Exhibit 10.1
SEPARATION AND RELEASE AGREEMENT
This
Separation and Release Agreement ("Agreement") is entered into as
of
January 3, 2005 between Cosi, Inc., a
Delaware corporation, and any successor
thereto (collectively, the "Company"), and
Jonathan M. Wainwright, Jr. (the
"Executive").
The
Executive and the Company agree as follows:
1. The
employment relationship between the Executive and the Company
terminated, by mutual agreement, on
December 9, 2004 (the "Effective Date"). In
lieu of written notice of the Executive's
termination pursuant to Section 10 of
the Employment Agreement between the
Executive and the Company, dated August 20,
2003 (the "Employment Agreement"), the
Executive shall be paid an amount equal
to his pro rata bi-weekly salary for the
period commencing December 10, 2004,
through December 27, 2004, payable on the
first pay date following the
Commencement Date. For purposes of this
Agreement, the "Commencement Date" shall
be the date the Agreement is executed by
the Executive. The Company shall
reimburse the Executive for all
reimbursable expenses incurred by the Executive
through December 9, 2004, and submitted to
the Company with proper receipts, in
accordance with the Company's then-current
expense policy and the Employment
Agreement. Except for the amounts expressly
set forth in this Section 1 and in
Section 2 below, no other compensation or
benefits are due to the Executive
under this Agreement, the Employment
Agreement or otherwise.
2. The
Company has agreed to pay the Executive severance payments and
other benefits as set forth on Annex 1
hereto. The Company shall have the right,
upon due notice to the Executive, to set
off any amounts due and owing by the
Executive to the Company against any
severance payments due and owing by the
Company to the Executive.
3. The
Executive agrees to and shall promptly return to the Company,
at
the Company's corporate offices or such
other location as may be directed by the
Company, all property of the Company in the
Executive's control or possession,
including, without limitation, confidential
information of the Company, files
and documents, keys, and key cards.
4. 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
964, as amended, and the Civil Rights
Act of 1991 (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.
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, including, without
limitation, with respect to the shareholder
class action suit pending in the
United States District Court for the
Southern District of New York as of the
date hereof (In Re Cosi, Inc. Securities
Litigation, Case No. 03-CV-812 (JGK)),
(ii) all directors an
