Item 1. Business
General
Benihana Inc. (“we,” “our” or “us”) and its predecessor companies have operated “Benihana” teppanyaki-style Japanese restaurants in the United States for over 45 years, and we believe we are one of the largest operators of teppanyaki-style restaurants in the country. We also operate two other Asian restaurant concepts: RA Sushi and Haru. Benihana Inc. is a Delaware corporation incorporated in December 1994.
Our core concept, the Benihana teppanyaki restaurant, offers teppanyaki-style Japanese cuisine in which fresh steak, chicken and seafood are prepared by a chef on a steel teppan grill at the center of the guests’ table. Our RA Sushi concept offers sushi and a full menu of Pacific-Rim dishes in a high-energy environment featuring upbeat design elements and contemporary music. Our Haru concept offers an extensive menu of traditional Japanese and Japanese fusion dishes in a modern, urban atmosphere as well as take-out and delivery services.
As of June 3, 2011, we:
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own and operate 63 Benihana teppanyaki restaurants, including one restaurant under the name Samurai;
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franchise 20 additional Benihana teppanyaki restaurants;
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own and operate 25 RA Sushi restaurants; and
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own and operate eight Haru restaurants.
Our principal executive offices are located at 8685 Northwest 53rd Terrace, Miami, Florida 33166 (telephone number 305-593-0770), and our corporate website address is http://www.benihana.com. We make our electronic filings with the Securities and Exchange Commission (“SEC”), including annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and amendments to these reports, if any, available on the corporate website free of charge as soon as practicable after filing with or furnishing to the SEC. These reports are also available at www.sec.gov.
We have a 52/53-week fiscal year. Our fiscal year ends on the Sunday within the dates of March 26 through April 1. Fiscal years 2011, 2010 and 2009 consisted of 52 weeks. Our business is not highly seasonal although we do have more guests coming to our restaurants for special holidays such as Mother’s Day, Valentine’s Day and New Year’s Eve. Mother’s Day falls in our first fiscal quarter, New Year’s Eve in the third fiscal quarter and Valentine’s Day in the fourth fiscal quarter of each year.
For information concerning our financial condition, results of operations and related financial data, including selected data for our operating segments, refer to Part II, Item 7 “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and Part II, Item 8 “Financial Statements and Supplementary Data” of this Form 10-K.
Strategy
Continue implementation of the “Renewal Program.”
During the second quarter of fiscal year 2010, we launched our Benihana Teppanyaki Renewal Program (“Renewal Program”). The Renewal Program focuses on improving guest perceptions as they relate to value, image, quality, consistency and Japanese culture. The focus of our efforts was that of the guest. We have elevated the quality of food and beverages, raised the level of service standards and revitalized the concept’s marketing and public relations activities. These combined efforts are focused on increasing guest frequency, creating greater mindshare and ultimately bolstering restaurant sales at our flagship brand.
As part of the Renewal Program, we launched a new menu in an effort to improve the food quality and variety. We made quality improvements to most menu ingredients along with significant improvements to our beef, chicken and shrimp. Additionally, cooking methods have been modified to enhance the flavor of our entrees. Other enhancements to the dining experience include table top presentation, steps of service, red linen napkins, an enhanced focus on beverage offerings, including temperature controlled wine storage and standardized dress attire for all Benihana teppanyaki chefs and restaurant staff. We have worked at select restaurants to maximize visibility with signage, including lighting the blue roofs where appropriate, and have identified opportunities for additional seating. The Renewal Program also addressed deferred maintenance at our restaurants as well as improvements to and retraining on our health and sanitation procedures.
We made changes to the dining experience so that we will not only continue to honor one of the world’s oldest cultures, but also solidify the concept’s reputation as being a celebration of Japanese heritage. We hired an Executive Culinary Advisor, Hiroyuki Sakai, who is working with our Executive Chef and seven regional chefs.
These operational improvements continued through fiscal year 2011 as we continued the implementation of the Renewal Program by completing the fulfillment of the general manager position at every restaurant, implementing a labor scheduling module to improve labor management at the restaurants, distributing managed order guides, which result in better managed inventory and purchasing procedures, and strengthening inventory management controls.
Pursue Restaurant Growth and Acquisitions. We believe that each of our three concepts has broad appeal and, as a result, we have opportunities to selectively expand our business. However, in light of the current challenges facing the United States economy as a whole, we opted to limit our growth in fiscal year 2011. As the overall economy is beginning to stabilize and the results of the Renewal Program have begun to be realized, we plan to capitalize on the favorable real estate environment by developing plans to open new restaurants beginning in the next 12 to 18 months. In addition, we plan to consider potential strategic acquisitions that complement our existing brands. In this connection, we are undertaking an in depth reevaluation and analysis of our site selection and other development guidelines to ensure those future acquisitions are in line with our overall growth strategy.
Continue To Drive Traffic And Build Guest Loyalty. We will continue to provide marketing and promotional support to sustain and grow our reputation for distinctive value, quality food and guest satisfaction. As a part of the Renewal Program, we have launched several initiatives which are designed to create greater awareness for the concept and strengthen guest connectivity. In April 2009, we initiated the Chef’s Table marketing program to develop, among other things, an email database of loyal customers, which is being utilized for promotions and building brand loyalty. The database is currently comprised of approximately 1.8 million email addresses. The Children’s Club program, launched in September 2009, now called Kabuki Kids with approximately 0.2 million participants, addresses this very important guest constituency, as children are often the prime drivers in bringing families to Benihana. During fiscal 2011, we introduced similar programs at our RA Sushi and Haru concepts. RA Sushi launched "The Hook Up," a guest program that emails a complimentary $20 gift certificate on the guest’s half-birthday. Haru also launched a guest program, "Access," which provides members with exclusive monthly offers. To address the value of our Benihana Teppanyaki concept, in January 2010, we introduced the Chef’s Specials, which offer a meal for two at a set price.
Manage Operating Costs. We are focused on managing both our restaurant operating and overhead costs. As a part of the Renewal Program launched during fiscal year 2010, we have improved operating procedures and controls for food, beverage and labor. In addition, we increased the efficiency and effectiveness of back office processes to reduce cost and improve support to restaurant operations. This included a review of our employee vacation benefits plans and related policies and procedures. Furthermore, in October 2010, we reduced our corporate office headcount by outsourcing certain accounting and payroll functions.
The Benihana Concept
The Benihana concept offers casual dining in a distinctive Japanese atmosphere enhanced by the unique entertainment provided by our highly-skilled Benihana chefs who prepare fresh steak, chicken and seafood on a teppanyaki-style (“teppan”) grill, in traditional Japanese style, at the center of the guests’ table. Each of our teppan tables generally seats eight guests, and the chef is assisted in the meal service by a waitress or waiter who takes beverage and food orders. A typical Benihana teppanyaki restaurant has 18 teppan tables and seats approximately 145 guests in the dining rooms and approximately 40 guests in the bar, lounge and sushi bar areas.
Most of our Benihana teppanyaki restaurants are open for both lunch and dinner and offer a full course meal generally consisting of an appetizer, soup, salad, tea, rice, vegetables, an entrée of steak, seafood or chicken (or any combination thereof) and a dessert. A dinnertime meal takes approximately one hour and thirty minutes. Sushi is offered at all of our Benihana teppanyaki restaurants at either separate sushi bars, lounges or at the teppan tables. The servings prepared at the teppan tables are portion controlled to provide consistency in quantities served to each guest. Alcoholic and non-alcoholic beverages, including specialty mixed drinks, wine, beer and soft drinks are available. Beverage sales in both the lounges and dining rooms account for approximately 14% of total sales. Non-alcoholic beverage sales are included in food sales. The average comparable check size per person was $27.28 in fiscal year 2011.
As of June 3, 2011, we operate 63 Benihana teppanyaki restaurants. During fiscal year 2011, we terminated a lease signed for a potential Benihana teppanyaki restaurant to be located in East Rutherford (Meadowlands), NJ. We continue to evaluate other locations for future development.
The RA Sushi Concept
The RA Sushi concept offers sushi and a full menu of Pacific-Rim dishes in a fun-filled, high-energy environment. RA Sushi caters to a younger demographic, and we believe that it is highly suitable for a variety of real estate options, including “life-style” centers, shopping centers and malls, as well as areas with a nightlife component. A typical RA Sushi restaurant seats approximately 200 guests in the bar and sushi areas, including outdoor seating. Beverage sales in both the lounges and dining rooms account for approximately 31% of RA Sushi’s total sales, and the average comparable check size per person was $21.02 in fiscal year 2011.
