Contract
Exhibit
10.37
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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 TAKA YOSHIMOTO (the “Executive”).
R
E C I T A L
Executive
and the Company entered into an Employment Agreement dated as of April 1, 2006
(the "Employment Agreement").
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 Executive have agreed to 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 continues to employ Executive and Executive
hereby accepts such continued employment by the Company on the terms and
conditions set forth herein, for a period commencing on April 1, 2006 (the
“Effective Date”) and ending, unless sooner terminated in accordance with the
provisions of Section 4 or 7 hereof, on March 31, 2009 (the “Employment
Period”).
2. Scope of
Duties. Executive shall be employed by the Company as its Executive Vice
President - Operations. In such capacity, Executive shall have such authority,
powers and duties customarily attendant upon such office. If elected or
appointed, Executive shall also serve, without additional compensation, in one
or more offices and, if and when elected, as a director of the Company or any
subsidiary or affiliate of the Company, provided that his duties and
responsibilities are not inconsistent with those pertaining to his position as
stated above. Executive shall faithfully devote his full business time and
efforts so as to advance the best interests of the Company. During the
Employment Period, Executive 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 Executive during
the Employment Period, the Company agrees to pay Executive an annual salary at
the rate of Two Hundred Eleven Thousand Eighty-Eight Dollars ($211,088) for the
portion of the Employment Period that is prior to March 31, 2008 and at the rate
of Two Hundred Thirty-Two Thousand Eighty-Eight Dollars ($232,088) thereafter
(“Basic Compensation”), payable in accordance with the Company’s customary
payroll practices for executive employees.
3.2 Cost of
Living Adjustments. The Basic Compensation shall be increased by an
amount established by reference to the Consumer Price Index for Urban Wage
Earners and Clerical Workers, New York, New York- Northern New Jersey area
published by the Bureau of Labor Statistics of the United States Department of
Labor (the “Consumer Price Index”). The base period shall be the month ended
December 31, 2007 (the “Base Period”). If the Consumer Price Index for the month
of December in any year, commencing in 2008, is greater than the Consumer Price
Index for the Base Period, Basic Compensation shall be increased, commencing on
April 1 of the next following year, to the amount obtained by multiplying Basic
Compensation by a fraction, the numerator of which is the Consumer Price Index
for the month of December of the year in which such determination is being made
and the denominator of which is the Consumer Price Index for the Base
Period.
3.3 Discretionary
Increases and Bonuses. Executive 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. Any such bonus will be payable 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.
3.4 Other
Benefits.
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(a) During the
Employment Period, Executive 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, Executive 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
Executive.
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3.5 No
Designation of Year. In no event may Executive, directly or indirectly,
designate the calendar
year of any payment under this Agreement.
4. Termination
of Employment. The provisions of Section 1 of this Agreement
notwithstanding, the Company may terminate this Agreement and Executive’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 Executive other
than as specifically provided herein:
4.1 If
Executive 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 reason 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 Executive hereunder upon ten (10)
days’ written notice to Executive.
4.2 In
the event of the death of Executive during the Employment Period, this Agreement
shall automatically terminate on the date thereof.
4.3 If
Executive 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 Executive
with the date of such notice being the termination date and such termination
being deemed for “cause.”
4.4 In
the event Executive’s employment is terminated by reason of the provisions of
Section 4.1 or 4.2, then in such event, the Company shall pay to Executive, if
living, or to such other person or persons as Executive may from time to time
designate in writing as the beneficiary of such payment, the Basic Compensation
then in effect at the time of such termination, such payment to continue for
three months after such termination, 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 Executive 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 Executive’s employment
by reason of the provisions of Section 4.1, then the amount due to Executive
hereunder on account of a termination of employment under Section 4.1 shall
instead be paid to Executive 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.
4.5 In
the event Executive’s employment is terminated other than in accordance
with Section 4.1, 4.2 or 4.3, Executive shall be entitled to receive an amount
(the “Termination Payment”) computed in the same manner as the Severance Payment
not later than forty-five (45) days after any such termination. Notwithstanding
the foregoing, if any securities of the Company are publicly traded on an
“established securities market” and Executive 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 portion of the Termination
Payment that may be payable to Executive 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 Executive’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 if and to the extent that such limitation is necessary to
prevent any accelerated or additional tax under Section 409A of the Code. To the
extent any Termination Payment would be due to Executive hereunder during such
six-month period in excess of that amount, such excess shall be paid to
Executive, without interest, on the Delayed Payment Date. The Termination
Payment shall constitute liquidated damages and not a penalty, and Executive
shall not be obligated to seek employment to mitigate his damages; nor shall any
compensation Executive receives from any party subsequent to such termination be
an offset to the amount of such payment.
