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EX-31.02 - EXHIBIT 31.02 - BENIHANA INC | ex31-02.htm |
EX-10.01 - EXHIBIT 10.01 - BENIHANA INC | ex10-01.htm |
EX-31.01 - EXHIBIT 31.01 - BENIHANA INC | ex31-01.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
10-K/A
Amendment
No. 1
[X] ANNUAL
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE
ACT OF 1934
For the
Fiscal Year Ended March 28, 2010
or,
[ ] TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE
ACT OF 1934
Commission
File No. 0-26396
Benihana
Inc.
|
(Exact
name of registrant as specified in its
charter)
|
Delaware
|
65-0538630
|
|
(State
or other jurisdiction of
|
(I.R.S.
Employer
|
|
incorporation
or organization)
|
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
|
|||
Securities
registered pursuant to Section 12(b) of the Act:
|
||||
None
|
||||
Securities
registered pursuant to Section 12(g) of the Act:
|
Title of Each Class
|
Name of Exchange on Which
Registered
|
Common
Stock, par value $.10 per share
|
NASDAQ
Global Select Market
|
Class
A Common Stock, par value $.10 per share
|
NASDAQ
Global Select Market
|
Preferred
Share Purchase Right
|
Not
Applicable
|
Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in
Rule 405 of the Securities Act.
Yes [ ] No [X]
Indicate
by check mark if the registrant is not required to file reports pursuant to
Section 13 or Section 15(d) of the Act.
Yes [ ] No [X]
Indicate
by check mark whether the registrant (1) has filed all reports required to be
filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or such shorter period that the registrant was required to
file such reports), and (2) has been subject to such filing requirements for the
past 90 days.
Yes [X] No [ ]
Indicate
by check mark whether the registrant has submitted electronically and posted on
its corporate Website, if any, every Interactive Data File required to be
submitted and posted pursuant to Rule 405 of Regulations S-T during the
preceding 12 months (or for such shorter period that the registrant was required
to submit and post such files).
Yes [ ] No [ ]
Indicate
by check mark if disclosure of delinquent filers pursuant to Item 405 of
Regulation S-K is not contained herein, and will not be contained, to the best
of registrant’s knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act.
Large accelerated filer [ ] | Accelerated filer [ ] | Non-accelerated filer [ ] | Smaller reporting company [X] |
(Do not check if smaller reporting company) |
Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Act).
Yes [ ] No [X]
As of
July 16, 2010, 5,649,082 shares of common stock and 9,795,168 shares of Class A
common stock were outstanding. As of October 11, 2009, the aggregate
market value of common equity held by non-affiliates was approximately
$77,069,160 based on the closing price of the common stock and Class A common
stock on such date.
DOCUMENTS INCORPORATED BY
REFERENCE
None.
EXPLANATORY
NOTE
Benihana
Inc. (“we,” “us,” “our” or the “Company”) hereby amends its Annual Report on
Form 10-K for the fiscal year ended March 28, 2010 (the “Form 10-K”), which was
filed on June 11, 2010, to include the remaining information required by Items
10, 11, 12, 13 and 14.
PART
III
Item
10. Directors, Executive
Officers and Corporate Governance
DIRECTORS
AND EXECUTIVE OFFICERS
Below is
a list of the names and ages of the directors and executive officers of the
Company as of June 30, 2010, indicating their positions with the Company and
their principal occupations during the past five years and prior thereto where
applicable. In addition, the information set forth below with respect to each
director includes the specific experience, qualifications, attributes and/or
skills of the director which, in the opinion of the Board of Directors (the
“Board”), qualifies him to serve as a director and are likely to enhance the
Board’s ability to manage and direct the business and affairs of the
Company.
J.
Ronald Castell
Director
since 2005
Class
I Director (Term to expire in 2011)
Age
72
In 2004,
Mr. Castell formed ReelRon LLC, a marketing consulting firm serving clients
such as the investment and entertainment firm, Huizenga Holdings, Inc., Centryx
Corp., Southern Audio Video and Breakaway Films. From 1995 to 2004,
Mr. Castell served as Senior Vice President of Marketing and Communications
of Huizenga Holdings, Inc. From 1989 to 1995, Mr. Castell served
as Senior Vice President of Programming and Communications of Blockbuster
Entertainment Corp. The extensive management experience
Mr. Castell gained through his service as a senior vice president at
Blockbuster Entertainment Corp. and Huizenga Holdings, Inc. and his thorough
understanding of marketing and communications issues enable him to make valuable
contributions to the Board.
Joseph
J. West, Ph.D.
Director
since 2005
Class
I Director (Term to expire in 2011)
Age
66
Mr. West
is currently a professor of restaurant management at Florida International
University and the Vice President and Director of Operations of the Brooklyn
Water Bagel Company. From 1999 to July 2009, Mr. West served as
Dean, School of Hospitality and Tourism Management, at Florida International
University. Between 1991 and 1999, he served as Department Chairman
of Hospitality Administration, College of Business, Florida State University,
and from 1993 through 1996, he served as Director, Hospitality Education
Program, Department of Business and Professional Regulation, State of
Florida. From 1984 through 1991, Mr. West held teaching
positions at Florida State University and the University of South
Carolina. Additionally, Mr. West possesses restaurant operating
experience as an executive and operator due to his having served as Vice
President of Operations of Spring Garden Grill and Bar and General Manager at
the following restaurant units: Franklin’s Off Friendly, Colony House/Wine
Cellar Restaurants and Colony Caterers. Mr. West is also a
retired U.S. Naval Officer. With his distinguished academic
background in the hospitality field and his extensive restaurant operating and
management experience, Mr. West offers the Board valuable knowledge in
restaurant operations and management. This understanding of the
restaurant industry allows Mr. West a variety of viewpoints and
perspectives critical to productive Board deliberations.
John
E. Abdo
Director
since 1990
Class
II Director (Term to expire in 2012)
Age
67
Mr. Abdo
has been principally employed since June 1984 as the Vice Chairman of the Board
of Directors and Chairman of the Executive Committee of each of BankAtlantic
Bancorp, Inc. (“BankAtlantic Bancorp”), a bank holding company whose common
stock is listed on the New York Stock Exchange under the symbol “BBX,” and
BankAtlantic, BankAtlantic Bancorp’s bank subsidiary. He has served as Vice
Chairman of the Board of Directors of Bluegreen Corporation (“Bluegreen”) since
March 2002 and as Vice Chairman of the Board of BFC Financial Corporation
(“BFC”) since June 1987. Mr. Abdo also served as Vice Chairman of the Board of
Directors of Woodbridge Holdings Corporation (formerly Levitt Corporation)
(“Woodbridge”) from August 1984 through September 2009 when it merged with BFC.
Mr. Abdo is the President and Chief Executive Officer of Abdo Companies,
Inc., a real estate development, construction and real estate brokerage firm for
more than thirty five years. Mr. Abdo is a member of the Board of Directors
and the Finance Committee of PACA (Performing Arts Center Authority) and is also
the former President and a current member of the Board of Directors, and current
Chairman of the Investment Committee, of the Broward Performing Arts Foundation,
a $100 million state of the art, twin concert hall venue located in Fort
Lauderdale, FL. Mr. Abdo brings to the Board a strong business
and financial background, significant experience as a board member of other
public companies, extensive experience in the real estate industry (which is
directly applicable to the Company because it leases or owns sites in multiple
markets) and the perspective of a major Company shareholder due to his interest
in BFC, which in turn makes him a valuable contributor to the
Board.
1
Norman
Becker
Director
since 1997
Class
II Director (Term to expire in 2012)
Age 72
Mr. Becker
has been self-employed in the practice of public accounting since April
1985. Prior thereto, Mr. Becker was a partner with Touche Ross
& Co., the predecessor of Deloitte & Touche LLP, for a period in excess
of 10 years. Mr. Becker is also a director of Bluegreen and an
officer of Proguard Acquisition Corp. Mr. Becker brings to the
Board a wide array of financial and accounting knowledge. His
background in public accounting enables him to assist the Board in analyzing
complex financial and accounting issues.
