ex10-1.htm


    
      

    

    Exhibit
10.1

     

     

    AMENDMENT
TO

    PREFERRED
STOCK PURCHASE AGREEMENT


     

    This
Amendment (the "Amendment") to the Preferred Stock Purchase Agreement (the
"Agreement"), dated as of June 8, 2004, between Benihana Inc., a Delaware
corporation (the "Company"), and BFC Financial Corporation, a Florida
corporation ("BFC" and, with the Company, the “Parties”) is made and entered
into as of June 10, 2009, between the Company and BFC.

    


    WITNESSETH:

    


    WHEREAS,
the Company and the BFC are parties to the Agreement pursuant to which the
Company issued to BFC certain Series B Convertible Preferred Stock of the
Company (the “Preferred Stock”);

    


    WHEREAS,
the Agreement may only be amended by an instrument in writing signed by the
Company and BFC;

    


    WHEREAS,
the Certificate of Designations relating to the Preferred Stock sets forth the
right of BFC to elect one member or, in certain circumstances, two members of
the Board of Directors of the Company (the “Board”);

    


    WHEREAS,
pursuant to the Agreement, BFC agreed to defer, in certain circumstances, BFC’s
right to elect one member of the Board so long as John E. Abdo, an executive
officer of BFC, is a member of the Board;

    


    WHEREAS,
the Board wishes to elect Alan B. Levan, the current Chairman of the Board and
Chief Executive Officer of BFC, as a member of the Board;

    


    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
4(j).  Section 4(j) of the Agreement is hereby amended and
restated in its entirety as follows:

     

      
(j)           Deferral of Right to Elect
Additional Directors.  So long as Purchaser (or any of its
Affiliates) is the holder of a majority of the outstanding Preferred Shares,
Purchaser will not (and Purchaser will cause any such Affiliate not to) exercise
its right to elect a director of the Company pursuant to (A) the first sentence
of Section 7(d) of the Certificate of Designations if, at the time, John E. Abdo
or Alan B. Levan (i) is serving as an officer or director of Purchaser, and (ii)
has been elected as a director by the Company’s Board of Directors or holders of
the Company’s Common Stock or Class A Common Stock and is serving as such or (B)
the second sentence of Section 7(d) of the Certificate of Designations if, at
the time, John E. Abdo and Alan B. Levan (i) are each serving as an officer or
director of Purchaser, and (ii) have each been elected as a director by the
Company’s Board of Directors or holders of the Company’s Common Stock or Class A
Common Stock and is serving as such.

     

    
      
        
        

      

      
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    2.           Effect of Amendment.
Except as expressly set forth herein, the terms and provisions of the Agreement
remain in full force and effect and are hereby ratified and confirmed.
References in any agreement, instrument or other document to the Agreement shall
be deemed to be a reference to the Agreement as amended hereby.

    


    3.           Governing Law. This
Amendment shall be governed by the laws of the State of Delaware.

    


    4.           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.

    


    5.           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 Agreement, shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.

    


    6.           Successors and
Assigns.   This Amendment shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.

    


    7.           Waiver of Notice. By
executing this Amendment, the Company and BFC hereby waive any notice
requirement under the Agreement pertaining to the matters addressed
herein.

     

     

    [Signature
page follows]


    
      
        
        

      

      
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    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/
      Richard C. Stockinger	 
      
	 
      	
                    Name:

                  	Richard
      C. Stockinger	 
      
	 
      	
                    Title:

                  	Chief
      Executive Officer	 
      


          

        

      

    

    


    


    
      
        
          
            	 
      	
                    BFC
      FINANCIAL CORPORATION

                  	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                    By:

                  	/s/
      John E. Abdo	 
      
	 
      	
                    Name:

                  	John
      E. Abdo	 
      
	 
      	
                    Title:

                  	Vice
      Chairman	 
      


          

        

      

    

     

     

     

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