Exhibit 10.16

 

ASSIGNMENT AND ASSUMPTION AGREEMENT

 

This ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”), effective as of October 30, 2014 (the “Effective Date”), is hereby entered into by and among Union Square Hospitality Group, LLC, a New York limited liability company (“Assignor”), SSE Holdings, LLC, a Delaware limited liability company (“Assignee”), and Randall Garutti (“Employee”).

 

R E C I T A L S:

 

WHEREAS, Assignor and Employee entered into a Special Bonus Agreement, dated March 11, 2011, as amended (the “Agreement”);

 

WHEREAS, Assignor desires to assign all of its rights, privileges, title, interests, liabilities and obligations under the Agreement to Assignee;

 

WHEREAS, Assignee wishes to accept the assignment of such rights, privileges, title and interests and to assume such liabilities and obligations; and

 

WHEREAS, Section 5 of the Agreement authorizes Assignor to assign the Agreement.

 

NOW, THEREFORE, in consideration of the above premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

 

1.                                      Assignment.  Assignor hereby sells, assigns, conveys and transfers to Assignee all of its present and future rights, title and interests in, to and under the Agreement.

 

2.                                      Assumption.  Effective as of the Effective Date, Assignee hereby accepts the assignment set forth in Section 1 hereto and assumes any and all liabilities and obligations of Assignor arising under the Agreement.

 

3.                                      Further Actions.  Each party hereto covenants and agrees to make, execute, acknowledge and deliver such further documents and instruments and to use its reasonable efforts to take such other action as may be reasonably requested by any party hereto to more effectively consummate or perfect the assignments and assumptions contemplated by this Agreement.

 

4.                                      Indemnification.  Assignor agrees to indemnify, defend and hold harmless Employee to the extent this Agreement violates Code Section 409A and causes penalties to be imposed against Employee.

 

5.                                      Miscellaneous.  This Assignment shall be governed by and construed in accordance with the law of the State of New York, without regard to the conflicts of law rules of such state.

 

(a)                                 If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other governmental authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party.  Upon such a determination, the parties shall negotiate in good faith

 











 

to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.

 

(b)                                 This Assignment shall inure to the benefit of Assignee and its successors and assigns, and shall be binding upon Assignor and its successors and assigns.

 

(c)                                  This Assignment is not intended to, nor shall it, create any rights in or confer any benefits upon any person other than the parties to this Assignment.

 

(d)                                 This Assignment may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.  Any counterpart may be signed and transmitted by facsimile or Portable Document Format (PDF) with the same force and effect as if such counterpart was an ink-signed original.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Assumption Agreement to be duly executed as of the day and year first above written.

 

 

	
 
    	
ASSIGNOR
    
	
 
    	
 
    
	
 
    	
UNION   SQUARE HOSPITALITY GROUP, LLC
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Jeff Flug
    
	
 
    	
 
    	
Name:   Jeff Flug
    
	
 
    	
 
    	
Title:   President
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
ASSIGNEE
    
	
 
    	
 
    
	
 
    	
SSE   HOLDINGS, LLC
    
	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Jeff Uttz
    
	
 
    	
 
    	
Name:   Jeff Uttz
    
	
 
    	
 
    	
Title:   Chief Financial Officer
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
EMPLOYEE
    
	
 
    	
 
    
	
 
    	
/s/   Randall Garutti
    
	
 
    	
Randall   Garutti
    


 

[Signature page to Assignment and Assumption Agreement re: Special Bonus Agreement]