Exhibit 10.5.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (THE "AGREEMENT") is entered into as of this
1st day of January 2002, by and between COSI, INC., a Delaware corporation (the
"Company"), and Andrew S. Wainwright, Jr. (the "Executive").
RECITAL
The Executive is currently employed as the Vice President and Co-Chief
Development Officer of the Company and is being retained as Vice President of
Real Estate of the Company, and the parties have negotiated this Agreement in
consideration of the Executive's valuable services and leadership.
NOW THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties do hereby agree as follow:
SECTION 1. EFFECTIVE DATE. This Agreement shall be effective upon, and
from and after, the date set forth above.
SECTION 2. DEFINITIONS. As used herein, the following terms shall have
the following meanings:
(a) "Board" means the Board of Directors of the Company.
(b) "Disability" means that the Executive (1) has been unable, due
to mental or physical incapacity, disease or injury, to
perform the essential functions of his job, even with
reasonable accommodation, for 180 or more days within one
year, or (2) the Board has received a written determination by
a physician selected by the Board that the Executive will be
unable to perform the essential functions of his job, even
with reasonable accommodation, for 180 or more days within one
year.
(c) "Discharge" means the termination by the Company of the
Executive's employment during the Period of Employment for any
reason other than (i) Good Cause, (ii) death of the Executive,
(iii) Disability of the Executive or (iv) Retirement of the
Executive.
(d) "Expiration Date" means the date that the Period of Employment
(as it may have been extended) expires.
(e) "Good Cause" has its meaning as defined in Section 6 hereof.
(f) "Period of Employment" shall be for a term of three years
beginning on the Effective Date of this Agreement and ending
on the third anniversary of the Effective Date (the "Third
Anniversary Date"); provided, however, that commencing on the
Third Anniversary Date, the Executive's Period of Employment
shall automatically be extended for successive one-year
periods commencing on the Third Anniversary Date and on each
anniversary of the Third Anniversary Date unless the Company
or Executive gives the other written notice of nonextension at
least 180 days prior to that date. Any extension of the Period
of Employment shall be upon terms and conditions no less
beneficial to the Executive than those in effect hereunder at
the time of such extension.
(g) "Retirement" means a time when the sum of the Executive's age
and employment with the Company equals or exceeds 65.
(h) "Senior Management" means the senior executive management of
the Company.
(i) "Stock Option Plan" means the Cosi, Inc. Stock Incentive Plan,
as the same may be amended from time to time, the Cosi
Sandwich Bar, Inc. 1996 Incentive Stock Option Plan, and any
other similar plans which may hereafter be established by the
Company.
(j) "Termination Date" means: (i) if the Executive's employment is
terminated by reason of death, the Executive's date of death;
(ii) if the Executive's employment is terminated by reason of
Retirement, the date of his Retirement; (iii) if the
Executive's employment is terminated by reason of Disability,
the date of his Disability; (iv) if the Executive's employment
is terminated for Good Cause, the date specified in the
written notice of termination given by the Company pursuant to
Section 6(a); (v) if the Executive's employment is terminated
by reason of a Discharge, the effective date of Discharge;
(vi) if the Executive's employment is terminated by reason of
nonextension of the Period of Employment, the Expiration Date;
and (vii) if the Executive voluntarily terminates his
employment as permitted by Section 6(b), the effective date of
his termination of employment.
SECTION 3. EMPLOYMENT; PERIOD OF EMPLOYMENT. The Company hereby employs
the Executive, and the Executive hereby accepts employment by the Company, for
the Period of Employment, in the position and with the duties and
responsibilities set forth in Section 4, upon the terms and subject to the
conditions of this Agreement.
