-----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, JUMH02TiCHFQMsSurYomL/huEZBin56+iuoCr6zP7XIBkwni3zXBizJvwOAUO2Df suN/LP3JJBqWmyMLVzE2ww== 0001188112-07-001869.txt : 20070615 0001188112-07-001869.hdr.sgml : 20070615 20070615162432 ACCESSION NUMBER: 0001188112-07-001869 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20070615 DATE AS OF CHANGE: 20070615 EFFECTIVENESS DATE: 20070615 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: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-143799 FILM NUMBER: 07923335 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 S-8 1 t14916_s8.txt FORM S-8 As filed with the Securities and Exchange Commission on June 15, 2007 UNITED STATES 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) DELAWARE 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) 2003 DIRECTORS' STOCK OPTION PLAN 2000 EMPLOYEES CLASS A STOCK OPTION PLAN AMENDED AND RESTATED DIRECTORS' STOCK OPTION PLAN 1997 EMPLOYEES CLASS A STOCK OPTION PLAN STOCK OPTION AGREEMENT DATED FEBRUARY 9, 2001 BETWEEN THE REGISTRANT AND NORMAN S. BECKER (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: LANDEY STRONGIN, ESQ. DORNBUSH SCHAEFFER STRONGIN & VENAGLIA, LLP 747 THIRD AVENUE NEW YORK, NEW YORK 10017 (212) 759-3300
CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------- Proposed Maximum Proposed Proposed Maximum Maximum Title of Securities to be Amount to be Offering Price Aggregate Amount of Registered Registered Per Share* Offering Price* Registration Fee - ------------------------------------------------------------------------------------------------------------- Common Stock, par value $.10 per share 541,978 shares $20.58** $11,153,907.24** $342.42 - ------------------------------------------------------------------------------------------------------------- Common Stock, par value $.10 per share 481,586 shares $9.18*** $4,420,959.48*** $135.72 - ------------------------------------------------------------------------------------------------------------- TOTAL 1,023,564 shares --- $15,574,866.72 $478.15 - -------------------------------------------------------------------------------------------------------------
* Estimated solely for purposes of calculating the registration fee. ** Relates to shares issuable upon exercise of options that may be granted under the following employee benefit plans of the Company for which the option price is not known: 2003 Directors' Stock Option Plan, 2000 Employees Class A Stock Option Plan, Amended and Restated Directors' Stock Option Plan and 1997 Employees Class A Stock Option Plan (collectively, the "Plans"). As to such shares, the aggregate offering price per share is based upon, in accordance with Rule 457(c) under the Securities Act of 1933, the average of the high and low sale price of the Common Stock of Benihana Inc. as reported on the NASDAQ National Market System on June 12, 2007 (as adjusted to take into account a stock dividend payable by the Company on June 15, 2007 (the "Stock Dividend")). *** Relates to shares that are subject to non-plan option agreements as well as options granted under the Plans for which the option price is known. As to such shares, the aggregate offering price per share is, in accordance with Rule 457(h)(1) under the Securities Act of 1933, the weighted average of the option prices of such options granted (as adjusted to take into account the Stock Dividend). The maximum option price of such options is $18.81 and the minimum option price of such options is $4.42 (in each case, as adjusted to take into account the Stock Dividend). 2 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 April 1, 2007, 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 April 1, 2007. (c) The Registration Statement on Form S-4 of the Company, Registration No. 33-88295, made effective March 23, 1995, as amended, registering the Common Stock, par value $0.10, of the Company (the "Common Stock") under Section 12 of the Securities Exchange Act of 1934, which contains a description of the 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 Schaeffer Strongin & Venaglia, LLP, counsel to the Company, is a Secretary of the Company and owns, beneficially and of record, 10,500 shares of Common Stock, par value $.10 per share, of the Company and 1,975 shares of Class A Common Stock, par value $.10 per share, of the Company ("Class A Common 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 (other than 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 3 reasonably incurred by him in connection with such action, suit or proceedings 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 proceedings, 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 to the Company. The Company is required to indemnify its directors and officers to the extent that they have been successful on the merits or otherwise in defense of any such action, suit or proceedings, 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 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 contains 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 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 a directors' and officers' liability insurance policy which provides for payment of expenses of the Company's directors and officers in connection with certain threatened, or completed, actions, suits and proceedings against them in their capacities as directors and officers, in accordance with the General Corporation Law of Delaware. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable. ITEM 8. EXHIBITS. Exhibit Number Exhibit - ------ ------- 4.01 Relevant portion of the Company's Certificate of Incorporation defining the rights of the holders of the Company's Common Stock. Incorporated herein by reference to Exhibit 3.01 to the Registration Statement on Form S-4 of the Company, Registration No. 33-88295, made effective March 23, 1995 (the "Form S-4"). 4.02 The Company's 2003 Directors' Stock Option Plan. Incorporated herein by reference to Exhibit A to the Company's Proxy Statement for its Annual Meeting of Stockholders held on August 21, 2003. 4 4.03 The Company's 2000 Employees' Class A Common Stock Option Plan. Incorporated herein by reference to Exhibit A to the Company's Proxy Statement for its Annual Meeting of Stockholders held on August 3, 2000. 4.04 The Company's Amended and Restated Directors' Stock Option Plan. Incorporated herein by reference to Exhibit B to the Company's Proxy Statement for its Annual Meeting of Stockholders held on August 27, 1998 (the "1998 Proxy Statement"). 4.05 The Company's 1997 Class A Stock Option Plan. Incorporated herein by reference to Exhibit A to the 1998 Proxy Statement. 4.06 Stock Option Agreement dated February 9, 2001 between the Registrant and Norman S. Becker. Incorporated herein by reference to Exhibit 4.04 to the Company's Registration Statement on Form S-8, Registration No. 333-108395, filed with the Securities and Exchange Commission on August 28, 2003. 5.01 Opinion of Dornbush Schaeffer Strongin & Venaglia, LLP. 23.01 Consent of Dornbush Schaeffer Strongin & Venaglia, 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. 5 (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 the 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. 6 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 15th day of June, 2007. BENIHANA INC. By: /s/ Joel A. Schwartz ----------------------------------------- Joel A. Schwartz, Chief Executive Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Joel A. Schwartz and Darwin C. Dornbush, and each of them, him 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 Chief Executive Officer and - ---------------------------- Director June 15, 2007 Joel A. Schwartz 7 PRINCIPAL FINANCIAL AND ACCOUNTING OFFICER: /s/ Jose I. Ortega Chief Financial Officer, - ---------------------------- Vice President-Finance and Treasurer June 15, 2007 Jose I. Ortega DIRECTORS: /s/ Taka Yoshimoto Executive Vice - ---------------------------- President-Operations and Director June 15, 2007 Taka Yoshimoto /s/ Kevin Y. Aoki - ---------------------------- Director June 15, 2007 Kevin Y. Aoki /s/ John E. Abdo - ---------------------------- Director June 15, 2007 John E. Abdo /s/ Norman Becker - ---------------------------- Director June 15, 2007 Norman Becker /s/ Lewis Jaffe - ---------------------------- Director June 15, 2007 Lewis Jaffe /s/ J. Ronald Castell - ---------------------------- Director June 15, 2007 J. Ronald Castell 8 /s/ Joseph J. West - ---------------------------- Director June 15, 2007 Joseph J. West /s/ Robert B. Sturges - ---------------------------- Director June 15, 2007 Robert B. Sturges
9 EX-5.01 2 ex5-1.txt EXHIBIT 5.01 EXHIBIT 5.01 [Letterhead of Dornbush Schaeffer Strongin & Venaglia, LLP] June 15, 2007 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20549 Re: 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 1,023,564 shares (the "Shares") of the Company's Common Stock, par value $.10 (the "Common Stock"), (i) 123,334 of which Shares may be issued by the Company pursuant to prior or future grants under the Company's 2003 Directors' Stock Option Plan, which was approved by the stockholders of the Company at its Annual Meeting of Stockholders held on August 21, 2003; (ii) 687,618 of which Shares may be issued by the Company pursuant to prior or future grants under the Company's 2000 Employees Class A Stock Option Plan, which was approved by the stockholders of the Company at its Annual Meeting of Stockholders held on August 3, 2000; (iii) 61,875 of which Shares may be issued by the Company pursuant to prior or future grants under the Company's Amended and Restated Directors' Stock Option Plan, which was approved by the stockholders of the Company at its Annual Meeting of Stockholders held on August 27, 1998; (iv) 142,862 of which Shares may be issued by the Company pursuant to prior or future grants under the Company's 1997 Employees Class A Stock Option Plan, which was approved by the stockholders of the Company at its Annual Meeting of Stockholders held on August 27, 1998 (the plans described in clauses (i) through (iv), collectively, the "Plans"); and (v) 2,875 of which Shares may be issued by the Company pursuant to a non-plan stock option agreement between the Company and Norman S. Becker (the "Option Agreement"). In connection with this opinion, we have examined the Company's Certificate of Incorporation and By-Laws, the Plans, the Option Agreement, 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 Plans and the Option Agreement, respectively, will be duly authorized, 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, DORNBUSH SCHAEFFER STRONGIN & VENAGLIA, LLP By: /s/ Landey Strongin ------------------------------ Landey Strongin, a Partner 2 EX-23.02 3 ex23-2.txt EXHIBIT 23.02 EXHIBIT 23.02 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated June 15, 2007, relating to the consolidated financial statements of Benihana Inc. and subsidiaries (the "Company") and management's report on the effectiveness of internal control over financial reporting incorporated by reference in the Annual Report on Form 10-K of the Company for the year ended April 1, 2007. DELOITTE & TOUCHE LLP Fort Lauderdale, Florida June 15, 2007 -----END PRIVACY-ENHANCED MESSAGE-----