Alan
B. Levan
Director
since 2009
Class
II Director (Term to expire in 2012)
Age
65
Mr. Levan
is currently the Chairman of the Board and Chief Executive Officer of
BankAtlantic Bancorp and Chairman of the Board of BankAtlantic. He has served as
Chairman and Chief Executive Officer of BankAtlantic Bancorp since April 1994
and Chairman of BankAtlantic since 1987. Mr. Levan also serves as Chairman,
Chief Executive Officer and President of BFC and Chairman of Bluegreen. He
previously served as Chairman and Chief Executive Officer of Woodbridge until it
merged with BFC in September 2009. Mr. Levan is a member of the Nova
Southeastern University Board of Trustees and former Chairman of the Board of
Directors for the Broward Community College
Foundation. Mr. Levan brings to the Board substantial management
experience and business acumen. In particular, his management experience as
Chief Executive Officer of BankAtlantic Bancorp as well as his extensive service
on other public company boards allows him to view the Company from both the
management and operational perspectives. In addition to his business
and management experience, he also brings to the Board the perspective of a
major company shareholder due to his interest in BFC.
Darwin
C. Dornbush
Director
since 2009
Class
III Director (Term to expire in 2010)
Age
80
Mr. Dornbush
has been a partner in the law firm of Dornbush Schaeffer Strongin &
Venaglia, LLP since 1964. He served as our Secretary from 1983
through 2009 and was also previously a director of the Company from 1995 through
2005 before rejoining the Board in February 2009. In addition, Mr. Dornbush
has been employed by us to provide certain management advisory services since
January 2006. Mr. Dornbush is also a director of BFC, after previously
serving as a director of Woodbridge, and he is a former director of Cantel
Medical Corp., a healthcare company. Mr. Dornbush’s more than 45 years of
legal experience give him a strong background in the realm of corporate
governance and more generally business negotiations. The Board values his
insight and leadership skills as well as his knowledge of the restaurant
industry that he has developed in advising various restaurant companies for more
than 45 years.
Lewis
Jaffe
Director
since 2004
Class
III Director (Term to expire in 2010)
Age
53
Mr. Jaffe
is an independent consultant. Mr. Jaffe also served as President, Chief
Executive Officer and a director of Oxford Media, Inc. from February 2006
through October 2007 and President and Chief Operating Officer of Verso
Technologies from November 2004 through August 2005. From August 2002 to
November 2004, Mr. Jaffe was a self-employed public speaker and consultant.
From April 2002 until August 2002, Mr. Jaffe served as the interim
President of Glowpoint, Inc., a publicly-traded video products and services
company. From July 2000 to July 2003, Mr. Jaffe served as an
independent consultant to Glowpoint, Inc. From June 2000 to March 2002,
Mr. Jaffe served as President and Chief Operating Officer of PictureTel
Corporation, a publicly-traded videoconferencing company. From September 1998 to
June 2000, Mr. Jaffe served as a managing director in the Boston office of
Arthur Andersen LLP in its global finance practice. From January 1997 to March
1998, Mr. Jaffe served as President of C Systems, LLC, a designer and
manufacturer of mobile military shelters, housing, communication and radar and
missile launch systems. Mr. Jaffe served as a member of the Board of
Directors for Glowpoint, Inc. from September 2001 to July 2003, the Board of
Directors of Media 100 Inc. from June 2003 through November 2004 and the
Turnaround Management Association of New England from September 1999 through
November 2004. He currently is on the Board of York Telecom, one of the nation’s
largest providers of video conferencing and unified communications services. He
holds an Advanced Professional Director Certification from the American College
of Directors, a national, public company director organization. Mr. Jaffe
is a respected business leader with a diverse business background, bringing to
the Board multiple perspectives, including those of a public company director
and an executive. Mr. Jaffe’s extensive experience as a chief executive
officer of multiple companies and his service in leadership roles on other
public company boards has provided him with experience in the processes and
policies needed to effectively govern a publicly-traded enterprise.
2
Richard
C. Stockinger
Director
since 2007
Class
III Director, President and Chief Executive Officer (Term to expire in
2010)
Age
51
Mr. Stockinger
has served as our Chief Executive Officer since February 9, 2009 and was
appointed as our President on January 13, 2010. From April 2008 to
February 2009, Mr. Stockinger was an independent
consultant. Mr. Stockinger served as the President of Patina
Restaurant Group (formerly Restaurant Associates – Patina Group) from October
2003 through April 2008 and served as Restaurant Associates’ Vice President and
Chief Financial Officer from 1985 through October 2003. During his
tenure with Restaurant Associates and the Patina Restaurant Group,
Mr. Stockinger played a critical role in the development and implementation
of its sales, acquisitions and turnaround strategies, including the acquisition
of California Pizza Kitchen, El Torito and Au Bon
Pain. Mr. Stockinger also serves on the Board of Directors of
the National Kidney Foundation of Greater New
York. Mr. Stockinger’s extensive experience within the
restaurant industry positions him well to serve as the Company’s Chief Executive
Officer and President and as a director. As Chief Executive Officer
and President, he brings management’s perspective to the Board.
Gene
R. Baldwin
Interim
Chief Financial Officer
Age 60
Mr. Baldwin
has served as our interim Chief Financial Officer since January 13, 2010 and as
a partner of CRG Partners Group, LLC and its predecessors (“CRG”), a provider of
financial advisory, corporate improvement and related services, since 2002. CRG
and Mr. Baldwin have been engaged by and have been performing consulting
services for the Company since November 2009. As a partner of CRG,
Mr. Baldwin has served in various senior-executive roles managing companies
through complex operational and financial restructuring, including, from
September 2007 to June 2008, as Chief Restructuring Officer and interim Chief
Executive Officer of American Restaurant Group, Inc., an 82 unit steakhouse
chain and, from December 2005 to October 2006, as President and Chief
Restructuring Officer of a 360 unit franchised quick service restaurant chain.
Mr. Baldwin also served, from December 2008 to March 2009, as a financial
advisor to a 130 unit casual dining chain and, from August 2002 to September
2003, as a financial advisor and interim Chief Operating Officer of Furrs
Restaurant Group, Inc., a 91 unit cafeteria chain.
Christopher
P. Ames
Chief
Operating Officer
Age
47
Mr. Ames
has served as our Chief Operating Officer since October 19,
2009. From July 2009 to October 2009, Mr. Ames was an
independent consultant to the Company. Mr. Ames served as Vice
President and Chief Operating Officer of Cosi, Inc. from November 2006 to August
2008 and Executive Vice President of Operations of the Patina Group from July
2005 to November 2008. Prior thereto, Mr. Ames served as Vice
President of Operations with Elephant Bar Restaurant in Los Angeles, California
from June 2004 to August 2005 and Vice President of Operations with California
Pizza Kitchen from January 1992 to March 2004.
AUDIT
COMMITTEE MEMBERS AND FINANCIAL EXPERT
The Board
has established an Audit Committee. The Audit Committee consists of Norman
Becker (Chairman), Lewis Jaffe and J. Ronald Castell. The Board has determined
that Mr. Becker qualifies as an “audit committee financial expert” as
defined by Item 407(d)(5)(ii) of Regulation S-K promulgated by the Securities
and Exchange Commission (the “SEC”) and is “independent” within the
meaning of applicable SEC rules and regulations relating to directors
serving on audit committees and NASDAQ Stock Market Rule
5605(a)(2).
SECTION
16( a ) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Rules
promulgated by the SEC govern the reporting of securities transactions by
directors, officers and holders of 10% or more of our Common Stock or Class A
Common Stock. Based solely upon our review of copies of reports filed
with the SEC and received by us, we believe that our directors and officers have
filed all required reports on a timely basis except the following: each of John
E. Abdo and Lewis Jaffe failed to file timely one Form 4 reporting an option
grant and John E. Abdo failed to timely file one Form 4 reporting the exercise
of a stock option.
3
CODE
OF ETHICS
Information
required by Item 10 with respect to the Company’s code of business conduct and
ethics is included under Item 10 of the Form 10-K.
Item
11. Executive
Compensation
SUMMARY
COMPENSATION TABLE
The
following table sets forth compensation for our named executive officers for the
fiscal year ended March 28, 2010 and, where applicable, for the fiscal year
ended March 29, 2009. Richard
C. Stockinger, our Chief Executive Officer; Gene R. Baldwin, who was appointed
our interim Chief Financial Officer effective January 13, 2010; Christopher P.
Ames, who was appointed our Chief Operating Officer effective October 19, 2009;
Juan C. Garcia, our former President and Chief Operating Officer, whose
resignation became effective January 13, 2010; and Taka Yoshimoto, our former
Executive Vice President – Operations, whose resignation became effective
December 18, 2009 are referred to herein as our “named executive officers” or
“executive officers.”
