Contract
Exhibit
10.36
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AMENDED
AND RESTATED
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AMENDED AND RESTATED EMPLOYMENT AGREEMENT dated as of the 31st day of
March, 2008, by and between Benihana Inc., a Delaware corporation (the
“Company”) and Xxxx X. Xxxxxx (the “Employee”).
R
E C I T A L S :
Employee
is, and has been since the Effective Date (as defined below), employed by the
Company as its Chief Financial Officer pursuant to the terms and conditions of
the Employment Agreement between the Employee and the Company dated as of August
28, 2006 (the “Employment Agreement”). The Company is desirous of continuing the
employment of Employee in such capacity and Employee is desirous of continuing
to be employed by the Company in such capacity on the terms and conditions
hereinafter set forth.
Certain
revisions to the Employment Agreement have been necessitated by the enactment of
Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and
the final Treasury Regulations promulgated thereunder. As a result, the Company
and Employee have agreed to certain amendments to the Employment Agreement and
to the restatement of the Employment Agreement, as so amended, as set forth in
its entirety herein.
NOW,
THEREFORE, the Employment Agreement is hereby amended and restated in its
entirety 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, 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 Employee during
the Employment Period, the Company agrees to pay Employee an annual salary at
the rate of One Hundred Eighty-Five Thousand Dollars ($185,000) for the portion
of the Employment Period that is prior to March 31, 2008 and at the rate of Two
Hundred Thousand Dollars ($200,000) thereafter as may be increased pursuant to
this Agreement (“Basic Compensation”), payable in accordance with the Company’s
customary payroll practices for executive employees. Employee shall be entitled
to any discretionary increments in the Basic Compensation as shall be determined
from time to time by the Board of Directors of the Company.
3.2. Bonus
Arrangements. Employee shall be entitled to participate in any
performance-based bonus plan or other bonus arrangements maintained by the
Company for its executive employees as determined by the Company’s Compensation
and Stock Option Committee. In the event the Company does not maintain such a
plan or arrangement, Employee will be eligible for such discretionary bonuses as
may be determined from time to time by the Compensation and Stock Option
Committee of the Board of Directors of the Company. Any such bonus will be
payable in accordance with the terms of such bonus plan or arrangement or, if
there is no such plan or arrangement, within 2½ months after the end of the
fiscal year of the Company to which it relates but in no event later than the
end of the calendar year in which such fiscal year ends.
3.3. Stock
Options. 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.
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(a) During
the Employment Period, Employee shall be entitled to participate, at the
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 Employee.
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3.5. No
Designation of Year. In no event may Employee, directly or indirectly,
designate the calendar year of any payment under this Agreement.
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:
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(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, the Company may thereupon, or any time
thereafter while such absence or disability still exists, terminate the
employment of Employee hereunder upon ten (10) days’ written notice to
Employee.
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(b) In
the event of the death of Employee during the Employment Period, this
Agreement shall automatically terminate on the date
thereof.
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(c) If
Employee materially breaches 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 with the date of such notice being the
termination date and such termination being deemed for
“cause.”
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(d) In
the event Employee’s employment is 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 to such other person or
persons as Employee may from time to time designate in writing as the
beneficiary of such payment, the Basic Compensation then in effect for the
three month period following such termination in accordance with its
regular payroll practices, and the Company shall have no further
obligation with respect to the payment of Basic Compensation hereunder.
Notwithstanding the foregoing, if any securities of the Company are
publicly traded on an “established securities market” and Employee is a
“specified employee” (as such terms are defined in Section 409A of the
Code and the regulations thereunder) at the time of any termination of
Employee’s employment by reason of the provisions of subparagraph (a) of
this Section 4, then the amount due to Employee pursuant to the preceding
sentence on account of a termination of employment under such subparagraph
(a) shall instead be paid to Employee in a lump sum and without interest
on the date that is six months plus one day after such termination of
employment but only if such delay shall be necessary to prevent any
accelerated or additional tax under Section 409A of the
Code.
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(e) In
the event (1) Employee’s employment is terminated by the Company (i) other than by reason
of the provisions of subparagraph (a) or (c) of this Section 4 or (ii)
following a “Change in Control” as described in Section 5 hereof, and (2)
any securities of the Company are publicly traded on an “established
securities market” and Employee is a “specified employee” (as such terms
are defined in Section 409A of the Code and the regulations thereunder) at
the time of such termination of employment, then the amount, if any, that
the Company may pay to Employee (as a result of the Company’s termination
of Employee’s employment) prior to the date that is six months plus one
day from the date of such termination (the “Delayed Payment Date”) shall
not exceed the lesser of (A) two times Employee’s Basic Compensation for
the calendar year preceding the termination, or (B) two times the amount
specified in Section 401(a)(17) of the Code for the calendar year of such
termination but only to the extent and in the event that such limitation
is necessary to prevent any accelerated or additional tax under Section
409A of the Code, and any excess shall be paid to Employee, without
interest, on the Delayed Payment Date. Employee acknowledges that any
payments to be made to Employee upon termination of employment may be made
only in connection with a “separation from service” as determined under
Section 409A of the Code (if in effect at the time of such termination of
employment).
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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 subparagraph (a), (b) or (c) of
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 the 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.
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 Employee, unless such
information shall be or become public knowledge other than as a result of
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 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 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. During the Employment Period, 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.
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:
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0000
Xxxxxxxxx 00xx
Xxxxxxx
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Xxxxx,
Xxxxxxx 00000-0000
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Attention:
President
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If to Employee:
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Xxxx
X. Xxxxxx
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c/o
Benihana Inc.
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0000
Xxxxxxxxx 00xx
Xxxxxxx
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Xxxxx,
Xxxxxxx 00000-0000
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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 Employee.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have set their hands as of the date first
above written.
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By:
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/s/ Xxxx X. Xxxxxxxx | ||
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Name:
Xxxx X. Xxxxxxxx
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Title: Chief
Executive Officer
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| /s/ Xxxx X. Xxxxxx | |||
| Xxxx X. Xxxxxx | |||