As of June 3, 2011, we operate 25 RA Sushi restaurants. While there are no additional RA Sushi restaurants currently under development at this time, we continue to evaluate locations for future development.
The Haru Concept
The Haru concept offers an extensive menu of traditional Japanese and Japanese fusion dishes in a modern, urban atmosphere. In addition to traditional, high quality sushi and sashimi creations, Haru offers raw bar items and Japanese cuisine, including crab dumplings, shrimp tempura and chicken teriyaki. Haru also offers delivery and take-out services, which represent approximately 33% of total sales at our New York, NY locations. Beverage sales represent approximately 23% of dine-in sales. The average comparable dine-in check size per person was $30.99 in fiscal year 2011.
As of June 3, 2011, we operate 8 Haru restaurants, including seven in New York, NY and one in Boston, MA. We closed our Philadelphia, PA restaurant on May 1, 2011. While there are no additional restaurants currently under development at this time, we continue to evaluate Haru locations for future development.
Restaurant Operations
Our Benihana teppanyaki restaurants are under the direction of our Senior Director of Operations and are divided among ten geographic regions, each managed by a regional manager. Food preparation for all Benihana teppanyaki restaurants is supervised by an executive chef and seven regional chefs. Our Haru restaurants are managed out of New York, NY under the direction of Haru’s Vice President of Operations, and our RA Sushi restaurants are managed out of Phoenix, AZ under the direction of RA Sushi’s Vice President of Operations, all of whom report to the Chief Operating Officer.
Each restaurant has a general manager and one or more managers responsible for the operation of the restaurant, including personnel matters, local inventory purchasing and maintenance of quality control standards, cleanliness and service. As part of the Renewal Program, we have successfully filled all general manager positions at each Benihana teppanyaki restaurant without adding to the number of management staff. Guidelines are documented in our restaurant operations manuals to assure consistently high quality guest service and food quality at each location. Specifications are used for quality and quantity of ingredients, food preparation, maintenance of premises and employee conduct and are incorporated in manuals used by the general managers, managers and chefs. Food and portion sizes are regularly and systematically tested for quality and compliance with our standards.
Our Benihana restaurant chefs are trained in the teppanyaki style of cooking, sushi preparation and in guest service with training programs lasting from 8 to 12 weeks. The sushi chefs’ training program for our RA Sushi and Haru restaurants lasts up to 24 weeks. A portion of the training is spent working in a restaurant under the direct supervision of an experienced chef. The program includes training in our method of restaurant operations and in both tableside and kitchen food preparation. Manager training is similar except that the manager trainee is given in-depth exposure to each position in the restaurant. Other categories of employees are trained by the manager and assistant manager at each restaurant. Ongoing continuing education programs and seminars are provided to restaurant managers and chefs to improve restaurant quality and implement changes in operating policy or menu listings, including our sale of liquor and our health and sanitation procedures.
We have entered into non-cancellable national supply agreements for the purchase of beef and seafood items, as well as produce, oils and other items used in the normal course of business, at fixed prices for up to twelve-month terms. These supply agreements are intended to eliminate volatility in the cost of the commodities over the terms of the agreements. Substantially all commodities and restaurant operating supplies are distributed to our restaurants by national food service logistics companies.
We use various incentive compensation plans pursuant to which key restaurant personnel share in the results of operations at both a local and company-wide level.
Trade Names and Service Marks
Benihana is a Japanese word meaning “red flower.” In the United States and in certain foreign countries, we, by and through our wholly-owned subsidiary, Noodle Time, Inc., are the exclusive owners of the brand names and trademarks BENIHANA®, the distinctive BENIHANA® FLOWER LOGO, and several related trademarks, trade names, and domain names, which we believe to be of material importance to our business. The BENIHANA® trademarks are registered with the United States Patent and Trademark Office (“USPTO”) and several foreign trademark registries in Central and South America and the islands of the Caribbean. We are also the exclusive owners, with worldwide development rights, of the trademarks HARU®, RA®, and others which have been registered with the USPTO and certain foreign registries.
Benihana of Tokyo, Inc. (“BOT”), a privately-held company and Benihana’s largest shareholder, is our predecessor company and the operator of a single BENIHANA® restaurant in Honolulu, Hawaii under an exclusive, royalty-free license from us. We have no financial interest in any restaurant operated or franchised by BOT.
Marketing
We utilize the internet, radio, billboard and print media to promote our restaurants, strengthen our brand identity and maintain high brand name recognition. Advertising programs are tailored to each local market. The Benihana teppanyaki restaurants’ advertising and other marketing are designed to emphasize the inherently fresh aspects of a Benihana meal and the entertainment value of the chef cooking at the guests’ table. The continued growth of Benihana's guest programs, “The Chef’s Table” and “Kabuki Kids,” has further strengthened our communication with guests, providing a complimentary $30 birthday gift certificate to members over 13 years of age and a souvenir mug to children during the month of the guest’s birthday. In March 2011, RA Sushi launched "The Hook Up," a guest program that emails a complimentary $20 gift certificate on guests' half-birthday. Also in March 2011, Haru launched a guest program, "Access," which provides members with exclusive monthly offers. All three concepts utilize social media (Facebook and Twitter) as well as local, “grassroots” marketing techniques to increase brand awareness and drive traffic.
Franchising
As of June 3, 2011, we have 20 franchised locations including 12 in the United States and eight in international markets. As a part of our growth strategy, we will evaluate the extent of our future franchise development.
Working Capital
Since restaurant businesses do not have large amounts of inventory and accounts receivable, there is generally no need to finance these items. As a result, many restaurant businesses, including our own, operate with negative working capital.
New Restaurant Site Selection and Development
We believe the locations of our restaurants are critical to our long-term success and, accordingly, we intend to devote significant time and resources to analyzing each prospective site, as well as further develop and refine our site selection and store opening criteria. Each of our three concepts requires a different real estate formula for successful execution. The Benihana concept is successful in free-standing or in-line locations. The existing prototype Benihana teppanyaki restaurant was designed to accommodate approximately 7,000 to 7,500 square feet and allows for flexibility in layout and number of tables. The RA Sushi concept is successful in urban or suburban shopping malls, retail strip centers and entertainment “life-style” centers and typically requires 4,500 to 5,500 square feet plus patio seating. The Haru concept is successful in densely populated urban markets and space requirements are somewhat flexible. In contemplation of a renewed emphasis on the growth of our business, we have recently undertaken an in depth reevaluation and analysis of the site selection criteria and other development guidelines for each of our three concepts to ensure future new stores and acquisitions are in line with our growth strategy and, in that connection, during fiscal year 2011, we engaged an internationally recognized strategic consulting firm with significant restaurant experience to assist us in developing, refining and implementing this strategy.
Our restaurant development model for each of our active concepts typically calls for us to occupy leased space in shopping malls, strip centers, entertainment centers and other real estate developments (the “retail lease” development model) in larger metropolitan areas. We have also acquired the land when it is economically justified. While we expect the retail lease development model to continue as our principal approach for opening new restaurants, we also expect to open more freestanding Benihana teppanyaki restaurants. We generally lease our restaurant locations for primary periods of 10 to 20 years and have renewal options for varying lengths of time. Our rent structures vary from lease to lease, but generally provide for the payment of both minimum base rent and contingent rent, such as percentage rent based on restaurant sales and fixed rent increases. We are also responsible for our proportionate share of common area maintenance (“CAM”), insurance, property tax and other occupancy-related expenses under our leases. Many of our leases provide for maximum allowable annual percentage or fixed dollar increases for CAM expenses to enable us to better predict and control future variable lease costs. We expend cash for leasehold improvements and furnishings, fixtures and equipment to build out leased premises. We own all of the equipment in our restaurants and currently plan to do so in the future.
