EXHIBIT 10.4.5
SEPARATION AND RELEASE AGREEMENT
This Separation and Release Agreement ("Agreement") is entered into
as of this 9th day of July, 2003, between COSI, INC., a Delaware corporation,
and any successor thereto (collectively, the "Company") and Xxxxxxxx Xxxxx III
(the "Executive").
The Executive and the Company agree as follows:
1. The employment relationship between the Executive and the Company
terminated on April 30, 2003. In lieu of written notice of the Executive's
termination pursuant to Section 6(c) of the Employment Agreement between the
Executive and the Company, dated January 1, 2002 (the "Employment Agreement"),
the Company has paid the Executive his salary for the month of May.
2. In accordance with the Employment Agreement, the Company has
agreed to pay the Executive certain payments and to make certain benefits
available as set forth on Annex 1 hereto.
3. For and in consideration of the payments and/or other benefits to
be provided to and/or on behalf of the Executive pursuant to the Employment
Agreement and this Agreement, the sufficiency of which the Executive hereby
acknowledges, the Executive, on behalf of the Executive and the Executive's
heirs, executors and assigns, hereby 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 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, from all claims, charges, or demands,
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 the Executive may have arising from or
relating to the Executive's employment or termination from employment with the
Company, including a release of any rights or claims the Executive may have
under Title VII of the Civil Rights Act of 1964, as amended, and the Civil
Rights Act of 1991 (which prohibit discrimination in employment based upon race,
color, sex, religion, and national origin); the Americans with Disabilities Act
of 1990, as amended, and the Rehabilitation Act of 1973 (which prohibit
discrimination based upon disability); the Family and Medical Leave Act of 1993
(which prohibits discrimination based on requesting or taking a family or
medical leave); Section 1981 of the Civil Rights Act of 1866 (which prohibits
discrimination based upon race ); Section 1985(3) of the Civil Rights Act of
1871 (which prohibits conspiracies to discriminate); the Executive Retirement
Income Security Act of 1974, as amended (which prohibits discrimination with
regard to benefits); 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. This includes a release by the Executive of any claims for wrongful
discharge, breach of contract, torts or any other claims in any way related to
the Executive's employment with or resignation or termination from the Company.
This release also
includes a release of any claims for age discrimination under the Age
Discrimination in Employment Act, as amended ("ADEA"). The ADEA requires that
the Executive be advised to consult with an attorney before the Executive waives
any claim under ADEA. In addition, the ADEA provides the Executive with at least
21 days to decide whether to waive claims under ADEA and seven days after the
Executive signs this Agreement to revoke that waiver. Notwithstanding the
foregoing provisions of this Section 3, the release given by the Executive
hereunder shall not apply to, and the Executive shall retain and shall be
entitled to enforce by litigation or otherwise, all rights arising under or with
respect to (i) the obligations of the Company to indemnify and hold harmless the
Executive, (ii) all directors and officers liability insurance coverage
applicable to the Executive, (iii) the Executive's rights to enforce the terms
of this Agreement and the Employment Agreement, and (iv) any and all benefits to
which the Executive shall be entitled under the terms of the Company's employee
benefit plans.
4. This Agreement is not an admission by either the Executive or the
Company of any wrongdoing or liability.
5. The Executive agrees he will not make, or cause any other person
to make, any false, disparaging or derogatory statements regarding the Company
or its subsidiaries or any of their respective current or former shareholders,
directors, officers, employees, agents or representatives (in their respective
capacities as current or former shareholders, directors, officers, employees,
agents or representatives of the Company or its subsidiaries). The Executive
further agrees not to take any action or make any statement the effect of which
would be directly or indirectly to materially impair the goodwill of the
Company, including, but not limited to any action or statement intended,
directly or indirectly, to benefit a competitor of the Company. The Company
shall take all reasonable measures to cause the senior officers and directors of
the Company (in their respective capacities as senior officers and directors of
the Company) not to make any false, disparaging or derogatory statements
regarding the Executive.
6. Notwithstanding any provision of this Agreement to the contrary,
(i) the rights and benefits of the parties set forth in the Employment Agreement
(including without limitation, Sections 7(g), 9, 10, 11, 13 and 24) shall remain
in full force and effect following the execution of this Agreement to the extent
necessary to give effect to the terms thereof and (ii) the Company shall
indemnify the Executive to the fullest extent permissible under its by-laws as
in effect on the date hereof. The Executive agrees that he will cooperate with
the Company with respect to any suit filed, or investigation undertaken, against
the Company.
