NAME AND POSITION PRESENT OCCUPATION OR EMPLOYMENT WITH BENIHANA OF TOKYO, INC. AND BUSINESS ADDRESS - ------------------------------------------------------------ --------------------------------------------------------- Kana Aoki Nootenboom, Vice-President, Assistant Secretary and Director of Benihana of Tokyo, Inc. Vice-President, Assistant Secretary and Director 2005 Kalia Road, Honolulu, Hawaii 96815 - ------------------------------------------------------------ --------------------------------------------------------- Echo Aoki, Treasurer, Assistant Secretary and Director of Benihana of Tokyo, Inc. Treasurer, Assistant Secretary and Director 2005 Kalia Road, Honolulu, Hawaii 96815 - ------------------------------------------------------------ --------------------------------------------------------- Kenneth Podziba, Commissioner, The New York City Sports Commission Director 2 Washington Street, 15th Floor, New York, New York 10004 NAME AND POSITION PRESENT OCCUPATION OR EMPLOYMENT WITH THE TRUST AND BUSINESS ADDRESS - ------------------------------------------------------------ --------------------------------------------------------- Kana Aoki Nootenboom, Vice-President, Assistant Secretary and Director of Benihana of Tokyo, Inc. Trustee 2005 Kalia Road, Honolulu, Hawaii 96815 - ------------------------------------------------------------ --------------------------------------------------------- Kevin Aoki, Vice-President, Marketing and Director of Benihana, Inc. Trustee 8685 Northwest 53rd Terrace, Miami, Florida 33166 - ------------------------------------------------------------ --------------------------------------------------------- Kyle Aoki, Student Trustee c/o Benihana of Tokyo, Inc. 2005 Kalia Road, Honolulu, Hawaii, 96815 - ------------------------------------------------------------ --------------------------------------------------------- Kenneth Podziba, Commissioner, The New York City Sports Commission Trustee** 2 Washington Street, 15th Floor, New York, New York 10004
*Kenneth Podziba also serves as a delegee of the Trust with respect to matters relating to the litigation described in Item 4 of Amendment No. 2 to this Schedule 13D. - -------------------------------------------------------------------------------- CUSIP No. 082047200 Page 9 of 9 - -------------------------------------------------------------------------------- EXHIBIT 1 Joint Filing Agreement In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, the persons named below agree to the joint filing on behalf of each of them of a Schedule 13D. This Joint Filing Agreement shall be included as an exhibit to such joint filing. In evidence thereof, each of the undersigned being duly authorized, hereby execute this Agreement this 3rd day of March, 2006. TRUST U/A JUNE 8, 1998 BETWEEN ROCKY H. AOKI, AS GRANTOR, AND KEVIN AOKI, KANA AOKI NOOTENBOOM F/K/A KANA GRACE AOKI, KYLE AOKI AND KENNETH PODZIBA, AS TRUSTEES By: /s/ KANA AOKI NOOTENBOOM --------------------------------- Name: Kana Aoki Nootenboom Title: Trustee BENIHANA OF TOKYO, INC. By: /s/ KANA AOKI NOOTENBOOM --------------------------------- Name: Kana Aoki Nootenboom Title: Director -----END PRIVACY-ENHANCED MESSAGE-----