Attached files
| file | filename |
|---|---|
| 10-K/A - FORM 10-K/A - BENIHANA INC | t68573_10ka.htm |
| EX-31.02 - EXHIBIT 31.02 - BENIHANA INC | ex31-02.htm |
| EX-31.01 - EXHIBIT 31.01 - BENIHANA INC | ex31-01.htm |
Exhibit 10.01
November
30, 2009
Mr.
Richard Stockinger
Chief
Executive Officer
Mr. Jose
Ortega
Chief
Financial Officer
Benihana,
Inc.
8685
Northwest 53rd Terrace
Miami, FL
33166
Dear
Messrs. Stockinger and Ortega:
This
letter will confirm the engagement of CRG Partners Group LLC (“CRG”) by
Benihana, Inc. (“you”, “Client” or the “Company”).
You
shall, by executing this letter of agreement, engage CRG for the purposes of
providing business advice and consultation to you regarding the Company, as
defined by the scope described in this letter. If the Company so chooses, we are
also prepared and able to work with you toward the implementation of whatever
strategies and initiatives to achieve the Company’s objectives. Our initial
focus (“Scope”) will be:
Financial–Cash
Flow-Covenant Assessment
|
●
|
review
and assist Client in development of 13 week cash flow projection, its
assumptions, variance reporting and preparation
methodologies
|
|
|
●
|
review
and analyze FY 2010 YTD financial results and plan for the remainder of
the current Fiscal Year and the financial plan for FY 2011 including,
Client’s financial models, restaurant level operating EBITDA, particularly
labor costs and restaurant level staffing, overhead and
capex;
|
|
|
●
|
review
and test financial plans and projections against the covenants and other
terms of the recently modified Loan Agreement with
Wachovia.
|
|
|
●
|
Apply
appropriate stress tests to cash projections and identify material risks,
weaknesses or other material issues with regard to maintaining or meeting
cash and covenant requirements and projections
|
|
|
●
|
Review
and/or assist the Company in developing “dashboard” management and
monitoring systems to track critical operating metrics for the
business.
|
1
Reporting
|
●
|
report
no less frequently than weekly jointly to the CEO, the CFO and board
consultant and representative Mr. Phil Bakes (President, Snapper Creek
Equity
Management, LLC, (collectively, “The Steering Committee”) including weekly
scheduled conference calls, supplemented by updates during each week as
advisable or requested.
|
|
|
●
|
prepare
and furnish a written report to The Steering Committee and the Board of
Directors of findings, conclusions and
recommendations.
|
After our
initial work, CRG is prepared to continue to work with the Company on additional
projects and/or provide more “hands on” support if required. However, any
additional services provided by CRG will be subject to the Company’s approval
and a separate agreement as to scope and projected fees.
CRG’s
professional fees for the above services will be at the rate of $175-$625 an
hour depending on the staff member assigned to the project. All professional
fees and expenses will be billed to you and are payable weekly. There will be a
$20,000 retainer paid to CRG at the execution of this contract (the “Retainer”).
This Retainer will be held by CRG and applied to CRG’s final bill for fees and
expenses hereunder.
If during
the course of this agreement, the Company asks CRG to seek new financing sources
or assist in the restructuring its existing debt; such services will be covered
by a separate written agreement.
The CRG
personnel assigned to this engagement and their respective roles and hourly
rates are as follows: Stephen Gray (engagement manager) $625, Gene Baldwin
(financial and supervision) $525, Peter Marschel (financial analysis)
$375.
Attached
in an Appendix to this agreement are CRG’s standard terms and conditions. By
Client’s execution of this agreement, Client acknowledges that it has read these
and agrees to be bound by each of these terms and conditions, which are hereby
incorporated by reference as if fully set forth herein.
If the
foregoing accurately sets forth the understanding between us, please so indicate
by signing and returning the enclosed copy of this letter to me. By virtue of my
signature below, CRG is committed to providing its best efforts in the areas
discussed above. The Company has the option to cancel this agreement at any time
and for whatever reason upon written or oral notice to CRG. However, if this
agreement is cancelled by the Company, CRG will be entitled to payment of its
professional fees and expenses incurred through cancellation and the
confidentiality and indemnity provisions of this agreement will survive
cancellation.
I very
much appreciate the opportunity to present this agreement to you and look
forward to working with you on this assignment.
