exv10w2






Exhibit 10.2




SEPARATION AGREEMENT AND GENERAL RELEASE



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 CHRISTOPHER CARROLL, 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:
	 	 	7	 
	Net Vacation Days Accrued (but not taken) at Separation Date:
	 	 	6	 









Employee’s medical and health benefits shall continue through the end of the calendar month
during which the Separate Date occurs (i.e., August 26, 2008).



As set forth in paragraph 7 (relocation assistance) of Employee’s offer letter dated May 10,
2006, the Company agreed to reimburse Employee in accordance with the Company’s Relocation
Policy for reimbursable relocation expenses incurred by Employee in connection with Employee’s
employment by the Company and subsequent move to the Chicago, Illinois area. At Employee’s
request, on or about June 1, 2008, the Company agreed to extend the date to December 31, 2008
for reimbursement of such reimbursable relocation expenses. As of the Separation Date,
Employee has not yet submitted, and the Company has not yet reimbursed Employee, for such
relocation expenses. After the Separation Date, the Company agrees to reimburse Employee for
reimbursable relocation expenses for: (i) the actual moving expenses and actual closing costs
incurred by Employee for the sale of Employee’s home in Connecticut in connection with
Employee’s employment by the Company and resulting move to the Chicago, Illinois area and (ii)
the actual closing costs incurred by Employee for the purchase of Employee’s new home in the
Chicago, Illinois area, provided that Employee submits receipts, closing documents and other
documentation reasonably acceptable under the Company’s Relocation Policy evidencing such
reimbursable relocation expenses and provided further that Employee submits such reimbursement
request within thirty (30) days (i.e., on or before but not later than September 25, 2008)
after the Separation Date.





	3.	 	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 FIFTY EIGHT THOUSAND SIX HUNDRED FIFTEEN AND 32/100 DOLLARS ($58,615.32), 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 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 severance 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 ormedia,
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 sue 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.




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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, 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 May 10, 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 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;




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(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



(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.




[balance of page intentionally blank; signature page(s) to follow]




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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/ CHRISTOPHER CARROLL

	 	 	 	/s/ BECKY ILIFF	 	 
	 

Name: CHRISTOPHER CARROLL

	 	 
	 	 

Name: Becky Iliff
	 	 
	Date: August 26, 2008

	 	 	 	Title: Vice President of People	 	 
	 

	 	 	 	Date: August 26, 2008	 	 
	 
	Notice (Current) Address:

	 	 	 	Notice Address:	 	 
	 
	 	 	 	 	 	 
	936 Hinman Avenue 1-S

	 	 	 	Cosi, Inc.	 	 
	Evanston, IL 60204

	 	 	 	1751 Lake Cook Road, 6th Floor	 	 
	 

	 	 	 	Deerfield, IL 60015	 	 
	 

	 	 	 	Attn: Becky Iliff, V. P. of People	 	 
	Telephone:                                                            
	 	 	 	 	 	 
	 

	 	 	 	Telephone: (847) 597-8860	 	 






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