This
PURCHASE AGREEMENT (this “ Agreement ”), dated
as of September 28, 2009, is by and among Così, Inc., a
Delaware corporation (the “ Company ”), and [
• ] (“ Purchaser ”).
WHEREAS,
the Company proposes pursuant to the Rights Offering Registration
Statement (as defined herein), to commence an offering to holders
of its common stock, par value $.01 per share (the “
Common Stock ”), of record as of the close of business
on the record date to be determined by the Company’s Board of
Directors or a committee of such Board (the “ Record
Date ”), of non-transferable rights (the “
Rights ”) to subscribe for and purchase additional
shares of Common Stock (the “ New Shares ”) at a
subscription price per share to be determined by the Board or a
committee of such Board (the “ Subscription Price
”) (such offering, the “ Rights Offering
”);
WHEREAS,
pursuant to the Rights Offering, the Company will distribute to
each of its stockholders of record, at no charge, one Right for
each share of Common Stock held by them as of the Record Date, and
each Right will entitle the holder to purchase a fraction of a New
Share from the Company (with fractional shares rounded down to the
nearest whole share) at the Subscription Price (the “
Basic Subscription Privilege ”);
WHEREAS,
each holder of Rights who exercises in full its Basic Subscription
Privilege will be entitled to subscribe for additional New Shares,
at the Subscription Price and subject to an aggregate ownership
limitation equal to 19.9% of the Company’s Common Stock, to
the extent that other holders of Rights do not exercise all of
their Basic Subscription Privileges (the “
Over-Subscription Privilege ”);
WHEREAS,
the Company has agreed to issue and sell to Purchaser, and Purchase
has agreed to purchase from the Company in a private placement,
that amount of New Shares that is set forth herein and that would
otherwise be available for purchase by Purchaser pursuant to the
exercise of Purchaser’s Basic Subscription Privilege and
Over-Subscription Privilege in the Rights Offering; and
WHEREAS,
Purchaser is [an outside director] [an executive officer] of the
Company and an existing shareholder of the Company.
NOW
THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained, the parties hereto hereby agree as
follows:
Section 1.
Definitions . The following terms used herein shall have the
meanings set forth below:
“
Agreement ” shall have the meaning set forth in the
preamble hereof.
“
Basic Subscription Privilege ” shall have the meaning
set forth in the recitals hereof.
“
Closing ” shall have the meaning set forth in
Section 3.
“
Closing Date ” shall have the meaning set forth in
Section 3.
“
Commission ” shall mean the United States Securities
and Exchange Commission, or any successor agency
thereto.
“
Common Stock ” shall have the meaning set forth in the
recitals hereof.
“
Company ” shall have the meaning set forth in the
preamble hereof.
“
Exchange Act ” shall mean the Securities Exchange Act
of 1934 and the rules and regulations promulgated by the Commission
thereunder, as amended.
“
New Shares ” shall have the meaning set forth in the
recitals hereof.
“
Over-Subscription Privilege ” shall have the meaning
set forth in the recitals hereof.
“
Person ” shall mean an individual, corporation,
partnership, association, joint stock company, limited liability
company, joint venture, trust, governmental entity, unincorporated
organization or other legal entity.
“
Purchaser ” shall have the meaning set forth in the
preamble hereof.
“
Record Date ” shall have the meaning set forth in the
recitals hereof.
“
Rights ” shall have the meaning set forth in the
recitals hereof.
“
Rights Offering ” shall have the meaning set forth in
the recitals hereof.
“
Rights Offering Prospectus ” shall mean the prospectus
relating to the Common Stock included with the Rights Offering
Registration Statement, including the documents incorporated by
reference therein
“
Rights Offering Registration Statement ” means the
Company’s Registration Statement on Form S-3 under the
Securities Act or such other appropriate form under the Securities
Act, pursuant to which the shares of Common Stock underlying the
Rights will be registered pursuant to the Securities
Act.
“
Securities Act ” shall mean the Securities Act of 1933
and the rules and regulations promulgated by the Commission
thereunder, as amended.
“
Purchaser ” shall have the meaning set forth in the
preamble hereof.
-2-
“
Subscription Price ” shall have the meaning set forth
in the recitals hereof.
Section 2.
Purchase Commitment . (a) Purchaser hereby agrees to
purchase from the Company, and the Company hereby agrees to sell to
Purchaser, at the Subscription Price, that amount of the New Shares
that would otherwise be available for purchase by Purchaser
pursuant to its Basic Subscription Privilege in an amount equal to
$[
].
(b) In
the event that the Company’s other stockholders do not
exercise their Basic Subscription Privileges in full, Purchaser
hereby further agrees to purchase from the Company, and the Company
hereby agrees to sell to Purchaser, at the Subscription Price, a
number of New Shares that would otherwise be available for purchase
by Purchaser pursuant to its Over-Subscription Privilege, but in an
amount not to exceed $[
].
(c) Purchaser
agrees not to exercise its Basic Subscription Privilege or
Over-Subscription Privilege in the Rights Offering.
Section 3.
The Closing . As soon as practicable following the closing
of the Rights Offering, the Company shall notify Purchaser of the
number of New Shares to be purchased by Purchaser pursuant to
Section 2 hereof. The delivery of and payment for the New
Shares shall take place at the offices of Cadwalader, Wickersham
& Taft LLP, One World Financial Center, New York, New York, at
10:00 a.m., New York time on a date that is within five
business days of receipt of the foregoing notification (the
“Closing Date” and the consummation of the transaction
being referred to as the “Closing”).
Section 4.
Delivery of the New Shares . At the Closing, the New Shares
to be purchased by Purchaser hereunder, registered in the name of
Purchaser shall be delivered by or on behalf of the Company to
Purchaser, for Purchaser’s account, against delivery by
Purchaser of the purchase price therefor in immediately available
funds in the form of one or more federal funds checks or a wire
transfer to an account designated by the Company.
Section 5.
Representations and Warra
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