SEPARATION AGREEMENT AND GENERAL RELEASE
Exhibit 10.1
THIS SEPARATION AGREEMENT AND GENERAL RELEASE (“Agreement”) is entered into on the last
date set forth in the signature page hereto, effective as of the Separation Date (as defined
in Section 1 below), by and between COSÌ, INC., a Delaware corporation (the
“Company”), and XXXXXXXXXXX XXXX, a resident of the State of Illinois (“Employee”).
Employee and the Company agree as follows:
1. Resignation and Separation. The employment relationship between Employee and
the Company shall terminate on August 26, 2008 (the “Separation Date”). Employee will be paid
(a) Employee’s pro rata bi-weekly salary through the Separation Date, less applicable
withholding taxes and deductions, (b) reimbursement for any expenses incurred in the ordinary
course of business and in accordance with the Company’s business expense reimbursement policy,
and (c) pro rata vacation earned but not yet taken through the Separation Date, less
applicable withholding taxes and deductions (as summarized below):
Vacation, on a pro rata basis, as of August 26, 2008:
Total Gross Vacation Days: |
13 | |||
Vacation Days Paid in the Current Year: |
14 | |||
Net Vacation Days Accrued (but not taken) at Separation Date: |
0 |
Employee’s medical and health benefits shall continue through the end of the calendar month
during which the Separation Date occurs (i.e., August 26, 2008).
2. Severance Compensation. Subject to the terms of this Agreement, and providing
Employee executes and does not revoke this Agreement, the Company agrees to pay to Employee
after the Separation Date the additional compensation set forth below:
(a) Severance. Gross payments equal to TWELVE (12) WEEKS of Employee’s salary,
totaling SIXTY THOUSAND NINE HUNDRED TWENTY THREE AND 04/00 DOLLARS ($60,923.04), less
applicable withholding taxes and deductions, payable in bi-weekly equal installments on a
schedule consistent with the Company’s payroll schedule, in the form of a check mailed to
Employee’s last payroll address on file with the Company or to such other address as may be
designated in writing by Employee. Such payments shall commence consistent with the Company’s
first regularly scheduled pay date following Employee’s Separation Date and shall continue
bi-weekly thereafter until such amount is paid in full.
(b) Medical and Health Benefits. For the period commencing September 1, 2008
through September 30, 2008, the Company shall pay for the cost to continue Employee’s medical
and health benefits coverage under the Consolidated Omnibus Budget Reconciliation Act
(“COBRA”). After September 30, 2008, Employee may elect, at Employee’s expense, to continue
medical and health benefits coverage pursuant to Employee’s rights under COBRA.
Employee acknowledges that the foregoing payments set forth in this Section 2 are
compensation which the Company would not be required to pay to Employee but for this
Agreement. Except for the amounts expressly set forth in Section 1 above for services
rendered through the end of the day on the Separation Date, and in this Section 2
above as additional compensation after the Separation Date, no other compensation or benefits,
including, without limitation, compensation for unpaid salary, unpaid bonus, severance or
accrued or unused vacation time or vacation pay, arising from or relating to Employee’s
employment with the Company or the termination of Employee’s employment, are due to Employee
by the Company under this Agreement or otherwise.
3. Return of Company Materials. Employee agrees to and shall promptly return to
the Company at the Company’s Support Center, or such other location as may be agreed to by
Employee and the Company, all property of the Company in Employee’s control or possession, in
any media or format whatsoever, including, without limitation, confidential and proprietary
information of the Company, keys, and key cards, security codes, laptop computer,
training materials, financial information, budgets, business plans, files, customer lists,
franchisee lists, and any other equipment, materials, or information of the Company. With
respect to electronic data and/or other information of the Company stored in electronic format
or media, Employee agrees to and shall promptly delete and destroy all electronically stored
data and files, and at the Company’s request, certify in writing to the Company that Employee
has done so.