SECTION 4. POSITION, DUTIES AND RESPONSIBILITIES. During the Period of
Employment, the Executive shall serve as Vice President of Real Estate of Cosi,
Inc. The Executive shall report to the Chief Development Officer of the Company
(or such other individual who at any time is responsible for the Company's real
estate division), and shall have such powers and authority normally associated
with the position of Vice President of Real Estate at similarly situated
companies, subject to the direction and control of, the Chief Development
Officer of the Company (or such other individual who at any time is responsible
for the Company's real estate division). Executive shall devote all of his
working time to performing all
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duties and responsibilities hereunder in good faith and shall, at all times, act
in what the executive reasonably believes to be in the best interest of the
Company. The Executive shall be allowed holiday and vacation periods, leaves for
periods of illness or incapacity and personal leaves in accordance with the
Company's regular practices for members of Senior Management. Nothing in this
Section 4, however, shall serve to prohibit or otherwise restrict the Executive,
during his personal time, from engaging or being engaged (i) in activities in
connection with personal investments, (ii) as a consultant to, or serving on the
board of directors of, entities other than the Company, or (iii) in business
activities and investments of his immediate family, and (iv) community affairs;
provided, however, that such activities (A) do not interfere with the
performance of services by Executive hereunder; and (B) do not otherwise violate
any of the terms and conditions of this Agreement.
SECTION 5. COMPENSATION, COMPENSATION PLANS AND BENEFITS. During the
Period of Employment, the Executive shall be compensated as follows:
(a) Annual Base Salary. Executive shall receive an annual base
salary equal to $137,500 for 2002; $168,000 for 2003; $200,000
for 2004; and such amount as is determined by the compensation
committee of the Board (the "Committee") thereafter. In
addition, he shall receive non-incentive compensation,
inclusive of a car allowance, in the amount of $1,500 per
month. Such compensation and non-incentive compensation shall
be paid in accordance with the Company's regular schedule for
payment of salaried employees.
(b) Bonuses.
(i) Cash Bonus. Cash bonus shall be targeted at 50% of
Annual Base Salary in accordance with the Company's
then current compensation plan for Senior Management.
Cash bonus shall be paid based upon the achievement
of such goals as may be set by the Committee for the
Executive to reach his targeted bonus, and such cash
bonus is payable on or before the thirtieth (30th)
day following the end of the fiscal year upon which
such bonus is based.
(ii) Option Bonuses. An annual option bonus shall be
granted in accordance with Company's then current
compensation plan for Senior Management, with initial
target for 2002 of an option to purchase 86,400
shares of the Company's common stock. Each such
option bonus shall be granted, based upon the
achievement of such goals as may be set by the
Committee for the Executive to reach his targeted
bonus, as of the first day of the fiscal year
immediately following the end of the fiscal year upon
which such bonus is based.
(iii) Other Bonuses. Executive shall receive such other
bonuses as are afforded the Company's Senior
Management and shall be eligible to participate in
all of the Company's executive compensation plans
provided to members of Senior Management of the
Company from time to time.
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(c) Executive shall be entitled to participate in and receive
other employee benefits, which may include, but are not
limited to, benefits under any 401(k), life, health, accident,
disability, medical, dental and hospitalization insurance
plans, use of a Company automobile or an automobile allowance
as described in Section 5(a) hereof, and other perquisites and
benefits, as are provided to members of Senior Management of
the Company from time to time.
(d) Executive shall be reimbursed for the reasonable and necessary
out-of-pocket expenses, including entertainment, travel and
similar items, incurred by him in performing his duties
hereunder upon presentation of such documentation thereof as
the Company may normally and customarily require of the
members of Senior Management.
SECTION 6. TERMINATION OF EMPLOYMENT. During the Period of Employment,
Executive's employment may be terminated in the following manner:
(a) Termination for Good Cause. The Company may terminate the
Executive's employment for Good Cause. Good Cause means:
(i) Executive has willfully failed to follow lawful and
material directives of the Chief Development Officer
of the Company (or such other individual who at any
time is responsible for the Company's real estate
division) which are consistent with those duties to
be performed by the Executive under this Agreement;
or
(ii) Executive has been convicted of a felony; or
(iii) Executive has materially breached this Agreement;
provided however,
(iv) No act or omission shall be treated as Good Cause
under this Agreement unless (1) Executive has been
provided a written statement of the basis for the
Company's belief that such act or omission
constitutes Good Cause; (2) Executive has had at
least a 30 day period to take corrective action
during which period Executive has failed to use
reasonable best efforts to take any such corrective
action and (3) the Board determines reasonably and in
good faith by a vote of at least two thirds of its
members then in office that Good Cause does exist
under this Agreement.
