-----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, V76I+8NDm6ZS5nkfwi/rFI9M+bsxqEDhzJUFdqoHTxajLE4jConhqxS3sX19iaQl /EKz4jOS2qEkKjYXXsevvA== 0001188112-07-001609.txt : 20070521 0001188112-07-001609.hdr.sgml : 20070521 20070521160524 ACCESSION NUMBER: 0001188112-07-001609 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20070518 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Material Modifications to Rights of Security Holders ITEM INFORMATION: Other Events ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20070521 DATE AS OF CHANGE: 20070521 FILER: 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: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-26396 FILM NUMBER: 07867986 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 8-K 1 t14500_8k.txt CURRENT REPORT ON FORM 8-K UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of report (date of earliest event reported): May 18, 2007 -------------------- BENIHANA INC. ------------------------------------------------------------------------------- (Exact name of registrant as specified in its charter) Delaware 0-26396 65-0538630 ---------------------------- ----------- ---------------- (State or other jurisdiction (Commission (I.R.S. Employer of incorporation) File Number) Identification No.) 8685 Northwest 53rd Terrace, Miami, Florida 33166 ------------------------------------------------------------------------------ (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (305) 593-0770 -------------------- None ------------------------------------------------------------------------------ Former name or former address, if changed since last report Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): [ ] Written communications pursuant to Rule 425 under the Securities Act (17CFR230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR240.14a-12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17CFR240.14d-2(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17CFR240.13e-4(c)) ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT On May 18, 2007, the Board of Directors of Benihana Inc. (the "Company") approved and the Company entered into an Amendment (the "Amendment") to the Amended and Restated Rights Agreement (the "Agreement"), dated as of January 31, 2007, between the Company and American Stock Transfer & Trust Company, as rights agent. The Amendment amended the Agreement to clarify that an Exempt Person (as defined under the Agreement) will not cease to be an Exempt Person if such person acquires additional shares of Common Stock pursuant to one or more actions or transactions approved by the Company's Board of Directors. This description of the Amendment is qualified in its entirety by reference to the Amendment filed herewith as Exhibit 99.1. ITEM 3.03 MATERIAL MODIFICATION OF RIGHTS OF SECURITY HOLDERS See Item 1.01 above, which is incorporated herein by reference. ITEM 8.01 OTHER EVENTS On May 18, 2007, the Company's Board of Directors unanimously declared a three-for-two stock split to be effected by means of a dividend of one-half of one share of Common Stock for each outstanding share of Common Stock and each outstanding share of Class A Common Stock. The stock dividend will be payable on June 15, 2007 to holders of record of the Common Stock and Class A Common Stock at the close of business on June 1, 2007. Stock certificates representing the additional shares of stock will be distributed via regular mail. In lieu of distributing a fractional share of Common Stock, the Company will pay to stockholders holding an odd number of shares of Common Stock or an odd number of shares of Class A Common Stock an amount in cash equal to one-third of the closing price of the Common Stock on the Nasdaq National Market System on June 1, 2007. The number and class of shares available upon exercise of any options granted by the Company under its various stock options plans will be equitably adjusted to reflect the stock dividend in accordance with the terms of such plans, taking into effect any differential in the closing price of the Common Stock and the Class A Common Stock on June 1, 2007. Applicable terms of all other instruments and agreements to purchase Common Stock or Class A Common Stock will be appropriately adjusted to reflect the stock dividend. ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS. (d) Exhibits Exhibit 99.1. Amendment, dated as of May 18, 2007, to Amended and Restated Rights Agreement, dated as of January 31, 2007, by and between Benihana Inc. and American Stock Transfer & Trust Company. Exhibit 99.2. Press Release of Benihana Inc. dated May 21, 2007 regarding stock dividend and amendment to Rights Agreement. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. BENIHANA INC. Dated: May 21, 2007 By: /s/ Joel A. Schwartz ------------------------------- Joel A. Schwartz Chief Executive Officer EXHIBIT INDEX EXHIBIT DESCRIPTION - ------- ----------- Exhibit 99.1. Amendment, dated as of May 18, 2007, to Amended and Restated Rights Agreement, dated as of January 31, 2007, by and between Benihana Inc. and American Stock Transfer & Trust Company Exhibit 99.2. Press Release of Benihana Inc. dated May 21, 2007 regarding stock dividend and amendment to Rights Agreement. EX-99.1 2 ex99-1.txt EXHIBIT 99.1 Exhibit 99.1 AMENDMENT TO AMENDED AND RESTATED RIGHTS AGREEMENT This Amendment (the "AMENDMENT") to the Amended and Restated Rights Agreement (the "RIGHTS AGREEMENT") by and between Benihana Inc., a Delaware corporation (the "Company"), and