The development and opening process generally ranges from 12 to 18 months after lease signing and depends largely upon the availability of the leased space we intend to occupy and is often subject to matters that result in delays outside of our control, such as the permitting process, delays in the turnover of the premises from the landlord and mandates of local governmental building authorities. The number and timing of new restaurants actually opened during any given period, and their associated contribution, will depend on a number of factors, including but not limited to, the availability of investment capital, the identification of suitable locations and leases, the timing of the delivery of the leased premises to us from our landlords so that we can commence our build-out construction activities, the ability of our landlords and us to timely obtain all necessary governmental licenses and permits to construct and operate our restaurants, disputes experienced by our landlords or our outside contractors, any unforeseen engineering or environmental problems with the leased premises, weather conditions that interfere with the construction process, our ability to successfully manage the design, construction and preopening processes for each restaurant, the availability of suitable restaurant management and hourly employees and general economic conditions. While we manage those factors within our control, we have experienced unforeseen delays in restaurant openings from time to time in the past and will likely experience delays in the future.
Restaurant Opening Costs for New Restaurants
Restaurant opening costs include costs to recruit and train an average of 50 to 100 hourly restaurant employees and management personnel, wages, travel and lodging costs for our opening training team and other support employees, costs for practice service activities, restaurant supplies and straight-line minimum base rent during the restaurant preopening period for accounting purposes. Restaurant opening costs will vary from location to location depending on a number of factors, including the proximity to our existing restaurants, the size and physical layout of each location, the cost of travel and lodging for different metropolitan areas and the extent of unexpected delays, if any, in obtaining final licenses and permits to open the restaurants, which may also be dependent upon our landlords obtaining their licenses and permits as well as completing their construction activities for the restaurants. Restaurant opening costs will fluctuate from period to period, based on the number and timing of restaurant openings and the specific restaurant opening costs incurred for each restaurant. These fluctuations could be significant.
Renovation of Existing Restaurants
Under a renovation program commenced during 2005, we used many elements of the existing prototype design to refurbish our mature Benihana teppanyaki restaurants. We made a strategic decision in fiscal year 2006 to accelerate the renovation program in order to opportunistically build a stronger foundation for our core brand amid a growing American appetite for Asian cuisine. As of the end of fiscal year 2009, we completed the multi-year renovation program with the renovation of an aggregate 22 of our mature Benihana teppanyaki restaurants, using many of the design elements of the existing prototype Benihana teppanyaki restaurant. We plan to complete the remodel of 7 remaining restaurants in fiscal year 2012. Upon their completion, we will remodel the restaurants on a routine schedule to ensure our restaurants remain up to date. In addition, in fiscal year 2012, we will continue to incur capital expenditures for deferred maintenance as a part of the Renewal Program.
Employees
We currently employ approximately 6,700 people. Most employees, except restaurant and corporate management personnel, are paid on an hourly basis. We also employ some restaurant personnel on a part-time basis to provide the services necessary during the peak periods of restaurant operations. We believe our relationship with our employees is excellent.
Executive Officers
Richard C. Stockinger, age 52, serves as our Chairman of the Board, Chief Executive Officer and President
Gene R. Baldwin, age 61, serves as our Interim Chief Financial Officer
Christopher P. Ames, age 48, serves as our Chief Operating Officer
Cristina L. Mendoza, age 64, serves as our General Counsel and Secretary
Competition
The casual dining segment of the restaurant industry is intensely competitive with respect to price, service, location and the type and quality of food. Each of our restaurants competes directly or indirectly with locally owned restaurants as well as regional and national chains, and several of our significant competitors are much larger or more diversified and have substantially greater resources than we do. It is also anticipated that there will be continued competition for available restaurant sites as well as in attracting and retaining qualified management-level operating personnel. We believe that our competitive position is enhanced by offering quality food selections at an appropriate price with the unique entertainment provided by our chefs in an attractive, relaxed atmosphere.
Government Regulation
Each of our restaurants is subject to licensing and regulation by health, sanitation, safety standards, the fire department and alcoholic beverage control as well as other authorities in the state or municipality where it is located. Difficulties or failure in obtaining required licensing or requisite approvals could result in delays or cancellations in the opening of new restaurants. Additionally, a termination of a liquor license would adversely affect the revenues for a restaurant. The failure to obtain or retain, or a delay in obtaining, food and liquor licenses or any other governmental approvals could have a material adverse effect on our operating results. Changes in federal and state environmental regulations have not had a material effect on our operations, but more stringent and varied local government requirements with respect to zoning, land use and environmental factors could delay construction of new restaurants and materially affect our existing restaurant operations.
We are also subject to federal and state regulations regarding franchise offering and sales. Such laws impose registration and disclosure requirements on franchisors in the offer and sale of franchises or impose substantive standards on the relationship between franchisee and franchisor.
The Americans with Disabilities Act, which prohibits discrimination on the basis of disability in public accommodations and employment, mandates accessibility standards for individuals with physical disabilities and increases the cost of construction of new restaurants and of remodeling older restaurants.
We are subject to “dram-shop” statutes in most of the states where we operate restaurants, which generally provide an individual injured by an intoxicated person the right to recover damages from an establishment that wrongfully served alcoholic beverages. We carry liquor liability coverage as part of our existing comprehensive general liability insurance that we believe is consistent with coverage carried by other entities in the restaurant industry of similar size and scope of operations. Even though we are covered by general liability insurance, a settlement or judgment against us under a “dram-shop” statute in excess of our liability coverage could have a material adverse effect on our operations.
Various federal and state labor laws govern our operations and our relationships with our employees, including matters such as minimum wages, breaks, overtime, fringe benefits, safety, working conditions and work authorization requirements. Significant increases in minimum wages, changes in statutes regarding paid or unpaid leaves of absence, mandated health benefits or increased tax reporting and assessment or payment requirements related to our employees who receive gratuities all could be detrimental to the profitability of our operations. Various proposals that would require employers to provide health insurance for all of their employees are considered from time-to-time in Congress and various individual states, including the recently enacted federal legislation addressing the healthcare reform (the “Patient Protection and Affordable Care Act”). Although at this time, we cannot be certain of the impact of this legislation, the imposition of any requirement that we provide health insurance to all employees or the imposition of additional employer paid employment taxes on income earned by our employees could have an adverse effect on our results of operations and financial position, as well as the restaurant industry in general. Our suppliers may also be affected by higher minimum wage and benefit standards, which could result in higher costs for goods and services supplied to us. While we carry employment practices insurance, a settlement or judgment against us in excess of our coverage limitations could have a material adverse effect on our results of operations, liquidity, financial position or business.
We have a significant number of hourly restaurant employees that receive tip income. We have elected to voluntarily participate in a Tip Rate Alternative Commitment (“TRAC”) agreement with the Internal Revenue Service at certain locations. By complying with the educational and other requirements of the TRAC agreement, we reduce the likelihood of potential employer-only FICA assessments for unreported or underreported tips.
Management Information Systems
We utilize a private network to facilitate timely and secure data communications between the restaurants and support services centers. Our restaurants are equipped to communicate with our collocated data center facilities to process accounting, human resources and payroll information. These enterprise systems are mostly packaged software with customizations to meet our business needs. Our POS system is integrated with our financial information and payroll systems to facilitate the daily, weekly and period-to-date information including sales, inventory, labor and marketing data. We leverage industry frameworks and best practices which allow us to effectively support restaurant operations and insure the security of our guest’s credit card information. In that regard, in fiscal year 2011, we upgraded our POS system in order to meet the data protection requirements of the PCI Security Standards Council. During fiscal year 2011, we also outsourced certain accounting transactions in order to reduce costs and improve efficiency. The outsourced firm utilizes their own licensed software. We believe that our infrastructure, policies, procedures and ongoing management practices provide us with a strong and reliable information technology environment.
Forward Looking Statements
This report contains various “forward-looking statements,” which represent our expectations or beliefs concerning future events, including restaurant growth, future capital expenditures and other operating information. A number of factors could, either individually or in combination, cause actual results to differ materially from those included in the forward-looking statements, including general economic conditions and disruptions in the global credit and equity markets, competition in the restaurant industry, ability to achieve expected results, changes in food and supply costs, increases in minimum wage, rising insurance costs, fluctuations in operating results, challenges to continued growth, access to sources of capital and the ability to raise capital, issuances of additional equity securities, ability to construct new restaurants within projected budgets and time periods, ability to renew existing leases on favorable terms, further deterioration in general economic conditions and high unemployment, availability of qualified employees, ability to implement our growth strategies, ability to retain key personnel, litigation, ability to comply with governmental regulations, changes in financial accounting standards, ability to establish, maintain and apply adequate internal control over financial reporting, effect of market forces on the price of our stock and other factors that we cannot presently foresee.
Item 1A.
