Agreement
Exhibit 10.1
Agreement
This
Agreement, dated as of August 16, 2010 (this “Argeement”), is by
and among Coliseum Capital Partners, L.P., a Delaware limited partnership,
Coliseum Capital Management, LLC, a Delaware limited liability company, Coliseum
Capital, LLC, a Delaware limited liability company, Xxxxxxxxx Partners, LLC, a
Georgia limited liability company, Xxxx Xxxx and Xxxxxxxxxxx Xxxxxxxxxx
(collectively, the “Coliseum Capital
Group”, and each, individually, a “member” of the
Coliseum Capital Group) and Benihana Inc. (the “Company”).
RECITALS
WHEREAS,
the Coliseum Capital Group beneficially owns (as defined below) shares of the
Company’s Class A Common Stock, par value, $0.10 par value per share (the “Class A Common
Stock”) and the Company’s Common Stock, par value $0.10 per share (the
“Common Stock”)
as specified in Amendment No. 8 to the Schedule 13D filed by the Coliseum
Capital Group with the Securities and Exchange Commission (the “SEC”) on August 6,
2010;
WHEREAS,
Coliseum Capital Partners, L.P. delivered (i) a letter to the
Company nominating Xxxx X. Xxxx (the “Nomination Letter”)
for election to the Company’s Board of Directors (the “Board”) as a Class A
Common Stock director at the 2010 annual meeting of stockholders of the Company
(the “2010 Annual
Meeting”) and (ii) a demand,
pursuant to Section 220 of the Delaware General Corporation Law, to review
certain of the Company's books and records in connection with the 2010 Annual
Meeting (the “Section
220 Demand”);
WHEREAS,
on August 5, 2010, Coliseum Capital Partners, L.P. filed a preliminary proxy
statement on Schedule 14A with the SEC related to the matters set forth in the
Nomination Letter; and
WHEREAS,
the Company and the members of the Coliseum Capital Group have determined to
come to an agreement with respect to certain matters related to the 2010 Annual
Meeting and certain other matters, as provided in this Agreement;
NOW,
THEREFORE, in consideration of the promises, covenants and agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each Party, intending to be
legally bound, hereby agrees as follows:
ARTICLE
I
DEFINITIONS
Section
1.1 Defined
Terms. For purposes of this Agreement:
(a) “Affiliate” has the
meaning set forth in Rule 12b-2 promulgated by the SEC under the Exchange
Act.
(b) The terms
“beneficial
owner” and “beneficially owns”
have the meanings set forth in Rule 13d-3 promulgated by the SEC under the
Exchange Act.
(c) “Exchange Act” means
the Securities Exchange Act of 1934, as amended from time to time.
(d) “Person” means any
individual, partnership, corporation, group, syndicate, trust, government or
agency, or any other organization, entity or enterprise.
Section
1.2 Interpretation. When
reference is made in this Agreement to a Section, such reference shall be to a
Section of this Agreement unless otherwise indicated. Whenever the
words “include,” “includes” or “including” are used in this Agreement, they
shall be deemed to be followed by the words “without limitation.” The
words “hereof,” “herein,” “hereby” and “hereunder” and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement. This Agreement shall be
construed without regard to any presumption or rule requiring construction or
interpretation against the party drafting or causing an instrument to be
drafted.
ARTICLE
II
BOARD
NOMINATION
Section
2.1 2010 Annual
Meeting. As promptly as practicable after the date hereof,
(a) the Company
shall nominate Xxxx X. Xxxx for election at the 2010 Annual Meeting as a Class
III, Class A Common Stock director, in replacement of the nominee for such
directorship previously identified by the Company, (b) the Board shall
recommend that the Company’s stockholders vote in favor of the election at the
2010 Annual Meeting of Xx. Xxxx as a Class III, Class A Common Stock director,
(c) the Company
shall amend its preliminary proxy statement filed in connection with the 2010
Annual Meeting to reflect such nomination and recommendation, as well as the
other matters set forth herein, and (d) the Company shall
use its reasonable best efforts to solicit proxies in favor of the election at
the 2010 Annual Meeting of Xx. Xxxx as a Class III, Class A Common Stock
director.
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Section
2.2 Additional Company
Obligations.
(a) Upon Xx.
Xxxx’x election as a director of the Company, the Board shall appoint Xx. Xxxx
as a member of the Nominating and Governance Committee, the Compensation and
Stock Option Committee, the Audit Committee, and any other committee of the
Board that is formed or to which responsibility is delegated for the purpose of
evaluating the Company’s strategic alternatives or any material financing,
acquisition, sale, disposition or other material transaction provided that Xx.
