CONFIDENTIAL SEPARATION AGREEMENT, WAIVER AND RELEASE
Exhibit
10.1
This
SEPARATION AGREEMENT, WAIVER
AND RELEASE (“Separation Agreement”) is between Benihana, Inc.
(“Employer”) and Xxxx X. Xxxxxx (“Employee”).
WHEREAS, Employee and Employer
wish to set forth their respective rights and obligations arising from the
separation of Employee;
NOW, THEREFORE, in
consideration of the mutual promises, benefits and covenants herein contained,
Employer and Employee hereby agree as follows:
1. Employment
Separation. Employee hereby resigns his employment with
Employer effective March 31, 2010. Employee is relieved of any
obligation to report to work after January 13, 2010.
2. Salary Continuation; Other
Benefits.
(a) Except as
otherwise provided herein, from January 14, 2010 through March 31, 2010,
Employee shall continue to receive his basic compensation and car allowance
under the terms of the Amended and Restated Employment Agreement dated March 31,
2008 (the “Employment Agreement”). Any stock options and restricted
stock previously granted to Employee which are scheduled to vest on or prior to
March 31, 2010, shall vest in accordance with the applicable stock
option/restricted stock plan or agreement governing the stock options or
restricted stock. Employee shall not be eligible to receive any
bonuses under either the Employment Agreement or Benihana Executive Incentive
Compensation Plan.
(b) Beginning
on Employer’s first regular pay day following March 31, 2010, and continuing
until the first regularly scheduled pay day following January 13, 2011, Employer
shall pay separation pay to Employee in equal installment payments of
$11,461.04, less required withholding and deductions, on Employer’s regularly
scheduled pay days. The foregoing period shall be referred to herein
as the “Term” of this Separation Agreement. No payments will be made
to Employee under this Section 2(b) until the expiration of the Revocation
Period (as defined below).
(c) For
purposes of the continuation coverage obligations under the Consolidated Omnibus
Budget Reconciliation Act of 1986 (“COBRA”), Employee’s resignation will be
considered a COBRA qualifying event that occurred on January 13,
2010. In connection with the execution of this Separation Agreement,
Employer will provide appropriate COBRA notices and election forms relevant for
such qualifying event. Execution of this Separation Agreement by
Employee will be deemed to be an election to accept COBRA continuation coverage
under Employer’s medical insurance plan for Employee and his covered spouse
and/or dependents (as applicable). From January 14, 2010, through the
Term, Employer will pay on Employee’s behalf the COBRA premiums applicable only
to Employee’s health insurance coverage, as if he remained an active
employee. At the expiration of the Term, Employee will assume
responsibility for payment of COBRA premiums if Employee wishes to continue to
receive COBRA insurance coverage, subject to the terms of the American Recovery
and Reinvestment Act of 2009.
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(d) Employee
may keep his cellular telephone for personal use.
(e) All other
forms of compensation, insurances and other benefits, not expressly dealt with
in this Section 2, shall terminate on March 31, 2010, with the exception of
Employee’s right to exercise any vested stock options and restricted stock in
accordance with the terms of the applicable stock option/restricted stock
agreement or plan. This Separation Agreement creates no additional
rights with respect to Employee’s stock options or restricted
stock.
3. Release.
(a) For and
in consideration of the promises and other valuable consideration paid to
Employee pursuant to this Separation Agreement, Employee, for himself and for
his heirs, executors, successors and assigns (collectively, “Releasors”), hereby
releases and discharges Employer, and all related and affiliated entities, and
all of their predecessors, successors, heirs or assigns, and any past, present
or future officers, directors, agents, owners and employees (collectively, the
“Releasees”) from any and all claims, demands, causes of action, and liabilities
of any kind whatsoever, whether known or unknown, which the Releasors ever had
or may now have against the Releasees from the beginning of the world through
the date of this Separation Agreement.