Item 1A. Risk Factors
Continued weakness in general economic conditions and the continued disruptions in the global credit and equity markets may adversely impact consumer spending patterns and the availability and cost of credit.
The continued disruptions in the global credit and equity markets and weak general economic conditions have had an adverse effect on the economy, which have negatively impacted consumer spending patterns. A decrease in discretionary spending due to decreases in consumer confidence in the economy has reduced the frequency with which guests choose to dine out and/or the amount they spend on meals while dining out, thereby decreasing revenues and adversely impacting our operating results. A continuing adverse impact of decreasing revenues and operating results may also impact our ability to comply with covenants contained in our credit agreement. The continued disruptions in the financial markets and continuing economic downturn may adversely impact the availability of credit already arranged and the availability and cost of credit in the future.
In addition, if gasoline, natural gas, electricity and other energy costs increase, and credit card, home mortgage and other borrowing costs increase with any future increase in interest rates, additional pressure on consumer disposable income will likely occur. While the government has recently taken unprecedented steps to stimulate the economy and, at the same time, maintain relatively low interest rate levels, there can be no assurance that the government’s actions will be successful in restoring consumer confidence, further stabilizing the financial markets, further increasing liquidity and the availability of credit and result in lower unemployment or keep interest rates low in the future.
Intense competition in the restaurant industry could prevent us from increasing or sustaining our revenues and profitability.
The restaurant industry is intensely competitive with respect to food quality, price-value relationships, ambiance, service and location and many restaurants compete with us at each of our locations. There are a number of well-established competitors with substantially greater financial, marketing, personnel and other resources than ours, and many of our competitors are well established in the markets where we have restaurants or where we intend to locate restaurants. Additionally, other companies may develop restaurants that operate with similar concepts.
Any inability to successfully compete with the other restaurants in our markets will prevent us from increasing or sustaining our revenues and profitability and will result in a material adverse effect on our business, financial condition, results of operations or cash flows. We may also need to modify or refine elements of our restaurant system to evolve our concepts in order to compete with popular new restaurant formats or concepts that may develop in the future. There can be no assurance that we will be successful in implementing these modifications or that these modifications will not reduce our profitability.
Failure of our restaurants to achieve expected results could have a negative impact on our revenues and performance results.
Performance results currently achieved by our existing restaurants vary and the better performing restaurants may not be indicative of longer-term performance and are impacted by conditions in the geographic markets where we operate. We currently have 42% of our restaurants in the economically challenged states of Arizona, California, Florida and Nevada markets. Additionally, we cannot be assured that new restaurants that we open or acquire will have better or equal operating results as existing restaurants. New restaurants take several months to reach expected operating levels due to inefficiencies typically associated with new restaurants, including lack of market awareness, inability to hire sufficient staff and other factors. The failure of our existing or new restaurants to perform as anticipated could have an adverse effect on our business, financial condition, results of operations or cash flows.
Changes in food and supply costs could negatively impact our revenues and results of operations.
Our profitability is dependent in part on our ability to anticipate and react to changes in food and supply costs. Any increase in distribution and commodity costs could cause our food and supply costs to fluctuate. Additional factors beyond our control through our supply chain, including energy costs, adverse weather conditions, environmental incidents and governmental regulation may affect our food costs. We may not be able to anticipate and react to changing food and supply costs through our purchasing practices and menu price adjustments in the future and failure to do so could have an adverse effect on our business, financial condition, results of operations or cash flows.
The overall cost environment for food commodities in general has and may continue to be volatile primarily due to domestic and worldwide agricultural, supply/demand and other macroeconomic factors that are outside of our control. Commodity prices for key agricultural commodities such as corn, wheat, and soybeans have been extremely volatile. The availabilities and prices of food commodities are also influenced by increased energy prices, animal-related diseases, natural disasters, increased geo-political tensions, the relationship of the dollar to other currencies, and other issues. Virtually all commodities purchased and used in the restaurant industry - meats, grains, oils, dairy products, and energy - have varying amounts of inherent price volatility associated with them. Our suppliers also may be affected by higher costs to produce and transport commodities used in our restaurants, higher minimum wage and benefit costs, and other expenses that they pass through to their guests, which could result in higher costs for goods and services supplied to us. While we attempt to manage these factors by offering a diversified menu and by contracting for our key commodities for extended periods of time whenever feasible and possible, there can be no assurance that we will be successful in this respect due to the many factors that are outside of our control.
Increases in the minimum wage may have a material adverse effect on our business and financial results.
Many of our employees are subject to various minimum wage requirements. Many restaurants are located in states where the minimum wage was recently increased. There likely will be additional increases implemented in jurisdictions in which we operate or seek to operate. State and federal minimum wage increases could have an adverse effect on our business, financial condition, results of operations or cash flows.
Rising insurance costs could negatively impact profitability.
The cost of insurance (workers compensation insurance, general liability insurance, property insurance, health insurance and directors and officers liability insurance) may increase at any time. These increases, as well as potential state legislation and the newly-enacted “Patient Protection and Affordable Care Act”, could have an adverse effect on our business, financial condition, results of operations or cash flows if we are not able to negate the effect of these increases with plan modifications and cost control measures or by continuing to improve our operating efficiencies. We self-insure a substantial portion of our workers compensation and health care costs and potential unfavorable changes resulting from the passage of the Patient Protection and Affordable Care Act could have an adverse effect on our business, financial condition, results of operations or cash flows.
Fluctuations in operating results may cause profitability to decline.
Our operating results may fluctuate significantly as a result of a variety of factors, including:
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general economic conditions;
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consumer confidence in the economy;
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changes in consumer preferences;
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competitive factors;
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weather conditions;
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training and experience of local store management and personnel;
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timing of new restaurant openings and related expenses;
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timing and duration of temporary restaurant closures;
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changes in governmental regulations;
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revenues contributed by new restaurants; and
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increases or decreases in comparable restaurant revenues.
In particular, operating results with respect to new restaurant openings may significantly fluctuate because we typically incur the most significant portion of restaurant opening expenses associated with a given restaurant within the three months immediately preceding and the month of the opening of the restaurant. Our experience to date has been that labor and operating costs associated with a newly opened restaurant for the first several months of operation are materially greater than what can be expected after that time, both in aggregate dollars and as a percentage of revenues. Accordingly, the volume and timing of new restaurant openings has had, and is expected to continue to have, a meaningful impact on restaurant opening expenses as well as labor and operating costs.
Numerous challenges to continued growth could adversely affect our business, financial condition, results of operations and cash flows.
Our ability to expand profitably will depend on a number of factors, including:
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identification and availability of suitable locations;
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competition for restaurant sites;
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negotiation of favorable lease arrangements;
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timely development of commercial, residential, street or highway construction near our restaurants;
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management of the costs of construction and development of new restaurants;
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securing required governmental approvals and permits;
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recruitment of qualified operating personnel, particularly local store managers and chefs;
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competition in new markets; and
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general economic conditions.
We may not be able to open our planned new operations on a timely basis, if at all, and, if opened, these restaurants may not be operated profitably. We have experienced, and expect to continue to experience, delays in restaurant openings from time to time. Delays or failures in opening planned new restaurants could have an adverse effect on our business, financial condition, results of operations or cash flows.
Access to sources of capital and our ability to raise capital in the future may be limited, which could adversely affect our business.
Our ability to grow our business depends, in part, on the availability of adequate capital to finance the development of new restaurants and other growth-related expenses. No assurances can be given as to our ability to generate sufficient funds from operations or to obtain sufficient equity or debt financing on favorable terms to support our expansion. Changes in our operating plans, expansion plans, lower than anticipated revenues, unanticipated and/or uncontrollable events in the capital or credit markets that impact our liquidity, increased expenses or other events, including those described in this Annual Report on Form 10-K, may cause us to seek additional debt or equity financing on an accelerated basis in the event our cash flow from operations is insufficient. Financing may not be available on acceptable terms, or at all, and our failure to raise capital when needed could adversely affect our growth and other plans, as well as our financial condition. Additional equity financing, if available, may be dilutive to the holders of our common stock and adversely affect the price of our common stock. Debt financing, if available, may involve significant cash payment obligations, covenants and financial ratios that restrict our ability to operate and grow our business, and would cause us to incur additional interest expense and financing costs. In addition, continued disruptions in the global credit and equity markets, including unanticipated and/or uncontrollable events in the capital or credit markets, may have an adverse effect on our liquidity and our ability to raise additional capital if and when required.
