Exhibit 10.01
EMPLOYMENT AGREEMENT
AGREEMENT dated this 28th day of August, 2006, by and between Benihana
Inc., a Delaware corporation (the "Company") and Xxxx X. Xxxxxx (the
"Employee").
R E C I T A L S :
The Company is desirous of employing Employee from the Effective Date
(as defined below) as its Chief Financial Officer, and Employee is desirous of
being so employed by the Company on the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, it is hereby agreed by and between the Company and Employee as
follows:
1. ENGAGEMENT AND TERM. The Company hereby employs Employee and
Employee hereby accepts such employment by the Company on the terms and
conditions set forth herein, for a period commencing on September 1, 2006 (the
"Effective Date"), and ending, unless sooner terminated in accordance with the
provisions of Section 4 hereof, on August 31, 2009 (the "Employment Period").
2. SCOPE OF DUTIES. Employee shall be employed by the Company as its
Chief Financial Officer. In such capacity, the Employee shall have such
authority, powers and duties as are customarily attendant upon such position. If
elected or appointed, Employee shall also serve, without additional
compensation, as Vice President - Finance and Treasurer of the Company and, if
and when elected, as a director and/or officer of any subsidiary or affiliate of
the Company, provided that his duties and responsibilities are not inconsistent
with those pertaining to his position as an executive. Employee shall faithfully
devote his full business time
and efforts so as to advance the best interests of the Company. During the
Employment Period, Employee shall not be engaged in any other business activity,
whether or not such business activity is pursued for profit or other pecuniary
advantage, unless same is only incidental and is in no way, directly or
indirectly, competitive with, or opposed to the best interests of the Company.
3. COMPENSATION.
3.1. BASIC COMPENSATION. In respect of services to be performed by
the Employee during the Employment Period, the Company agrees to pay the
Employee an annual salary of One Hundred Eighty-Five Thousand Dollars ($185,000)
("Basic Compensation"), payable in accordance with the Company's customary
payroll practices for executive employees.
3.2. DISCRETIONARY INCREASES. The Employees shall also be entitled
to such additional increments and bonuses as shall be determined from time to
time by the Board of Directors of the Company.
3.3. STOCK OPTIONS. The Employee will be eligible to receive stock
options under the Company's stock option plans at the discretion of the
Compensation and Stock Option Committee of the Board of Directors of the Company
in accordance with policies existing at the time of such grants.
3.4. OTHER BENEFITS.
(a) Employees shall be entitled to participate, at Company's
expense, in the major medical health insurance plan, and all other
health, insurance or other benefit plans applicable generally to
executive officers of the Company.
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(b) During the Employment Period, Employee will be entitled to
paid vacations and holidays consistent with the Company's policy
applicable to executives generally. All vacations shall be scheduled
at the mutual convenience of the Company and the Employee.
4. TERMINATION. The provisions of Section 1 of this Agreement
notwithstanding, the Company may terminate this Agreement and Employee's
employment hereunder in the manner and for the causes hereinafter set forth, in
which event the Company shall be under no further obligation to Employee other
than as specifically provided herein:
(a) If Employee is absent from work or otherwise substantially
unable to assume his normal duties for a period of sixty (60)
successive days or an aggregate of ninety (90) business days during
any consecutive twelve-month period during the Employment Period
because of physical or mental disability, accident, illness, or any
other cause other than vacation or approved leave of absence or
disability still exists, the Company may terminate the employment of
Employee hereunder upon ten (10) days' written notice to Employee.
(b) In the event of the death of Employee, this Agreement
shall immediately terminate on the date hereof.
(c) If Employee materially breached or violates any material
term of his employment hereunder, or commits any criminal act or an
act of dishonesty or moral turpitude, in the reasonable judgment of
the Company's Board of Directors, then the Company may, in addition
to other rights and remedies available at law or equity, immediately
terminate this Agreement upon written notice to Employee
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with the date of such notice being the termination date and such
termination being deemed for "cause."
(d) In the event Employee's employment shall be terminated by
reason of the provisions of subparagraph (a) or (b) of this Section
4, then in such event, the Company shall pay to Employee, if living,
or other person or persons as Employee may from time to time
designate in writing as the beneficiary of such payment a sum, equal
to the Basic Compensation in effect at the time which such death or
disability occurred, such payment to continue for three months after
such death or disability.
5. CHANGE IN CONTROL.
5.1. In the event at any time during the Employment Period, a
majority of the Board of Directors is composed of persons who are not
"Continuing Directors," as hereinafter defined, and Employee's employment is
terminated by the Company other than for one of the reasons set forth in Section
4 hereof, Employee shall not be obligated to seek employment to mitigate his
damages, if any, to which he may be entitled by reason of Company's breach of
this Agreement.
