Employment Agreement [Amendment No. 1] - Benihana Inc. and Rocky H. Aoki
AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
Amendment No. 1 dated December 11, 1997 to Employment Agreement dated
May 15, 1995 (the "Agreement") by and between Benihana Inc. and Rocky H. Aoki.
Unless otherwise defined herein, capitalized terms shall have the
respective meanings assigned to them in the Agreement. Effective December 1,
1997, the parties agree that the Agreement shall be amended as follows:
1. Section 1.1 of the Agreement is revised by modifying the first
sentence of that section 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 in its business and the
Employee will continue to work for the Company as Chairman of the Board
of Directors (being the Chief Executive Officer of the Company) for an
extended term continuing until December 31, 2002.
2. Section 4.1 of the Agreement is revised to read as follows:
4.1 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 Five Hundred Thousand Dollars ($500,000) ("Basic
Compensation"), payable in accordance with the Company's customary
payroll practices for executive employees.
3. Subsection 4.4 (ii) of the Agreement is revised to read as follows:
4.4 ...(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...
4. Sections 8.1 and 8.2 of the Agreement are revised to read, as
follows:
8.1 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", Employee 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 immediately upon such termination to receive
payment of a sum equal to the product of (A) the Basic Compensation in
effect on the date of such termination multiplied (B) by the number of
years (both full and partial) remaining in the term hereof had such
termination not occurred. The payment to be made upon the exercise of
the option by the Employee in accordance with the provisions of the
preceding sentence is defined as the "Severance Payment". The Severance
Payment shall be made to Employee not later than twenty (20) days after
the date designated by the Employee as the date upon which Employee's
resignation as an employee and termination of his Employment is to be
effective. The Severance Payment shall constitute liquidated damages
and not a penalty, and Employee shall not be obligated to seek
employment to mitigate his damages; nor shall any compensation the
Employee receives from any party subsequent to such termination be an
offset to the amount of the Severance Payment.
8.2 "Continuing Directors" shall mean (i) the directors of the
Company on January 1, 1998 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.
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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/ Rocky H. Aoki
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Rocky H. Aoki
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