Name
and
Principal
Position
|
Fiscal
Year
|
Salary
($)
|
Bonus
($)(1)
|
Stock
Awards
($)(2)
|
Option
Awards
($)(2)
|
Non-Equity
Incentive
Plan
Compensation
($)
|
All
Other
Compensation
($)(3)
|
Total
($)
|
|||||||||||||||||||||
Richard
C.
Stockinger,
President
and Chief
Executive
Officer(4)
|
2010
|
$ | 500,000 | $ | 187,500 | $ | − | $ | − | $ | − | $ | 79,500 | $ | 767,000 | ||||||||||||||
2009
|
63,500 | − | − | 12,600 | − | 59,462 | 135,562 | ||||||||||||||||||||||
Christopher
P.
Ames,
Chief
Operating
Officer(5)
|
2010
|
110,600 | 112,500 | − | − | − | 62,500 | 285,600 | |||||||||||||||||||||
Gene
R. Baldwin,
Interim
Chief
Financial
Officer(6)
|
2010
|
346,100 | − | − | − | − | − | 346,100 | |||||||||||||||||||||
Juan
C. Garcia,
Former
President
and
Chief
Operating
Officer(7)
|
2010
|
213,100 | − | − | − | − | 309,000 | 522,100 | |||||||||||||||||||||
2009
|
271,000 | − | − | − | − | 4,400 | 275,400 | ||||||||||||||||||||||
Taka
Yoshimoto,
Former
Executive
Vice
President −
Operations(8)
|
2010
|
169,600 | − | − | − | − | 239,000 | 408,600 | |||||||||||||||||||||
2009
|
232,000 | − | − | − | − | 3,800 | 235,800 |
(1)
|
Represents
discretionary cash bonus approved by the Compensation Committee based on a
subjective evaluation of overall performance.
|
(2)
|
Represents
the aggregate grant date fair value related to stock and option awards for
the reported fiscal year as computed in accordance with FASB ASC Topic
718. Accordingly, the dollar amounts listed do not necessarily
reflect the dollar amount of compensation that may be realized by the
named executive officers. For a discussion of valuation
assumptions, see Note 1 to the 2010 and 2009 consolidated financial
statements included in our Annual Reports on Form 10-K for the fiscal
years ended March 28, 2010 and March 29, 2009.
|
(3)
|
“All
Other Compensation” for the 2010 fiscal year includes (i) Company-paid
group term life insurance for each named executive officer except for
Mr. Ames and Mr. Baldwin, (ii) an automobile allowance for
each of Messrs. Garcia and Yoshimoto
and (iii) in the case of Mr. Stockinger, a monthly
relocation allowance of $7,500 that we commenced paying upon
Mr. Stockinger’s appointment as Chief Executive Officer and that
was terminated on January 7, 2010 (the “Relocation
Allowance”).
|
4
(4)
|
Mr. Stockinger
was appointed Chief Executive Officer effective February 9, 2009 and
President effective January 13, 2010 and served as a director for the
entirety of fiscal year 2009. On January 7, 2010, the Board approved an
increase to Mr. Stockinger’s annual base salary from $350,000 to
$500,000 retroactive to the commencement of his employment on February 9,
2009 and therefore Mr. Stockinger’s salary for fiscal year 2009
includes a retroactive adjustment for salary earned in fiscal year 2009
but paid in fiscal year 2010. “All Other Compensation” for fiscal year
2010 also includes all perquisites, including the Relocation Allowance.
All information concerning compensation for Mr. Stockinger for fiscal
year 2009 reflects compensation earned for the entirety of such year
(including the retroactive salary adjustment, which was paid in fiscal
year 2010), including compensation earned in his position as Chief
Executive Officer and the following amounts earned in connection with his
services as a director: (i) $26,000 in fees earned or paid in cash,
included under the caption “All Other Compensation” and (ii) $12,600 under
the caption “Option Awards” relating to his automatic director grant. “All
Other Compensation” for fiscal year 2009 also includes a signing bonus
equal to two weeks’ base salary, $12,500 in fees earned for certain
consulting services and all perquisites, including the Relocation
Allowance.
|
(5)
|
Mr. Ames
was appointed Chief Operating Officer effective October 19, 2009. All
information concerning compensation for Mr. Ames for fiscal year 2010
reflects compensation earned for the entirety of such year, including the
$62,500 earned in his position as a consultant to the Company since July
2009 that is included under the caption “All Other
Compensation.”
|
(6)
|
Mr. Baldwin
is retained by the Company through an agreement that the Company executed
with CRG Partners Group, LLC, (“CRG”), a provider of financial advisory,
corporate improvement and related services, and the Company pays CRG for
Mr. Baldwin’s services. As a result, all information concerning
compensation for Mr. Baldwin for fiscal year 2010 reflects the
aggregate payments made by the Company to CRG on account of
Mr. Baldwin’s services to the Company and do not necessarily reflect
amounts received by Mr. Baldwin for such services. In addition,
pursuant to the CRG agreement, certain other CRG employees also provided
services to the Company during fiscal year 2010. In the aggregate, the
Company made payments in the amount of $570,000 to CRG on account of the
services that Mr. Baldwin and other CRG employees provided to the Company
during fiscal year 2010.
|
(7)
|
Mr. Garcia
resigned from his positions as President and Chief Operating Officer
effective January 13, 2010. All information concerning
compensation for Mr. Garcia reflects compensation earned for the
entirety of fiscal year 2010, including compensation earned in his
positions as President and Chief Operating Officer and as included under
the caption “All Other Compensation.” Pursuant to his separation, waiver
and release agreement with us, he will be paid a total severance payment
of approximately $294,200, which is comprised of the continuation of
Mr. Garcia’s basic compensation and car allowance through March 31,
2010 and semi-monthly payments of $11,461 beginning on the first regular
pay day following March 31, 2010 through the first regularly scheduled pay
day following January 13, 2011. In addition, in accordance with
his separation, waiver and release agreement, we will provide for
continued group medical and dental insurance coverage for Mr. Garcia
and his dependents and shall continue to provide such coverage through the
first regularly scheduled pay day following January 13,
2011. The amounts accrued pursuant to his separation, waiver
and release agreement through March 28, 2010 are included under the
caption “All Other Compensation.” Mr. Garcia’s rights to
any unvested stock options and stock grants terminated on March 31, 2010
and all vested stock options expired 90 days
thereafter.
|
(8)
|
Mr. Yoshimoto
resigned from his position as Executive Vice President − Operations
and as a member of our Board effective December 18, 2009. All
information concerning compensation for Mr. Yoshimoto reflects
compensation earned for the entirety of fiscal year 2010, including
compensation earned in his position as Vice President – Operations and as
included under the caption “All Other Compensation.” Pursuant to his
separation, waiver and release agreement, he will be paid a total
severance payment of approximately $232,100, which is comprised of monthly
payments of $19,340 through December 15, 2010. In addition, in
accordance with his separation, waiver and release agreement, we will
provide for
continued group medical and dental insurance coverage and shall continue
to provide such coverage through December 15, 2010. The amounts
accrued pursuant to his separation, waiver and release agreement through
March 28, 2010 are included under the caption “All Other
Compensation.” Mr. Yoshimoto’s rights to any unvested
stock options and stock grants expired on the date of the termination of
his employment, and all vested stock options expired 90 days after his
date of resignation.
|
5
Bonus
Plan
The
Company has adopted an Executive Incentive Compensation Plan (the “Bonus Plan”)
setting out guidelines for the establishment of cash incentive payments to its
most senior executives and operating personnel. Under the Bonus Plan,
participating employees are generally assigned a maximum bonus opportunity
expressed as a percentage of the employee’s base salary. Up to 75% of
that bonus opportunity is earned if the Company meets certain objective
performance criteria determined by the Committee, and up to 25% of that bonus
opportunity is earned if the individual meets certain individual performance
criteria determined by the Committee.
In light
of the turmoil in the United States economy, the efforts undertaken by the
Company in the implementation of the Benihana Teppanyaki Renewal Program (the
“Renewal Program”), and ongoing negotiations with respect to employment
contracts for Messrs. Stockinger and Ames, the Compensation Committee did
not establish performance criteria under the Bonus Plan for fiscal year 2010 and
no bonuses were awarded under the Bonus Plan for fiscal year
2010. However, the Compensation Committee awarded a discretionary
bonus (outside the terms of the Bonus Plan) to Mr. Stockinger (of $187,500)
and to Mr. Ames (of $112,500) for the fiscal year 2010 based on a
subjective evaluation of overall performance in areas outside those that can be
objectively measured from financial or other results. These amounts
are included under the “Bonus” column of the Summary Compensation
Table.