(b) Without
limiting the generality of Section 3(a) above or characterizing the nature of
the Releasors’ claims, this document releases the Releasees from (i) any and all
claims arising out of Employee’s employment or termination of employment with
Employer; (ii) any and all claims (whether based on a federal, state or local
statute, or court decision) including, but not limited to, claims under the Age
Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the
American with Disabilities Act, the Employee Retirement and Income Security Act,
the Family and Medical Leave Act, the Fair Labor Standards Act, the Genetic
Information Non-Discrimination Act, COBRA, Florida’s Private Whistleblower Act,
Fla. Stat. §§448.101 et. seq.,
Florida’s Workers’ Compensation Retaliation statute, Fla. Stat. §440.205,
and the Florida Civil Rights Act; (iii) any and all claims for breach of
contract, including, but not limited to, the Amended and Restated Employment
Agreement dated March 31, 2008; (iv) any and all claims for lost wages, bonuses,
back pay, front pay, employee benefits, including severance pay, or for damages
or injury of any type whatsoever, including, but not limited to, defamation,
injury to reputation, intentional or negligent infliction of emotional distress,
(whether arising by virtue of statute or common law, and whether based upon
negligent or willful actions or omissions); and (v) any and all claims for
compensatory or punitive damages, attorneys’ fees, costs and disbursements which
the Releasors ever had, now have or hereafter can, shall or may have against the
Releasees for, upon or by reason of any actual or alleged act, omission,
transaction, practice, conduct, occurrence or other matter up to and including
the date of the execution of this Separation Agreement by Employee, except for
those rights expressly reserved in this Separation Agreement. Nothing
contained herein shall alter, waive, supplement, or enhance Employee’s rights
under the stock option/restricted stock agreements or plans for which he was
eligible as an employee of Employer.
(c) Employee
acknowledges that Employee fully understands and agrees that this Separation
Agreement shall operate as a complete defense to any claim or entitlement which
hereafter may be asserted by Employee or any other person acting on Employee’s
behalf, against Employer for or on account of any matter or thing whatsoever
arising out of or in any way based upon the circumstances, facts, and events
relating to Employee’s employment and separation from
employment. This Separation Agreement does not prohibit Employee from
participating in an investigation conducted by the EEOC.
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4. No
Admission. The making of this Separation Agreement is not
intended, and shall not be construed, as any admission that Employer or any of
the Releasees has violated any federal, state, or local law, or has committed
any wrong against Employee or any other person or entity.
5. Non-Disparagement.
(a) Employee
covenants that, except to the extent required by law, he will not make to any
person or entity any statement, whether written or oral, that directly or
indirectly impugns the integrity of, or reflects negatively on the Employer or
any of its employees, officers or directors, or that denigrates, disparages or
results in detriment to the Employer or any of its employees, officers or
directors. This section does not prohibit any truthful statement made
to any government agency in the context of an official
investigation.
(b) Benihana
covenants that, except to the extent required by law, its officers, directors,
executives, and managers will not make to any person or entity any statement,
whether written or oral, that directly or indirectly impugns the integrity of,
or reflects negatively on Employee. This section does not prohibit
any truthful statement made to any government agency in the context of an
official investigation. For purposes of employment references,
Employee shall advise potential employers to contact Xxxxxx Xxxxx, Senior
Director Human Resources Management, regarding employment
references. The Employer shall provide a neutral employment
verification that identifies Employee’s dates of employment, title, and
salary.
6. Confidentiality.
(a) For
purposes of this Separation Agreement, “Confidential Information” includes, but
is not limited to, any and all personal information about the Employer’s
customers, including customer lists, all records, files, reports, letters,
memoranda, records, research, data, flowcharts, agreements, purchasing,
merchandising and selling techniques and strategies, information, and other
secret, confidential or proprietary information of any nature relating to
Employer, its owners, its affiliates and subsidiaries, and their parents,
officers, board members or employees, its customers, and its franchisees, which
is not generally available to the public.
(b) Except as
required by law, Employee shall not disclose to or discuss with any person or
entity any information concerning (i) any matter relating directly or indirectly
to this Separation Agreement, (ii) the termination of Employee’s employment with
Employer, or (iii) Employer’s Confidential Information. Employee
hereby warrants and guarantees that he has surrendered to Employer all documents
and data of any kind, including electronic versions of documents and data in
machine-readable form, and any and all reproductions, in whole or in part, of
any items relating to Confidential Information and has not made or retained any
copy or extract of such documents, data or reproductions. Employee
hereby further warrants and guarantees that no Confidential Information exists
on any computers, computer storage devices or other electronic media that were
at any time within Employee’s control, other than those which remain at, or have
been returned to, Employer.
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(c) Employee
agrees to give Employer written notice of any and all attempts to compel
disclosure or production of any Confidential Information or other information as
to which disclosure is prohibited by this Separation Agreement. Such
written notice shall be provided as soon as reasonably possible after the
Employee becomes aware of such attempt to compel such information and not less
than five (5) days before compliance with any subpoena or order is requested or
required.
