Exhibit 99.1
AMENDMENT TO
AMENDED AND RESTATED
RIGHTS AGREEMENT
This Amendment (the "AMENDMENT") to the Amended and Restated Rights
Agreement (the "RIGHTS AGREEMENT") by and between Benihana Inc., a Delaware
corporation (the "Company"), and American Stock Transfer & Trust Company, as
successor to the interest of First Union National Bank of North Carolina (the
"RIGHTS AGENT") is made and entered into as of May 18, 2007 between the Company
and the Rights Agent.
WITNESSETH:
WHEREAS, the Company and the Rights Agent are parties to the Rights
Agreement;
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company
may supplement or amend the Rights Agreement;
WHEREAS, the Board of Directors of the Company has determined that it
is necessary and desirable to amend the Rights Agreement in the manner set forth
below.
NOW, THEREFORE, in consideration of the foregoing, the terms and
conditions contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. AMENDMENT TO SECTION 1(H). Section 1(h) of the Rights
Agreement is hereby amended and supplemented as follows:
(a) The words "action or transactions" shall be amended to read
"action or transaction"; and
(b) The following shall be inserted after the word "hereunder":
"for any reason, including that the acquisition was pursuant
to an action or transaction or series of actions or
transactions approved by the Board of Directors at the time
such Person was an Exempt Person."
2. EFFECT OF AMENDMENT. Except as expressly set forth herein,
the terms and provisions of the Rights Agreement remain in full force and effect
and are hereby ratified and confirmed. References in any agreement, instrument
or other document to the Rights Agreement shall be deemed to be a reference to
the Rights Agreement as amended hereby.
3. EFFECTIVE DATE. This Amendment shall be effective immediately
upon execution by the Rights Agent.
4. GOVERNING LAW. This Amendment shall be governed by the laws
of the State of New York.
5. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original for all purposes and all
of which together shall constitute one and the same agreement.
6. SEVERABILITY. If any term, provision, covenant or restriction
of this Amendment is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Amendment, and of the Rights
Agreement, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
7. WAIVER OF NOTICE. By executing this Amendment, the Company and
the Rights Agent hereby waive any notice requirement under the Rights Agreement
pertaining to the matters addressed herein.
[Signature Page Follows]
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to be executed and delivered by its duly authorized officer as of the
date first above written.
BENIHANA INC.
By: /s/ Xxxx X. Xxxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chairman of the Board
and Chief Executive Officer
AMERICAN STOCK TRANSFER
& TRUST COMPANY,
as successor to the interest of First
Union National Bank of North Carolina
in the Rights Agreement
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