We may issue additional equity securities without the consent of shareholders and such issuances could adversely affect our stock price and the rights of existing shareholders.
We are not restricted from issuing additional common stock or preferred stock, including any securities that are convertible into or exchangeable for, or that represent the right to receive, common stock or preferred stock or any substantially similar securities. Our board of directors is authorized to issue additional shares of common stock and additional classes or series of preferred stock without any action on the part of the shareholders. The board of directors also has the discretion, without shareholder approval, to set the terms of any such classes or series of preferred stock that may be issued, including voting rights, dividend rights and preferences over the common stock with respect to dividends or upon the liquidation, or winding up of our business and other terms. If we issue additional preferred shares in the future that have a preference over our common stock with respect dividends or upon liquidation, dissolution or winding up, or if we issue additional preferred shares with voting rights that dilute the voting power of our common stock, the rights of our common shareholders or the market price of our common stock could be adversely affected.
The inability to construct new restaurants within projected budgets and time periods will adversely affect our business and financial condition.
Many factors may affect the costs associated with construction of new restaurants, including:
·
landlord delays;
·
labor disputes;
·
shortages of materials and skilled labor;
·
weather interference;
·
unforeseen engineering problems;
·
environmental problems;
·
construction or zoning problems;
·
local government regulations;
·
modifications in design to the size and scope of the projects; and
·
other unanticipated increases in costs, any of which could give rise to delays or cost overruns.
If we are not able to develop additional restaurants within anticipated budgets or time periods, our business, financial condition, results of operations or cash flows could be adversely affected.
Our inability to renew existing leases on favorable terms may adversely affect our results of operations.
Many of our restaurants are located on leased premises and are subject to varying lease-specific arrangements. For example, some of the leases require base rent, subject to regional cost-of-living increases, and other leases include base rent with specified periodic increases. Other leases are subject to renewal at fair market value, which could involve substantial increases. Additionally, many leases require contingent rent based on a percentage of gross sales. While we currently expect to pursue the renewal of substantially all of our expiring restaurant leases, no guarantee can be given that such leases will be renewed or, if renewed, that rents will not increase substantially.
The success of our restaurants depends in large part on their leased locations. As demographic and economic patterns change, current leased locations may or may not continue to be attractive or profitable. Possible declines in trade areas where our restaurants are located or adverse economic conditions in surrounding areas could result in reduced revenues in those locations. In addition, desirable leased locations for new restaurant openings or for the relocation of existing restaurants may not be available at an acceptable cost when we identify a particular opportunity for a new restaurant or relocation.
Prolonged sluggish economic conditions, high unemployment and further deterioration in general economic conditions could have a material adverse impact on our landlords or on businesses neighboring our locations, which could adversely affect our business.
Deterioration in general economic conditions could result in our landlords being unable to obtain financing or remain in good standing under their existing financing arrangements which could result in their failure to satisfy obligations to us under leases, including failures to fund or reimburse agreed-upon tenant improvement allowances. Any such failure could adversely impact our operations.
Our inability to find a sufficient number of qualified teppanyaki and sushi chefs could negatively impact our expansion plans.
The success of our growth strategy is dependant on hiring and training a sufficient number of qualified teppanyaki and sushi chefs. The teppanyaki chefs are the centerpiece of the experience at the Benihana restaurants where guests go to be entertained by the chef’s performance at their table. Sushi chefs must possess the skills necessary for artfully preparing fresh sushi at each of our three concepts. Our inability to identify and hire a sufficient number of qualified individuals for these positions could have a direct negative impact on our ability to open new restaurants.
Implementing our growth strategies may strain our management resources and negatively impact our competitive position.
Our growth strategy may strain our management, financial and other resources. We must maintain a high level of quality and service at our existing and future restaurants, continue to enhance our operational, financial and management capabilities and locate, hire, train and retain experienced and dedicated operating personnel, particularly restaurant managers and chefs. We may not be able to effectively manage these and other factors necessary to permit us to achieve our expansion objectives and any failure to do so could negatively impact our competitive position.
Potential labor shortages may delay planned openings or damage guest relations.
Our success will continue to be dependent on our ability to attract and retain a sufficient number of qualified employees, including restaurant managers, chefs, kitchen staff and wait staff to keep pace with our expansion schedule. Qualified individuals needed to fill these positions may be in short supply in certain areas. Our inability to recruit and retain qualified individuals may delay the planned openings of new restaurants while high employee turnover in existing restaurants may negatively impact guest service and guest relations resulting in an adverse effect on our business, financial condition, results of operations or cash flows.
Our inability to retain key personnel could negatively impact our business.
Our success will continue to be highly dependent on retaining key operating officers and employees. We must continue to attract, retain and motivate a sufficient number of qualified management and operating personnel, including regional managers, general managers and executive and sushi chefs to keep pace with our expansion schedule. Individuals of this caliber may be in short supply and this shortage may limit our ability to effectively penetrate new markets. Additionally, the ability of these key personnel to maintain consistency in the quality and atmosphere of our restaurants is a critical factor in our success. Any failure to do so may harm our reputation and result in a loss of business.
Litigation could have a material adverse effect on our business.
We may be the subject of complaints or litigation from guests alleging illness, injury or other concerns related to visits to our restaurants. We may be adversely affected by publicity resulting from these allegations regardless of whether these allegations are valid or whether we are liable. We may be subject to complaints or allegations from current, former or prospective employees. We may also be subject to complaints or allegations from our shareholders. A lawsuit or claim could result in an adverse decision against us that could have an adverse effect on our business, financial condition, results of operations or cash flows. Additionally, the costs and expense of defending ourselves against lawsuits or claims, regardless of merit, could have an adverse impact on our profitability.
While we carry general liability insurance, we may still be subject to a judgment in excess of our insurance coverage and we may not be able to obtain or continue to maintain this insurance coverage at reasonable costs, or at all.
Failure to comply with governmental regulations could harm our business and our reputation.
We are subject to regulation by federal agencies and regulation by state and local health, sanitation, building, zoning, safety, fire and other departments relating to the development and operation of restaurants. These regulations include matters relating to:
·
the environment;
·
building construction;
·
zoning requirements;
·
the preparation and sale of food and alcoholic beverages; and
·
employment and benefits.
Our facilities are licensed and subject to regulation under state and local fire, health and safety codes. The construction and remodeling of restaurants will be subject to compliance with applicable zoning, land use and environmental regulations. We may not be able to obtain necessary licenses or other approvals on a cost-effective and timely basis in order to construct and develop restaurants in the future.
Various federal and state labor laws govern our operations and our relationship with our employees, minimum wage, overtime, working conditions, fringe benefit and work authorization requirements. In particular, we are subject to federal immigration regulations. Given the location of many of our restaurants, even if we operate those restaurants in strict compliance with federal immigration requirements, our employees may not all meet federal work authorization or residency requirements, which could lead to disruptions in our work force.
Our business can be adversely affected by negative publicity resulting from, among other things, complaints or litigation alleging poor food quality, food-borne illness or other health concerns or operating issues stemming from one or a limited number of restaurants. Unfavorable publicity could negatively impact public perception of our brands.
We are required to comply with the alcohol licensing requirements of the federal government, states and municipalities where our restaurants are located. Alcoholic beverage control regulations require applications to state authorities and, in certain locations, county and municipal authorities for a license and permit to sell alcoholic beverages. Typically, licenses must be renewed annually and may be revoked or suspended for cause at any time. Alcoholic beverage control regulations relate to numerous aspects of the daily operations of the restaurants, including minimum age of guests and employees, hours of operation, advertising, wholesale purchasing, inventory control and handling and storage and dispensing of alcoholic beverages. If we fail to comply with federal, state or local regulations, our licenses may be revoked and we may be forced to terminate the sale of alcoholic beverages at one or more of our restaurants.
The federal Americans with Disabilities Act (the “ADA”) prohibits discrimination on the basis of disability in public accommodations and employment. We are required to comply with the ADA and regulations relating to accommodating the needs of disabled persons in connection with the construction of new facilities and with significant renovations of existing facilities.
We are currently evaluating the impact of the Patient Protection and Affordable Care Act on our business. Federal and state governments may propose other health care initiatives and revisions to the health care and health insurance systems. It is uncertain what legislative programs, if any will be adopted in the future, or what action Congress or state legislatures may take regarding other health care reform proposals or legislation.