(b) Voluntary Termination. The Executive may voluntarily terminate
his employment with the Company upon not less than 30 days
prior written notice.
(c) Involuntary Termination without Good Cause. The Company may
terminate Executive's employment with the Company without Good
Cause upon not less than 30 days prior written notice. Such
termination without Good Cause shall be a Discharge under this
Agreement.
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(d) Termination by Reason of Death, Disability, or Retirement. The
Executive's employment with the Company shall be terminated by
death, Disability or Retirement of the Executive.
(e) Termination for Good Reason. The Executive may terminate his
employment for Good Reason. Good Reason means:
(i) The Company regularly fails to timely pay Executive
his salary under Section 5(a);
(ii) There is a material reduction in the scope of the
Executive's responsibilities or authority at the
Company without Executive's express written consent;
(iii) The Company relocates the Executive's primary work
site more than 50 miles from his primary work site on
the Effective Date absent his consent; or
(iv) The Company materially breaches this Agreement;
provided however
(v) No act or omission shall constitute Good Reason under
this Agreement unless (1) the Company has been
provided a written statement of the basis for the
Executive's belief that such act or omission
constitutes Good Reason; (2) the Company has had at
least a 30 day period to take corrective action and
(3) the Executive determines reasonably and in good
faith that the Company has not corrected or will not
correct the act or omission within 30 days.
Termination for Good Reason shall be treated as a Discharge
under this Agreement.
SECTION 7. EFFECT OF TERMINATION.
(a) If the Executive's employment is terminated by reason of
voluntary termination of employment, the Company shall pay the
Executive his base salary, non-incentive compensation
(including automobile allowance), bonuses and benefits as
provided in Section 5 through the Termination Date. Any
payments and benefits due to the Executive under employee
benefit plans and programs of the Company, including the Stock
Option Plan, shall be determined in accordance with the terms
of such benefit plans and programs; provided, however, that if
the Executive's employment is terminated by reason of
voluntary termination but the Executive gives prior written
notice to the Company that he agrees to serve as a consultant
to the Company from time to time during the twelve month
period following such termination, then such termination of
employment will be deemed to be a Retirement and the Executive
shall have all of the rights and the Company shall have all of
the obligations set forth in Section 7(b) below.
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(b) If the Executive's employment is terminated by reason of
death, or, subject to Sections 13(b) and 15 of this Agreement,
Retirement or Disability, the Company shall pay the Executive
(or his estate in the case of his death) (i) his then current
Annual Base Salary, non-incentive compensation (including
automobile allowance), and provide the benefits as provided in
Section 5 for a period of one year following the Termination
Date and, (ii) an amount equal to Executive's cash bonus
calculated at the greater of (A) 50% of his then current
Annual Base Salary or (B) the actual bonus earned by the
Executive for the fiscal year directly preceding termination,
which shall be paid in equal installments each pay day over
such one year period. In the case of Executive's Disability,
the Executive shall also receive those benefits payable to him
under the applicable disability insurance plan provided by the
Company, subject to the terms of such plan. In the case of
Executive's Retirement, Executive shall provide 180 days
notice before he retires as a condition to receiving the
payments contemplated by this Section 7(b). Any payments and
benefits due to the Executive under employee benefit plans and
programs of the Company, including the Stock Option Plan,
shall be determined in accordance with the terms of such
benefit plans and programs; provided, however, that all
options held by the Executive under the Stock Option Plan
shall become 100% vested as of the Executive's termination of
employment by reason of death, Retirement or Disability and
each such option shall not be subject to accelerated exercise
requirements or early termination provisions and instead shall
be exercisable through and including that date which is the
second anniversary of the Termination Date. Amounts payable
under this Section 7 shall be paid in accordance with the
Company's regular schedule for payment of salaried employees
and the Company's standard payroll policies and procedures.
