AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

 

OF

 

BENIHANA INC.

___________

 

ARTICLE ONE

 

The name of the corporation is Benihana Inc., (hereinafter called the “Corporation”).

 

ARTICLE TWO

 

The address of the Corporation’s registered office is located at 2711 Centerville Road, Suite 400, in the City of Wilmington, in the County of New Castle, in the State of Delaware 19808.  The name of its registered agent at such address is Corporation Service Company.

 

ARTICLE THREE

 

The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware (the “DGCL”).

 

ARTICLE FOUR

 

The total number of shares which the Corporation shall have the authority to issue is one thousand (1,000) shares, all of which shall be shares of Common Stock, with a par value of one cent ($0.01) per share.

 

ARTICLE FIVE

 

The board of directors of the Corporation (the “Board of Directors”) shall have the power to adopt, amend or repeal By-Laws, except as may otherwise be provided in the By-Laws.

 

ARTICLE SIX

 

The Corporation expressly elects not to be governed by Section 203 of the DGCL.

 

ARTICLE SEVEN

 

Whenever a compromise or arrangement is proposed between the Corporation and its creditors or any class of them and/or between the Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the

 

 

 

 


 

 

application in a summary way of the Corporation or any creditor or stockholder thereof or on the application of any receiver or receivers appointed for the Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for the Corporation under the provisions of Section 279 of Title 8 of the Delaware Code, order a meeting of the creditors or class of creditors, and/or the stockholders or class of stockholders of the Corporation, as the case may be, to be summoned in such manner as the said court directs.  If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of the Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders, or class of stockholders, of the Corporation, as the case may be, and also on this Corporation.

 

ARTICLE EIGHT

 

Section 1.   Indemnity.  The Corporation shall, to the fullest extent permitted by Section 145 of the DGCL, as the same may be amended and supplemented, or by any successor thereto, indemnify any and all persons whom it shall have power to indemnify under said section from and against any and all of the expenses, liabilities or other matters referred to in or covered by said section.  Such right to indemnification shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. The indemnification provided for herein shall not be deemed exclusive of any other rights, including any other right provided by this Article Eight, of which those seeking indemnification may be entitled to under any By-Law, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 2.  Merger or Consolidation; Sale of Assets.  For purposes of this Article Eight, references to “the Corporation” shall include, (a) in addition to the resulting corporation in a consolidation or merger, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this Article Eight with respect to the resulting or surviving corporation as he or she would have with respect to such constituent corporation if its separate existence had continued; (b) the surviving corporation or entity in a consolidation or merger in which the corporation is not the continuing or surviving corporation or entity and (c) any transfer of all or substantially all of the corporation’s properties and assets.  In addition, if upon or following any merger, consolidation or sale of assets, the corporation is or becomes a direct or indirect subsidiary of any entity, the ultimate parent entity of the corporation following such merger, consolidation or sale of assets shall guaranty the obligations of the corporation under this Article Eight.

 

 

 

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ARTICLE NINE

 

The Corporation hereby eliminates, to the fullest extent permitted by law, the personal liability of any person who serves as a director of the Corporation to the Corporation and/or its stockholders for monetary damages for breach of fiduciary duty as a director; providedhowever, that if in the future the DGCL is amended or modified (including, but not limited to, Section 102(b)(7)) to permit the elimination of the personal liability of a director of the Corporation to a greater extent than contemplated above, then the provisions of this Article Nine shall be deemed to be automatically amended to provide for the elimination of the personal liability of the directors of the Corporation to such greater extent. This Article Nine shall not eliminate or limit the liability of a director for any act or omission occurring prior to the date when this Article Nine becomes effective.

 

ARTICLE TEN

 

The Corporation reserves the right to amend or repeal any provisions contained in this Certificate of Incorporation from time to time and at any time in the manner now or hereafter prescribed by the laws of the State of Delaware, and all rights conferred upon stockholders and directors are granted subject to such reservation.

 

[As Filed: 08-22-2012]