Failure to comply with these and other regulations could negatively impact our reputation and could have an adverse effect on our business, financial condition, results of operations or cash flows.
Future changes in financial accounting standards may cause adverse unexpected operating results and affect our reported results of operations.
Changes in accounting standards may have a significant effect on our reported results and may affect our reporting of transactions completed before the change is effective. New pronouncements and varying interpretations of pronouncements have occurred and may occur in the future. Changes to existing rules or differing interpretations with respect to our current practices could have an adverse effect on our business, financial condition, results of operations or cash flows.
Failure to establish, maintain and apply adequate internal control over our financial reporting could affect our reported results of operations.
We are subject to the ongoing internal control provisions of Section 404 of the Sarbanes-Oxley Act of 2002. These provisions provide for the identification of material weaknesses in internal control over financial reporting, which is a process to provide reasonable assurance regarding the reliability of financial reporting for external purposes in accordance with accounting principles generally accepted in the United States. Because of its inherent limitations, internal control over financial reporting is not intended to provide absolute assurance that a misstatement of our financial statements would be prevented or detected. Should we identify a material weakness in internal controls, there can be no assurance that we will be able to remediate any future material weaknesses that may be identified in a timely manner or maintain all of the controls necessary to remain in compliance. Any failure to maintain an effective system of internal controls over financial reporting could limit our ability to report our financial results accurately and timely or to detect and prevent fraud.
Market forces may have an exaggerated effect on the price of our stock and as a result, investors may not be able to resell their shares at or above the price paid.
Market forces may have an exaggerated effect on the volatility of our stock as a result of, but not limited to, the following factors: we have two significant shareholders (Benihana of Tokyo, Inc. and BFC Financial Corporation), a limited float and low average daily trading volume. The limited float may result in illiquidity as investors try to buy and sell, thereby exacerbating positive or negative pressure on our stock.
Item 1B.
Item 1B. Unresolved Staff Comments
None.
Item 2.
Item 2. Properties
Of the 96 restaurants in operation at June 3, 2011, 13 are located on owned real estate and 83 are leased pursuant to land or land and building leases, which require either a specific monthly rental or a minimum rent and additional rent based upon a percentage of gross sales. We lease approximately 16,300 square feet of space for our general administrative offices in Miami, FL at an annual rent of approximately $0.3 million. The lease expires on September 30, 2011, and we are currently in the process of seeking new office space. Generally, location leases are “triple net” leases which pass increases in property operating expenses, such as real estate taxes and utilities, through to us as tenant. Expiration of our leases, including renewal options, occurs at various dates through calendar year 2035.
Of the 63 Benihana teppanyaki restaurants in operation at June 3, 2011:
·
48 are located in freestanding, special use restaurant buildings usually on leased lands, including 13 where we own the land and building;
·
6 are located in shopping centers; and
·
9 are located in office or hotel building complexes.
The freestanding restaurants were built to our specifications as to size, style and interior and exterior decor using an overall Japanese design theme. Other locations were adapted to the Benihana interior decor. The freestanding, Benihana teppanyaki restaurants, which are generally one story buildings, are on average between 7,000 and 7,500 square feet and are constructed on a land parcel of approximately 1.25 to 1.50 acres. Benihana teppanyaki restaurants located in shopping centers, office buildings and hotels are of similar size but differ somewhat in appearance from location to location in order to conform to the appearance of the buildings in which they are located or limitations imposed by landlords or municipalities. The existing prototype Benihana teppanyaki restaurant approximates 7,000 square feet and allows for alternative design options in layout and number of tables.
The 25 RA Sushi restaurants in operation at June 3, 2011 are located in special-use restaurant buildings on leased land or in shopping or “life-style” centers. All of the restaurants were built to our specifications as to size and style and emphasize a contemporary interior and exterior decor. These restaurants average approximately 5,000 square feet excluding outdoor seating.
The 8 Haru restaurants in operation at June 3, 2011 are located in office or residential buildings and vary in size and decor. We typically seek restaurant locations that are in densely populated metropolitan areas in order to take advantage of Haru’s take-out and delivery business. The Haru restaurants average approximately 5,000 square feet.
The following table sets forth the locations, by state, of our company-owned restaurants at June 3, 2011:
Item 3.
Item 3. Legal Proceedings
Haru Minority Stockholders Litigation
In December 1999, we completed the acquisition of 80% of the equity of Haru Holding Corp. ("Haru"). The acquisition was accounted for using the purchase method of accounting. Pursuant to the purchase agreement, at any time during the period from July 1, 2005 through September 30, 2005, the holders of the balance of Haru's equity (the “minority stockholders”) had a one-time option to sell their remaining shares to us (the "put option"). On July 1, 2005, the minority stockholders exercised the put option, and we acquired the remaining 20% of the equity of Haru.
On August 25, 2006, the former minority stockholders sued us over, among other things, the calculation of the put option price. The suit (which was filed in the Supreme Court of the State of New York, County of New York, but was removed to the United States District Court for the Southern District of New York) sought an award of $10.7 million, based on the former minority stockholders’ own calculation of the put option price formula and actions allegedly taken by us to reduce the value of the put option.
On December, 19, 2007, the Court dismissed all of the claims against us, except for the breach of fiduciary duty and breach of contract claims.
On March 5, 2010, the Court issued a decision stating that the price required to be paid by us to the former minority stockholders would be approximately $3.7 million, our original calculation of the put option price. On April 2, 2010, the plaintiff appealed the Court’s decision. On October 13, 2010, the Court entered an Order requiring a closing within 30 days, upon which we were ordered to pay the put option price as determined by the Court. On November 10, 2010, we paid the amount owed and relieved any related outstanding liability. The outcome of the April 2010 appeal is still pending.
Other Litigation and Proceedings
During May 2010, the California Department of Alcoholic Beverage Control (the “Department”) notified us of proceedings against the Company based upon allegations that alcohol was served to underage guests in a RA Sushi location. In one incident, on which a claim has been filed against us, a guest was subsequently involved in a fatal automobile accident. We have general liability insurance plans for such claims. We cannot predict the outcome of the pending litigation. The Department issued a decision imposing a 30 day suspension of the alcoholic beverage license. We will vigorously contest the suspension of the alcoholic beverage license for this location and the claim against us. While under appeal by us, the suspension is stayed, and we are permitted to continue operating under our alcoholic beverage license.
We are not subject to any other significant pending legal proceedings, other than ordinary routine claims incidental to our business or those otherwise covered by our insurance policies.
We do not believe that the ultimate resolution of these matters will have a material adverse effect on our results of operations, financial condition or cash flows. However, the results of these matters cannot be predicted with certainty, and an unfavorable resolution of one or more of these matters could have a material adverse effect on our financial condition, results of operations or cash flows.
Item 4.
Item 4. (Reserved)
PART II
Item 5.
Item 5.
Market for the Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Certain information required by this Item is incorporated herein by reference from the information under the caption “Common Stock Information” contained in our 2011 Annual Report to Shareholders.
Item 6.
Item 6. Selected Financial Data
The information required by this Item is incorporated herein by reference from the information under the caption “Selected Financial Data” contained in our 2011 Annual Report to Shareholders.
Item 7.
Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations
The information required by this Item is incorporated herein by reference from the information under the caption “Management’s Discussion and Analysis” contained in our 2011 Annual Report to Shareholders.
Item 7A.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk
The information required by this Item is incorporated herein by reference from the information under the caption “Quantitative and Qualitative Disclosures about Market Risk” contained in our 2011 Annual Report to Shareholders.
Item 8.
Item 8. Financial Statements and Supplementary Data
The information required by this Item is incorporated herein by reference from the information under the caption “Consolidated Financial Statements” contained in our 2011 Annual Report to Shareholders.
Item 9.
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
None.
Item 9A.
Item 9A. Controls and Procedures
Evaluation of Disclosure Controls and Procedures
Management’s evaluation of disclosure controls and procedures (as such term is defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act of 1934, as amended (the “Exchange Act”)) is included in our 2011 Annual Report to Shareholders under the caption “Management’s Report on Internal Control over Financial Reporting” and is incorporated herein by reference.
Internal Control Over Financial Reporting
Management’s report on our internal control over financial reporting (as such term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) is included in our 2011 Annual Report to Shareholders under the caption “Management’s Report on Internal Control over Financial Reporting” and is incorporated herein by reference.
