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Confidential Separation Agreement, Waiver And Release

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Date: 12/24/2009
Industry: Restaurants     Sector: Services

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Exhibit 10.1




This SEPARATION AGREEMENT, WAIVER AND RELEASE (“Separation Agreement”) is between Benihana, Inc. (“Employer”) and Taka Yoshimoto (“Employee”).


WHEREAS , Employee and Employer wish to set forth their respective rights and obligations arising from the separation of Employee;


NOW, THEREFORE , in consideration of the mutual promises, benefits and covenants herein contained, Employer and Employee hereby agree as follows:


1.            Employment Separation .  Employee herewith resigns as an employee of Employer and is separated from employment with Employer effective Friday, December 18, 2009 (the “Separation Date”).  Employee acknowledges that, as of the date of this Separation Agreement, except as set forth herein, Employee has been paid all wages and benefits due for services rendered to Employer through the Separation Date and any accrued but unused vacation or other leave or other payments of any kind which are, under Employer’s policies, compensable at the time of termination.


2.            Salary Continuation; Other Benefits .


(a)           Employer shall pay severance pay to Employee equal to twelve (12) months’ salary, payable in twelve (12) equal payments of $19,340.66, less required withholding and deductions, on or about the 15th day of each month.  Payments to Employee shall begin on the 15 th of the month following the expiration of the Revocation Period (as defined below) and ending with the payment on December 15, 2010 (the foregoing period referred to herein as the “Term” of this Separation Agreement).


(b)           For purposes of the continuation coverage obligations under the Consolidated Omnibus Budget Reconciliation Act of 1986 (“COBRA”), Employee’s separation will be considered a COBRA qualifying event that occurred on the Separation Date.  In connection with the execution of this Separation Agreement, Employer will provide appropriate COBRA notices and election forms relevant for such qualifying event.  Execution of this Separation Agreement by Employee will be deemed to be an election to accept COBRA continuation coverage under Employer’s medical insurance plan for Employee and his covered spouse and/or dependents (as applicable).  During the Term, Employer will pay on Employee’s behalf the COBRA premiums applicable only to Employee’s health insurance coverage.  At the expiration of the Term, Employee will assume responsibility for the payment of COBRA premiums if Employee wishes to continue to receive COBRA insurance coverage.


(c)           All other forms of compensation, insurances and other benefits, not expressly dealt with in this Section 2, shall terminate on the Separation Date.






3.            Release .


(a)           For and in consideration of the promises and other valuable consideration paid to Employee pursuant to this Separation Agreement, Employee, for himself and for his heirs, executors, successors and assigns (collectively, “Releasors”), hereby releases and discharges Employer, and all related and affiliated entities, and all of their predecessors, successors, heirs or assigns, and any past, present or future officers, directors, agents, owners and employees (collectively, the “Releasees”) from any and all claims, demands, causes of action, and liabilities of any kind whatsoever, whether known or unknown, which the Releasors ever had or may now have against the Releasees from the beginning of the world through the date of this Separation Agreement.


(b)           Without limiting the generality of Section 3(a) above or characterizing the nature of the Releasors’ claims, this document releases the Releasees from (i) any and all claims arising out of Employee’s employment or termination of employment with Employer; (ii) any and all claims (whether based on a federal, state or local stature, or court decision) including, but not limited to, claims under the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the American with Disabilities Act, the Employee Retirement and Income Security Act, and the Florida Civil Rights Act; (iii) any and all claims for breach of contract; (iv) any and all claims for lost wages, bonuses, back pay, front pay, employee benefits, including severance pay, or for damages or injury of any type whatsoever, including, but not limited to, defamation, injury to reputation, intentional or negligent infliction of emotional distress, (whether arising by virtue of statute or common law, and whether based upon negligent or willful actions or omissions); and (v) any and all claims for compensatory or punitive damages, attorneys’ fees, costs and disbursements which the Releasors ever had, now have or hereafter can, shall or may have against the Releasees for, upon or by reason of any actual or alleged act, omission, transaction, practice, conduct, occurrence or other matter up to and including the date of the execution of this Separation Agreement by Employee, except for those rights expressly reserved in this Separation Agreement.


(c)           Employee acknowledges that Employee fully understands and agrees that this Separation Agreement shall operate as a complete defense to any claim or entitlement which hereafter may be asserted by Employee or any other person acting on Employee’s behalf, against Employer for or on account of any matter or thing whatsoever arising out of or in any way based upon the circumstances, facts, and events relating to Employee’s employment and separation from employment.  This Separation Agreement does not prohibit Employee from participating in an investigation conducted by the EEOC.


4.            No Admission .  The making of this Separation Agreement is not intended, and shall not be construed, as any admission that Employer or any of the Releasees has violated any federal, state, or local law, or has committed any wrong against Employee or any other person or entity.


5.            Resignation from Board of Directors .  Employee agrees to resign as a member of the Board of Directors of Benihana, Inc. effective December 18, 2009.






6.            Non-Disparagement .


(a)           Employee covenants that, except to the extent required by law, he will not make to any person or entity any statement, whether written or oral, that directly or indirectly impugns the integrity of, or reflects negatively on the Employer or any of its employees, officers or directors, or that denigrates, disparages or results in detriment to the Employer or any of its employees, officers or directors.  This section does not prohibit any truthful statement made to any government agency in the context of an official investigation.


(b)           Employee covenants and agrees that he will not communicate with or speak to any chef, chief chef, regional chef, general manager, restaurant manager, or regional manager of Benihana, Inc. regarding Benihana, Inc. or its officers, employees, directors, or agents.


7.            Confidentiality .


(a)           For purposes of this Separation Agreement, “Confidential Information” includes, but is not limited to, any and all personal information about the Employer’s customers, all records, files, reports, letters, memoranda, records, data, flowcharts, agreements, information, and other secret, confidential or proprietary information of any nature relating to Employer, its owners and customers, its affiliates and subsidiaries, and their parents, officers, board members or employees, which is not generally available to the public.


(b)           Except as required by law, Employee shall not disclose to or discuss with any person or entity any information concerning (i) any matter relating directly or indirectly to this Separation Agr

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