AMENDMENT TO THE RIGHTS AGREEMENT BY AND BETWEEN COSI, INC. AND AMERICAN STOCK TRANSFER AND TRUST COMPANY, LLC DATED AS OF JANUARY 6, 2010
EXHIBIT
4.1
AMENDMENT
TO
THE
BY AND
BETWEEN
COSI,
INC.
AND
AMERICAN
STOCK TRANSFER AND TRUST COMPANY, LLC
DATED AS
OF JANUARY 6, 2010
This
AMENDMENT (this “Amendment”), dated as
of January 6, 2010, to the Rights Agreement, dated as of November 21, 2002 (the
“Rights
Agreement”), by and between Cosi, Inc., a Delaware corporation (the
“Company”), and
American Stock Transfer and Trust Company, LLC, a New York limited liability
trust company, as rights agent (the “Rights Agent”).
Capitalized terms used in this Amendment that are not otherwise defined herein
have the meaning ascribed to such terms in the Rights Agreement
WHEREAS,
pursuant to the Rights Agreement, the Board of Directors of the Company may from
time to time supplement or amend the Rights Agreement in accordance with the
provisions of Section 25 thereof; and
WHEREAS,
all acts and things necessary to make this Amendment a valid agreement according
to its terms have been done and performed, and the execution and delivery of
this Amendment by the Company and the Rights Agent have been in all respects
duly authorized by the Company and the Rights Agent.
NOW
THEREFORE, in consideration of the foregoing premises and mutual agreements set
forth in the Rights Agreement and this Amendment, the parties hereby agree as
follows:
Section
1. Definition of
“Acquiring Person”. Effective as of 5:00 p.m., New York City
time, on January 6, 2010, the definition of “Acquiring Person” contained in
Section 1(a) of the Rights Agreement is hereby amended and restated to read in
its entirety as follows:
“Acquiring
Person” means any Person (as such term is hereinafter defined) who or which,
together with all Affiliates (as such term is hereinafter defined) and
Associates (as such term is hereinafter defined) of such Person, is the
Beneficial Owner (as such term is hereinafter defined) of 15% or more of the
Voting Stock (as such term is hereinafter defined) of the Corporation then
outstanding; provided, that an
Acquiring Person shall not include (i) an Exempt Person (as such term is
hereinafter defined), (ii) any Person, together with all Affiliates and
Associates of such Person, who or which is the Beneficial Owner of 15% or more
of the Voting Stock but no more than 19.9% of the Voting Stock by reason of the
Permitted Transaction and who or which would not be an Acquiring Person if not
for such acquisition of Voting Stock of the Corporation pursuant to the
Permitted Transaction or (iii) any Person, together with all Affiliates and
Associates of such Person, who or which would be an Acquiring Person solely by
reason of (A) being the Beneficial Owner of shares of Voting Stock of the
Corporation, the Beneficial Ownership of which was acquired by such Person
pursuant to any action or transaction or series of related actions or
transactions approved by the Board of Directors (other than the Permitted
Transaction) before such Person otherwise became an Acquiring Person or (B) a
reduction in the number of issued and outstanding shares of Voting Stock of the
Corporation pursuant to a transaction or a series of related transactions
approved by the Board of Directors of the Corporation; provided further, that if any
Person described in clause (ii) does not become an Acquiring Person by reason of
clause (ii), such Person shall nonetheless become an Acquiring Person in the
event such Person thereafter acquires Beneficial Ownership of 1 or more shares
of Voting Stock of the Corporation, unless the acquisition of such additional
Voting Stock would not result in such Person becoming an Acquiring Person by
reason of (A) or (B) of clause (iii); and provided further, that in the
event such Person described in clause (iii) does not become an Acquiring Person
by reason of subclause (A) or (B) of clause (iii), such Person nonetheless shall
become an Acquiring Person in the event such Person thereafter acquires
Beneficial Ownership of an additional 2% or more of the Voting Stock of the
Corporation then outstanding, unless the acquisition of such additional Voting
Stock would not result in such Person becoming an Acquiring Person by reason of
subclause (A) or (B) of clause (iii). Notwithstanding the foregoing, if the
Board of Directors of the Corporation determines in good faith that a Person who
would otherwise be an “Acquiring Person” as defined pursuant to the foregoing
provisions of this paragraph (a) has become such inadvertently, and such Person
divests as promptly as practicable (as determined in good faith by the Board of
Directors) a sufficient number of shares of Common Stock so that such Person
would no longer be an “Acquiring Person” as defined pursuant to the foregoing
provisions of this definition, then such Person shall not be deemed an
“Acquiring Person” for any purposes of this Rights Agreement. In determining
what is “as promptly as practicable” the Board may take into account such
factors as the impact of the divestment on the market price of the Corporation’s
Common Stock, the average volume of trading in its shares, and other factors
that may affect its stockholders or the price of its common stock.
Section
2. Definition of
“Permitted Transaction”. Effective as of 5:00 p.m., New York
City time, on January 6, 2010, Section 1(a) of the Rights Agreement is hereby
amended by inserting the following definition of “Permitted
Transaction”:
“Permitted
Transaction” means the purchase of shares of Common Stock of the Corporation
pursuant to the exercise of non-transferable subscription rights in accordance
with and pursuant to the terms of the Corporation’s rights offering prospectus
as set forth in that certain Registration Statement on Form S-3 (Registration
No. 333-162233) filed by the Corporation with the Securities and Exchange
Commission and any amendments or supplements thereto, subject to the prohibition
contained therein against owning more than 19.9% of the Corporation’s
outstanding Common Stock as a result of the exercise of such subscription
rights.
Section
3. Delaware
Contract. This Amendment shall be deemed to be a contract made
under the laws of the State of Delaware and for all purposes shall be governed
by and construed in accordance with the laws of such state applicable to
contracts to be made and performed entirely within such State.
Section
4. Counterparts. This
Amendment may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
Section
5. Modification. Except
as expressly set forth herein, this Amendment shall not by implication or
otherwise, alter, modify or amend any of the other terms, conditions,
obligations, covenants or agreements contained in the Rights
Agreement.
Section
6. Descriptive
Headings. Descriptive headings of the several
Sections of this Amendment are inserted for convenience only and shall not
control or affect the meaning or construction of any of the
provisions.
Section
7. Severability. If
any term, provision, covenant or restriction of this Amendment is held by a
court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the term, provisions, covenants and restrictions
of this Amendment and of the Rights Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the date first written above.
| COSI, INC. | ||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
| Title: Chief Financial Officer | ||
| AMERICAN STOCK TRANSFER AND TRUST COMPANY, LLC | ||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||
| Title: Vice President | ||