American Stock Transfer & Trust Company, as successor to the interest of First Union National Bank of North Carolina (the "RIGHTS AGENT") is made and entered into as of May 18, 2007 between the Company and the Rights Agent. WITNESSETH: WHEREAS, the Company and the Rights Agent are parties to the Rights Agreement; WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company may supplement or amend the Rights Agreement; WHEREAS, the Board of Directors of the Company has determined that it is necessary and desirable to amend the Rights Agreement in the manner set forth below. NOW, THEREFORE, in consideration of the foregoing, the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. AMENDMENT TO SECTION 1(H). Section 1(h) of the Rights Agreement is hereby amended and supplemented as follows: (a) The words "action or transactions" shall be amended to read "action or transaction"; and (b) The following shall be inserted after the word "hereunder": "for any reason, including that the acquisition was pursuant to an action or transaction or series of actions or transactions approved by the Board of Directors at the time such Person was an Exempt Person." 2. EFFECT OF AMENDMENT. Except as expressly set forth herein, the terms and provisions of the Rights Agreement remain in full force and effect and are hereby ratified and confirmed. References in any agreement, instrument or other document to the Rights Agreement shall be deemed to be a reference to the Rights Agreement as amended hereby. 3. EFFECTIVE DATE. This Amendment shall be effective immediately upon execution by the Rights Agent. 4. GOVERNING LAW. This Amendment shall be governed by the laws of the State of New York. 5. COUNTERPARTS. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original for all purposes and all of which together shall constitute one and the same agreement. 6. SEVERABILITY. If any term, provision, covenant or restriction of this Amendment is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Amendment, and of the Rights Agreement, shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 7. WAIVER OF NOTICE. By executing this Amendment, the Company and the Rights Agent hereby waive any notice requirement under the Rights Agreement pertaining to the matters addressed herein. [Signature Page Follows] IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to be executed and delivered by its duly authorized officer as of the date first above written. BENIHANA INC. By: /s/ Joel A. Schwartz -------------------------- Name: Joel A. Schwartz Title: Chairman of the Board and Chief Executive Officer AMERICAN STOCK TRANSFER & TRUST COMPANY, as successor to the interest of First Union National Bank of North Carolina in the Rights Agreement By: /s/ Herbert J. Lemmer ------------------------------- Name: Herbert J. Lemmer Title: Vice President EX-99.2 3 ex99-2.txt EXHIBIT 99.2 Exhibit 99.2 BENIHANA INC. DECLARES STOCK DIVIDEND AND AMENDS RIGHTS AGREEMENT MIAMI, FLORIDA, May 21, 2007 -- Benihana Inc. (NASDAQ: BNHNA and BNHN) today announced that the Company's Board of Directors unanimously declared a three-for-two stock split to be effected by means of a dividend of one-half of one share of Common Stock for each outstanding share of Common Stock and each outstanding share of Class A Common Stock. The stock dividend will be payable on June 15, 2007 to holders of record of the Common Stock and Class A Common Stock at the close of business on June 1, 2007. Stock certificates representing the additional shares of stock will be distributed via regular mail. In lieu of distributing a fractional share of Common Stock, the Company will pay to stockholders holding an odd number of shares of Common Stock or an odd number of shares of Class A Common Stock an amount in cash equal to one-third of the closing price of the Common Stock on the Nasdaq National Market System on June 1, 2007. The number and class of shares available upon exercise of any options granted by the Company under its various stock options plans will be equitably adjusted to reflect the stock dividend in accordance with the terms of such plans, taking into effect any differential in the closing price of the Common Stock and the Class A Common Stock on June 1, 2007. Applicable terms of all other instruments and agreements to purchase Common Stock or Class A Common Stock will be appropriately adjusted to reflect the stock dividend. Additionally, today the Company announced it had further amended the Amended and Restated Rights Agreement, dated as of January 31, 2007, between the Company and American Stock Transfer & Trust Company, as rights agent, to clarify that an Exempt Person (as defined under the Rights Agreement) will not cease to be an Exempt Person if such person acquires additional shares of Common Stock pursuant to one or more actions or transactions approved by the Company's Board of Directors. ABOUT BENIHANA Benihana Inc. (NASDAQ: NMS: BNHN and BNHNA) operates 59 Benihana teppanyaki restaurants, seven Haru restaurants, and thirteen Ra Sushi restaurants. Under development at present are fifteen restaurants: four Benihana teppanyaki restaurants, two Haru restaurants and nine RA Sushi restaurants. In addition, eighteen franchised Benihana teppanyaki restaurants are operating in the U.S., Latin America and the Caribbean. Benihana Inc. Joel A. Schwartz, Jose I. Ortega or Michael R. Burris, 305-593-0770 or Integrated Corporate Relations: Tom Ryan/Raphael Gross, 203-682-8200 -----END PRIVACY-ENHANCED MESSAGE-----