Changes in Internal Control over Financial Reporting
In connection with the evaluation required by Rule 13a-15(d) of the Exchange Act, our management, including our Chief Executive Officer and Interim Chief Financial Officer, have evaluated any changes in our internal control over financial reporting that occurred during the most recently completed fiscal quarter, and has concluded that there have been no changes to our internal control over financial reporting during the most recently completed fiscal quarter that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Item 9B.
Item 9B. Other Information
None.
PART III
Item 10.
Item 10. Directors, Executive Officers and Corporate Governance
The information required by this Item is incorporated herein by reference from the information under the caption “Election of Directors” contained in our Proxy Statement for our 2011 Annual Meeting of Stockholders (“our proxy statement”).
We have adopted a written code of business conduct and ethics that applies to our Chief Executive Officer, Interim Chief Financial Officer and all of our officers and directors and can be found on our website, which is located at www.benihana.com. We intend to make all required disclosures concerning any amendments to, or waivers from, our code of business conduct and ethics on our website.
Item 11.
Item 11. Executive Compensation
The information required by this Item is incorporated herein by reference from the information under the caption “Executive Compensation” contained in our proxy statement.
Item 12.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
The information required in part by this Item is incorporated herein by reference from the information under the caption “Security Ownership of Certain Beneficial Owners of Management” contained in our proxy statement.
The following sets forth certain information, as of March 27, 2011, with respect to our equity compensation plans, under which our securities may be issued:
Equity Compensation Plan Information
(1)
Consists of 119,000 shares of common stock and 682,800 shares of Class A common stock, in each case, underlying outstanding options under the 2007 Equity Incentive Plan (2007 plan) and the prior plans.
(2)
Consists of Class A common stock reserved for issuance under the 2007 plan, the 2003 Directors Stock Option Plan, the 2000 Employee Class A Common Stock Option Plan, the Amended and Restated Directors Stock Option Plan and the 1997 Class A Stock Option Plan.
Item 13.
Item 13. Certain Relationships and Related Transactions, and Director Independence
The information required by this Item is incorporated herein by reference from the information under the caption “Certain Relationships and Related Transactions” contained in our proxy statement.
Item 14.
Item 14. Principal Accountant Fees and Services
The information required by this item is incorporated herein by reference from the information under the caption “Principal Accountant Fees and Services” contained in our proxy statement.
PART IV
Item 15.
Item 15. Exhibits and Financial Statement Schedules
(a) 1. Financial Statements:
The following consolidated financial statements of Benihana Inc. and its subsidiaries (“the Company”), which are set forth on pages 19 through 41 of our 2011 Annual Report to Shareholders included herein as Exhibit 13.01, are incorporated herein by reference as part of this report.
Consolidated Balance Sheets as of March 27, 2011 and March 28, 2010.
Consolidated Statements of Earnings for the fiscal years ended March 27, 2011, March 28, 2010 and March 29, 2009.
Consolidated Statements of Stockholders’ Equity for the fiscal years ended March 27, 2011, March 28, 2010 and March 29, 2009.
Consolidated Statements of Cash Flows for the fiscal years ended March 27, 2011, March 28, 2010 and March 29, 2009.
Notes to Consolidated Financial Statements.
Reports of Independent Registered Public Accounting Firm.
Management’s Report on Internal Control Over Financial Reporting.
2. Financial Statement Schedules:
None
3. Exhibits:
2.01
Amended and Restated Agreement and Plan of Reorganization dated as of December 29, 1994 and amended as of March 17, 1995 among BNC, BOT, the Company and BNC Merger Corp. Incorporated by reference to Exhibit 2.01 to the Company’s Registration Statement on Form S-4, Registration No. 33-88295, made effective March 23, 1995 (the “S-4”).
2.02
Agreement and Plan of Merger by and between BHI Mergersub Inc. and the Company, dated January 7, 2010. Incorporated by reference to Appendix A to the Company’s Proxy Statement for its Special Meeting of Stockholders held on February 22, 2010 filed January 20, 2010.
3.01
Certificate of Incorporation of the Company. Incorporated by reference to Exhibit 3.01 to the S-4 and to Exhibit 1 on Form 8-A filed February 18, 1997.
(a.)
Amendment to the Certificate of Incorporation of the Company by a Certificate of Merger dated as February 23, 2010, merging BHI Mergersub, Inc. with and into the Company. Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed February 25, 2010.
(b.)
Certificate of Designation of Rights, Preferences and Terms for the Series A Convertible Preferred Stock of the Company. Incorporated by reference to Exhibit 4.01 to the Company’s Current Report on Form 8-K filed May 15, 1995.
(c.)
Certificate of Designations of Series A-1 Junior Participating Preferred Stock of Benihana Inc. dated as of February 28, 1997. Incorporated by reference to Exhibit 3.01(c) to the Company’s Annual Report on Form 10-K filed June 11, 2010 (the “2010 10-K”).
(d.)
Certificate of Amendment of Certificate of Designations of Series A-1 Junior Participating Preferred Stock of Benihana Inc. dated as of January 31, 2007. Incorporated by reference to Exhibit 3.01(d) to the 2010 10-K.
(e.)
Certificate of Designations of Series A-2 Junior Participating Preferred Stock of Benihana Inc. dated as of February 28, 1997. Incorporated by reference to Exhibit 3.01(e) to the 2010 10-K.
(f.)
Certificate of Amendment of Certificate of Designations of Series A-2 Junior Participating Preferred Stock of Benihana Inc. dated as of January 31, 2007. Incorporated by reference to Exhibit 3.01(f) to the 2010 10-K.
(g.)
Certificate of Designations, Preferences and Rights of Series B Convertible Preferred Stock of Benihana Inc. dated as of June 29, 2004. Incorporated by reference to Exhibit 3.01(g) to the 2010 10-K.
3.02
By-Laws of the Company, amended as of July 3, 2009. Incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K filed July 9, 2009.
3.03
Certificate Eliminating Series A Convertible Preferred Stock from the Certificate of Incorporation of Benihana Inc. dated February 8, 2011. Incorporated by reference to Exhibit 3.1 to the Company’s Quarterly Report on Form 10-Q filed February 15, 2011 (the “February 2011 10-Q”).
4.01
Benihana Executive Incentive Compensation Plan. Incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q filed August 31, 2007.
4.02
Amended and Restated Rights Agreement, dated as of January 31, 2007, between the Company and American Stock Transfer & Trust Company as successor to the interest of First Union National Bank of North Carolina. Incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form 8-K filed February 2, 2007.
4.03
Amendment, dated as of May 18, 2007, to the Amended and Restated Rights Agreement, dated as of January 31, 2007, between the Company and American Stock Transfer & Trust Company as successor to the interest of First Union National Bank of North Carolina. Incorporated by reference to Exhibit 99.1 to the Company’s current Report on Form 8-K filed May 21, 2007.
4.04
Form of Certificate representing shares of the Company’s Common Stock. Incorporated by reference to Exhibit 4.2 to the S-4.
4.05
Form of Certificate representing shares of the Company’s Class A Common Stock. Incorporated by reference to Exhibit 4.3 to the S-4.
4.06
Form of Debt Securities Indenture. Incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement on Form S-3, Registration No. 333-163317, filed November 24, 2009.
4.07
Amendment No. 2, dated as of January 24, 2011, to the Amended and Restated Rights Agreement, dated as of January 31, 2007, as amended as of May 18, 2007, between the Company and American Stock Transfer & Trust Company, LLC, as successor to the interest of First Union National Bank of North Carolina, including the forms of Certificates of Amendment of the Certificates of Designations of Series A-1 and Series A-2 Junior Participating Preferred Stock of Benihana Inc., attached thereto as Exhibits A-1 and A-2, respectively. Incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed January 25, 2011.
10.01
License Agreement, dated as of May 15, 1995 between BNC and BOT. Incorporated by reference to Exhibit 10.1 to the S-4.
10.02
1997 Class A Stock Option Plan. Incorporated by reference to Exhibit A to the Company’s Proxy Statement for its Annual Meeting of Stockholders held on August 27, 1998 (the “1998 Proxy Statement”) filed June 17, 1998.
10.03
Amended and Restated Directors’ Stock Option Plan. Incorporated by reference to Exhibit B to the 1998 Proxy Statement.