Xxxx meets Nasdaq independence eligibility criteria for such
committees.
(b) The
Company shall reimburse the Coliseum Capital Group for all of Coliseum Capital
Group’s reasonable, documented, out-of-pocket expenses (including legal fees and
expenses) incurred in connection with its Section 13D filings, the Nomination
Letter, the Section 220 Demand and the other matters governed by this Agreement
(including the negotiation and execution hereof) but in no event in excess of
$250,000.
(c) The
Nominating and Governance Committee shall nominate for election at the 2011
Annual Meeting, as a Class I, Common Stock Director to fill the directorship
that is vacant as of the date hereof, a person who is “independent” pursuant to
Nasdaq listing standards and who otherwise has no relationships with any
Affiliate of the Company (or any Affiliate thereof).
(d)
The
Company will hold its 2010 Annual Meeting on September 14, 2010 or as soon as
reasonably possible after that date.
Section
2.3 Death or
Disability. If Xx. Xxxx is elected as a director and can no
longer serve on the Board because of death or disability before the expiration
of his term, the Coliseum Capital Group shall be entitled to recommend to the
Nominating and Corporate Governance Committee a replacement director who will
qualify as “independent” pursuant to Nasdaq listing standards. The
Nominating and Corporate Governance Committee shall not unreasonably withhold
acceptance of any such replacement director. If the Nominating and
Corporate Governance Committee does not accept a replacement director
recommended by the Coliseum Capital Group, the Coliseum Capital Group shall have
the right to recommend one or more additional replacement directors for
consideration by the Nominating and Corporate Governance Committee. Upon the
acceptance of a replacement director nominee by the Nominating and Corporate
Governance Committee, the Board will appoint such replacement director to the
Board no later than five (5) business days after the Nominating and Corporate
Governance Committee’s recommendation of such replacement director.
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ARTICLE
III
PROXY
CONTEST AND OTHER MATTERS; PRESS RELEASE
Section
3.1 Undertakings by the Coliseum
Capital Group. The Coliseum Capital Group hereby (a) withdraws the
Nomination Letter, (b) agrees to cease
its proxy solicitation activities with respect to the Company in connection with
the 2010 Annual Meeting, (c) withdraws the
Section 220 Demand, and (d) agrees to vote all
shares of Common Stock beneficially owned by it in favor of the Company’s
nominees for election as directors at the 2010 Annual Meeting. No
later than the second business day after the date hereof, the Coliseum Capital
Group shall file with the SEC an amendment to its Schedule 13D with respect to
the Company disclosing the material contents of this Agreement.
Section
3.2 Press
Release. In the event that the Company elects to make a press
release pertaining to this Agreement, such press release will be mutually
acceptable to both the Coliseum Capital Group and the Company.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
Section
4.1 Representations and
Warranties. Each Party represents and warrants to the other
Parties that:
(a) such
Party, if not a natural Person, has all requisite limited partnership, limited
liability company or corporate authority and power to execute and deliver this
Agreement and to perform such Party’s obligations hereunder;
(b) the
execution and delivery of this Agreement by such Party and the performance of
such Party’s obligations hereunder have been duly and validly authorized by all
required limited partnership, limited liability company, corporate or other
action on the part of such Party and no other proceedings on the part of such
Party are necessary to authorize the execution and delivery of this Agreement by
such Party or the performance of such Party’s obligations
hereunder;
(c) this
Agreement has been duly and validly executed and delivered by such Party and
constitutes the valid and binding obligation of such Party, enforceable against
such Party in accordance with its terms; and
(d) this
execution and delivery by such Party of Agreement and the performance of such
Party’s obligations hereunder will not result in a violation of any terms or
provisions of any (i) organizational
document of such Party, (ii) agreement to
which such Party is a party or by which such Party may otherwise be bound or
(iii) law,
rule, license, regulation, judgment, order or decree governing or affecting such
Party.
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ARTICLE
V
OTHER
PROVISIONS
Section
5.1 Remedies; Governing
Law.
(a) The
Parties agree that any breach of this Agreement would cause irreparable harm to
the other Parties, that money damages alone would not be a sufficient remedy and
that the Parties shall be entitled to equitable relief, including injunction and
specific performance, in the event of any breach or threatened breach of the
provisions of this Agreement. The Parties shall not oppose the
granting of such relief, and shall waive any requirement for the securing or
posting of any bond in connection with such remedy. Equitable relief
shall not be deemed to be the exclusive remedy for breach of this agreement, but
shall be in addition to all other remedies available at law or in
equity.