(c) Subject to Sections 13(b) and 15 of this Agreement, in the
event of the Executive's Discharge by the Company, the Company
shall continue to pay the Executive (i) his then current
Annual Base Salary and non-incentive compensation (including
automobile allowance) and provide the Executive with his then
current benefits (as provided in Section 5) through the
Expiration Date pursuant to Section 2(c) or for two years,
whichever is greater; and (ii) an amount equal to two times
the Executive's cash bonus calculated at the greater of (A)
50% of his then-current Annual Base Salary or (B) the actual
bonus earned by the Executive for the fiscal year directly
preceding the year of Discharge, which shall be paid in equal
bi-weekly installments over such two year period or such term,
whichever is greater. The latter payment is full and final
satisfaction of all the Company's obligations for bonus and/or
other incentive payments. Any payments and benefits due to
Executive under the employee benefit plans and programs of the
Company, including the Stock Option Plan, shall be determined
in accordance with the terms of such benefit plans and
programs; provided, however, that all options held by the
Executive under the Stock Option Plan shall become 100% vested
as of the Termination Date and each such option shall not be
subject to accelerated exercise requirements or early
termination provisions and instead shall
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be exercisable through and including that date which is the
second anniversary of the Termination Date.
(d) Subject to Sections 13(b) and 15 of this Agreement, in the
event of the Company's non-extension of the Employment Period,
Executive shall continue to be employed by the Company
pursuant to this Agreement through the Expiration Date, and
his employment shall be terminated as of the Expiration Date.
Thereafter, the Company shall continue to pay Executive (1)
the Executive's then current Annual Base Salary for a period
of two years after the Expiration Date, and (2) an amount
equal to two times the Executive's cash bonus calculated at
the greater of (A) 50% of his then current Annual Base Salary
or (B) the actual bonus earned by the Executive for the
immediately preceding fiscal year, which shall be paid in
equal bi-weekly installments over such two year period. The
latter payment is full and final satisfaction of all the
company's obligations for bonus and/or other incentive
payments. Any payments and benefits due to Executive under
employee benefit plans and programs of the Company, including
the Stock Option Plan, shall be determined in accordance with
the terms of such benefit plans and programs; provided,
however, that all options held by the Executive under the
Stock Option Plan shall become 100% vested as of the
Expiration Date and each such option shall not be subject to
accelerated exercise requirements or early termination
provisions and instead shall be exercisable through and
including that date which is the second anniversary of the
Termination Date. It is further provided, however, that within
60 days of the date of notification by the Company to the
Executive of its intention not to extend the Period of
Employment, the Executive may, at his option, elect, upon 30
days written notice to the Company, to accelerate his
Expiration Date and stop working on such date, in which event
the salary continuation and other benefits described in this
Section 7(d) shall commence as of such accelerated Expiration
Date.
(e) In the event of the Executive's Termination For Good Cause by
the Company, the Company shall pay the Executive his then
current base salary and non-incentive compensation (including
automobile allowance) and provide the Executive with his then
current benefits (as provided in Section 5) through the
Termination Date. Any payments and benefits due the Executive
under employee benefit plans and programs of the Company,
including the Stock Option Plan, shall be determined in
accordance with the terms of such benefit plans and programs.
(f) Subject to Sections 13(b) and 15 of this Agreement, in the
event the Executive's employment is terminated by reason of
Discharge or non-extension of the Employment Period, the
Company shall furnish the Executive, for a period of six
months subsequent to the Termination Date, reasonable office
space and secretarial assistance.
(g) Subject to Sections 13(b) and 15 of this Agreement, if any of
the payments provided for in this Agreement, together with any
other payments which the Executive has the right to receive
from the Company or any corporation which is a
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member of an "affiliated group" as defined in Section 1504(a)
of the Code (without regard to Section 1504(b) of the Code) of
which the Company is a member, would constitute an "excess
parachute payment" as defined in Section 280G(b)(1) of the
Code as it presently exists, such that any portion of such
payments are subject to the excise tax imposed by Section 4999
of the Code, or any interest or penalty with respect to such
excise tax (such excise tax, together with any such interest
or penalty, are collectively referred to as the "Excise Tax"),
then either (1) the Executive shall be entitled to receive an
additional payment (an "Excise Tax Restoration Payment") or
(2) if a reduction in the payment to Executive of $15,000 or
less would avoid the imposition of Excise Tax, then the
payment to Executive shall be so reduced to the extent
necessary to avoid imposition of the Excise Tax. The amount of
the Excise Tax Restoration Payment, if any, shall be the
amount necessary to fund the payment by the Executive of any
Excise Tax on the total payments, as well as all income taxes
imposed on the Excise Tax Restoration Payment, any excise tax
imposed on the Excise Tax Restoration Payment, and any
interest or penalties imposed with respect to taxes on the
Excise Tax Restoration Payment or any Excise Tax.