10.04
2000 Employees’ Class A Common Stock Option Plan. Incorporated by reference to Exhibit A to the Company’s Proxy Statement for its Annual Meeting of Stockholders held on August 3, 2000 filed June 22, 2000.
10.05
2003 Directors’ Stock Option plan. Incorporated by reference to Exhibit A to the Company’s Proxy Statement for its Annual Meeting of Stockholders held on August 21, 2003 filed July 10, 2003.
10.06
Stockholders Agreement dated as of December 6, 1999 by and among Haru Holding Corp., BNC, Mei Ping Matsumura and the Estate of Arthur Cutler. Incorporated by reference to Exhibit 10.10 to the Company’s Registration Statement on Form S-2, Registration No. 333-68946, filed September 5, 2001.
10.07
Preferred Stock Purchase Agreement between Benihana Inc. and BFC Financial Corporation dated June 8, 2004. Incorporated by reference to Exhibit 10.19 to the Company’s Annual Report on Form 10-K filed June 14, 2004.
10.08
Agreement of Sale dated April 17, 2006 by and among Benihana Lincoln Road Corp., Benihana National Corp., Doraku Lincoln Road LLC and Aoki Group LLC. Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed April 21, 2006 (the “April 2006 8-K”).
10.09
Restrictive Covenant and Agreement not to Disclose Confidential Information dated April 17, 2006 by and between Kevin Aoki and Benihana Inc. Incorporated by reference to Exhibit 10.2 the April 2006 8-K.
10.10
Credit Agreement, dated March 15, 2007, between the Company and its subsidiaries and Wachovia Bank, National Association. Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed March 16, 2007 (the “March 2007 8-K”).
10.11
Promissory Note dated March 15, 2007 by the Company in favor of Wachovia Bank, National Association. Incorporated by reference to Exhibit 10.2 to the March 2007 8-K.
10.12
Security Agreement, dated March 15, 2007, by and among the Company and its subsidiaries and Wachovia Bank, National Association. Incorporated by reference to Exhibit 10.3 to the March 2007 8-K.
10.13
Pledge Agreement, dated March 15, 2007, by and among the Company and its subsidiaries and Wachovia, National Association. Incorporated by reference to Exhibit 10.4 to the March 2007 8-K.
10.14
Form of Director Stock Option Agreement under the 2007 Equity Incentive Plan, as amended. Incorporated by reference to Exhibit 10.01 to the Company’s Registration Statement on Form S-8, Registration No. 333-150322, filed April 18, 2008 (the “2008 S-8”).
10.15
Form of Employee Stock Option Agreement under the 2007 Equity Incentive Plan, as amended. Incorporated by reference to Exhibit 10.02 to the 2008 S-8.
10.16
Form of Employee Restricted Stock Agreement under the Company’s 2007 Equity Incentive Plan, as amended. Incorporated by reference to Exhibit 4.03 to the 2008 S-8.
10.17
Second Amendment to Credit Agreement, dated November 19, 2008, by and among the Company and Wachovia Bank, National Association. Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed November 21, 2008 (the “November 2008 8-K”).
10.18
Amendment, dated November 6, 2008, by and between the Company and Wachovia Bank, National Association. Incorporated by reference to Exhibit 10.2 to the November 2008 8-K.
10.19
Third Amendment to Credit Agreement and Consent, dated February 9, 2009, by and among the Company and Wachovia Bank, National Association. Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed February 13, 2009 (the “February 2009 8-K”).
10.20
Letter Agreement, dated February 9, 2009, by and between the Company and Joel A. Schwartz. Incorporated by reference to Exhibit 10.2 to the February 2009 8-K.
10.21
Amendment to Preferred Stock Agreement, dated as of June 10, 2009, between the Company and BFC Financial Corporation. Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed June 11, 2009.
10.22
2007 Equity Incentive Plan, as amended on August 20, 2009. Incorporated by reference to Appendix A to the Company’s Proxy Statement for its Annual Meeting of Stockholders held on August 20, 2009 filed July 24, 2009.
10.23
Fourth Amendment to Credit Agreement and Waiver, dated November 23, 2009, by and among the Company and Wachovia Bank, National Association. Incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q filed November 24, 2009.
10.24
Confidential Separation Agreement, Waiver and Release dated December 22, 2009 by and between the Company and Taka Yoshimoto. Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed December 24, 2009.
10.25
Confidential Separation Agreement, Waiver and Release dated January 14, 2010 by and between the Company and Jose I. Ortega. Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed January 21, 2010.
10.26
Confidential Separation Agreement, Waiver and Release dated January 28, 2010 by and between the Company and Juan C. Garcia. Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed February 3, 2010.
10.27
Fifth Amendment to Credit Agreement and Amendment to Credit Documents, dated January 31, 2010, by and among the Company and Wachovia Bank, National Association. Incorporated by reference to Exhibit 10.28 to the 2010 10-K.
10.28
Outsourcing Services Agreement entered into as of June 10, 2010 between Benihana Inc. and InfoSync Services, LLC. Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed June 15, 2010.
10.29
Engagement Letter executed December 17, 2009 by and between Benihana Inc. and CRG Partners Group, LLC. Incorporated by reference to Exhibit 10.01 to the Company’s Annual Report on Form 10-K/A filed July 26, 2010.
10.30
Agreement entered into as of August 16, 2010 between Benihana Inc. and Coliseum Capital Partners, L.P., a Delaware limited liability company, Coliseum Capital Partners, L.P., a Delaware limited partnership, Coliseum Capital Management, LLC, a Delaware limited liability company, Coliseum Capital, LLC, a Delaware limited liability company, Blackwell Partners, LLC, a Georgia limited liability company, Adam Gray and Christopher Shackelton. Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form8-K filed August 17, 2010.
10.31
Agreement entered into as of September 20, 2010 between Benihana Inc. and Benihana of Tokyo, Inc., RHA Testamentary Trust, Keiko Ono Aoki and Michael W. Kata. Incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed September 21, 2010.
10.32
Form of Indemnification Agreement. Incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q filed November 19, 2010.
10.33
Employment Agreement (together with the Restricted Stock Agreement) dated December 8, 2010 by and between the Company and Christopher P. Ames. Incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q/A filed on May 31, 2011.
10.34
Employment Agreement (together with the Restricted Stock Agreement) dated January 24, 2011 by and between the Company and Richard C. Stockinger. Incorporated by reference to Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q/A filed on May 31, 2011.
10.35
Amended Restricted Stock Agreement dated January 24, 2011 by and between the Company and Christopher P. Ames. Incorporated by reference to Exhibit 10.3 to the Company’s Quarterly Report on Form 10-Q/A filed on May 31, 2011.
10.36
Amendment to the 2007 Equity Incentive Plan dated September 28, 2010. Incorporated by reference to Exhibit 10.4 to the Company’s Quarterly Report on Form 10-Q filed on February 15, 2011.
10.37
Amended and Restated Credit Agreement dated February 10, 2011, by and between Benihana Inc. and Benihana National Corp. and Wells Fargo Bank, National Association. Incorporated by reference to Exhibit 10.5 to the Company’s Quarterly Report on Form 10-Q filed on February 15, 2011.
13.01
Portions of the Annual Report to Stockholders for the fiscal year ended March 27, 2011.
21.01
Subsidiaries.
23.01
Consent of Independent Registered Public Accounting Firm.
31.01
Chief Executive Officer’s certification pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
31.02
Chief Financial Officer’s certification pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
32.01
Chief Executive Officer’s certification pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
32.02
Chief Financial Officer’s certification pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
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: June 9, 2011
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
June 9, 2011
Richard C. Stockinger
Chairman, Chief Executive Officer and President
/s/ Gene R. Baldwin
June 9, 2011
Gene R. Baldwin
Interim Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ John E. Abdo
Director
June 6, 2011
John E. Abdo
/s/ Norman Becker
Director
June 6, 2011
Norman Becker
/s/
Director
J. Ronald Castell
/s/ Darwin C. Dornbush
Director
June 6, 2011
Darwin C. Dornbush
/s/ Adam Gray
Director
June 6, 2011
Adam Gray
/s/ Lewis Jaffe
Director
June 6, 2011
Lewis Jaffe
/s/ Michael Kata
Director
June 6, 2011
Michael Kata
/s/ Alan B. Levan
Director
June 6, 2011
Alan B. Levan
/s/ Joseph J. West
Director
June 6, 2011
Joseph J. West