Employment
Agreements
Mr. Stockinger’s
employment as Chief Executive Officer commenced on February 9, 2009 on an “at
will” basis at an annual base salary of $350,000. At that time, we
also agreed to pay Mr. Stockinger a signing bonus equal to two weeks’ base
salary and a monthly amount equal to $7,500 as reimbursement for additional
living expenses incurred by Mr. Stockinger in the Miami area, where our
executive offices are located, while he relocated from the New Jersey area (such
amount, the “Relocation Allowance”). Mr. Stockinger is also
eligible to participate in the benefits programs which we generally make
available to our senior executives. In connection with his
appointment as our President effective January 13, 2010, the Board approved an
increase in Mr. Stockinger’s annual base salary from $350,000 to $500,000
retroactive to the commencement of his employment on February 9, 2009 and
terminated the Relocation Allowance. We are
currently in discussions with Mr. Stockinger regarding the terms of a formal
employment agreement.
We
entered into an employment agreement with Mr. Garcia on June 18, 2009,
effective as of April 2, 2007, the date on which Mr. Garcia was promoted to
serve as President and Chief Operating Officer. The employment
agreement provided for Mr. Garcia to serve in both positions through March
31, 2010 and entitled him to a performance-based bonus of up to 25% of his
annual base salary, as determined by the Compensation Committee and Chief
Executive Officer. On March 31, 2008, we amended and restated
Mr. Garcia’s employment agreement to provide for an annual base salary of
$271,000 for fiscal year 2009 and to conform to the requirements of Section 409A
of the Internal Revenue Code. Mr. Garcia resigned as President,
Chief Operating Officer and as an employee effective January 13,
2010.
We
entered into an employment agreement with Mr. Yoshimoto on April 1, 2006,
to continue to serve as Executive Vice President − Operations through March 31,
2009. On March 31, 2008, we amended and restated Mr. Yoshimoto’s employment
agreement to provide for an annual base salary of $232,088 for fiscal year 2009,
to require execution and delivery by Mr. Yoshimoto of a general release
prior to receiving any benefits resulting from termination of his employment due
to a change in control or his disability and to conform to the requirements of
Section 409A of the Internal Revenue Code. Our employment agreement with
Mr. Yoshimoto expired on March 31, 2009 in accordance with its terms and
was not renewed. Mr. Yoshimoto resigned from his position on
December 18, 2009.
Under his
employment agreement, Mr. Garcia was entitled to participate in the Bonus
Plan and the equity plan, in each case as determined by the Compensation
Committee. Additionally, each of Messrs. Garcia and Yoshimoto was (i) eligible
to participate in the health, insurance and other benefit plans generally
available to our executive officers, (ii) entitled to receive an automobile
expense allowance of $300 per month and (iii) eligible for severance
payments upon certain events of termination of their employment.
6
Mr. Ames’
employment as Chief Operating Officer commenced on October 19, 2009 on an “at
will” basis at an annual base salary of $250,000. Prior to his appointment as
Chief Operating Officer, Mr. Ames was engaged by and performing consulting
services for us since July 7, 2009. On April 19, 2010, the Compensation
Committee approved an annual base salary of $300,000 for Mr. Ames
commencing with our fiscal year beginning March 29, 2010, agreed to provide
Mr. Ames with the opportunity to earn a performance-based bonus of up to
50% of his base salary for our fiscal year beginning March 29, 2010 and approved
his eligibility to receive a discretionary bonus with respect to our fiscal year
ended March 28, 2010 of $112,500. We are
currently in discussions with Mr. Ames regarding the terms of a formal
employment agreement.
Mr.
Baldwin was initially retained as a consultant in November 2009 pursuant to an
agreement that we executed with CRG Partners Group, LLC and its predecessors
(“CRG”), which among other things provides for payments to CRG for Mr. Baldwin’s
services at the rate of $525 an hour. During the performance of his
duties as interim Chief Financial Officer, Mr. Baldwin will continue as a
partner of CRG and will be compensated by CRG. As a result, Mr.
Baldwin did not receive any compensation directly from us during fiscal year
2010 and did not participate in any of our employee benefit plans, bonus plans
or equity plans during fiscal year 2010. The information included in
the Summary Compensation Table reflects the aggregate amounts paid to CRG on
account of Mr. Baldwin’s services for fiscal year 2010 and does not
necessarily reflect amounts awarded to Mr. Baldwin for such
services. In addition, pursuant to the CRG agreement, certain other
CRG employees also provided services to the Company during fiscal year
2010. In the aggregate, the Company made payments in the amount of
$570,000 to CRG on account of the services that Mr. Baldwin and other CRG
employees provided to the Company during fiscal year 2010.
Equity
Plan
The
long-term incentive compensation plan pursuant to which we presently grant
equity awards is the 2007 Equity Incentive Plan (the “equity
plan”). Pursuant to the equity plan, employees, including the named
executive officers, may be granted stock options, stock awards, stock
appreciation rights and stock equivalent units (the “awards”). The
exercise price of each option, including each incentive stock option as defined
by Section 422 of the Internal Revenue Code, awarded under the equity plan is
the fair market value, which is the closing price of the Class A Common Stock on
the grant date. In fiscal year 2010, we did not grant any awards,
except for automatic option grants to our non-employee directors. All
of our employees and our subsidiaries’ employees and our non-employee directors
are eligible to receive awards under the equity plan. The equity plan
provides that the Compensation Committee may determine which employees are
granted awards and the number of shares subject to each award. Our
non-employee directors are eligible for automatic grants of options, as
discussed under the heading “Director Compensation.”
Under our
equity plan, the Compensation Committee determines the equity awards to be
granted to our executive officers based upon, among other things, the amount of
total compensation (excluding post-termination benefits) considered necessary to
reward and motivate the executive officer, Company performance and the
performance of the executive officer during the prior year. The
Compensation Committee determines the aggregate value in equity grants to be
awarded to our executive officers; therefore, the number of shares and options
awarded will vary depending upon the stock price of our Class A Common Stock on
the grant date. We did not make any grants under the equity plan to
our named executive officers for fiscal year 2010.
Upon
termination of employment, then exercisable options granted to an employee
remain exercisable for three months following termination or, if such
termination resulted from death, disability or retirement (as defined under the
equity plan), for one year following termination (or, in any case, if shorter,
the remainder of the option term), provided that a terminated employee who
continues to provide services as a non-employee director or consultant will be
deemed an employee for the period of such services or consultancy (for this
purpose, with respect to non-incentive stock options only). Upon
termination of employment, stock awards granted to an employee as to which the
time-based or performance conditions have not been satisfied or waived are
forfeited.
Prior to the adoption of the equity
plan, we granted options to our employees under the 2000 Employees Class A
Common Stock Option Plan and other prior plans. Following adoption of
the equity plan, we ceased to award options under the prior plans; however all
options previously awarded under the prior plans and which remain outstanding
continue to be governed by the terms of such plans. Under the prior
plans, the exercise price of each option is the fair market value of the Class A
Common Stock on the grant date, and upon termination of employment then
exercisable options remain exercisable for three months following termination
(or, if shorter, the remainder of the option term).
7
OUTSTANDING
EQUITY AWARDS AT FISCAL YEAR END TABLE
The
following table sets forth information regarding outstanding options and
restricted stock awards held by each of our named executive officers as of March
28, 2010.
