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AMENDED AND RESTATED EMPLOYMENT AGREEMENT

Employment Agreement

AMENDED AND RESTATED EMPLOYMENT AGREEMENT | Document Parties: BENIHANA INC You are currently viewing:
This Employment Agreement involves

BENIHANA INC

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Title: AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Date: 6/26/2009
Industry: Restaurants     Sector: Services

AMENDED AND RESTATED EMPLOYMENT AGREEMENT, Parties: benihana inc
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Exhibit 10.35

 

AMENDED AND RESTATED

EMPLOYMENT AGREEMENT

 

          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 .

 

 

 

 

           (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.

 

 

 

           (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.

 

                       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


 
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