7. Non-Solicitation. Employee
agrees that, for a period of twenty-four (24) months following his execution of
this Separation Agreement, he will not, directly or indirectly, for his own
account or as an agent, employee, officer, director, trustee, consultant or
member, partner, shareholder or other equity holder of any corporation, firm,
company, partnership or other entity, without prior approval of Employer, (1)
employ, or solicit the employment of, any person who is employed by Employer or
its affiliates, (2) employ, or solicit the employment of any person who was
previously employed by Employer or its affiliates until ninety (90) days after
the separation of such person’s employment from Employer or its affiliates, or
(3) solicit current franchisees of Employer or its affiliates or any potential
franchisee identified during Employee’s employment.
8. Non-Competition. Employee
agrees that, for a period of twenty-four (24) months following his execution of
this Separation Agreement, he will not, directly or indirectly, alone or with
others, individually or through or by any corporate or other business entity in
which he may be interested as a partner, shareholder, joint venturer, officer,
director, employee, agent, contractor, consultant, or otherwise work for or
provide services to Benihana of Tokyo, its affiliates, franchisees, or related
trusts.
9. Employee
Cooperation. Employee shall make himself available at
reasonable times and places from January 14, 2010 through the Term
to:
(a) fully
cooperate and assist with the transition of Employee’s duties and
responsibilities;
(b) fully
cooperate and assist with any examination of the Employer and any parent,
subsidiary, successor or affiliate of Employer, conducted by regulatory
authorities having jurisdiction over the Employer, including attendance at
meetings and production of notes and records that may be in Employee’s
possession; and
(c) fully
cooperate and assist the Employer and any parent, subsidiary, successor or
affiliate of Employer, in any internal investigations or audits.
Employer
will reimburse Employee any reasonable out of pocket expenses associated with
requests for assistance under this Section, including travel, lodging and
meals.
10. Return of Employer
Property. As a condition precedent to receiving any
consideration under this Separation Agreement, Employee agrees to return
immediately all Employer’s property in Employee’s custody or possession, whether
created by Employee or others, including but not limited to any keys or
electronic cards providing access to any of Employer’s facilities, personal or
laptop computers, handheld computers, the originals and all copies of all
documents, files, reports, letters, memoranda, records, data, flow charts,
promotional materials, agreements, market studies and other tangible material
containing confidential or proprietary information concerning the Employer, its
affiliates, subsidiaries, officers, board members, employees, or
customers. Notwithstanding anything contained herein, Employee may
retain his cellular telephone.
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11. Breach. Any
material breach by Employee of sections 5 through 10 of this Separation
Agreement shall be considered a breach for which Employer shall be entitled to
cease the additional payments and benefits described in Section 2 of this
Separation Agreement, in addition to any other remedies to which the Employer
may be entitled by law.
12. Remedy. In
order to enforce compliance with this Separation Agreement, Employee
acknowledges that the failure to comply with the provisions of this Separation
Agreement will cause Employer irrevocable harm and that a remedy at law for such
failure would be an inadequate remedy for Employer. Therefore,
Employee consents that Employer may obtain an order of specific performance, an
injunction, a restraining order, or other equitable relief from a court or
arbitrator having jurisdiction. The availability of equitable relief
shall not preclude Employer from recovering any monetary damages to which it is
entitled under applicable law.
13. Enforceability of
Restrictive Covenants. The terms of Paragraphs 5
(Non-Disparagement), 6 (Confidentiality), 7 (Non-Solicitation), 8
(Non-Competition) and 10 (Return of Employer Property) of this Separation
Agreement shall be enforceable against Employee notwithstanding the existence of
any claim or cause of action of Employee against Employer, whether predicated on
this Separation Agreement or not, with the exception of a claim for Employer’s
failure to pay the separation benefits required by Paragraphs 2(b) and 2(c) of
this Separation Agreement. Employee acknowledges and agrees that the
covenants contained in Paragraphs 5 (Non-Disparagement), 6 (Confidentiality), 7
(Non-Solicitation), 8 (Non-Competition) and 10 (Return of Employer Property) of
this Separation Agreement are for the benefit of Employer and may be enforced by
third party beneficiaries related to Employer and by Employer’s assignee and/or
successor.
14. Miscellaneous. This
Separation Agreement is binding upon, and shall inure to the benefit of, the
parties and their respective heirs, executors, representatives, successors and
assigns. Captions and headings in this agreement are intended solely
for convenience of reference and shall not be used in interpretation of this
Separation Agreement. This Separation Agreement shall be governed by
the substantive and procedural laws of the State of Florida. The
failure of any provision of this Separation Agreement shall in no manner affect
the right to enforce the same, and the waiver by any party of any breach of any
provision of this Separation Agreement shall not be construed to be a waiver of
such party of any succeeding breach of such provision or a waiver by such party
of any breach of any other provision. The venue for any claim or
action by either party against the other in connection with any provision of
this Separation Agreement shall be in a court in the State of Florida and in
either the County of Broward or the County of Miami-Dade.