Options
Awards
|
Stock
Awards
|
||||||||||||||||||
Name
|
Option
Grant
Date
|
Number
of
Securities
Underlying
Unexercised
Options
Exercisable
(#)
|
Number
of
Securities
Underlying
Unexercised
Options
Unexercisable
(#)(1)
|
Option
Exercise
Price
($/Share)
|
Option
Expiration
Date
|
Number
of
Shares
or
Units
of
Stock
That
Have
Not
Vested
(#)(2)
|
Market
Value
of
Shares or
Units
of Stock
That
Have
Not
Vested
($)(3)
|
||||||||||||
Richard
C. Stockinger
|
11/2/2007
|
10,000
|
−
|
$
|
16.3600
|
11/2/2017
|
−
|
$
|
−
|
||||||||||
10/23/2008
|
6,667
|
3,333
|
2.6050
|
10/23/2018
|
|||||||||||||||
Christopher
Ames
|
−
|
−
|
−
|
−
|
−
|
−
|
−
|
||||||||||||
Gene
R. Baldwin
|
−
|
−
|
−
|
−
|
−
|
−
|
−
|
||||||||||||
Juan
C. Garcia(4)
|
5/12/2000
|
34,500
|
−
|
7.8261
|
5/12/2010
|
2,267
|
13,035
|
||||||||||||
5/12/2000
|
17,250
|
−
|
7.8528
|
5/12/2010
|
|||||||||||||||
4/24/2001
|
26,500
|
−
|
4.9623
|
6/29/2010
|
|||||||||||||||
4/24/2001
|
1,359
|
−
|
4.9890
|
6/29/2010
|
|||||||||||||||
6/7/2002
|
34,500
|
−
|
11.1884
|
6/29/2010
|
|||||||||||||||
6/7/2002
|
17,250
|
−
|
11.2151
|
6/29/2010
|
|||||||||||||||
3/17/2008
|
27,400
|
13,700
|
10.3500
|
6/29/2010
|
|||||||||||||||
Taka
Yoshimoto(5)
|
−
|
−
|
−
|
−
|
−
|
(1)
|
Each
such option is to purchase shares of Class A Common Stock and (except
relating to Mr. Stockinger) becomes exercisable as to approximately
one-third of the shares covered by the award on each of the first three
anniversaries of the grant date. The options held by Mr. Stockinger
(which were granted to him as a non-employee director) become exercisable
as to approximately one-third of the shares covered by the award on each
of the six-month, first and second year anniversaries of the grant
date.
|
(2)
|
The
stock award was granted on March 17, 2008 and represents shares of Class A
Common Stock that are subject to a risk of forfeiture which lapses as to
approximately one-third of the shares covered by the award on each of the
first three anniversaries of the grant date.
|
(3)
|
The
market value is based on a price of $5.75 per share, which
was the closing price of one share of our Class A Common Stock on the
Nasdaq Stock Market on the last business day of the fiscal year ended
March 28, 2010.
|
(4)
|
Any
stock options and restricted stock previously granted to Mr. Garcia
which were scheduled (under the applicable equity plan) to vest on or
prior to March 31, 2010 were vested on such date. As a result of
Mr. Garcia’s resignation as President and Chief Operating Officer
effective January 13, 2010, all of Mr. Garcia’s outstanding stock
options terminated on June 29, 2010.
|
(5)
|
As
a result of Mr. Yoshimoto’s resignation as Executive Vice President −
Operations effective December 18, 2009, all of Mr. Yoshimoto’s
outstanding stock options terminated on March 18,
2010.
|
8
NONQUALIFIED
DEFERRED COMPENSATION
The
Company maintains a deferred compensation plan that allows key employees,
including the named executive officers, to defer up to 20% of their annual base
salary and up to 100% of their annual bonuses until termination of employment or
age 55, whichever is later, or if earlier, their disability (as defined in the
deferred compensation plan) or death. Participants’ obligation to pay
federal or state income tax on contributions to the plan is deferred until
withdrawal of such amounts. We do not match any of the amounts
deferred by participants in the deferred compensation plan. During
fiscal year 2010, none of our executive officers participated in our deferred
compensation plan.
Employees
who participate in the deferred compensation plan may, at their option, invest
deferred monies in a range of investment vehicles, including money markets,
bonds and mutual funds. Over the last three years, these investments
have yielded less than 5% per annum.
POST-TERMINATION
BENEFITS AND CHANGE IN CONTROL
In
connection with his separation, waiver and release agreement with us,
Mr. Garcia will be paid a severance payment of approximately $294,200,
which is comprised of the continuation of Mr. Garcia’s basic compensation
and car allowance through March 31, 2010 and semi-monthly payments of $11,461
beginning on the first regular pay day following March 31, 2010 through the
first regularly scheduled pay day following January 13, 2011. As further
provided under Mr. Garcia’s separation, waiver and release agreement, for a
period of 12 months following his January
13, 2010 resignation, we will provide Mr. Garcia with continued group
medical and dental insurance coverage for Mr. Garcia and his dependants or
payments in lieu thereof. Mr. Garcia’s right to receive any payments under
his separation, waiver and release agreement was conditioned upon his execution
of a general release; subsequent to his resignation, Mr. Garcia satisfied
such condition. In accordance with his separation, waiver and release
agreement, Mr. Garcia is prohibited for a two year period from (i) directly
or indirectly working for or providing services to Benihana of Tokyo, its
affiliates, franchisees, or related trusts, (ii) soliciting, directly or
indirectly, anyone who is or was employed by us or our affiliates until 90 days
after the separation of such person’s employment from us or our affiliates, or
(iii) soliciting, directly or indirectly, current franchisees or potential
franchisees that were identified while Mr. Garcia was employed by us.
In
connection with his resignation separation, waiver and release agreement with
us, Mr. Yoshimoto will be paid a severance payment of approximately
$232,100, which is comprised of monthly payments of $19,340 through December 15,
2010. As further provided under Mr. Yoshimoto’s separation,
waiver and release agreement, for a period of 12 months following his December
18, 2009 resignation, we will provide Mr. Yoshimoto with continued group
medical and dental insurance coverage for Mr. Yoshimoto or payments in lieu
thereof. Mr. Yoshimoto’s right to receive any payments under his
separation, waiver and release agreement was conditioned upon his execution of a
general release; subsequent to his resignation, Mr. Yoshimoto satisfied
such condition. In accordance with his separation, waiver and release
agreement, Mr. Yoshimoto is prohibited from soliciting, directly or
indirectly, anyone who was employed by us or our affiliates as of December 22,
2009 or within six (6) months prior to such date.
9
The table
below sets forth amounts payable to Messrs. Garcia and Yoshimoto in
connection with their resignations which became effective on January 13, 2010
and December 18, 2009, respectively.
Salary
Continuation
($)
|
Medical
and
Dental
Insurance
($)
|
Total
($)
|
||||||||||
Juan
C. Garcia
|
294,200 | 11,200 | 305,400 | |||||||||
Taka
Yoshimoto
|
232,100 | 4,200 | 236,300 |
DIRECTORS’
COMPENSATION
The table
and related discussion below summarize the compensation earned by each director
who was not a named executive officer for the fiscal year ended March 28,
2010.
Name
|
Fees
Earned
or
Paid in Cash
($)
|
Option
Awards
($)(1)(2)
|
All
Other
Compensation
($)
|
Total
($)
|
||||||||||||
John
E. Abdo
|
$
|
65,775
|
$
|
34,800
|
$
|
−
|
$
|
100,575
|
||||||||
Norman
Becker
|
62,938
|
34,800
|
−
|
97,738
|
||||||||||||
J.
Ronald Castell
|
52,625
|
34,800
|
−
|
87,425
|
||||||||||||
Darwin
C. Dornbush(3)
|
−
|
−
|
161,300
|
161,300
|
||||||||||||
Lewis
Jaffe
|
74,125
|
34,800
|
−
|
108,925
|
||||||||||||
Alan
B. Levan
|
40,188
|
34,800
|
−
|
74,988
|
||||||||||||
Robert
B. Sturges (4)
|
5,875
|
−
|
40,780
|
46,655
|
||||||||||||
Joseph
J. West
|
41,250
|
34,800
|
−
|
76,050
|
(1)
|
Represents
the aggregate grant date fair value related to stock and option awards
issued during the reported fiscal year as computed in accordance with FASB
ASC Topic 718. Accordingly, the dollar amounts listed do not necessarily
reflect the dollar amount of compensation that may be realized by the
directors. The grant date fair value of option awards granted during
fiscal year 2010 to all directors who were not named executive officers or
employees of the Company was $3.48 per share. For a discussion of
valuation assumptions, see Note 1 to the consolidated financial statements
included in our Annual Report on Form 10-K for the fiscal year ended March
28, 2010.
|
||||||||||||||||
(2)
|
Each
director other than Messrs. Dornbush and Sturges received stock option
awards to purchase 10,000 shares of Class A common
stock.
|
||||||||||||||||
(3)
|
During
fiscal year 2010, Mr. Dornbush was employed by us to provide certain
management advisory services. Accordingly, compensation paid to
Mr. Dornbush represents compensation for his employment during fiscal
year 2010, including $150,000 in salary paid to
Mr. Dornbush and $9,900 paid by the
Company with respect to disability insurance, included in the caption “All
Other Compensation.”
|
||||||||||||||||
(4)
|
Effective
May 26, 2009, Mr. Sturges resigned from the Board. “All Other
Compensation” for fiscal year 2010 also includes the $19,950 in
compensation expense recognized by the Company as a result of the
accelerated vesting (in connection with his resignation from the Board) of
stock option awards previously granted to Mr. Sturges and $20,830 in
consulting fees for services provided by Mr. Sturges commencing with his
resignation.
|
Director
Fees
For the
period from March 30, 2009 through December 31, 2009, we provided the following
compensation to our non-employee directors: $15,000 per year for service as a
director plus a fee of $1,500 for each board meeting attended in person or $750
for each meeting attended telephonically. Additionally, we provided compensation
to non-employee directors of $1,500 for each Committee meeting attended in
person, $1,000 for attending in person Committee meetings held on the same day
as board meetings or $750 for each Committee meeting attended telephonically. We
provided additional compensation of $7,500 per year to the chairman of the Audit
Committee and $2,500 per year to the chairman of each of the other Committees.
