With his lie that Laidlaw Holdings was responsible for the lawsuit exposed, Asensio resorted to describing the only true corporate plaintiff in the case--Asset Trading Company--as a "Wall Street arbitrage firm."  Well, If you consider a newly incorporated Florida shell whose officers were his father, mother, and sister a "Wall Street arbitrage firm," we suppose that was a true statement. 


Benihana Lawsuit: Aoki Ravaged Firm

Michael Huber
The Miami Herald,
Business Section,Page 4B
November 29, 1989

A group of New York investors who want to take over Benihana National Corp. filed suit Tuesday, accusing the restaurant chain's founder, Rocky H. Aoki, of "plundering the company."

The suit asks the Broward Circuit Court to appoint a receiver to replace Aoki and the other directors of the Miami- based company.

The 10-count complaint accuses Aoki and four others of using privately owned Benihana of Tokyo Inc. to divert money from publicly owned Benihana National.

Aoki owns all of the private company. He is chairman and controlling shareholder of the public company.

Benihana spokesman Keith Card said Tuesday that no one at the company, including Aoki, had any comment on the suit. On Monday, Benihana President Joel A. Schwartz had said "there's no substance" to the allegations.

The plaintiffs in the action are Thomas R. Dilk, Gregory Baxter, Asset Trading Co. and five individual investors.

Dilk, who is picking up the tab for the litigation, has offered without success to buy Aoki's stake in Benihana. Baxter, president of a mergers and acquisitions advisory firm, is Dilk's financier. Asset Trading Co. is a Wall Street arbitrage firm.

Manuel P. Asensio, investment banker for the plaintiffs, is orchestrating the suit. Asensio, a 35-year-old Harvard MBA, was involved in recent buyout attempts at two other South Florida companies, Deltona and Steego.

The defendants are Aoki, Schwartz, corporate secretary Darwin C. Dornbush, directors Irwin K. Chapman and Robert B. Greenberg and the public and private Benihana companies.

The suit was served on the directors Tuesday at the company's annual shareholders' meeting.

The formal meeting began at 10 a.m. and adjourned at 10:08. Schwartz and Aoki then gave brief speeches. At 10:20, a process server in a robin's egg-blue golf shirt walked to the dais and handed each director a copy of the suit. At the back of the room, Asensio rose to speak. At the dais, an angry Dornbush stood up, glared at Asensio and said, "You were not asked to speak."

In an interview later, Asensio said the plaintiffs' ultimate goal is to install Dilk at the helm of Benihana National.

Asensio said shareholders have suffered because Aoki's private company is calling the shots for the public one.

"It's the private company that should be dependent on the public company," he said. "Only Rocky benefits from the current management structure."

Benihana National owns the trademark and operates 22 restaurants, including outlets in Kendall, North Bay Village, Lauderdale-by-the-Sea, Stuart and Key West. Benihana of Tokyo operates 28 restaurants.

In addition to the allegations of self-dealing, Asensio and the plaintiffs also accuse current management of incompetence. As evidence, they cite the public company's ill-fated forays into frozen food and seafood restaurants.

The frozen food lines, Oriental Lites and Famous Restaurant Classics, were launched in 1984 and folded three years later. The venture into non-Japanese eateries, the two-unit Big Splash Seafood Emporium chain, was begun in 1985, and it, too, folded after three years.

The total loss from the frozen food and Big Splash experiments is estimated at more than $18.5 million.

Benihana returned to profitability in fiscal 1989 after three years of losses, but its stock is still depressed. It now trades around $2 a share after trading at more than $20 four years ago.

At the current share price, the market is valuing the entire company at less than the worth of the real estate under the restaurants, Asensio said.

Asensio has been a managing director at Laidlaw Holdings, a New York asset management firm, for a month. The plaintiffs in the suit are his clients from a previous employer.

Laidlaw on Tuesday released a statement stressing that it is not involved in the suit. The statement said Laidlaw was suspending Asensio "pending further investigation."

Asensio said he was puzzled by Laidlaw's statement. But he said it would have no effect on the litigation.

ALLEGATION AGANIST BENIHANA

A group of New York investors filed suit against the directors of Benihana National Corp. The defendants had no comment on the allegations, which include:

* Benihana founder Rocky H. Aoki and the other defendants used a service agreement between the publicly owned Benihana National Corp. and privately owned Benihana of Tokyo Inc. as a vehicle to "misappropriate, convert and waste the assets . . . for their own personal benefit."

* To ensure Aoki could prevail in any proxy fight, he in 1984 "misappropriated 150,000 shares of Benihana stock," worth $2.3 million at the time, as payment for a Dallas restaurant that the private company sold to the public company.

* Again to ensure Aoki's continued control of the public company, the defendants in 1986 gave him an "illegal gift" of 100,000 shares. The transaction was sparked by "non-public knowledge" that his stake would be diluted by an upcoming secondary stock offering.

* The defendants "looted" the public company by causing it to pay the private company a "grossly excessive" $1.3 million for a Concord, Calif., restaurant.

* Aoki misappropriated $413,568 this year through an excess payment to an unnamed "supplier of services."

* Aoki "usurped a corporate opportunity" by taking payments for pushing Kirin, a Japanese beer, at the restaurants.

* The defendants distorted the company's financial statements to conceal some of the costs of the ill-fated Big Splash restaurants and the frozen-foods division.