2
|
Very
truly yours,
|
||||
 |
Date:
|
12/17/09
|
||
|
CRG
Partners Group, LLC
|
||||
|
By:
|
||||
|
Agreed
and accepted:
|
||||
 |
Date:
|
12/17/09
|
||
|
Benihana,
Inc
|
||||
|
By:
|
||||
3
Appendix
General
Terms and Conditions
1. Retainer
and Compensation.
(a) If the Client fails
at any time or for any reason to pay any amounts due under this Agreement, then
CRG may apply the Retainer to such unpaid amounts immediately and without prior
notice to the Client. Client shall have a continuing obligation to replenish the
Retainer or any increases to the Retainer to the required amount within three
(3) days of any CRG request.
(b) To the extent CRG
is not actually working while traveling, CRG shall charge travel time for
individuals at one-half of the applicable hourly rate. CRG adjusts its hourly
rates for services periodically. Client agrees to pay such hourly rates as
reasonably adjusted. The Company will be billed for all out-of-pocket expenses
reasonably incurred by CRG in the performance of its obligations under this
agreement. Such expenses shall include travel, meals and lodging, delivery
services, etc. All travel and lodging expenses shall be billed at tourist class.
In states where CRG is obligated to collect sales taxes on professional
services, such taxes will be invoiced to you.
2. Access
to Client Personnel and Information and Client Representation Concerning
Information Provided to CRG.
(a) The Client will
provide CRG with full access to all Client personnel, books, and records
reasonably required for the performance of CRG’s services.
(b) The services to the
Client under this Agreement may include the preparation of recommendations,
projections, and other forward-looking statements. The Client acknowledges that
numerous factors may affect the Client’s actual financial and operational
results, and that these results may materially and adversely differ from the
recommendations and projections prepared, in whole or in part, by CRG. The
Client acknowledges that in rendering its services under this Agreement, CRG
will be using and relying upon the information provided by Client, its
directors, officers, employees, representatives and agents. Under any of the
foregoing circumstances, the Client agrees that CRG shall have no duty to verify
independently the reliability, accuracy or completeness of such information. The
Client also agrees that CRG shall incur no liability to the Client or any
individual or other entity that may arise if any such information proves to be
unreliable, inaccurate or incomplete.
3. Confidential
Information.
(a) CRG shall exercise
due care to maintain the confidentiality of and not to disclose the Client’s
“Confidential Information.” Further, CRG will use the Confidential Information
only for the purpose of providing services to the Client pursuant to this
Agreement. “Confidential Information” shall consist of all information that is
(i) shared with disclosed or made available to CRG by the Company, any personnel
or directors of the Company or the Company’s affiliates, agents, representatives
or designees beginning November 20th, 2009 and continuing throughout the
engagement, or (ii) acquired by CRG from inspection of the Client’s property in
connection with this Agreement; or (iii) produced by CRG, from Confidential
Information in connection with providing services to the Client under this
Agreement
(b) Confidential
Information shall not include information that is: (i) now or subsequently
becomes generally known or available by publication, commercial or otherwise,
through no fault of CRG, its employees, agents, or independent contractors; (ii)
already known by CRG at the time of the disclosure, provided that such
information did not come from a source known by CRG to be bound by a
confidentiality agreement with the Client, or from a source that was otherwise
prohibited from disclosing such information under a contractual, legal or
fiduciary obligation; (iii) becomes available to CRG on a non-confidential basis
from a source other than the Client, provided that, to CRG’s knowledge, the
source was not prohibited from disclosing such information to CRG under a
contractual, legal or fiduciary obligation to the Client; (iv) independently
developed by CRG, its employees, agents, or independent contractors primarily
from information that is not Confidential Information; (v) information that the
Client and CRG agree in writing, may be disclosed; (vi) information that is
reasonably expected to be disclosed as part of CRG’s Scope; or (vii) information
that CRG reasonably believes, after consultation with its attorneys, it must
disclose pursuant to applicable law, or regulatory or administrative process,
including stock exchange rules, in which case, CRG will use its best efforts to
provide advance notice to Client and follow, to the extent practical, the
procedures set forth below concerning CRG receiving legal process to produce
Confidential Information.
