Exhibit 4.9





SUBSCRIPTION AGENT AGREEMENT


          This
SUBSCRIPTION AGENT AGREEMENT (this “Agreement”) is entered into as of
__________________, by and between American Stock Transfer & Trust Company,
LLC (the “Subscription Agent”) and COSI, INC. (the “Company”). 


	
  

 	
  

 	
  

 
	
 1.

 	
 The Company is offering (the “Rights Offering”) to the holders of
 shares of its common stock, par value $.01 per share (“Common Stock”), on TBD
 (the “Record Date”), the right (“Rights”) to subscribe for units (“Units”),
 each Unit consisting of TBD. Except as set forth in Sections 9 and 10 below,
 Rights shall cease to be exercisable at 5:00 P.M., New York City time, on TBD
 or such later date of which the Company notifies the Subscription Agent
 orally and confirms in writing (the “Expiration Date”). TBD Right(s) is/are
 being issued for TBD shares of Common Stock held on the Record Date. TBD
 Right(s) and payment in full of the subscription price of $TBD (the
 “Subscription Price”) is/are required to subscribe for one Unit. Rights are
 evidenced by non-transferable subscription certificates in registered form
 (“Subscription Certificates”). Each holder of Subscription Certificate(s) who
 exercises the holder’s right to subscribe for all Units that can be
 subscribed for with the Rights evidenced by such Subscription Certificate(s)
 (the “Basic Subscription Right”) will have the right to subscribe for
 additional Units, if any, available as a result of any unexercised Rights
 (such additional subscription right being referred to hereafter as the “Additional
 Subscription Privileged”). The Rights Offering will be conducted in the
 manner and upon the terms set forth in the Company’s Prospectus dated TBD
 (the “Prospectus”). 

 
	
  

 	
  

 
	
 2.

 	
 The Subscription Agent is hereby appointed to affect the Rights
 Offering as set forth herein. The Subscription Agent may rely on, and shall
 be protected in acting upon, any certificate, instrument, opinion,
 representation, notice letter or other document delivered to it and believed
 by it to be genuine and to have been signed by the proper party or parties. 

 
	
  

 	
  

 
	
 3.

 	
 Enclosed herewith, or to be delivered to you once the details are
 finalized, are the following, the receipt of which the Subscription Agent
 acknowledges by its execution hereof: 

 
	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 a copy of the Prospectus; 

 
	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 the form of Subscription Certificate (with instructions); 

 
	
  

 	
  

 	
  

 
	
  

 	
 (c)

 	
 resolutions adopted by the board of directors of the Company in
 connection with the Rights Offering, certified by the secretary of the
 Company; and 

 
	
  

 	
  

 	
  

 
	
  

 	
 (d)

 	
 notice of guaranteed delivery (“Notice of Guaranteed Delivery”). 

 






	
  

 	
  

 
	
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 4.

 	
 As soon as is reasonably practical, the Subscription Agent shall mail
 or cause to be mailed to each holder of Common Stock at the close of business
 on the Record Date a Subscription Certificate evidencing the Rights to which
 such holder is entitled, a Notice of Guaranteed Delivery, a Prospectus and an
 envelope addressed to the Subscription Agent. Prior to mailing, the Company
 shall provide the Subscription Agent with blank Subscription Certificates
 which the Subscription Agent shall prepare and issue in the names of holders
 of Common Stock of record at the close of business on the Record Date and for
 the number of Rights to which they are entitled. The Company shall also
 provide the Subscription Agent with a sufficient number of copies of each of
 the documents to be mailed with the Subscription Certificates. 

 
	
  

 	
  

 
	
 5.

 	
 Subscription Procedure. 

 
	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 Upon the Subscription Agent’s receipt prior to 5:00 P.M., New York
 City time, on the Expiration Date (by mail or delivery) of (ii) any
 Subscription Certificate completed and endorsed for exercise, as provided on
 the reverse side of the Subscription Certificate (except as provided in Section
 9 hereof), and (ii) payment in full of the Subscription Price in U.S. funds
 by check, bank draft or money order payable at par (without deduction for
 bank service charges or otherwise) to the order of “American Stock Transfer
 & Trust Company, LLC” the Subscription Agent shall as soon as practicable
 after the Expiration Date, but after performing the procedures described in
 subsections (b) and (c) below, mail to the subscriber’s registered address on
 the books of the Company certificates representing the securities underlying
 each Unit duly subscribed for (pursuant to the Basic Subscription Right and
 the Additional Subscription Privilege) and furnish a list of all such
 information to the Company. 

