Cosi, Inc. (NASDAQ:COSIQ) Files An 8-K Entry into a Material Definitive Agreement
ITEM 1.01
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Entry into a Material Definitive Agreement
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Amendments to Purchase Agreement
Cosi, Inc., a Delaware corporation (the Company) and LIMAB LLC, a
Delaware limited liability company (LIMAB), filed with the United
States Bankruptcy Court for the District of Massachusetts
(Eastern Division) Amendment No. 4 dated December 20, 2016, and
Amendment No. 5 dated December 20, 2016, to the Asset Purchase
Agreement dated as of October 18, 2016, as amended by Amendment
No. 1 dated October 20, 2016, Amendment No. 2 dated November 17,
2016, and Amendment No. 3 dated November 26, 2016 (collectively,
the Purchase Agreement), all of which remain subject to approval
of the Bankruptcy Court.
Delaware limited liability company (LIMAB), filed with the United
States Bankruptcy Court for the District of Massachusetts
(Eastern Division) Amendment No. 4 dated December 20, 2016, and
Amendment No. 5 dated December 20, 2016, to the Asset Purchase
Agreement dated as of October 18, 2016, as amended by Amendment
No. 1 dated October 20, 2016, Amendment No. 2 dated November 17,
2016, and Amendment No. 3 dated November 26, 2016 (collectively,
the Purchase Agreement), all of which remain subject to approval
of the Bankruptcy Court.
Amendment No. 4 to Asset Purchase Agreement, revised the Purchase
Agreement to grant Purchaser the right to pursue a plan under
chapter 11 of the Bankruptcy Code (Plan Option and Plan), among
other things.
Agreement to grant Purchaser the right to pursue a plan under
chapter 11 of the Bankruptcy Code (Plan Option and Plan), among
other things.
Amendment No. 5 to Purchase Agreement provides for a reserve for
certain disputed claims in connection with the Bankruptcy Court
hearing on December 16, 2016.
certain disputed claims in connection with the Bankruptcy Court
hearing on December 16, 2016.
The foregoing descriptions of Amendment No. 4 and Amendment No. 5
to Asset Purchase Agreement do not purport to be complete and are
qualified in their entirety by reference to Amendment No. 4 and
Amendment No. 5, copies of which are filed as Exhibits 10. 1 and
10.2 to this Current Report on Form 8-K and incorporated in this
Item 1.01 by reference.
to Asset Purchase Agreement do not purport to be complete and are
qualified in their entirety by reference to Amendment No. 4 and
Amendment No. 5, copies of which are filed as Exhibits 10. 1 and
10.2 to this Current Report on Form 8-K and incorporated in this
Item 1.01 by reference.
The Purchase Agreement and Amendment No. 1, Amendment No. 2 and
Amendment No. 3 to Purchase Agreement were filed as Exhibits 10.1
to 10.4 to the Companys Current Report on Form 8-K filed on
December 2, 2016, and incorporated therein by reference thereto.
Amendment No. 3 to Purchase Agreement were filed as Exhibits 10.1
to 10.4 to the Companys Current Report on Form 8-K filed on
December 2, 2016, and incorporated therein by reference thereto.
Interim Operating Agreement
On December 23, 2016, to the Order Approving Interim Operating
Agreement between Debtors and LIMAB, LLC entered by the
Bankruptcy Court on December 16, 2016, the Company and LIMAB
entered into an Interim Operating Agreement (Operating
Agreement), dated as of December 21, 2016, relating to the
implementation of the Plan Option and (ii) the operation,
maintenance, benefits, losses, risks and costs of the business
following the effective date thereof until the closing under the
Purchase Agreement or the effective date of the Plan, including,
among other things, providing certain executive management
services. The effectiveness of the Operating Agreement is subject
to approval of the Bankruptcy Court.
Agreement between Debtors and LIMAB, LLC entered by the
Bankruptcy Court on December 16, 2016, the Company and LIMAB
entered into an Interim Operating Agreement (Operating
Agreement), dated as of December 21, 2016, relating to the
implementation of the Plan Option and (ii) the operation,
maintenance, benefits, losses, risks and costs of the business
following the effective date thereof until the closing under the
Purchase Agreement or the effective date of the Plan, including,
among other things, providing certain executive management
services. The effectiveness of the Operating Agreement is subject
to approval of the Bankruptcy Court.