4. Employee Release. For and in consideration of the payments and/or other
benefits to be provided to and/or on behalf of Employee pursuant to this Agreement, and the
agreements set forth herein, and other good and valuable consideration, the receipt and
sufficiency of which Employee hereby acknowledges and agrees, Employee, on behalf of Employee
and Employee’s heirs, beneficiaries, agents, executors and assigns, hereby voluntarily,
knowingly, and willingly releases and forever discharges the Company and its stockholders,
parents, affiliates, subsidiaries, divisions, any and all current and former directors,
officers, executives and agents thereof, and their heirs, agents and assigns, and any and all
pension benefit or welfare benefit plans of the Company, including current and former trustees
and administrators of such pension benefit and welfare benefit plans (collectively, the
“Releasees”), from any and all claims, complaints, causes of action, charges, demands or
rights, of any kind or nature whatsoever, in law or in equity, whether known or unknown, which
may have existed or which may now exist from the beginning of time to the date of this
Agreement, including, without limitation, any claims Employee may have arising from or
relating to Employee’s employment or termination from employment with the Company, and further
including a release of any rights or claims Employee may have under the Age Discrimination in
Employment Act of 1967, as amended by the Older Worker Benefits Protection Act, the Equal Pay
Act, Title VII of the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, the
Americans with Disabilities Act, the Family and Medical Leave Act of 1993; Section 1981 of the
Civil Rights Act of 1866; Section 1985(3) of the Civil Rights Act of 1871; the Employment
Retirement Income Security Act of 1974, as amended; any other federal, state or local laws
against discrimination; or, any other federal, state, or local statute or common law relating
to employment, wages, hours, or any other terms and conditions of employment, including, but
not limited to, the Illinois Human Rights Act, and the Illinois Wage Payment and Collection
Act and any other laws regarding the payment of wages, to the maximum extent permitted by law.
This release further includes a release by Employee of any claims for wrongful discharge,
breach of contract, torts or any other claims in any way related to Employee’s employment with
or resignation or termination from the Company.
This Section 4 shall operate as a general release and a covenant not to xxx to
the extent permitted by law. It is the intention of the parties in executing this Agreement
that it shall be an effective bar to each and every claim, demand, and cause of action
described in this Section 4, including known and unknown claims. This release is not
intended as a bar to any claim that, by law, may not be waived, or a claim to challenge the
validity of this Agreement. Employee waives any right to any monetary recovery should any
federal, state or local administrative agency pursue any claims on Employee’s behalf arising
out of or related to Employee’s employment with and/or termination from Employee’s employment
with the Company. Employee acknowledges that Employee has not suffered any on-the-job injury
or condition for which Employee has not already filed a claim. Employee further acknowledges
that Employee has no pending claims against the Company.
5. No Admission. This Agreement is not an admission by either Employee or the
Company of any wrongdoing or liability.
6. Waiver of Reinstatement. Employee waives any right to reinstatement or future
employment with the Company following Employee’s separation from the Company on the Separation
Date.
7. No Disparagement. Employee agrees and shall not engage in any act that is
intended, or may reasonably be expected, to harm the reputation, business, prospects or
operations of the Company, its officers, directors, stockholders or executives. Employee will
take no action which would reasonably be expected to lead to unwanted or unfavorable publicity
to the Company.
8. No Disclosure of Terms of Agreement. Employee, on Employee’s own behalf and
on behalf of all others consulted by Employee concerning this Agreement, agrees that, as part
of the consideration for the total sum of the amounts identified in Section 2 above,
the facts, terms and conditions of this Agreement, and all negotiations related thereto, shall
remain completely confidential, unless and except to the extent disclosure is required by law.
Employee,
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on Employee’s own behalf and on behalf of all others consulted by Employee concerning this
Agreement, agrees that there shall be no disclosure by Employee, directly or indirectly, of
any information concerning the facts, terms and conditions of this Agreement, and all
negotiations related thereto, except as required by law, to anyone other than the Internal
Revenue Service and financial advisors of Employee.
9. Restrictive Covenants. Employees acknowledges and agrees that Employee
continues to be bound by the restrictive covenants set forth in and the terms and conditions
of that certain Confidentiality and Non-Compete Agreement dated on or about November 7, 2006
entered into between Employee and the Company, and that the terms and agreements thereof which
are intended to survive Employee’s termination and separation of employment with the Company
shall so survive and continue in full force and effect.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois, without reference to the principles of
conflict of laws.