4.6 Upon
any termination of this Agreement or Executive’s employment hereunder, Executive
shall be entitled to be paid only (i) any earned but unpaid Basic Compensation
due to Executive at the time of such termination, (ii) any amounts due to him
under (and in accordance with the terms of) any employee benefit or bonus plans
in which he was a participant, and (iii) the amounts, if any, payable to him
pursuant to the terms of this Section 4 or Section 7, and such payments are in
lieu of any severance or similar payments which may be provided by the Company
from time to time. Executive shall not be entitled to receive any other or
additional compensation of any kind. Notwithstanding anything to the contrary
contained therein, Executive’s right to receive any payments provided for under
Section 7 or in connection with a termination under Section 4.1 shall be
conditioned upon and subject to Executive’s execution and delivery to the
Company (not later than 30 days after any termination of his employment) of a
general release, substantially in the form of that attached hereto as Exhibit
A.
5. Disclosure
of Confidential Information and Covenant Not to Compete. Executive
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 Executive 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
Executive used this information to compete against the Company. Accordingly,
Executive hereby agrees that except as required by Executive’s duties to the
Company, Executive shall not, without the consent of the Company’s Board of
Directors, 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 Executive shall become informed during
his employment, whether learned by him as an executive of the Company, as a
member of its Board of Directors or otherwise, and whether or not developed by
Executive, unless such information shall be or become public knowledge other
than as a result of Executive’s direct or indirect disclosure of the
same.
Executive
further agrees that for a period of one year following the termination of
Executive’s employment, except as a result of the breach by the Company of any
material term or condition hereof, Executive 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, without the prior consent of the Company’s
Board of Directors provided, however, that the foregoing shall not be deemed to
prevent the ownership by Executive 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 that of the Company or any of its subsidiaries” shall include
only (i) the operation of franchise restaurants selling Japanese, or other Asian
food, or restaurants of a type then being operated by the Company or any of its
subsidiaries; and (ii) the sale at wholesale or retail of Asian food
products.
6. Reimbursement
of Expenses; Use of Automobile.
6.1. The
Company shall further pay directly, or reimburse Executive, 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.
6.2. In
addition to the reimbursement described in Section 6.1, during the Employment
Period Executive shall receive an allowance of $300.00 per month for automobile
expenses, including lease costs or purchase price, gasoline, oil and
garaging.
7. Change in
Control.
7.1. In
the event at any time after the Effective Date, a majority of the Board of
Directors is composed of persons who are not “Continuing Directors,” as
hereinafter defined, which event is defined to mean a “Change in Control,”
Executive shall have the option, to be exercised by written notice to the
Company, to resign as an employee and terminate this Agreement, effective as of
such date specified in the notice of exercise and to receive payment of a sum
equal to the product of (A) the Basic Compensation in effect on the date of such
termination, multiplied by (B) the number of years (both full and partial)
remaining in the term hereof had such termination not occurred. The payment
calculated in accordance with the provisions of the preceding sentence is
defined as the “Severance Payment.” The Severance Payment shall be made to
Executive not later than forty-five (45) days after the termination of
Executive’s employment. Notwithstanding the foregoing, if any securities of the
Company are publicly traded on an “established securities market” and Executive
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, due to Executive pursuant to the preceding sentence
shall instead be paid to Executive in a lump sum and without interest on the
date that is six months plus one day after such termination of employment, 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. The Severance
Payment shall constitute liquidated damages and not a penalty, and Executive
shall not be obligated to seek employment to mitigate his damages; nor shall any
compensation Executive receives from any party subsequent to such termination be
an offset to the amount of the Severance Payment.
7.2 “Continuing
Directors” shall mean (i) the directors of the Company at the close of business
on April 1, 2006, and (ii) any person who was or is recommended to (A) succeed a
Continuing Director or (B) become a director as a result of an increase in the
size of the Board, in each case, by a majority of the Continuing Directors then
on the Board.
7.3 If
during the term hereof Executive owns any options to purchase securities of the
Company which securities are publicly traded and which options were granted to
him in connection with his service as an employee, officer or director of the
Company, Executive shall have the right at any time within twelve months
following the date of any “Change in Control” to cause the Company to repurchase
such options from him (but only to the extent that such options are then
exercisable by him in accordance with their terms) at a purchase price equal to
the difference between (i) the closing price of the appropriate security of the
Company (if traded on the New York or American Stock Exchange or quoted in the
NASDAQ National Market) or the average between the closing bid and asked prices
(if traded on the over-the-counter market) on the date immediately prior to the
date on which Executive exercises such right and (ii) the exercise price of such
option; provided however, that in no fiscal year of the Company shall the
aggregate purchase price of such options exceed five percent (5%) of the total
stockholders equity (net worth) of the Company as shown on its audited financial
statements for the fiscal year immediately preceding the year in which such
right is exercised. Such right shall be exercised by Executive giving the
Company written notice thereof and the purchase and sale shall be consummated
not more than ten (10) business days after receipt by the Company of the notice
of exercise. The Company shall withhold all applicable withholding taxes from
any amounts due to Executive under this Section 7.3.
7.4 Executive
acknowledges that any payments to be made to Executive under this Agreement upon
the termination of his 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).
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.
This Agreement replaces and supercedes all prior employment agreements between
the parties.
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 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:
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If
to the Company:
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0000
XX 00xx Xxxxxxx
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Xxxxx,
Xxxxxxx 00000-0000
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If
to Executive:
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Taka
Yoshimoto
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x/x
Xxxxxxxx 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 Executive.