(c) CRG may make
reasonable disclosures of Confidential Information: (i) to third parties in
connection with the performance of its services under this Agreement so long as
such disclosures are made pursuant to a confidentiality agreement in form and
substance satisfactory to the Client; or (ii) in connection with any dispute
between CRG and Client under or concerning this Agreement. If CRG receives any
request by order, subpoena, or other legal process to produce any Confidential
Information, then unless otherwise prohibited by law or process, CRG will use
its best efforts to provide the Client with timely notice of such request. At
the Client’s request and expense, and unless otherwise prohibited by law or
against a recommendation by CRG’s counsel, and without relinquishing or
modifying CRG’s authority to disclose information under the terms of this
Agreement, CRG will cooperate reasonably with the Client in actions that the
Client deems necessary or appropriate under the circumstances to protect the
confidentiality of the Confidential Information.
(d) CRG may not disclose
its engagement by Client or the name of the Client or in any manner likely to
lead to the identification of the Client, nor shall it use the fact of this
engagement or Client’s name for any non-confidential purpose without advance
written consent by Client.
4
4. No
Third-Party Beneficiaries: Use of CRG’s Work Product by Client. The
Client acknowledges that all information, whether written or oral, created,
prepared, or compiled by CRG in connection with this Agreement is intended
solely for the benefit and use of the Client. No other individual or entity
shall be entitled to rely on such information for any purpose. Client agrees
that such information shall not be reproduced, disseminated, quoted or referred
to at any time or in any manner other than to the Client’s board of directors,
officers, employees, representatives, attorneys, and other agents who have a
need to receive such information, except upon CRG’s prior written consent.
Without limiting the foregoing, the Client shall not (and shall not authorize
any other individual or entity to) use CRG’s name or to make available to third
parties any information created, prepared, or compiled by CRG under this
Agreement for any reason, including obtaining or extending credit, offering or
selling securities or other assets, or in any representations to third parties
without CRG’s prior written consent. It is also expressly agreed that
notwithstanding the above restrictions upon the Client’s dissemination and use
of information and work product, CRG shall have no responsibility or liability
relating directly or indirectly to such disclosure (whether authorized or
unauthorized) by the Client concerning any information created, prepared, or
compiled, in whole or in part, by CRG pursuant to this Agreement, which may be
disclosed only after prior written approval by CRG or as required by applicable
law, or regulatory or administrative process, including stock exchange rules.
The foregoing provisions shall not be construed or interpreted to prohibit
references to CRG’s engagement under this Agreement in required public filings
or court documents.
5. Independent
Contractor Status. CRG
is an independent contractor under this Agreement, and accordingly, this
Agreement shall not be an employment agreement. No one on behalf of any CRG
Party (as defined below), nor any employees, agents, or independent contractors
thereof, shall be considered to be a director, officer, member, manager,
partner, control person, employee, representative, agent, or insider of the
Client, unless expressly agreed to in a writing signed by Client and CRG. As an
independent contractor, CRG will have exclusive control over the management and
operation of CRG, including hiring and paying the wages or other compensation of
its personnel. Unless expressly provided otherwise in the Scope, the CRG
personnel that provide services to the Client under this Agreement may also
provide services to other past, present or future CRG clients in connection with
unrelated matters. In addition, CRG may utilize the services of its own
employees or services of qualified independent contractors to perform this
Agreement. Any such independent contractors shall agree in writing to be bound
by the confidentiality provisions contained herein.
6. No
Fiduciary Relationship. Other
than with respect to appointment(s) of a CRG Party as an officer and/or director
of Client in writing, and otherwise in accord with the provisions of this
Agreement, nothing in this Agreement is intended to create, or shall be deemed
or construed to create a fiduciary relationship between: (a) the Client,
including without limitation, the Client’s directors, officers, members,
managers, partners, control persons, shareholders, employees, representatives,
agents, or creditors, on the one hand; and (b) CRG, CRG’s affiliates, and the
respective directors, officers, members, managers, partners, control persons,
shareholders, employees, representatives, independent contractors, attorneys,
agents, successors or assigns of CRG or CRG affiliates (all of the foregoing in
this subpart (b) collectively, the “CRG Parties,” and each a “CRG Party”) on the
other hand.