11. Entire Agreement; Severability. This Agreement represents the complete
agreement between Employee and the Company concerning the subject matter of this Agreement and
supersedes all prior agreements or understandings, written or oral. This Agreement may not be
amended or modified otherwise than by a written agreement executed by the parties hereto or
their respective successors and assigns and legal representatives on their behalf. The
provisions of this Agreement are severable, and if any part of this Agreement is found to be
unenforceable, the other provisions of this Agreement shall remain fully valid and enforceable
to the fullest extent permitted by law.
12. Revocation Period. Employee may revoke his release of claims under the ADEA
(as defined in Section 13(h) below) within the seven (7) day period following the execution of
this Agreement by Employee. Any such revocation must be submitted in writing to the Company
and to the person identified in the Company’s notice address set forth below the Company’s
signature block on the signature page attached hereto, and must state, “I hereby revoke my
release of claims under the ADEA.” If the last day of the revocation period is a Saturday,
Sunday or legal holiday recognized in the State of Illinois, then such revocation period shall
not expire until the next following day which is not a Saturday, Sunday or legal holiday. In
the event of Employee’s revocation under this provision of the Agreement, only the release of
claims under the ADEA will be affected and the remainder of the Agreement shall remain in full
force and effect and all other claims will remain released.
13. Knowing and Voluntary Execution. By executing this Agreement, Employee
acknowledges that:
(a) Employee has entered into this Agreement voluntarily and not as a result of coercion,
duress, or undue influence;
(b) Employee has read and fully understands the terms of this Agreement;
(c) EMPLOYEE HAS BEEN ADVISED TO CONSULT WITH AN ATTORNEY AND/OR OTHER ADVISORS OF
EMPLOYEE’S CHOICE BEFORE EXECUTING THIS AGREEMENT;
(d) Employee understands that this Agreement is LEGALLY BINDING and by executing it
Employee gives up certain rights;
(e) Employee has been afforded the opportunity of at least twenty-one (21) days to
consider this Agreement (although Employee may voluntarily choose to execute this Agreement
earlier) and to consult with an attorney;
(f) Pursuant to Section 4 above, Employee VOLUNTARILY, KNOWINGLY, AND WILLINGLY
RELEASES the Releasees from any and all claims Employee have, known or unknown, in exchange
for the additional compensation provided to Employee by executing this Agreement;
(g) Employee may revoke his release of claims under the ADEA within the seven (7) day
period following Employee’s execution of this Agreement, as set forth in Section 12
above; and
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(h) The General Release in this Agreement includes a WAIVER OF ALL RIGHTS AND CLAIMS
Employee may have under the Age Discrimination in Employment Act of 1967 (29 U.S.C. §621 et
seq.), as amended by the Older Workers’ Benefit Protection Act (“ADEA”).
14. Notice. Any notice required or permitted to be given hereunder shall be in
writing and delivered by hand, express delivery or by a nationally recognized courier (i.e.,
DHL, Federal Express, UPS, etc.) or mailed by certified mail, return receipt requested,
postage prepaid, addressed to the respective notice addresses set forth below each party’s
name on the signature page.
15. Counterparts; Facsimile. This Agreement may be executed in counterparts,
each of which shall be deemed an original. This Agreement and any counterpart so executed
shall be deemed one and the same instrument. Signature by facsimile or other electronic
transmission is hereby authorized and shall have the same force and effect as an original
signature.
This Agreement has been executed by the parties as of the respective dates set forth
below.
EMPLOYEE:
|
COMPANY: | |||||
| COSI, INC., a Delaware corporation | ||||||
/s/ XXXXXXXXXXX XXXX
|
/s/ XXXXX XXXXX | |||||
Date: September 5, 2008, 2008
|
Title: Vice President of People | |||||
| Date: September 8, 2008 | ||||||
Notice (Current) Address: |
||||||
| Notice Address: | ||||||
0000 X Xxxxxxxxx Xxxxxx |
||||||
Xxxxxxx, XX 00000 |
||||||
| Cosi, Inc. | ||||||
| 0000 Xxxx Xxxx Xxxx, 0xx Xxxxx | ||||||
| Xxxxxxxxx, XX 00000 | ||||||
Telephone:
|
Attn: Xxxxx Xxxxx, V. P. of People | |||||
| Telephone: (000) 000-0000 |
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