Employment Agreement - Benihana Inc. and Kevin Aoki
EMPLOYMENT AGREEMENT
AGREEMENT dated October 19, 1998, by and between Benihana Inc.,
a Delaware corporation (the "Company"), and Kevin Aoki (the "Employee").
RECITAL:
The Company is desirous of employing Employee and Employee is
desirous of being 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 November 1, 1998
(the "Effective Date"), and ending, unless sooner terminated in accordance
with the provisions of Section 4 hereof, on October 31, 2001 (the "Employment
Period").
2. Scope of Duties. Employee shall be employed by the Company in an
executive capacity as determined by the President and the Board of Directors
of the Company, and will report directly to the President of the Company. In
such capacity, the Employee shall have such authority, powers and duties
delegated to his by the President and the Board of Directors of the Company.
If elected or appointed, Employee 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 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.
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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 Eighty Thousand
Dollars ($80,000.00)("Basic Compensation"), payable in accordance
with the Company's customary payroll practices for executive
employees.
3.2 Discretionary Increases. The Employee 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 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) Employee shall be entitle 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.
(c) The Company will pay up to Two Thousand Dollars
($2,000.00) to defray Employee's actual expenses of
relocating his home from Hawaii to Miami, Florida, upon
submission of vouchers or other evidence thereof in
accordance with the company's usual policy of expense
reimbursement.
4. Term of Employment. 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, the Company may thereupon, or anytime thereafter
while such absence or disability still exists, 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 thereof.
(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".
(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. Disclosure of Confidential Information and Covenant Not to
Compete. 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 its 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" direct or indirect disclosure of the same.
<PAGE>
Employee further agrees that for a period of one year 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 within the
"Territory" 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 or franchise of
restaurants selling Japanese, or other Asian food, or restaurants of a type
then being operated by the Company, or any of its subsidiaries; and the term
"Territory" is defined to mean the area within a five (5) mile radius of any
restaurant then being operated by the Company or any of its subsidiaries.
6. Reimbursement of Expenses. 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.
7. Miscellaneous Provisions.
7.1 Section headings are for convenience only and shall not
be deemed to govern, limit, modify or supersede the provisions of
this Agreement.
7.2 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.
7.3 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.
7.4 This Agreement may be modified only by means of a
writing signed by the party to be charged with such modification.
7.5 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:
If to the Company:
Benihana Inc.
8685 N.W. 53rd Terrace
Miami, Florida 33166-0120
If to Employee:
Kevin Aoki
232 East 63rd Street
New York, New York 10021
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7.6 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.
7.7 This Agreement may be executed in separate counterparts,
each of which shall constitute the original hereof.
IN WITNESS WHEREOF, the parties have set their hands as of the
date first above written.
BENIHANA INC.
By: /s/ Joel A. Schwartz
----------------------------
Joel A. Schwartz, President
/s/ Kevin Aoki
----------------------------
Kevin Aoki
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AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
Amendment No. 1 dated January 25, 2000 to Employment Agreement dated
October 19, 1998 (the "Agreement") by and between Benihana Inc. and Kevin
Aoki.
Unless otherwise defined herein, capitalized terms shall have
the respective meanings assigned to them in the Agreement.
The parties agree that the Agreement shall be amended as follows:
A. Section 1.1 of the Agreement is hereby amended to read in
its entirety as follows:
1.1 Subject to the terms and provisions of
this Agreement, the Company will continue to employ the
Employee for an extended term continuing until October 31,
2002.
B. Section 3.1 of the Agreement is hereby amended to read in
its entirety as follows:
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, Ten Thousand Dollars ($110,000.00) ("Basic
Compensation"), payable, commencing January 1, 2000, in
accordance with the Company's customary payroll practices
for executive employees.
Except as modified herein, the Agreement remains in full force
and effect in accordance with its terms without revocation or change.
IN WITNESS WHEREOF, the undersigned have executed this Amendment
No. 1 as of the date and year first above written.
BENIHANA INC.
By: /s/ Joel A. Schwartz
-----------------------------
Joel A. Schwartz, President
/s/ Kevin Aoki
----------------------------
Kevin Aoki