 
	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 As soon as practicable after the Expiration Date the Subscription
 Agent shall calculate the number of Units to which each subscriber is
 entitled pursuant to the Additional Subscription Privilege. The Additional
 Subscription Privilege may only be exercised by holders who subscribe to all
 the Units that can be subscribed for under the Basic Subscription Right. The
 Units available for additional subscriptions will be those that have not been
 subscribed and paid for pursuant to the Basic Subscription Right (the
 “Remaining Units”). Where there are sufficient Remaining Units to satisfy all
 additional subscriptions by holders exercising their rights under the
 Additional Subscription Privilege, each holder shall be allotted the number
 of Additional Units subscribed for. If the aggregate number of Units
 subscribed for under the Additional Subscription Privilege exceeds the number
 of Remaining Units, the number of Remaining Units allotted to each
 participant in the Additional Subscription Privilege shall be the product
 (disregarding fractions) obtained by multiplying the number of Remaining
 Units by a fraction of which the numerator is the number of Units subscribed
 for by that participant under the Additional Subscription Privilege and the
 denominator is the aggregate number of Remaining Units subscribed for by all
 participants under the Additional Subscription Privilege. Any fractional Unit
 to which persons exercising their 

 





	
  

 	
  

 
	
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 Additional Subscription Privilege would otherwise be entitled pursuant
 to such allocation shall be rounded to the next whole Unit. 

 
	
  

 	
  

 	
  

 
	
  

 	
 (c)

 	
 Upon calculating the number of Units to which each subscriber is
 entitled pursuant to the Additional Subscription Privilege and the amount
 overpaid, if any, by each subscriber, the Subscription Agent shall, as soon
 as practicable, furnish a list of all such information to the Company. 

 
	
  

 	
  

 	
  

 
	
  

 	
 (d)

 	
 Upon calculating the number of Units to which each subscriber is
 entitled pursuant to the Additional Subscription Privilege and assuming
 payment for the additional Units subscribed for has been delivered, the
 Subscription Agent shall mail, as contemplated in subsection (a) above, the
 certificates representing the additional securities which the subscriber has
 been allotted. If a lesser number of Units is allotted to a subscriber under
 the Additional Subscription Privilege than the subscriber has tendered
 payment for, the Subscription Agent shall remit the difference to the
 subscriber without interest or deduction at the same time as certificates
 representing the securities allotted pursuant to the Additional Subscription
 Privilege are mailed. 

 
	
  

 	
  

 	
  

 
	
  

 	
 (e)

 	
 Funds received by the Subscription Agent pursuant to the Basic
 Subscription Right and the Additional Subscription Privilege shall be held by
 it in a segregated account. Upon mailing certificates representing the
 securities and refunding subscribers for additional Units subscribed for but
 not allocated, if any, the Subscription Agent shall promptly remit to the
 Company all funds received in payment of the Subscription Price for Units
 issued in the Rights Offering. The Subscription Agent will not be obligated
 to calculate or pay interest to any holder or party. 

 
	
  

 	
  

 
	
 6.

 	
 Until 5:00 P.M., New York City time, on the third Business Day (as
 defined below) prior to the Expiration Date, the Subscription Agent shall
 facilitate subdivision or transfers of Subscription Certificates by issuing
 new Subscription Certificates in accordance with the instructions set forth
 on the reverse side of the Subscription Certificates. As used in herein,
 “Business Day” shall mean any day other than a Saturday, a Sunday, or a day
 on which banking institutions in the State of New York are authorized or
 obligated by law or executive order to close. 

 
	
  

 	
  

 
	
 7.

