Attached files
| file | filename |
|---|---|
| EX-4.1 - EXHIBIT 4.1 - BENIHANA INC | ex4-1.htm |
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 13, 2011
|
|
BENIHANA INC.
|
|
(Exact name of registrant as specified in its charter)
|
|
Delaware
|
0-26396
|
65-0538630
|
||
|
(State or other jurisdiction
of incorporation)
|
(Commission
File Number)
|
|
(I.R.S. Employer
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.):
x Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement
On May 13, 2011, the Board of Directors of Benihana Inc. (the “Company”) approved and the Company entered into Amendment No. 3 (the “Amendment”) to the Amended and Restated Rights Agreement, dated as of January 31, 2007, as amended as of May 18, 2007 and January 24, 2011, with American Stock Transfer & Trust Company, LLC, as successor to the interest of First Union National Bank of North Carolina (the “Rights Agreement”).
As previously reported in the Current Report on Form 8-K filed by the Company with the Securities and Exchange Commission (“SEC”) on May 13, 2011 (the “May 13 8-K”), the Board of Directors of the Company has approved, and is submitting to the Company’s stockholders for their approval, a proposal to reclassify each share of Class A Common Stock of the Company into one share of Common Stock (the “Reclassification”), thereby eliminating the Company’s dual-class common stock structure. The purpose of the Amendment is to accelerate the Final Expiration Date (as defined in the Rights Agreement) so that the Rights Agreement will expire automatically if and when the Reclassification becomes effective.
The foregoing summary of the Amendment is qualified in its entirety by the full text of the Amendment, which is attached hereto as Exhibit 4.1, and the foregoing summary of the Reclassification is qualified in its entirety by the full text of the press release of the Company, which is attached as Exhibit 99.1 to the May 13 8-K, and such Exhibits are hereby incorporated herein by reference.
Additional Information
In connection with the proposed Reclassification, the Company will file a registration statement with the SEC. The Company’s stockholders are encouraged to read the registration statement and any other relevant documents filed with the SEC, including the proxy statement/prospectus that will be part of the registration statement, because they will contain important information. The final proxy statement/prospectus will be mailed to the Company’s stockholders. Investors will be able to obtain a free copy of the documents filed with the SEC by the Company at the SEC’s website www.sec.gov. In addition, investors will be able to obtain a free copy of the relevant documents filed by the Company online at the Investor Relations section of www.benihana.com/about.
This communication shall not constitute an offer to sell or the solicitation of an offer to buy securities, nor shall there be any sale of securities in any jurisdiction in which such solicitation or sale would be unlawful prior to registration or qualification under the securities laws of such jurisdiction.
The Company and its directors, executive officers and other members of management and employees may be deemed, under SEC rules, to be participants in the solicitation of proxies from the stockholders of the Company in respect of the Reclassification proposal. Information regarding the interests, if any, of such potential participants will be available in the registration statement and proxy statement/prospectus and the other relevant documents filed with the SEC when they become available.
Item 3.03 Material Modification to Rights of Security Holders.
See Item 1.01 above, which is hereby incorporated into this Item 3.03 by reference.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits:
|
Exhibit
Number
|
Exhibit
|
|
|
4.1
|
Amendment No. 3, dated as of May 13, 2011, to the Amended and Restated Rights Agreement, dated as of January 31, 2007, as amended as of May 18, 2007 and January 24, 2011, between Benihana Inc. and American Stock Transfer & Trust Company, LLC, as successor to the interest of First Union National Bank of North Carolina.
|
|
|
99.1
|
Press Release of the Company dated May 13, 2011 (incorporated herein by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by the Company with the Securities and Exchange Commission on May 13, 2011).
|
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 18, 2011
|
By: /s/ Richard C. Stockinger
|
||
|
Richard C. Stockinger
|
||||
|
Chairman, Chief Executive Officer and President
|
Exhibit Index
|
Exhibit
Number
|
Exhibit
|
|
|
4.1
|
Amendment No. 3, dated as of May 13, 2011, to the Amended and Restated Rights Agreement, dated as of January 31, 2007, as amended as of May 18, 2007 and January 24, 2011, between Benihana Inc. and American Stock Transfer & Trust Company, LLC, as successor to the interest of First Union National Bank of North Carolina.
|
|
|
99.1
|
Press Release of the Company dated May 13, 2011 (incorporated herein by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by the Company with the Securities and Exchange Commission on May 13, 2011).
|