8.7 This
Agreement may be executed in separate counterparts, each of which shall
constitute the original hereof.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have set their hands as of the date first above
written.
| BENIHANA INC. | |||
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By:
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/s/ Xxxx X. Xxxxxxxx | ||
| Name: Xxxx X. Xxxxxxxx | |||
| Title: Chief Executive Officer |
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| /s/ Taka Yoshimoto | |||
| Taka Yoshimoto | |||
EXHIBIT
A—FORM OF GENERAL RELEASE
Taka
Yoshimoto (“Executive”) acknowledges and agrees that, for and in consideration
of the benefits payable to him under Section 7 or in connection with a
termination under Section 4.1 of that certain Amended and Restated Employment
Agreement (the “Employment Agreement”) between Executive and Benihana Inc. (the
“Company”) dated as of _________, 2008 and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, for
himself and for his heirs, executors, administrators, trustees, legal
representatives, successors and assigns (collectively referred to for purposes
of this General Release as the “Executive Releasors”), hereby forever releases
and discharges the Company and any and all of the Company’s past, present and
future parent entities, subsidiaries, divisions, affiliates or related business
entities, assets, employee benefit and/or pension plans or funds, successors and
assigns and any of their and/or the Company’s past, present and future owners,
directors, officers, attorneys, fiduciaries, agents, trustees, administrators,
executives, successors and assigns, whether acting as agents for the Company or
in their individual capacities (collectively referred to as the “Company
Releasees”), from all claims, demands, causes of action, and liabilities of any
kind whatsoever (upon any legal or equitable theory, whether based on any
federal, state or local constitution, statute, ordinance, regulation, common
law, court decision or otherwise), whether known or unknown, asserted or
unasserted, which any of the Executive Releasors ever had, now have, or
hereafter may have against any of the Company Releasees by reason of any actual
or alleged act, omission, transaction, practice, policy, conduct, occurrence
and/or other matter from the beginning of the world up to and including the date
that Executive signs this General Release.
Without in any way
limiting the generality of the foregoing, the Executive Releasors so release and
discharge the Company Releasees from, including but not limited to: (a) any and
all claims arising under Title VII of the Civil Rights Act of 1964, as amended,
the Age Discrimination in Employment Act, as amended by the Older Workers
Benefit Protection Act, 42 U.S.C. § 1981, the Americans With Disabilities Act,
the Family and Medical Leave Act, the Executive Retirement Income Security Act
(except for any vested benefits, which are not affected by this General
Release), the Fair Labor Standards Act, the Equal Pay Act, the National Labor
Relations Act, (b) any and all other claims for employment discrimination,
harassment, and/or retaliation (whether based on a federal, state or local
constitution, statute, ordinance, code, common law, court decision or
otherwise); (c) any and all claims relating to Executive’s employment by the
Company (and/or by any of the other of the Company Releasees), the terms and
conditions of such employment and/or the termination of such employment; (d) any
and all claims relating to, or arising out of, the making of the Employment
Agreement and this General Release; (e) any and all claims for damages or
personal injury of any type whatsoever (whether arising by virtue of any
constitution, statute, ordinance, common law, court decision or otherwise); (f)
any and all claims of breach of
implied or express contract, misrepresentation, negligence, fraud, wrongful
discharge, constructive discharge, infliction of emotional distress, intentional
infliction of emotional distress, battery, defamation, libel, slander,
compensatory and/or punitive damages; and (g) any and all claims for attorneys’
fees, costs, disbursements and the like.
This
General Release specifically excludes and does not apply to any of Executive’s
(i) claims for any payments due to him under Section 7 or in connection with a
termination under Section 4.1 of the Employment Agreement , (ii) any rights he
may have under any stock option agreement, restricted stock award or similar
agreement entered into between Executive and the Company, (iii) claims arising
under the provisions of any employee benefit plans of the Company , if any,
which are applicable generally to former employees of the Company, and (iv)
claims for indemnification arising under any contract between the Company and
Executive or under the provisions of the Company’s Certificate of Incorporation
or By-laws, or the Delaware General Corporation Law.
Executive
acknowledges and agrees that: (a) he has carefully read and fully understands
all of the provisions of this General Release; (b) he has not relied upon any
representations or statements, written or oral, not set forth in this General
Release or in the Employment Agreement; (c) he executes this General Release
freely, voluntarily and with full knowledge of its terms and consequences; (d)
he has been afforded sufficient time and opportunity to consult with an attorney
and is hereby advised to consult with an attorney prior to signing this General
Release; (e) he has been given at least twenty-one (21) days within which to
consider this General Release and that if he signs this General Release in less
than twenty-one days he does so voluntarily and without any pressure or coercion
of any nature from the Company; (f) for a period of seven (7) days following his
execution of this General Release, he may revoke this General Release by
providing written notice of such revocation to Company and that this General
Release shall not become effective or enforceable until the seven (7) day
revocation period has expired; and (g) that if he timely revokes this General
Release, he will forfeit his entitlement to any additional payments under the
Employment Agreement.
IN WITNESS WHEREOF, Executive has executed this General Release on
the ____ day of ________, 20__.
| Taka Yoshimoto |