SECTION 8. CHANGE IN CONTROL. For purposes of this Agreement, a "Change
in Control" means the date on which the earlier of the following events occur:
(a) the acquisition by any entity, person or group of beneficial ownership, as
that term is defined in Rule 13d-3 under the Securities Exchange Act of 1934, of
more than 50% of the outstanding capital stock of the Company entitled to vote
for the election of directors ("Voting Stock"); (b) the merger or consolidation
of the Company with one or more corporations as a result of which the holders of
outstanding Voting Stock of the Company immediately prior to such a merger or
consolidation hold less than 60% of the Voting Stock of the surviving or
resulting corporation; (c) the transfer of substantially all of the property of
the Company other than to an entity of which the Company owns at least 80% of
the Voting Stock; or (d) the election to the Board of Directors of the Company
of three or more directors during any 12 month period without the recommendation
or approval of the incumbent Board of Directors of the Company. A Change in
Control shall not include (a) an initial public offering of the stock of the
Company of (b) any acquisition in which the Executive is a member of the
acquiring group or an officer or owner of the acquiring entity. Upon a Change in
Control, as defined above in this Section 8, all outstanding stock options shall
become 100% vested and immediately exercisable, regardless of whether the
Executive terminates employment or not. If the Executive terminates employment
with Good Reason within 12 months of a Change in Control, to the extent
permitted by law, the Company shall continue the medical, disability and life
insurance benefits which Executive was receiving at the time of termination for
a period of 24 months after termination of employment or, if earlier, until
Executive has commenced employed elsewhere and becomes eligible for
participation in the medical, disability and life insurance programs, if any, of
his successor employer. Coverage under Employer's medical, disability and life
insurance programs shall cease with respect to each such program as Executive
becomes eligible for the medical, disability and life insurance programs, if
any, of his successor employer.
SECTION 9. CONFIDENTIALITY. During the Period of Employment and
following termination for any reason, the Executive covenants and agrees that he
will not divulge any trade
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secrets or other confidential information pertaining to the business of the
Company. The term "confidential information" as used in this Agreement shall
mean any secret, confidential or proprietary information of the Company or its
affiliates, other than those which have become generally known to the public
other than through the act of Executive in breach of this Section 9. The term
"trade secrets" as used in this Agreement shall mean information, including but
not limited to technical or non-technical data, a formula, a pattern, a
compilation, a program, a device, a method, a technique, a drawing, a recipe, a
process, financial data, financial plans, product plans, or a list of actual or
potential customers or suppliers that:
(a) derives economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by
proper means by other persons who can obtain economic value
from its disclosure or use, and
(b) is the subject of reasonable efforts by the Company to
maintain its secrecy.
The Company's rights under this Section 9 shall be in addition to, and not in
lieu of, any rights the Company might have under applicable state law.
SECTION 10. NON-COMPETITION. The Executive agrees that for a period of
twenty-four months following the Termination Date, Executive shall not directly
or indirectly, personally or with other employees, agents or otherwise, or on
behalf of any other person, firm, or corporation, engage in any restaurant, bar,
coffee shop or similar business establishment in which a majority of revenues
are derived from retail sales of sandwiches and non-alcoholic beverages (any of
the foregoing, a "Competitive Business"), within a 25 mile radius of any place
of business of the Company (including franchised operations) or of any place
where the Company (or one of its franchised operations) has done business since
the Effective Date of this Agreement. Notwithstanding the above, ownership by
Executive of an interest in any licensed franchisee of the Company shall not be
deemed to be in violation of this Section 10.
