Exhibit 10.35
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AMENDED AND
RESTATED
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EMPLOYMENT
AGREEMENT
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AMENDED
AND RESTATED EMPLOYMENT AGREEMENT dated as of the 31st day of March, 2008, by and
between Benihana Inc., a Delaware corporation (the
“Company”) and Juan C. Garcia
(“Executive”).
R E C I T A L S :
Executive,
pursuant to an election by the Company’s Board of Directors
on March 23, 2007, is, and has been since April 2, 2007, employed
by the Company as its President and Chief Operating Officer.
Executive is employed by the Company pursuant to the terms and
conditions of the Amended and Restated Employment Agreement dated
as of the 18 th day of June, 2007 (the “Employment
Agreement”). The Company is desirous of continuing the
employment of Executive in such capacity and Executive is desirous
of continuing to be employed by the Company in such capacity on the
terms and conditions hereinafter set forth.
Certain
revisions to the Employment Agreement have been necessitated by the
enactment of Section 409A of the Internal Revenue Code, as amended
(the “Code”) and the final Treasury Regulations
promulgated thereunder. As a result, the Company and Executive have
agreed to amendments to the Employment Agreement and to the
restatement of the Employment Agreement, as so amended, as set
forth in its entirety herein.
NOW, THEREFORE , the Employment Agreement is hereby amended
and restated in its entirety as follows:
1.
Engagement and Term . The Company hereby continues to
employ Executive and Executive hereby accepts such continued
employment by the Company on the terms and conditions set forth
herein, for a period commencing on April 2, 2007 (the
“Effective Date”), and ending, unless sooner terminated
in accordance with the provisions of Section 4 hereof, on March 31,
2010 (the “Employment Period”).
2.
Scope of Duties . Executive shall be employed by the
Company as its President and Chief Operating Officer. In such
capacity, Executive shall have such authority, powers and duties as
are customarily attendant upon such position. If elected or
appointed, Executive 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.
Executive shall faithfully devote his full business time and
efforts so as to advance the best interests of the Company. During
the Employment Period, Executive 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 .
3.1.
Basic Compensation . In respect of services to be performed by
Executive during the Employment Period, the Company agrees to pay
Executive an annual salary at the rate of Two Hundred Fifty
Thousand Dollars ($250,000) for the portion of the Employment
Period that is prior to March 31, 2008 and at the rate of Two
Hundred Seventy-One Thousand Dollars ($271,000) thereafter as may
be increased pursuant to this Agreement (“Basic
Compensation”), payable in accordance with the
Company’s customary payroll practices for executive
employees. In addition to the cost of living adjustment set forth
in Section 3.5, Executive shall be entitled to any discretionary
increments in the Basic Compensation as shall be determined from
time to time by the Board of Directors of the Company.
3.2.
Bonus Arrangements . Executive shall be entitled to
participate in any performance-based bonus plan or other bonus
arrangements maintained by the Company for its executive employees
as determined by the Company’s Compensation and Stock Option
Committee. In the event the Company does not maintain such a plan
or arrangement, Executive will be eligible for such discretionary
bonuses as may be determined from time to time by the Compensation
and Stock Option Committee of the Board of Directors of the
Company. In addition to the foregoing, Executive shall be entitled
to receive a performance-based bonus of up to twenty-five percent
(25%) of Basic Compensation, as determined by the Company’s
Compensation and Stock Option Committee and Chief Executive
Officer, at the end of each fiscal year of service based upon
Executive’s performance including, without limitation,
consideration of the following criteria: the Company’s actual
results of operations compared with the Company’s business
plan as adopted by the Company’s Board of Directors;
restaurant development; and management retention. Any such bonus
will be payable in accordance with the terms of such bonus plan or
arrangement or, if there is no such plan or arrangement, within
2½ months after the end of the fiscal year of the Company to
which it relates but in no event later than the end of the calendar
year in which such fiscal year ends.
3.3.
Stock Options .
Executive will be eligible to receive stock options under the
Company’s stock option plans at the discretion of the
Compensation and 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 .
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(a) During
the Employment Period, Executive shall be entitled to participate,
at the 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, Executive 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 Executive.
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3.5.
Cost of Living Adjustments . The Basic Compensation shall be increased by
an amount established by reference to the Consumer Price Index for
Urban Wage Earners and Clerical Workers, New York, New York-
Northern New Jersey area published by the Bureau of Labor
Statistics of the United States Department of Labor (the
“Consumer Price Index”). The base period shall be the
month ended December 31, 2007 (the “Base Period”). If
the Consumer Price Index for the month of December in any year,
commencing in 2008, is greater than the Consumer Price Index for
the Base Period, Basic Compensation shall be increased, commencing
on April 1 of the next following year, to the amount obtained by
multiplying Basic Compensation by a fraction, the numerator of
which is the Consumer Price Index for the month of December of the
year in which such determination is being made and the denominator
of which is the Consumer Price Index for the Base
Period.
3.6
No Designation of Year . In no event may Executive, directly or
indirectly, designate the calendar year of any payment under this
Agreement.
4.
Term of Employment . The provisions of Section 1 of this Agreement
notwithstanding, the Compa