(b) The
Parties agree that the Court of Chancery or federal court of the State of
Delaware shall have exclusive jurisdiction with respect to all actions and
proceedings arising out of or relating to this Agreement, Each
Parties hereby (i) consents to submit
itself to the personal jurisdiction of the Court of Chancery or federal court of
the State of Delaware in the event any dispute between the Parties arises out or
relates of this Agreement, (ii) agrees that it
shall not attempt to deny or defeat such personal jurisdiction by motion or
other request for leave from any such court, (iii) agrees that it
shall not bring any action relating to this Agreement in any other court and
irrevocably waives the right to trial by jury in the event of any such dispute
and (iv)
irrevocably consents to service of process by delivery of notice complying with
Section 5.3.
(c) THIS
AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITHOUT LIMITATION
VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF DELAWARE,
WITHOUT GIVING EFFECT TO THE CHOICE OF LAW RULES OR PRINCIPLES OF SUCH STATE
THAT WOULD PERMIT OR COMPEL THE APPLICATION OF THE LAW OF ANOTHER
JURISDICTION.
Section
5.2 Entire
Agreement. This Agreement contains the entire understanding of
the Parties with respect to the subject matter hereof and may be amended only by
an agreement in writing executed by the Parties.
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Section
5.3 Notices. All
notices, consents, requests, instructions, approvals and other communications
provided for herein and all legal process in regard hereto shall be in writing
and shall be deemed validly given, made or served, if when actually received
during normal business hours at the address specified in this
subsection:
if to the
Company, to:
0000
Xxxxxxxxx 00xx Xxxxxxx
Xxxxx,
Xxxxxxx 00000.
Attention: General
Counsel
if to any
member of the Coliseum Capital Group, to:
Coliseum
Capital Management, LLC
000 Xxxxx
Xxxxxx, 00xx Xxxxx
Xxx Xxxx,
XX 00000
Attention: Xxxxxxxxxxx
Xxxxxxxxxx
with a
copy to:
Debevoise
& Xxxxxxxx LLP
000 Xxxxx
Xxxxxx
Xxx Xxxx,
XX 00000
Attention: Xxxxxxx
X. Xxxxxx
or to
such other address as any party hereto may, from time to time, designate in
writing delivered pursuant to the terms of this Section 5.3.
Section
5.4 Severability. If
any provision of this Agreement shall be held by any court of competent
jurisdiction to be illegal, void or unenforceable, such provision shall be of no
force and effect, but the illegality or unenforceability of such provision shall
have no effect upon the legality or enforceability of any other provision of
this Agreement.
Section
5.5 Counterparts. This
Agreement may be executed in two or more counterparts (including by facsimile or
PDF) which together shall constitute a single agreement.
Section
5.6 Successors and
Assigns. This Agreement shall not be assignable by any Party
but shall be binding on successors of the Parties.
Section
5.7 No Third Party
Beneficiaries. This Agreement is solely for the benefit of the
Parties hereto and is not enforceable by any other Person.
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IN WITNESS WHEREOF, the
Parties have executed this Agreement as of the date first above
written.
| BENIHANA INC. | ||
| By: | /s/ Xxxx X. Xxxxx | |
| Name: Xxxx X. Xxxxx | ||
| Title: Director | ||
| COLISEUM CAPITAL MANAGEMENT, LLC | ||
| By: | /s/ Xxxxxxxxxxx Shackeklton | |
| Name: Xxxxxxxxxxx Xxxxxxxxxx | ||
| Title: Manager | ||
| COLISEUM CAPITAL PARTNERS, L.P. | ||
| By: | Coliseum Capital, LLC, General Partner | |
| By: | /s/ Xxxxxxxxxxx Shackeklton | |
| Name: Xxxxxxxxxxx Xxxxxxxxxx | ||
| Title: Manager | ||
| COLISEUM CAPITAL, LLC | ||
| By: | /s/ Xxxxxxxxxxx Shackeklton | |
| Name: Xxxxxxxxxxx Xxxxxxxxxx | ||
| Title: Manager | ||
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| XXXXXXXXX PARTNERS, LLC | ||
| By: | Coliseum Capital Management, LLC, | |
| Attorney-in-fact | ||
| /s/ Xxxx Xxxx | ||
| Name: Xxxx Xxxx | ||
| Title: Manager | ||
| XXXXXXXXXXX XXXXXXXXXX | ||
| /s/ Xxxxxxxxxxx Shackeklton | ||
| Xxxxxxxxxxx Xxxxxxxxxx | ||
| XXXX XXXX | ||
| /s/ Xxxx Xxxx | ||
| Xxxx Xxxx | ||
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