 	
 The Company shall have the absolute right to reject any defective
 exercise of Rights or to waive any defect in exercise. Unless requested to do
 so by the Company, the Subscription Agent shall not be under any duty to give
 notification to holders of Subscription Certificates of any defects or
 irregularities in subscriptions. Subscriptions will not be deemed to have
 been made until any such defects or irregularities have been cured or waived
 within such time as the Company shall determine. The Subscription Agent shall
 as soon as practicable return Subscription Certificates with the defects or
 irregularities which have not been cured or waived to the holder of the
 Rights. If any Subscription Certificate is alleged to have been lost, stolen
 or destroyed, the Subscription Agent should follow the same procedures
 followed for lost stock certificates representing 

 






	
  

 	
  

 
	
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 Common Stock it uses in its capacity as transfer agent for the
 Company’s Common Stock. 

 
	
  

 	
  

 
	
 8.

 	
 If prior to 5:00 P.M., New York City time, on the Expiration Date the
 Subscription Agent receives (i) payment in full of the Subscription Price for
 the Units being subscribed for and (ii) a guarantee notice substantially in
 the form of the notice of guaranteed delivery (“Notice of Guaranteed
 Delivery”) delivered with the Subscription Certificate, from a financial
 institution having an office or correspondent in the United States, or a
 member firm of any registered United States national securities exchange or
 of FINRA stating the certificate number of the Subscription Certificate
 relating to the Rights, the name and address of the exercising subscriber,
 the number of Rights represented by the Subscription Certificate held by such
 exercising subscriber, the number of Units being subscribed for pursuant to
 the Rights and guaranteeing the delivery to the Subscription Agent of the
 Subscription Certificate evidencing such Rights within three (3) NASDAQ
 GLOBAL MARKET trading days (“Trading Days”) following the date of the Notice
 of Guaranteed Delivery, then the Rights may be exercised even though the
 Subscription Certificate was not delivered to the Subscription Agent prior to
 5:00 P.M., New York City time, on the Expiration Date, provided that, within
 three Trading Days following the date of the Notice of Guaranteed Delivery,
 the Subscription Agent receives the properly completed Subscription
 Certificate evidencing the Rights being exercised, with signatures guaranteed
 if required. Subscription Agent shall not settle or compromise any claim for
 which it seeks indemnification hereunder without the prior written consent of
 the Company. 

 
	
  

 	
  

 
	
 9.

 	
 The Subscription Agent shall deliver to the Company the exercised
 Subscription Certificates in accordance with written directions received from
 the Company and shall deliver to the subscribers who have duly exercised
 Rights at their registered addresses certificates representing the securities
 subscribed for as instructed on the reverse side of the Subscription
 Certificates. 

 
	
  

 	
  

 
	
 10.

 	
 The Subscription Agent shall notify the Company by telephone on an
 before the close of business on each Business Day during the period
 commencing five (5) Business Days after the mailing of the Rights and ending
 at the Expiration Date (and in the case of guaranteed deliveries ending three
 (3) Trading Days after the Expiration Date) (a “daily notice”), which notice
 shall thereafter be confirmed in writing, of (i) the number of Rights
 exercised an the day covered by such daily notice, (ii) the number of Rights
 subject to guaranteed exercises on the day covered by such daily notice,
 (iii) the number of Rights for which defective exercises have been received
 on the day covered by such daily notice, and (iv) the cumulative total of the
 information set forth in clauses (i) through (iii) above. At or before 5:00
 P.M., New York City time, on the first Trading Day following the Expiration
 Date the Subscription Agent shall certify in writing to the Company the
 cumulative total through the Expiration Date of all the information set forth
 in clauses (i) through (iii) above. At or before 10:00 A.M., New York City
 time, on the fifth Trading Day following the Expiration Date the Subscription
 Agent will execute and deliver to the Company a certificate setting forth the
 number of Rights exercised pursuant to a Notice of Guaranteed Delivery and as
 to which Subscription Certificates have been 

 






	
  

 	
  

 
	
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 timely received. The Subscription Agent shall also maintain and
 update a listing of holders who have fully or partially exercised their
 Rights, holders who have transferred their Rights and their transferees, and
 holders who have not exercised their Rights. The Subscription Agent shall
 provide the Company or its designees with such information compiled by the
 Subscription Agent pursuant to this Section 10 as any of them shall request. 

 
	
  

 	
  

 
	
 11.