5.2. "Continuing Directors" shall mean (i) the directors of the
Company at the close of business on September 1, 2006 and (ii) any person who
was or is recommended to (A) succeed a Continuing Director by the Company's
Nominating Committee or (B) become a director as a result of an increase in the
size of the Board by a majority of the Continuing Directors then on the Board.
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6. DISCLOSURE OF CONFIDENTIAL INFORMATION AND COVENANT NOT TO COMPETE.
Employee agrees that his primary loyalty will be to the Company. Employee
acknowledges that the Company possesses confidential information, know-how,
customer lists, purchasing, merchandising and selling techniques and strategies,
and other information used in its operations of which Employee will obtain
knowledge, and that the Company will suffer serious and irreparable damage and
harm if this confidential information were disclosed to any other party or if
Employee used this information to compete against the Company. Accordingly,
Employee hereby agrees that except as required by Employee's duties to the
Company, Employee without the consent of the Company's Board of Directors, shall
not at any time during or after the term of this contract disclose or use any
secret or confidential information of the Company, including, without
limitation, such business opportunities, customer lists, trade secrets,
formulas, techniques and methods of which Employee shall become informed during
his employment, whether learned by him as an Employee of the Company, as a
member of the Board of Directors or otherwise, and whether or not developed by
the Employee, unless such information shall be or become public knowledge other
than as a result of the Employee's direct or indirect disclosure of the same.
Employee further agrees that for a period of two years following the
termination of Employee's employment, except as a result of the breach by the
Company of any material term or condition hereof, Employee will not, directly or
indirectly, alone or with others, individually or through or by a corporate or
other business entity in which he may be interested as a partner, shareholder,
joint venturer, officer or director or otherwise, engage in the United States in
any "business which is competitive with that of the Company or any of its
subsidiaries" as hereinafter defined; PROVIDED, HOWEVER, that the foregoing
shall not be deemed to prevent the
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ownership by Employee of up to five percent of any class of securities of any
corporation which is regularly traded on any stock exchange or over-the-counter
market. For the purpose of this Agreement, a "business which is competitive with
the business of the Company or any of its subsidiaries," shall include only the
operation of restaurants selling Japanese, or other Asian food, or restaurants
of a type then being operated by the Company, or any of its subsidiaries.
7. REIMBURSEMENT OF EXPENSES; USE OF AUTOMOBILE. The Company shall
further pay directly, or reimburse the Employee, for all other reasonable and
necessary expenses and disbursements incurred by him for and on behalf of the
Company in the performance of his duties during the Employment Period upon
submission of vouchers or other evidence thereof in accordance with the
Company's usual policies of expense reimbursement. The Employee shall receive an
allowance of $300 per month for automobile expenses, including the lease costs
or purchase price, gasoline, oil and garaging.
8. MISCELLANEOUS PROVISIONS.
8.1. Section headings are for convenience only and shall not be
deemed to govern, limit, modify or supersede the provisions of this Agreement.
8.2. This Agreement is entered into in the State of Florida and
shall be governed pursuant to the laws of the State of Florida. If any provision
of this Agreement shall be held by a court of competent jurisdiction to be
invalid, illegal or unenforceable, the remaining provisions hereof shall
continue to be fully effective.
8.3. This Agreement contains the entire agreement of the parties
regarding this subject matter. There are no contemporaneous oral agreements, and
all prior understandings, agreements, negotiations and representations are
merged herein.
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8.4. This Agreement may be modified only by means of a writing
signed by the party to be charged with such modification.
8.5. Notices or other communications required or permitted to be
given hereunder shall be in writing and shall be deemed duly given upon the
receipt by the party to whom sent at the respective addresses set forth below or
to such other address as any party shall hereafter designate to the other in
writing delivered in accordance herewith:
If to the Company:
Benihana Inc.
0000 Xxxxxxxxx 00xx Xxxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: President
If to Employee:
Xxxx X. Xxxxxx
0000 XX 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
8.6. This Agreement shall inure to the benefit of, and shall be
binding upon, the Company, its successors and assigns, including, without
limitation, any entity that may acquire all or substantially all of the
Company's assets and business or into which the Company may be consolidated or
merged. This Agreement may not be assigned by Employee.
8.7. This Agreement may be executed in separate counterparts, each
of which shall constitute the original thereof.
8.8. This Agreement supersedes and replaces all previous Employment
Agreements, if any, between the Company and the Employee.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have set their hands as of the date
first above written.
BENIHANA INC.
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx, President
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
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