We also provided additional compensation of $5,000 per year to our Independent
Lead Director, who for fiscal year 2010 was Mr. Jaffe.
10
Beginning
January 1, 2010, we compensated our non-employee directors at an annual
rate of $36,000 per year for service as a director and additional compensation
as follows: $19,500 per year for service as a member of the Executive Committee,
$10,500 per year to each member of the Audit Committee, $5,000 per year to each
member of the Compensation Committee and Nominating and Governance Committee, an
additional $7,750 per year to the chairman of each of the Committees and $5,000
per year to our Independent Lead Director. All non-employee directors and
Mr. Dornbush are reimbursed for expenses incurred on our behalf. In
addition, the directors are provided an annual food allowance of $3,600, which
they can use at our restaurants. Since Mr. Dornbush is an employee, he does
not receive director fees but is compensated as an employee. For fiscal year
2010, we paid approximately $161,300 in salary and other compensation to
Mr. Dornbush as an employee. We anticipate continuation of
Mr. Dornbush’s employment in fiscal year 2011 on similar
terms.
In
addition to the above, we also paid Lewis Jaffe, the chairman of the special
committee that we formed in December 2009 to explore alternative financing
sources that may be available to us, a fee of $30,000 and a fee of $10,000 to
each of Norman Becker, J. Ronald Castell and Joseph J. West for serving as
members of the special committee.
In
connection with Mr. Sturges’ resignation from the Board on May 26, 2009, we
accelerated the vesting of all outstanding stock options previously granted to
him. We also entered into a two year consulting agreement with
Mr. Sturges pursuant to which he agreed to provide up to 8 hours of service
to us each month during the consulting period in exchange for a monthly payment
of $2,080.
Automatic
Option Grants
Each
non-employee director participates in the 2007 Equity Incentive Plan (the
“equity plan”). Under the equity plan, options to purchase 10,000
shares of Class A Common Stock (as adjusted in the event of any recapitalization
or similar changes to our stock; e.g., due to a stock dividend or merger) are
automatically granted annually to each non-employee director on the date of our
Annual Meeting. Options granted under the equity plan become
exercisable ratably as to one-third of the shares underlying the option on each
of the six-month, first and second year anniversaries of the grant
date. All options granted under the equity plan have a term of ten
years from the date of grant and have an exercise price equal to the fair market
value of a share on the grant date, which is the closing price of the Class
A Common Stock on the grant date. All options remain exercisable for
a period of three months (other than if cessation of Board membership is due to
death, in which case the options remain exercisable for a period of twelve
months) or their stated term, if shorter, following the cessation of a
non-employee director’s membership on our Board. Since
Mr. Dornbush is an employee, he is not eligible for automatic option grants
under the equity plan. Accordingly, the Compensation Committee
determines equity awards for Mr. Dornbush as and when it does so with
regard to all other employees.
Prior to
the adoption of the equity plan, we granted options to our non-employee
directors under our 2003 Directors’ Stock Option Plan and other prior
plans. Following adoption of the equity plan, we ceased to grant
stock options under the prior plans; however, all options previously granted
under the prior plans and which remain outstanding continue to be governed by
the terms of such plans. Under the prior plans, the exercise price of
each stock option is the fair market value of the Class A Common Stock on the
grant date, and upon termination of service as a non-employee director, such
stock options remain exercisable for three months following such termination
(or, if shorter, the remainder of the stock option term).
Item 12. Security Ownership of
Certain Beneficial Owners and Management and Related Stockholder
Matters
EQUITY
COMPENSATION PLAN INFORMATION
Information
required by Item 12 with respect to the Company’s equity compensation plan is
included under Item 12 of the Form 10-K.
11
SECURITY
OWNERSHIP
SECURITY
OWNERSHIP OF CERTAIN
BENEFICIAL
OWNERS AND MANAGEMENT
The
following tables set forth information relating to the beneficial ownership of
our Common Stock and Class A Common Stock by all persons we know to beneficially
own more than 5% of either our Common Stock or our Class A Common Stock
outstanding on July 16, 2010 and by each named executive officer and current
director and all of our current executive officers and directors as a group. As
of the close of business on July 16, 2010, there were 5,649,082 shares of Common
Stock, 9,795,168 shares of Class A Common Stock and 800,000 shares of Series B
convertible preferred stock (convertible into 1,578,943 shares of Common Stock)
outstanding. Beneficial ownership is determined in accordance with
Rule 13d-3 of the Securities Exchange Act of 1934. Except as
indicated by the footnotes below, we believe, based on the information furnished
to us, that the persons and entities named in the table below have sole voting
and investment power with respect to all shares of Common Stock and Class A
Common Stock, as applicable, that they beneficially own, subject to applicable
community property laws. All shares of Common Stock and Class A
Common Stock subject to options or warrants exercisable within 60 days of
July 16, 2010 or issuable upon conversion of our Series B convertible preferred
stock are deemed to be outstanding and beneficially owned by the persons holding
those options, warrants or Series B convertible preferred stock, for the purpose
of computing the number of shares beneficially owned and the percentage
ownership of that person. They are not, however, deemed to be
outstanding and beneficially owned for the purpose of computing the percentage
ownership of any other person.
Common
Stock
|
Class
A Common Stock
|
|||||||||||||
Name
(and address if applicable) of
Beneficial
Owners
|
Amount
and Nature
of
Beneficial
Ownership
|
Percent
of
Class
|
Amount
and Nature
of
Beneficial
Ownership
(1)
|
Percent
of
Class
|
||||||||||
5% Stockholders
|
||||||||||||||
Benihana
of Tokyo, Inc. (2)
|
2,153,744
|
38.1
|
%
|
-
|
-
|
|||||||||
232
East 63 rd
Street
|
||||||||||||||
New
York, New York 10021
|
||||||||||||||
Kyle
Aoki (2)
|
2,153,744
|
38.1
|
%
|
-
|
-
|
|||||||||
Grace
Aoki (2)
|
2,153,744
|
38.1
|
%
|
-
|
-
|
|||||||||
Kevin
Y. Aoki (2)
|
2,153,744
|
38.1
|
%
|
-
|
-
|
|||||||||
Kenneth
Podziba (2)
|
2,153,744
|
38.1
|
%
|
-
|
-
|
|||||||||
BFC
Financial Corporation (3)
|
1,578,943
|
21.8
|
%
|
-
|
-
|
|||||||||
2100
W Cypress Creek Road
|
||||||||||||||
Ft.
Lauderdale, Florida 33309
|
||||||||||||||
Andreeff
Equity Advisors, L.L.C.