SECTION 11. NON-SOLICITATION OF EMPLOYEES. The Executive agrees that
for a period of twenty-four months following the Termination Date, Executive
shall not on his own behalf or on behalf of any other person, firm, partnership,
association, corporation, or business organization, entity or enterprise call
on, solicit or attempt to induce any other officer or employee of the Company or
its affiliates or licensed franchisees to terminate his or her employment with
the Company or its affiliates or licensed franchisees and shall not assist any
other person or entity in such a solicitation unless such employee is terminated
by the Company. If the Executive is found to have hired, during the
aforementioned twenty-four months following the Termination Date, any employee
(i) whose immediately preceding Employer was the Company, and (ii) who
voluntarily terminated his or her employment with the Company, then the
Executive shall be presumed to have engaged in soliciting that employee to
terminate his or her employment with the Company.
SECTION 12. SUCCESSORS; BINDING AGREEMENT. (a) This Agreement shall be
binding upon, and inure to the benefit of, the parties hereto, their heirs,
personal representatives, successors and assigns. (b) The Company shall require
any successor (whether direct or indirect and whether by purchase, merger,
consolidation or otherwise) to all or
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substantially all of the business or assets of the Company expressly to assume
and agree to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform if no such succession had taken
place. As used herein, "Company" shall mean the Company as defined in the
preamble to this Agreement and any successor to its business or assets which
executes and delivers (or is required to execute and deliver) the agreement
provided for in this Section 11(b), or which otherwise becomes bound by the
terms and provisions of this Agreement or by operation of law.
SECTION 13. DISPUTE RESOLUTION.
(a) Arbitration. Except as hereinafter provided, any controversy
or claim arising out of or relating to this Agreement of any
alleged breach thereof shall be settled by arbitration in the
New York, New York in accordance with the rules then obtaining
of the American Arbitration Association and any judgment upon
any award, which may include an award of damages, may be
entered in the highest State or Federal court having
jurisdiction. Nothing contained herein shall in any way
deprive the Company of its right to obtain an injunction or
other equitable relief arising out of the Executive's breach
of the provisions of Sections 9, 10, and 11 of this Agreement
or to take any other action under Section 13(b). In the event
of the termination of Executive's employment, Executive's sole
remedy shall be arbitration as herein provided and any award
of damages shall be limited to recovery of lost compensation
and benefits provided for in this Agreement. No punitive
damages may be awarded to Executive. All fees paid to the
arbitrator shall be the sole responsibility of the Company.
(b) Other. The Company may cease payment of any amounts that would
otherwise have been due under this Agreement in the event the
Company provides the Executive with written notice setting
forth the Board's reasonable, good faith, belief that
Executive has materially breached Sections 9, 10 or 11 of this
Agreement to the detriment of the Company together with
substantial proof upon which the Board reached such
determination, and the Executive fails to use reasonable best
efforts to take corrective action to cure such alleged breach
within 30 days of his receipt of such notice. Further, the
Company shall be entitled to seek an injunction restraining
Executive from any action in violation of Sections 9, 10 or 11
of this Agreement, to obtain such equitable relief or to
pursue any other available remedies for such violation or
threatened violation, including recovery of damages from
Executive.
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SECTION 14. COMPANY PROPERTY.
(a) Executive upon the termination of Executive's employment for
any reason or, if earlier, upon Company request shall promptly
return all Property (as defined in Section 14(b)) which had
been entrusted or made available to Executive by the Company
and, if any copy of any such Property was made by, or for,
Executive, each and every copy of such Property.
(b) The term "Property" means records, files, memoranda, tapes,
computer disks, reports, price lists, customer lists,
drawings, plans, sketches, keys, computer hardware and
software, cellular telephones, credit cards, access cards,
identification cards, palm pilots and the like, Company cars
and other real or personal property of any kind or
description.
SECTION 15. RELEASE. As a condition to receiving any payments from the
Company after termination of his employment, the Executive (if living) must
execute a release in the form of the release attached hereto as Exhibit A, or in
such other form as is acceptable to the Company and Executive.