 	
 With respect to notices or instructions to be provided by the
 Company hereunder, the Subscription Agent may rely and act on any written
 instruction signed by any one or more of the following authorized officers or
 employees of the Company: 

 






	
  

 	
  

 
	
 Name

 	
 Title

 
	
 Carin Stutz

 	
 CEO & President

 
	
 William Koziel

 	
 CFO

 
	
 Vicki Baue

 	
 VP & General Counsel, CCO

 






	
  

 	
  

 
	
 12.

 	
 Whether or not the Rights Offering is consummated, the Company agrees
 to pay the Subscription Agent for services rendered hereunder, as set forth
 in the schedule attached to this Agreement. 

 
	
  

 	
  

 
	
 13.

 	
 The Subscription Agent may employ or retain such agents (including
 but not limited to, vendors, advisors and subcontractors) as it reasonably
 requires to perform its duties and obligations hereunder; may pay reasonable
 remuneration for all services so performed by such agents; shall not be
 responsible for any misconduct on the part of such agents; and in the case of
 counsel, may rely on the written advice or opinion of such counsel, which
 shall be full and complete authorization and protection in respect of any
 action taken, suffered or omitted by the Subscription Agent hereunder in good
 faith and in accordance with such advice or opinion. Additionally, the
 Subscription Agent shall, to the extent required by applicable law, identify,
 report and deliver any unclaimed property and/or payments to all states and
 jurisdictions for the Company in accordance with applicable abandoned
 property law. 

 
	
  

 	
  

 
	
 14.

 	
 The Company hereby covenants and agrees to indemnify, reimburse and
 hold the Subscription Agent and its officers, directors, employees and agents
 harmless against any loss, liability or reasonable expense (including
 reasonable legal and other fees and expenses) incurred by the Subscription
 Agent with respect to any third-party claim arising out of or in connection
 with entering into this Agreement or the performance of its duties hereunder,
 except for such losses, liabilities or expenses incurred as a result of its
 gross negligence, bad faith or willful misconduct. The Company shall not be
 liable under this indemnity with respect to any such claim against the
 Subscription Agent unless the Company is notified of the written assertion of
 a claim against it, or of any action commenced against it, promptly after it
 shall have received any such written information as to the nature and basis
 of the claim; provided, however, that failure by the Subscription Agent to
 provide such notice shall not relieve the Company of any liability hereunder
 if no prejudice occurs. 

 





	
  

 	
  

 
	
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 In no event shall the Subscription Agent or the Company have any
 liability to the other for any incidental, special, statutory, indirect or
 consequential damages, or for any loss of profits, revenue, data or cost of
 cover. 

 
	
  

 	
  

 
	
  

 	
 All provisions regarding indemnification, liability and limits
 thereon shall survive the resignation or removal of the Subscription Agent or
 the termination of this Agreement. 

 
	
  

 	
  

 
	
 15.

 	
 Any notice or communication by the Subscription Agent or the Company
 to the other is duly given if in writing and delivered in person or via first
 class mail (postage prepaid), or overnight air courier to the other’s
 address. 

 






	
  

 	
  

 
	
  

 	
 If to the Company: 

 
	
  

 	
  

 
	
  

 	
 Cosi, Inc. 

 
	
  

 	
 1751 Lake Cook Road, Suite 600 

 
	
  

 	
 Deerfield, IL 60015 

 
	
  

 	
 Attn: William Koziel, CFO 

 
	
  

 	
  

 
	
  

 	
 with copy to: 

 
	
  

 	
  

 
	
  

 	
 Cosi, Inc. 

 
	
  

 	
 1751 Lake Cook Road, Suite 600 

 
	
  

 	
 Deerfield, IL 60015 

 
	
  

 	
 Attn: Vicki Baue, VP & General Counsel 

 
	
  

 	
  

 
	
  

 	
 If to the Subscription Agent: 

 
	
  

 	
  

 
	
  

 	
 American Stock Transfer & Trust Company, LLC 

 
	
  

 	
 6201 15th Avenue 

 
	
  

 	
 Brooklyn, New York 11219 

 
	
  

 	
 Attn: Corporate Actions 

 
	
  

 	
 Tel: (718) 921.8200 

 
	
  

 	
  

 
	
  

 	
 with copy to: 

 
	
  

 	
  

 
	
  

 	
 American Stock Transfer & Trust Company, LLC 

 
	
  

 	
 6201 15th Avenue

 
	
  

 	
 Brooklyn, New York 11219
Attn: General Counsel

 
	
  

 	
 Tel: (718) 921.8200 

 






	
  

 	
  

 
	
  

 	
 The Subscription Agent and the Company may, by notice to the other,
 designate additional or different addresses for subsequent notices or
 communications. 