(4)
|
537,634
|
9.5
|
%
|
642,287
|
6.6
|
%
|
||||||||
Dane
Andreeff
|
||||||||||||||
140
East St. Lucia Lane
|
||||||||||||||
Santa
Rosa Beach, FL 32459
|
||||||||||||||
FMR,
LLC (5)
|
585,155
|
10.4
|
%
|
-
|
-
|
|||||||||
Fidelity
Management & Research Company
|
||||||||||||||
Fidelity
Low-Priced Stock Fund
|
||||||||||||||
Edward
C. Johnson 3d
|
||||||||||||||
82
Devonshire Street
|
||||||||||||||
Boston,
MA 02109
|
||||||||||||||
Coliseum
Capital Management, LLC (6)
|
232,483
|
4.1
|
%
|
1,263,883
|
12.9
|
%
|
||||||||
Adam
Gray
|
||||||||||||||
Christopher
Shackelton
|
||||||||||||||
767
Third Avenue, 35th Floor
|
||||||||||||||
New
York, NY 10017
|
||||||||||||||
RBC
Global Asset Management (U.S.) Inc.(7)
|
-
|
-
|
978,106
|
10.0
|
%
|
|||||||||
100
South Fifth Street, Suite 2300
|
||||||||||||||
Minneapolis,
MN 55402
|
12
Common
Stock
|
Class
A Common Stock
|
||||||||||||
Name of Officers
and Directors
|
Amount and Nature
of Beneficial
Ownership
|
Percent of
Class
|
Amount
and Nature
of
Beneficial
Ownership
(1)
|
Percent
of
Class
|
|||||||||
Named Executive Officers and
Directors
|
|||||||||||||
Taka
Yoshimoto
(10)
|
112,700
|
2.0
|
%
|
3,600
|
*
|
||||||||
John
E. Abdo (8)
(9)
|
79,500
|
1.4
|
%
|
122,333
|
1.2
|
%
|
|||||||
Juan
C. Garcia
(11)
|
-
|
-
|
10,533
|
*
|
|||||||||
Norman
Becker (8)
(9)
|
39,375
|
*
|
103,083
|
1.0
|
%
|
||||||||
Darwin
C. Dornbush (9)
|
16,737
|
*
|
21,975
|
*
|
|||||||||
Richard
Stockinger (9)
|
15,237
|
*
|
16,667
|
*
|
|||||||||
Lewis
Jaffe (8)
(9)
|
15,000
|
*
|
57,033
|
*
|
|||||||||
Joseph
J. West (8)
(9)
|
11,000
|
*
|
43,333
|
*
|
|||||||||
J.
Ronald Castell (8)
(9)
|
10,000
|
*
|
43,333
|
*
|
|||||||||
Alan
B. Levan (9)
|
-
|
-
|
6,667
|
*
|
|||||||||
Christopher
P. Ames
|
-
|
-
|
-
|
-
|
|||||||||
Gene
R. Baldwin
|
-
|
-
|
-
|
-
|
|||||||||
All
current directors and executive officers as a group (8) (9)
|
186,849
|
3.2
|
%
|
414,424
|
4.1
|
%
|
|||||||
Notes
(1)
|
Shares
of our Common Stock are convertible at any time into shares of our Class A
Common Stock at the option of the holder. Therefore, each
beneficial owner of our Common Stock may be deemed the beneficial owner of
the same number of shares of our Class A Common Stock. The
holdings listed in the table setting forth beneficial ownership of Class A
Common Stock do not include holdings of Common Stock (as
converted).
|
(2)
|
All
of the issued and outstanding capital stock of Benihana of Tokyo, Inc.
(the “Benihana of Tokyo Stock”) is owned by a trust of which Kevin Y.
Aoki, Kyle Aoki, Grace Aoki and Kenneth Podziba are the named
trustees. By reason of such position, such individuals may be
deemed to share beneficial ownership of the Benihana of Tokyo Stock and
the shares of our stock owned by Benihana of Tokyo.
|
(3)
|
Represents
Common Stock which BFC Financial Corporation would own upon conversion of
the 800,000 shares of our Series B convertible preferred stock currently
held by BFC.
|
Based
solely on Schedule 13Gs filed jointly by Dane Andreeff and Andreeff Equity
Advisors, L.L.C. on February 12, 2010. Each of
Mr. Andreeff and Andreeff Equity Advisors, L.L.C. has shared voting
and shared dispositive power with respect to 537,634 shares of Common
Stock and 642,287 shares of Class A Common Stock.
|
|
Mr. Andreeff
is a control person of Andreeff Equity Advisors, L.L.C., in accordance
with Rule 13d-1(b)(1)(ii)(G) of the Securities Exchange Act of
1934. Mr. Andreeff also owns interest in Maple Leaf
Capital I, L.L.C., which is the general partner of certain limited
partnerships which own shares of Common Stock, including, Maple Leaf
Partners, L.P. and Maple Leaf Offshore, Ltd. Andreeff Equity
Advisors, L.L.C. is the investment adviser of each such limited
partnership.
|
|
On
February 12, 2010, a Schedule 13G was (i) filed by Maple Leaf Offshore,
Ltd. indicating that it has shared voting power and shared dispositive
power with respect to 225,446 shares of Common Stock; (ii) filed by Maple
Leaf Partners, L.P. indicating that it has shared voting power and shared
dispositive power with respect to 275,756 shares of Common Stock; and
(iii) filed jointly by Maple Leaf Capital I, L.L.C. (with Dane Andreeff
and Andreeff Equity Advisors, L.L.C., as otherwise described above)
indicating Maple Leaf Capital I, L.L.C. has shared voting power and shared
dispositive power with respect to 312,188 shares of Common
Stock. On February 12, 2010, a Schedule 13G was filed jointly
by Maple Leaf Capital I, L.L.C. and Maple Leaf Offshore, Ltd. indicating
Maple Leaf Capital I, L.L.C. has shared voting power and shared
dispositive power with respect to 372,955 shares of Class A Common Stock,
and Maple Leaf Offshore, Ltd. has shared voting power and shared
dispositive power with respect to 269,332 shares of Class A Common
Stock.
|
13
(5)
|
Based
solely on a Schedule 13G filed jointly by FMR, LLC, Fidelity Management
& Research Company, Fidelity Low-Priced Stock Fund and Edward C.
Johnson 3d on January 11, 2010. Each of FMR, LLC and
Mr. Johnson have sole dispositive power with respect to 585,155
shares of Common Stock. The board of trustees for Fidelity
Low-Priced Stock Fund has sole voting power with respect to 585,155 shares of Common
Stock.
|
(6)
|
Based
solely on a Schedule 13D filed jointly by Coliseum Capital Management,
LLC, Adam Gray and Christopher Shakelton on July 16, 2010. Each
of Coliseum Capital Management, LLC and Messrs. Gray and Shackelton have
shared voting power and shared dispositive power with respect to 1,263,883
shares of Class A Common Stock and 232,483 shares of Common
Stock.
|
(7
)
|
Based
solely on a Schedule 13G filed by such person on February 10, 2010. Such
person has shared voting power with respect to 287,114 shares of Class A
Common Stock and shared dispositive power with respect to 978,106 shares
of Class A Common Stock.
|
(8
)
|
Beneficial
ownership on this table includes the following number of shares of Common
Stock which may be purchased upon exercise of options which are presently
exercisable or which will become exercisable within 60 days after July 16,
2010: Mr. Abdo – 36,500 shares; Mr. Becker – 33,625 shares;
Mr. Jaffe – 15,000 shares; Mr. West – 10,000 shares;
Mr. Castell – 10,000 shares; all current executive officers and
directors as a group – 105,125 shares.
|
(9
)
|
Beneficial
ownership on this table also includes the following number of shares of
Class A Common Stock which may be purchased upon exercise of options which
are presently exercisable or which will become exercisable within 60 days
after July 16, 2010: Mr. Abdo – 96,333 shares; Mr. Becker –
90,583 shares; Mr. Jaffe – 53,333 shares; Mr. Castell – 43,333
shares; Mr. West – 43,333 shares; Mr. Stockinger – 16,667
shares; Mr. Dornbush – 20,000 shares; Mr. Levan – 6,667; all
current executive officers and directors as a group – 370,249
shares.
|
(10)
|
Mr. Yoshimoto
resigned as our Executive Vice President – Operations and as a member of
our Board of Directors effective December 18, 2009.
|
(11)
|
Mr. Garcia
resigned as our President and Chief Operating Officer effective January
13, 2010.
|
Item 13. Certain Relationships and
Related Transactions, and Director Independence
Benihana
of Tokyo, Inc. (“BOT”) owns shares representing approximately 29.8% of the votes
represented by the combination of our Common Stock and the Series B convertible
preferred stock owned by BFC, which votes together with the Common Stock on an
as converted basis to elect two-thirds of our directors. The stock of BOT is
owned by a trust, of which Kevin Y. Aoki (former director and Vice President –
Marketing of the Company) and Grace Aoki and Kyle Aoki (each a sibling of
Kevin’s), and Kenneth Podziba are the trustees.