The foregoing descriptions of the Operating Agreement does not
purport to be complete and is qualified in its entirety by
reference to the Operating Agreement, a copy of which is filed as
Exhibit 10. 3 to this Current Report on Form 8-K and incorporated
in this Item 1.01 by reference.
purport to be complete and is qualified in its entirety by
reference to the Operating Agreement, a copy of which is filed as
Exhibit 10. 3 to this Current Report on Form 8-K and incorporated
in this Item 1.01 by reference.
| ITEM 5.02 |
Departure of Directors or Certain Officers; Election of
Directors; Appointment of Certain Offi cers; Compensatory Arrangements of Certain Officers |
to providing certain executive management services to the
Company under the Operating Agreement, LIMAB appointed Chad
Fitzhugh, 57 years of age, to serve as the Companys interim
Chief Financial Officer, effective as of December 20, 2016. Mr.
Fitzhugh is a seasoned restaurant executive with over 20 years
of experience in the restaurant industry. Mr. Fitzhugh will be
paid a consulting fee of $22,700 per month and will be
reimbursed for reasonable out-of-pocket business expenses
incurred by Mr. Fitzhugh in connection with his engagement,
including, without limitation, travel, housing and other
expenses incurred by Mr. Fitzhugh in connection with commuting
to and working out of the Company s headquarters located in
Boston, Massachusetts. The terms of Mr. Fitzhughs engagement
will be more fully set forth in a consulting agreement to be
entered into by the parties.
Company under the Operating Agreement, LIMAB appointed Chad
Fitzhugh, 57 years of age, to serve as the Companys interim
Chief Financial Officer, effective as of December 20, 2016. Mr.
Fitzhugh is a seasoned restaurant executive with over 20 years
of experience in the restaurant industry. Mr. Fitzhugh will be
paid a consulting fee of $22,700 per month and will be
reimbursed for reasonable out-of-pocket business expenses
incurred by Mr. Fitzhugh in connection with his engagement,
including, without limitation, travel, housing and other
expenses incurred by Mr. Fitzhugh in connection with commuting
to and working out of the Company s headquarters located in
Boston, Massachusetts. The terms of Mr. Fitzhughs engagement
will be more fully set forth in a consulting agreement to be
entered into by the parties.
Edward Schatz, The OConnor Group, Inc., will continue to serve
as the interim Chief Financial Officer of the estates during
the pending bankruptcy.
as the interim Chief Financial Officer of the estates during
the pending bankruptcy.
| ITEM 7.01. |
Regulation FD Disclosure
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Additional information on the Chapter 11 Cases, including access
to documents filed with the Bankruptcy Court and other general
information about the Chapter 11 Cases, is available at a
subscription based service known as PACER at
https://pacer.mab.uscourts.gov/cgi-bin/login.pl .
to documents filed with the Bankruptcy Court and other general
information about the Chapter 11 Cases, is available at a
subscription based service known as PACER at
https://pacer.mab.uscourts.gov/cgi-bin/login.pl .
The information in Item 7.01 of this Form 8-K is being furnished
and shall not be deemed filed for purposes of Section 18 of the
Securities Exchange Act of 1934, as amended (the Exchange Act),
or otherwise subject to the liabilities of such section. The
information in Item 7.01 of this Form 8-K shall not be
incorporated by reference into any filing under the Securities
Act of 1933, as amended, or the Exchange Act, regardless of any
incorporation by reference language in any such filing.
and shall not be deemed filed for purposes of Section 18 of the
Securities Exchange Act of 1934, as amended (the Exchange Act),
or otherwise subject to the liabilities of such section. The
information in Item 7.01 of this Form 8-K shall not be
incorporated by reference into any filing under the Securities
Act of 1933, as amended, or the Exchange Act, regardless of any
incorporation by reference language in any such filing.
| ITEM 9.01(d). |
Exhibits
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Exhibit No.
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Description
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Paper (P) or
Electronic (E)
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10.1
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Amendment No. 4 to Asset Purchase Agreement, dated as of
December 20, 2016, among Cosi, Inc., Hearthstone Partners, LLC, Hearthstone Associates, LLC, Xando Cosi Maryland, Inc., and Cosi Sandwich Bar, Inc. |
E
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10.2
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Amendment No. 5 to Asset Purchase Agreement, dated as of
December 20, 2016, among Cosi, Inc., Hearthstone Partners, LLC, Hearthstone Associates, LLC, Xando Cosi Maryland, Inc., and Cosi Sandwich Bar, Inc. |
E
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10.3
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Interim Operating Agreement dated as of December 21, 2016,
among Cosi, Inc., Cosi, Inc., Hearthstone Partners, LLC, Hearthstone Associates, LLC, Xando Cosi Maryland, Inc., and Cosi Sandwich Bar, Inc. |
E
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