Employment Agreement - Benihana National Corp. and Juan C. Garcia
EMPLOYMENT AGREEMENT
AGREEMENT dated this 1st day of September 2000, by and
between Benihana National Corp., a Delaware corporation (the "Company"), and
Juan C. Garcia (the "Employee").
R E C I T A L:
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
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Employee and Employee hereby accepts such employment by the Company on the terms
and conditions set forth herein, for a period commencing on September 1, 2000
(the "Effective Date") and ending, unless sooner terminated in accordance with
the provisions of Section 4 hereof, on the third anniversary of such Effective
Date (the "Employment Period").
2. Scope of Duties. Employee shall be employed by
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the Company as its Vice President/Controller. The Employee shall have such
authority, powers and duties customarily attendant upon such position. 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 stated above. 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
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services to be performed by the Employee during the Employment Period, the
Company agrees to pay the Employee an annual salary of Ninety-Five Thousand
Dollars ($95,000) ("Basic Compensation"), payable in accordance with the
Company's customary payroll practices for executive employees.
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3.2 Discretionary Increases. The
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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.
3.4 Other Benefits.
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(a) Employee shall be entitled
to participate in any bonus or incentive compensation or similar plans adopted
by the Company.
(b) Employee shall be entitled
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.
(c) 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.
4. Term of Employment. The provisions of Section 1
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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 any time 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."
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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
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Covenant Not to Compete. Employee acknowledges that the Company possesses
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confidential information, know-how, customer lists, purchasing, merchandising
and selling techniques and strategies, and other information used in its
operations of which Employee has 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's direct or indirect disclosure
of the same.
Employee further agrees that for a period of one year
following the termination of Employee's employment, the Company, 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, 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 activity competitive with the business
of the Company or any of its subsidiaries, shall include only (i) the operation
or franchise of restaurants selling Japanese, or other oriental 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 oriental food
products.
6. Reimbursement of Expenses. The Company shall
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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.
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7. Change In Control.
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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, 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.
7.2 "Continuing Directors" shall mean (i) the
directors of the Company at the close of business on September 1, 2000, 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.
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.
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:
If to the Company:
Benihana National Corp.
8685 NW 53rd Terrace
Miami, Florida 33166-0120
If to Employee:
Juan Garcia
5900 SW 112th Street
Pine Crest, Florida 33156
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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 Employee.
IN WITNESS WHEREOF, the parties have set their hands as of
the date first above written.
BENIHANA NATIONAL CORP.
By: /s/ Joel A. Schwartz
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Joel A. Schwartz, President
/s/ Juan C. Garcia
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Juan C. Garcia
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AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
Amendment No. 1 dated as of April 1, 2001
(the "Effective Date") to Employment Agreement dated September, 2000
(the "Agreement") by and between BENIHANA INC. (the "Company") and JUAN C.
GARCIA (the "Employee").
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 of the Agreement is hereby
amended to read in its entirety as follows:
1. Engagement and Term.
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The Company hereby employs Employee and Employee
accepts such employment by the Company on the terms
and conditions set forth herein, for a period
commencing on September 1, 2000 and ending, unless
sooner terminated on accordance with the provisions
of Section 4 hereof, on September 1, 2003 (the
"Employment Period").
B. Effective as of the Effective Date,
Section 3.1 of the Agreement, as heretofore amended, is further amended to read
in its entirety as follows:
3.1 Basic Compensation.
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In respect of services to be performed by the
Employee during the Employment Period from and
after the Effective Date, the Company agrees to pay
the Employee an annual salary of One Hundred Five
Thousand ($105,000) Dollars ("Basic Compensation"),
payable 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
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Joel A. Schwartz, President
/s/ Juan C. Garcia
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Juan C. Garcia