SECTION 16. NOTICES. For the purposes of this Agreement, notices and
all other communications provided for herein shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
IF TO THE EXECUTIVE: Andrew S. Wainwright
40 East 74th Street #5R
New York, New York 10021
IF TO THE COMPANY: Cosi, Inc.
242 West 36th Street
New York, NY 10018
Attention: Pam Palladino
SECTION 17. GOVERNING LAW. The validity, interpretation, construction
and performance of this Agreement shall be governed by the laws of the State of
New York.
SECTION 18. MISCELLANEOUS. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by the Executive and the Company. No waiver by
either party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of other provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not set forth expressly in this
Agreement.
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SECTION 19. SEPARABILITY. The invalidity or lack of enforceability of a
provision of this Agreement shall not affect the validity of any other provision
hereof, which shall remain in force and effect.
SECTION 20. WITHHOLDING OF TAXES. The Company may withhold from any
benefits payable under this Agreement all federal, state and other taxes as
shall be required pursuant to any law or governmental regulation or ruling.
SECTION 21. SURVIVAL. The provisions of Sections 9, 10, and 11 of the
Agreement shall survive the termination of this Agreement and shall continue for
the terms set forth in Sections 9, 10, and 11.
SECTION 22. CAPTIONS. Captions to the sections of this Agreement are
inserted solely for the convenience of the parties, are not a part of this
Agreement, and in no way define, limit, extend or describe the scope hereof or
the intent of any of the provisions.
SECTION 23. NON-ASSIGNABILITY. This Agreement is personal in nature and
neither of the parties hereto shall, without the consent of the other, assign or
transfer this Agreement or any rights or obligations hereunder. Without limiting
the foregoing, the Executive's right to receive payments hereunder shall not be
assignable or transferable, whether by pledge, creation of a security interest
or otherwise, other than a transfer by will or by the laws of descent or
distribution. In the event of any attempted assignment or transfer contrary to
this section, the Company shall have no liability to pay any amount so attempted
to be assigned or transferred.
SECTION 24. MITIGATION. The Executive shall not be obligated in any way
to mitigate the Company's obligations to him under this Agreement and any
amounts earned by the Executive subsequent to his termination of employment
shall not serve as an offset to the payments due him by the Company under this
Agreement.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and delivered under its seal pursuant to the specific authorization of
its board of directors and the Executive has hereunto set his hand and seal on
the day and year first above written.
COSI, INC.
By: /s/ Andrew Stenzler
----------------------------------------
EXECUTIVE
/s/ Andrew S. Wainwright, Jr.
By: ----------------------------------------
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EXHIBIT A
SEPARATION AND RELEASE AGREEMENT
This Separation and Release Agreement ("Agreement") is entered
into as of this __ day of ___________________________, 20___, between COSI,
INC., a Delaware corporation, and any successor thereto (collectively, the
"Company") and _______________ (the "Executive").
The Executive and the Company agree as follows:
1. The employment relationship between the Executive and the
Company terminated on __________________________________ (the "Termination
Date").
2. In accordance with the Executive's Employment Agreement
(the "Employment Agreement"), the Company has agreed to pay the Executive
certain payments and to make certain benefits available after the Date of
Termination.
3. For and in consideration of the payments and/or other
benefits to be provided to and/or on behalf of Employee pursuant to the
Employment 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 Executive pension benefit or welfare benefit
plans of the Company, including current and former trustees and administrators
of such Executive 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 the 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) Executive's right to enforce the terms of this Agreement and
the Employment Agreement and (iv) any and all benefits to which 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 waives any right to reinstatement or future
employment with the Company following the Executive's separation from the
Company on the Date of Termination.
6. The Executive agrees not to engage in any act after
execution of this Separation and Release 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.
7. 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 Executive's Employment
Agreement.
8. 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.
9. It 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 the 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 and copies of this Agreement.
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10. 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.
The parties to this Agreement have executed this Agreement as
of the day and year first written above.
COSI, INC.
By: ______________________________
Name:
Title:
[EMPLOYEE]
___________________________________
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