 
	
  

 	
  

 
	
 16.

 	
 If any provision of this Agreement shall be held illegal, invalid, or
 unenforceable by any 

 





	
  

 	
  

 
	
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 court, this Agreement shall be construed and enforced as if such
 provision had not been contained herein and shall be deemed an Agreement
 between us to the full extent permitted by applicable law. 

 
	
  

 	
  

 
	
 17.

 	
 This Agreement shall be governed by and construed in accordance with
 the laws of the State of New York, without giving effect to principles of
 conflicts of law, and shall inure to the benefit of and be binding upon the
 successors and permitted assigns of the parties hereto. 

 
	
  

 	
  

 
	
 18.

 	
 Neither this Agreement, nor any rights or obligations hereunder, may
 be assigned by either party without the written consent of the other party.
 However, either party may assign this Agreement or any rights granted
 hereunder, in whole or in part, either to its affiliates, another division,
 subsidiaries or in connection with its reorganization or to successors of all
 or a majority of such party’s assets or business without the prior written
 consent of the other party. 

 
	
  

 	
  

 
	
 19.

 	
 No provision of this Agreement may be amended, modified or waived,
 except in writing signed by all of the parties hereto. This Agreement may be
 executed in counterparts, each of which shall be for all purposes deemed an
 original, but all of which together shall constitute one and the same instrument.
 

 
	
  

 	
  

 
	
 20.

 	
 Nothing herein contained shall amend, replace or supersede any
 agreement between the Company and the Subscription Agent to act as the
 Company’s transfer agent, which agreement shall remain of full force and
 effect. 

 


 [signature page follows]


	
  

 	
  

 
	
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          This
Subscription Agent Agreement has been executed by the parties hereto as of the
date first written above. 


	
  

 	
  

 	
  

 
	
  

 	
 COSI, INC.

 
	
  

 	
  

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	 

 
	
  

 	
  

 	
 Name:

 
	
  

 	
  

 	
 Title:

 






	
  

 	
  

 	
  

 	
  

 
	
 Agreed &
 Accepted:

 	
  

 
	
  

 	
  

 	
  

 
	
 AMERICAN
 STOCK TRANSFER & TRUST COMPANY, LLC

 	
  

 
	
  

 	
  

 	
  

 
	
 By:

 	
  

 	
  

 
	
  

 	 

 	
  

 
	
  

 	
 Name:

 	
  

 
	
  

 	
 Title:

 	
  

 
	
  

 	
  

 
	
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Fee Schedule


Flat fee of
$12,500. 

Plus reasonable out-of-pocket expenses. 


Additional fee
equal to $2,500 for each extension of the Rights Offering, plus reasonable
out-of-pocket expenses associated with such extension. 


The party
below is responsible for payment of the fees: 


	
  

 	
  

 
	
  

 	
 Name:

 
	
  

 	
 Attention:

 
	
  

 	
 Address:

 
	
  

 	
 Address:

 
	
  

 	
 Address:

 
	
  

 	
 Facsimile:

 
	
  

 	
 Phone:

 
	
  

 	
 Email:

 


The
fees quoted in this schedule apply to services ordinarily rendered by American
Stock Transfer & Trust Company, LLC (“AST”) as subscription agent and are
subject to reasonable adjustment based on final review of documents, or when
AST is called upon to undertake unusual duties or responsibilities, or as
changes in law, procedures, or the cost of doing business demand. Furthermore,
the fees quoted in this schedule are based upon information provided to AST and
are subject to change upon modification or supplementation of such information
resulting in the provision of additional services by AST. Services in addition
to and not contemplated in this Agreement, including, but not limited to,
document amendments and revisions, calculations, notices and reports, legal
fees and unanticipated transaction costs (including charges for wire transfers,
checks, internal transfers and securities transactions) will be billed as
extraordinary expenses. 


	
  

 	
  

 
	
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