BOT owns
a Benihana restaurant in Honolulu, Hawaii (the “Honolulu Restaurant”). We have
granted to BOT a perpetual license to operate the Honolulu Restaurant and an
exclusive license to own and operate Benihana restaurants in substantially all
of Hawaii. This license is royalty-free with respect to any Hawaiian
restaurant beneficially owned by BOT or its affiliates and bears a royalty of 6%
of gross revenues in the event the restaurants are transferred to an
unaffiliated third party.
BFC owns 800,000 shares of our Series B
convertible preferred stock. Alan B. Levan and John E. Abdo, members of our
Board, are Chairman and Vice Chairman, respectively, of BFC and may be deemed to
control BFC by virtue of their ownership interest in BFC’s common
stock.
In
October 2007, we entered into a lease for a Benihana restaurant to be located in
Orlando, FL, with an annual rent of approximately $140,000 and a base term of 20
years. The landlord is Bluegreen Vacations Unlimited, Inc., a subsidiary of
Bluegreen Corporation, a majority owned subsidiary of BFC. Three directors of
ours, John E. Abdo, Alan B. Levan and Norman Becker, are also directors of
Bluegreen Corporation. As of April 20, 2010, BFC and Messrs.
Abdo and Levan may each be deemed to beneficially own the 16,922,953 shares
of Common Stock of Bluegreen Corporation (approximately 51% of the total
outstanding shares) owned by BFC.
Darwin C.
Dornbush, our Secretary and Chairman of the Board, is a partner in Dornbush
Schaeffer Strongin & Venaglia, LLP, a law firm. In fiscal years
2010 and 2009, we incurred approximately $1.3 million and $900,000,
respectively, in legal fees and expenses to Dornbush Schaeffer Strongin &
Venaglia, LLP. In addition, we paid Mr. Dornbush approximately
$161,300 and $124,100 in salary and benefits during fiscal years 2010
and 2009, respectively in exchange for certain services. Mr. Dornbush is
also a director of BFC.
J. Ronald
Castell, a director of ours, provided certain marketing consulting services and
earned less than $100,000 in consulting fees during fiscal year
2009. No such fees were earned in fiscal year 2010.
14
During
fiscal year 2010, we engaged BFC through its wholly owned
subsidiary, Snapper Creek Equity Management, LLC, to provide management,
financial advisory and other consulting services. Accrued but
unbilled consulting fees incurred were approximately $200,000 for
fiscal year 2010.
During
fiscal year 2010, we engaged Risk Management Services (“RMS”), an affiliate of
BFC, to provide insurance and risk management services. Fees owing to
RMS for fiscal year 2010 were not significant.
Gene R.
Baldwin, who was appointed as our interim Chief Financial Officer effective
January 13, 2010, is a partner in CRG Partners Group, LLC and its predecessors
(“CRG”). At the time Mr. Baldwin was retained through CRG, in
November 2009, the Board of Directors approved a consulting agreement between
the Company and CRG (the “CRG Agreement”) for Mr. Baldwin’s services which
continues to apply to the period in which he is serving as our interim Chief
Financial Officer. Pursuant to such agreement in fiscal year 2010 we
incurred approximately $346,000 in fees and expenses to
CRG on account of Mr. Baldwin’s services to us. Mr. Baldwin
has continued to serve as a partner of CRG and continues to receive his
compensation through CRG. In addition, pursuant to the CRG Agreement,
certain other CRG employees also provided services to the Company during fiscal
year 2010. In the aggregate, the Company made payments in the amount
of $570,000 to CRG on account of the services that Mr. Baldwin and other CRG
employees provided to the Company during fiscal year 2010.
Christopher
P. Ames, our Chief Operating Officer, was engaged by us as a consultant from
July 7, 2009 until his appointment as our Chief Operating Officer on October 19,
2009, and earned $62,500 in consulting fees during that period.
Director
Independence
Our Board
has determined that the following directors, for the fiscal year ended March 28,
2010, are independent as defined in Rule 5605 (a)(2) of the Nasdaq Stock Market
Rules: Alan B. Levan, John E. Abdo, Norman Becker, J. Ronald Castell, Lewis
Jaffe and Joseph J. West. In making its independence determinations, the Board
considered and discussed relationships and transactions between the Company and
its affiliates, on the one hand, and each director and his affiliates, on the
other hand, including the relationships and transactions discussed above under
the heading “Certain Relationships and Related Transactions” pursuant to which
payments were made by the Company to the independent director directly or to
affiliates of the independent director. The Board determined that none of
those transactions or relationships were likely to interfere with any
independent director’s exercise of independent judgment in carrying out his
responsibilities as a director of the Company.
15
Item 14. Principal Accountant Fees
and Services
The
following table sets forth fees for professional audit services rendered by
Deloitte & Touche LLP for the audit of the Company's annual financial
statements included in the Company's Annual Report on Form 10-K and review of
financial statements included in the Company's quarterly reports on Form 10-Q
for the fiscal years 2009 and 2010, and fees billed for other services rendered
by Deloitte & Touche LLP.
2009
|
2010
|
||||||||
Audit
Fees
(1)
|
$
|
748,000
|
$
|
735,000
|
|||||
-
|
15,095
|
||||||||
Tax
Fees
(3)
|
-
|
-
|
|||||||
All
Other Fees
(3)
|
-
|
-
|
|||||||
Total
|
$
|
748,000
|
$
|
750,095
|
(1)
|
|||||||||
(2)
|
The
audit related fees for fiscal year 2010 consisted of services incurred for
our SEC Comment Letter received on August 27, 2009 and response filed on
September 10, 2009 and our Form S-3 filed on November 24,
2009.
|
||||||||
(3)
|
The
Audit Committee has determined that the provision of all non-audit
services performed for the Company by Deloitte & Touche LLP is
compatible with maintaining that firm's
independence.
|
The Audit Committee’s policy is to
pre-approve all audit services and all non-audit services that the Company’s
independent auditor is permitted to perform for the Company under applicable
federal security regulations. While it is the general policy of the
Audit Committee to make such determinations at full Audit Committee meetings,
the Audit Committee may delegate its pre-approval authority to one or more
members of the Audit Committee, provided that all such decisions are presented
to the full Audit Committee at its next regularly scheduled meeting.
Item 15. Exhibits and Financial
Statement Schedules
3. | Exhibits: | ||
10.01
|
Engagement
Letter executed December 17, 2009 by and between Benihana, Inc. and CRG
Partners Group, LLC
|
||
31.01
|
Chief
Executive Officer’s certification pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
|
||
31.02
|
Interim
Chief Financial Officer’s certification pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
|
16
SIGNATURES
Pursuant
to the requirements of Section 13 or 15(d) of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
Date:
July 26, 2010
|
BENIHANA
INC.
|
|
By:
/s/ Gene R. Baldwin
|
||
Gene
R. Baldwin, Interim Chief Financial Officer
|
Pursuant
to the requirements of the Securities Exchange Act of 1934, this report has been
signed on below by the following persons on behalf of the registrant and in the
capacities and on the dates indicated.
Signature
|
Title
|
Date
|
|||||
/s/
Richard C. Stockinger
|
July
26, 2010
|
||||||
Richard
C. Stockinger
|
Chief
Executive Officer, President and Director
|
||||||
/s/
Gene R. Baldwin
|
July
26, 2010
|
||||||
Gene
R. Baldwin
|
Interim
Chief Financial Officer
|
||||||
(Principal
Financial and
|
|||||||
Accounting
Officer)
|
|||||||
/s/
John E. Abdo
|
Vice
Chairman and Director
|
July
26, 2010
|
|||||
John
E. Abdo
|
|||||||
/s/
Norman Becker
|
Director
|
July
26, 2010
|
|||||
Norman
Becker
|
|||||||
|
Director
|
|
|||||
J.
Ronald Castell
|
|||||||
/s/
Darwin C. Dornbush
|
Chairman
and Director
|
July
26, 2010
|
|||||
Darwin
C. Dornbush
|
|||||||
/s/
Lewis Jaffe
|
Director
|
July
26, 2010
|
|||||
Lewis
Jaffe
|
|||||||
/s/
Alan B. Levan
|
Director
|
July
26, 2010
|
|||||
Alan
B. Levan
|
|||||||
/s/
Joseph J. West
|
Director
|
July
26, 2010
|
|||||
Joseph
J. West
|
17