7. The Executive waives any right to reinstatement or future
employment with the Company following the Executive's separation from the
Company on April 30, 2003.
8. The Executive agrees not to engage in any act after execution of
this Agreement 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. The Executive will take no action which
would reasonably be expected to lead to unwanted or unfavorable publicity to the
Company.
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9. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without reference to the principles of
conflict of laws. Exclusive jurisdiction with respect to any legal proceeding
brought concerning any subject matter contained in this Agreement shall be
settled by arbitration as provided in the Employment Agreement.
10.This Agreement and the Employment Agreement represent the
complete agreement between the Executive and the Company concerning the subject
matter in 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 legal representatives.
00.Xx is further understood that for a period of seven (7) days
following the execution of this Agreement in duplicate originals, the Executive
may revoke this Agreement, and this Agreement shall not become effective or
enforceable until this revocation period has expired. No revocation of this
Agreement by the Executive shall be effective unless the Company has received
within the seven (7) day revocation period, written notice of any revocation,
all monies received by the Executive under this Agreement and all originals an
copies of this Agreement.
12.This Agreement has been entered into voluntarily and not as a
result of coercion, duress, or undue influence. The Executive acknowledges that
the Executive has read and fully understands the terms of this Agreement and has
been advised to consult with an attorney before executing this Agreement.
Additionally, the Executive acknowledges that the Executive has been afforded
the opportunity of at least twenty-one (21) days to consider this Agreement.
13.This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original. This Agreement and any counterpart so
executed shall be deemed one in the same instrument.
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The parties to this Agreement have executed this Agreement as of the
day and year first written above.
COSI, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Executive Chairman
XXXXXXXX XXXXX III
/s/ Xxxxxxxx Xxxxx III
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ANNEX 1
The Executive shall receive the following severance payments and benefits, less
any applicable withholding taxes:
1) Commencing June 1, 2003, 52 bi-weekly payments of $15,865.38, subject to
adjustment as provided in paragraph 2) below.
2) A lump sum payment of $200,000 payable within fifteen (15) days following the
completion of the Company's pending rights offering or of another significant
funding event that results in net proceeds to the Company of at least $8.5
million (alternatively, a "Funding Event"); provided that if a Funding Event is
not completed by December 31, 2003 no such lump sum payment will be made. If
such $200,000 payment is made prior to January 15, 2004, the Company payments
referred to in paragraph 1) above will cease after the 34th bi-weekly payment
and the 34th bi-weekly payment shall be reduced to $1,442.46, such that the
Executive shall receive 33 bi-weekly payments of $15,865.38 (or $523,557.54)
plus one payment of $1,442.46 plus the lump sum payment of $200,000 for total
payments pursuant this paragraph 2) and paragraph 1) of $725,000. All such
payments shall be less applicable withholding taxes. Notwithstanding the
foregoing, on the first bi-weekly payment due after the date of this Agreement,
the Company shall pay to the Executive any amounts due hereunder not paid to the
Executive as of such payment date.
3) 24 monthly payments of $2000 to be paid to the Executive, plus an amount up
to $3,000 to be paid to the lessor of the automobile at the end of the lease on
the Executive's current automobile equal to the additional expense associated
with work-related mileage that exceed the maximum mileage under the lease.
4) Reimbursement of legal fees incurred in connection with the negotiation of
this Agreement up to $10,000.
5)All stock options held by the Executive under the Stock Option Plan (as
defined in the Employment Agreement) shall become 100% vested as of June 1, 2003
and each such option shall not be subject to accelerated exercise requirements
or early termination provisions and instead shall be exercisable through and
including the date which is the second anniversary of June 1, 2003.
6) In lieu of the Company's obligation to provide the Executive with reasonable
office space and secretarial assistance pursuant to the Employment Agreement,
the Executive will be permitted to retain the desktop computer, laptop computer
and printers issued to him by the Company; provided, all Company information
thereon shall be deleted and, upon request by the Company, Executive shall
certify in writing the deletion of such information.
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7) In the event that the Executive's elects continuing benefits coverage
pursuant to his rights under the Consolidated Omnibus Budget Reconciliation Act
("COBRA"), the Company shall pay the Executive's COBRA premiums for a period of
eighteen months following June 1, 2003.
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