ex10-2.htm


    
      
        
          

        
Exhibit
10.2

    

     

    [Benihana
Letterhead]

     

    February
9, 2009

    
      	 
      
	
              Mr.
      Joel A. Schwartz

            
	
              8685
      NW 53 Terrace, Suite 201

            
	
              Miami,
      Florida 33166

            


    

     

    Dear
Joel:

     

              This
letter confirms our agreements as follows:

     

              1.
Resignations.
By your signature below, you hereby resign, effective immediately, (i) as a
director of Benihana Inc. (the “Company”), (ii) as the Chairman and Chief
Executive Officer of the Company, and (iii) from all directorships or other
offices you may hold at any of the Company’s subsidiaries or affiliates. You
will, upon request, execute and deliver to us such additional documents as we
may from time to time reasonably request to evidence such
resignations.

     

              2.
Termination of
Employment Agreement. The Employment Agreement between you and the
Company dated March 17, 2008 (and your employment by the Company thereunder) is
hereby terminated effective immediately. Subject to the terms and conditions of
the Employment Agreement and this letter agreement, such termination will be
treated as a termination by the Company without cause pursuant to the provisions
of Section 8.1 of the Employment Agreement and both you and the Company will
continue to be bound by all of the provisions of the Employment Agreement. In
this connection, among other things: (i) you will be entitled to be paid the
Severance Benefit and the Retirement Benefit (each as defined in the Employment
Agreement) subject to the terms and conditions thereof including your execution
and delivery to the Company of the general release as contemplated in Section
4.5 thereof, (ii) you will be entitled to participate in the Insurance Plans or
to receive the Insurance Payment as provided in Section 9 (b) of the Employment
Agreement, and (iii) you will continue to be bound by the confidentiality, non
competition and other provisions of Section 10 of the Employment
Agreement.

     

              3.
Consulting
Arrangement. You hereby agree that during the period commencing on the
date hereof and ending on the earlier of (i) your death, or (ii) the fifth
anniversary of the date hereof (the “Consulting Term”), you will render advice
and assistance with respect to such aspects of the Company and its business as
the Company may from time to reasonably request of you (the “Services”);
provided, however, that except as the Company may otherwise agree, you will in
no event be required to provide Services in excess of 20 man hours a month. In
consideration of your agreement to render the Services and as sole compensation
therefor, the Company will pay to you the sum of $86,000, such payment to be
made in five equal annual installments of $17,200 commencing on the first
anniversary of the date hereof.


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

              4.
Stock Grants.
All outstanding stock options granted to you under the terms of the Company’s
2007 Equity Incentive Plan (the “2007 Plan”), shall continue in effect subject
to and in accordance with the terms of that Plan and such option grants. This
will confirm that the Compensation Committee of the Board of Directors of the
Company has authorized the acceleration of the vesting of all of the options
(and the termination of all forfeiture provisions applicable to shares of
restricted stock) granted to you under the 2007 Plan and that all such options
are fully vested and exercisable (and that none of such shares of restricted
stock are subject to a risk of forfeiture) as at the date hereof. You further
acknowledge that all outstanding stock options granted to you by the Company
other than those granted under the 2007 Plan shall expire by their terms in
connection with the termination of your employment with the Company, all as more
fully provided under the terms of the plans pursuant to which such options were
granted to you and your related option grants.

     

              5.
Non
Disparagement. You agree not to make any statements (written or oral) of
a defamatory, disparaging or critical nature to any third party about the
Company and/or its owners, directors, officers, employees, operations, products
and/or services; and the Company agrees not to make (and to use its best efforts
to cause its directors, officers, employees and affiliates not to make) any
statements (written or oral) of a defamatory, disparaging or critical nature to
any third party about you. Nothing herein shall prohibit any party from giving
truthful testimony or statements in any litigation or governmental investigation
or proceeding requiring the same.

     

              7.
Miscellaneous.
This letter agreement shall be governed by, and construed in accordance with the
laws of the State of Florida, applicable to agreements made and to be performed
solely within such state. In the event of a conflict between this letter
agreement and the Employment Agreement, the terms and conditions of this letter
agreement will be controlling. Each party reserves all remedies available to it
at law or in equity for any breach of the other party’s obligations hereunder or
under the Employment Agreement, including, in the case of the Company, the right
to terminate any further payments due thereunder.

     

              If
the above accurately reflects our understanding as to the subject matter
thereof, please sign the enclosed copy of this letter and return the same to the
undersigned.

    
      
        
          
            
              	 
      	 
      	 
      	 
      
	 
      	
                      Sincerely
      yours,

                    
	 
      	 
      
	 
      	
                      Benihana
      Inc.

                    
	 
      	 
      
	 
      	
                      By

                    	/s/
      Darwin C. Dornbush	 
      
	 	 	Darwin
      C. Dornbush	 
	 	 	Chairman	 


            

          

        

      

    

    


    
      	 
      	 
      
	
              Agreed
      and Accepted

            
	
              this
      9th day of February, 2009:

            
	/s/
      Joel
      A. Schwartz	 
      
	
              Joel
      A. Schwartz