Employment Agreement - Benihana Inc. and Kevin Aoki
EMPLOYMENT AGREEMENT
AGREEMENT dated as of September 1, 2003, by and between Benihana
Inc., a Delaware corporation (the "Company") and Kevin Aoki (the "Employee").
R E C I T A L S :
The Employee is, and has been for some years, employed by the Company
as its Vice President-Marketing; and the Company is desirous of continuing such
employment of Employee and Employee is desirous of continuing to be 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:
9. Engagement and Term. The Company hereby continues to employ Employee and
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Employee hereby accepts such continued employment by the Company on the terms
and conditions set forth herein, for a period commencing on the date hereof (the
"Effective Date"), and ending, unless sooner terminated in accordance with the
provisions of Section 4 hereof, on August 31, 2006 (the "Employment Period").
10. Scope of Duties. Employee shall be employed by the Company in an executive
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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
him 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.
11. Compensation.
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11.1. Basic Compensation. In respect of services to be performed by the Employee
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during the Employment Period, the Company agrees to pay the Employee an annual
salary of One Hundred Thirty-Two Thousand, Five Hundred Dollars ($132,500)
("Basic Compensation"), payable in accordance with the Company's customary
payroll practices for executive employees.
11.2. Discretionary Increases. The Employees shall also be entitled to such
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additional increments and bonuses as shall be determined from time to time by
the Board of Directors of the Company.
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11.3. Stock Options. The Employee will be eligible to receive stock options
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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.
11.4. Other Benefits.
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(a) Employees shall be entitled to participate,
at Company's expense, in the major medical health insurance
plan, and all other health, insurance or other benefit plan
applicable generally to executive officers of the Company.
(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.
12. Term of Employment. The provisions of Section 1 of this Agreement
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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 or disability still exists, the Company may
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 hereof.
(c) If Employee materially breached 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.
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13. Change in Control.
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13.1. 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 Section 4 hereof, Employee shall
not be obligated to seek employment to mitigate his damages, if any, to which he
may be entitled for breach of this Agreement.
13.2. "Continuing Directors" shall mean (i) the directors of the Company at the
close of business on September 1, 2003 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.
14. Disclosure of Confidential Information and Covenant Not to Compete. Employee
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agrees that his primary loyalty will be to the Company. Employee acknowledges
that the Company possess 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 the Employee, unless
such information shall be or become public knowledge other than as a result of
the 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 or which business hires any persons who
were employed by the Company or a subsidiary of the Company at the time of
Employee's termination of employment with the Company; 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 franchise
restaurants selling Japanese, or other Asian food, or restaurants of a type then
being operated by the Company, or any of its subsidiaries.
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15. Reimbursement of Expenses; Use of Automobile. The Company shall further pay
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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. The Employee shall receive an allowance of
$200 per month for automobile expenses, including the lease costs or purchase
price, gasoline, oil and garaging.
16. Miscellaneous Provisions.
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16.1. Section headings are for convenience only and shall not be deemed to
govern, limit, modify or supersede the provisions of this Agreement.
16.2. 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.
16.3. 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.
16.4. This Agreement may be modified only by means of a writing signed by the
party to be charged with such modification.
16.5. 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:
Benihana Inc.
8685 Northwest 53rd Terrace
Miami, Florida 33166-0120
Attention: President
If to Employee:
Kevin Aoki
1000 Quaysite Terrace, Apt. 1611
Miami, Florida 33138
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16.6. 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.
16.7. This Agreement may be executed in separate counterparts, each of which
shall constitute the original thereof.
16.8. This Agreement supersedes and replaces the Employment Agreement dated
October 19, 1998, as amended on January 25, 2000 and April 1, 2001, between the
Company and the Employee.
IN WITNESS WHEREOF, the parties have set their hands as of the date
first above written.
BENIHANA INC.
By: /s/ Joel A. Schwartz
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Joel A. Schwartz, President
/s/ Kevin Aoki
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Kevin Aoki