Employment Agreement [Amendment No. 2] - Benihana Inc. and Rocky H. Aoki
AMENDMENT NO. 2 TO EMPLOYMENT AGREEMENT
Amendment No. 2 dated May 18 , 1998 to Employment Agreement dated
May 15, 1995 by and between Benihana Inc. and Rocky H. Aoki, as amended by
Amendment No. 1 thereto dated December 11, 1997 (as so amended, the
"Agreement").
Unless otherwise defined herein, capitalized terms shall have the
respective meanings assigned to them in the Agreement. Effective on the date
hereof, the parties agree that the Agreement shall be amended as follows:
1. 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 in its business and the
Employee will continue to work for the Company as a consultant for an
extended term continuing until December 31, 2002. "Employment Period"
shall mean the term hereof. Such employment may be terminated by the
Company at any time for "cause", which shall be limited to the
Employee's proven dishonesty with respect to the Company, disloyalty
or the continuing breach of any of the covenants on the Employee's
part herein set forth or as a result of the Employee's gross
negligence or willful act of omission.
2. Section 2 of the Agreement is hereby amended to read as in its
entirety as follows:
2. DUTIES
During the Employment Period, the Employee shall perform such
duties as a consultant as may be, from time to time, reasonably
delegated or assigned to him by the Board of Directors of the Company
consistent with the Employee's abilities.
3. Section 8.1 of the Agreement is hereby amended to read in its
entirety 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 a consultant 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 a
consultant 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. Except as modified herein, the
Agreement remains in full force and effect in accordance with its
terms without revocation or change.
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IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 2
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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