7. Indemnity
by Client. As
part of the consideration for the agreement of CRG to furnish its services
pursuant to this engagement letter, the Company agrees to indemnify and hold
harmless CRG, its officers, directors, agents and employees any successors and
assigns (each, an “Indemnified Party”) to the fullest extent lawful from any and
all claims, liabilities, losses, damages and expenses (collectively, “Damages”),
as incurred, related to or arising out of or in connection with or related to
third party claims which are based upon or arise out of this engagement,
including, without limitation, any and all of such Indemnified Parties’
reasonable expenses incurred in connection with investigating, preparing,
defending or settling any action or claim arising from or relating to such
liabilities, excluding, however any Damages (a) based upon or arising out of any
settlement by an Indemnified Party effected without Company’s prior written
consent or (b) to the extent but only to the extent that it is finally
judicially determined that such Damages are primarily due to such Indemnified
Party’s bad faith, willful misconduct or gross negligence. The indemnity and
expense reimbursement obligations set forth herein (i) shall survive the
expiration of CRG’s engagement hereunder, (ii) shall apply to any modification
of CRG’s engagement hereunder and shall remain in full force and effect
following the completion or termination of the engagement as amended or
modified, and (iii) shall be binding on any successor or assign of the Company
and its successors or assigns. Promptly after receipt by an Indemnified Party of
notice of any intention or threat to commence an action, suit or proceeding or
notice of the commencement of any action, suit or proceeding, such Indemnified
Party will, if a claim in respect thereof is to be made against the Company
pursuant hereto, promptly notify the Company in writing of the same. In the case
such action is brought against any Indemnified Party and such Indemnified Party
notifies the Company of the commencement thereof, the Company shall assume the
defense thereof with counsel reasonably satisfactory to such Indemnified Party,
and the Indemnified Party may employ counsel to participate in the defense of
any action provided, that the employment of such counsel shall be at the
Indemnified Party’s own expense, unless (i) the employment of such counsel has
been authorized in writing by the Company, or (ii) the Company has not in fact
employed counsel reasonably satisfactory to the Indemnified Party to assume the
defense of such action within a reasonable time after receiving notice of the
action, suit or proceeding, in each of which cases the reasonable fees,
disbursement and other charges of such counsel will be at the expense of the
Company; provided, further, that in no event shall the Company be required to
pay fees and expenses for more than one firm of attorneys representing
Indemnified Parties unless the defense of one Indemnified Party is unique or
separate from that of another Indemnified Party subject to the same claim or
action. Any failure or delay by an Indemnified Party to give the notice referred
to in this paragraph shall not affect such Indemnified Party’s right to be
indemnified hereunder, except to the extent that such failure or delay causes
actual harm to the Company, or prejudies, its ability to defend such action,
suit or proceeding on behalf of such Indemnified Party.
8. Alternative
Dispute Resolution Procedure. The
parties agree to arbitrate any claims or disputes concerning, relating to, or
arising out of this Agreement, except claims or disputes: a) where the amount in
controversy exceeds $500,000; or b) where the Client, or any individual or other
entity comprising the Client, files a voluntary bankruptcy under title 11 of the
United States Code, or has an involuntary bankruptcy petition under title 11 of
the United States Code filed against it. If the alternative dispute resolution
procedure applies, then any claim or dispute concerning, relating to, or arising
out of this Agreement shall be resolved by binding arbitration in accordance
with the rules of the American Arbitration Association, or such other rules to
which CRG agrees.
5
9. Non-Solicitation. For
a period of six (6) months after the later of: (a) the completion of all
services to be provided by CRG under this Agreement; or (b) termination of this
Agreement, the Client, including any affiliates thereof, shall not hire, retain
or utilize (other than through CRG) the services of any current or former
employee of CRG or independent contractor who provided services under this
Agreement at any time. The Client agrees and acknowledges that CRG’s remedy at
law for any breach of the provisions of this Section would be inadequate and
that for any breach of such provisions
CRG will, in addition to such other remedies as may be available to it at law or
in equity, be entitled to injunctive relief and to enforce its rights by an
action for specific performance to the extent permitted by law.
10. Attorneys’
Fees and Expenses. In
any dispute between the parties with respect to the meaning or application of
this agreement, the prevailing party shall be entitled to an award of its legal
costs incurred in connection with the resolution of such dispute. Consent;
Entire Agreement. In
any instance under this Agreement where a party’s consent is permitted or
required to be given, such consent shall not be withheld unreasonably. This
Agreement contains the entire Agreement of the parties with respect to its
subject matter, and supersedes all prior agreements and understandings between
the Client and CRG with respect to such subject matter. The parties agree that
all terms of their agreement and understanding are embodied in this Agreement,
and as modified or supplemented from time to time, but only if such modification
or supplement is both: (i) in writing, and (ii) signed by all
parties.
11. Multiple
Originals. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
document. This Agreement may be executed by facsimile signatures or signatures
forwarded via email.
6