14. Attorneys’
Fees. With the exception of a claim arising under the ADEA,
the prevailing party shall be entitled to any attorneys’ fees and court costs
incurred in enforcing this Separation Agreement or in defending any claim
brought in violation hereof.
15. Opportunity to
Review. Employee acknowledges and warrants that:
(a) He has
had a reasonable period of time of not less than 45 days to consider the terms
and provisions of this Separation Agreement;
(b) He has
been advised by Employer in this writing to consult, and has had adequate
opportunity to consult with, an attorney of his choosing prior to executing this
Separation Agreement;
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(c) He has
carefully read this Separation Agreement in its entirety, has had an opportunity
to have its provisions explained to him by an attorney of his choosing, and
fully understands the significance of all of its terms and provisions;
and
(d) He is
signing this Separation Agreement voluntarily and of his own free will and
assents to all of the terms and conditions contained herein.
(e) Employee
acknowledges and agrees that the consideration to be provided to Employee, as
set forth above in Section 2 of this Separation Agreement, exceeds anything of
value to which Employee would otherwise be entitled in the absence of this
Separation Agreement and is sufficient consideration for Employee’s promises
under this Separation Agreement.
16. Effective
Date. This Separation Agreement shall not become effective until the
eighth day following its execution by Employee (the “Effective Date”). Employee
shall have the right to revoke this Separation Agreement for a period of seven
(7) days following his execution of this Separation Agreement (the “Revocation
Period”) by giving written notice by personal delivery of such revocation
to Xxxxxx Xxxxxxxx,
Chairman, c/o Dornbush, Schaeffer, Xxxxxxxx & Venglia, LLP, 000 Xxxxx
Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, with a copy to Xxxxxxx Xxxxxxxxxx, CEO,
Benihana, Inc. 0000 XX 00xx
Xxxxxxx, Xxxxx, Xxxxxxx 00000. If Employee revokes this Separation
Agreement prior to the Effective Date, the promises and obligations contained
herein shall be null and void. Employee shall receive no
consideration hereunder until the expiration of the seven day Revocation
Period.
17. Entire
Agreement. This Separation Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof, and the
duties, compensation and benefits of Employee; and, except as otherwise
specifically provided herein, supersedes all prior communications,
representations, agreements, understandings, plans and arrangements between the
parties, whether oral or written. This Separation Agreement cannot be
amended, supplemented, or modified except by an instrument in writing signed by
the parties against whom enforcement of such amendment, supplement or
modification is sought.
18. Execution of
Agreement. This Separation Agreement may be executed in
counterparts, and upon such execution, shall be complete, and the terms,
provisions and obligations set forth shall be in full force and
effect.
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EMPLOYEE
FURTHER STATES THAT HE HAS CAREFULLY READ THIS SEPARATION AGREEMENT, IT HAS BEEN
FULLY EXPLAINED TO HIM, THAT HE HAS HAD THE OPPORTUNITY TO HAVE IT REVIEWED BY
AN ATTORNEY, AND THAT HE FULLY UNDERSTANDS ITS FINAL AND BINDING EFFECT, AND
THAT THE ONLY PROMISES MADE TO HIM TO SIGN THE SEPARATION AGREEMENT ARE THOSE
STATED IN THE SEPARATION AGREEMENT, AND THAT EMPLOYEE IS SIGNING THIS SEPARATION
AGREEMENT VOLUNTARILY WITH THE FULL INTENT OF RELEASING EMPLOYER OF ALL
CLAIMS.
IN WITNESS WHEREOF, the
parties hereto have executed this Separation Agreement.
| BENIHANA, INC. | |||||
| By: |
/s/
Xxxx X. Xxxxxx
|
/s/ |
Xxxxxxx
Xxxxxxxxxx
|
||
|
Xxxx
X. Xxxxxx
|
Xxxxxxx Xxxxxxxxxx, its
President
|
||||
| Date: |
1/28/10
|
|
STATE OF
FLORIDA
)
:ss.
COUNTY
OF
)
On the
28th day of January, in the year 2010, before me, the undersigned, personally
appeared XXXX X. XXXXXX, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he/she executed the same in
his/her capacity, and that by his/her signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed
the instrument.
|
|
|
/s/ Xxxxx Xxxxxxx | |
| Notary Public | |||
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