EXHIBIT 10.44
AMENDMENT TO SECURITIES PURCHASE AGREEMENT
This Amendment (this "Amendment") is entered into as of August 1, 2003 by
and among BRIAZZ, Inc., a Washington corporation (the "Company"), and Deutsche
Bank London Ag, acting through DB Advisors LLC, a limited liability company
("DB"), Briazz Venture L.L.C., a limited liability company ("Briazz Venture"),
Spinnaker Investment Partners, L.P., a Delaware limited partnership
("Spinnaker"), Delafield Xxxxxxxxx, Inc., a Delaware corporation ("Delafield")
(each a "Purchaser" and collectively, the "Purchasers"), and DB, as
Administrative Agent with respect to the Notes. This Amendment amends the
Securities Purchase Agreement dated as of May 28, 2003 by and among the Company
and the Purchasers (the "Agreement"), with respect to the following:
RECITALS
WHEREAS, the parties desire to amend the Agreement to waive and amend
certain of the representations, warranties and covenants of the Company
contained in the Agreement and in the Disclosure Schedule, to amend the
allocation of Series F Stock and to amend certain of the closing conditions of
the parties.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Capitalized Terms. Unless otherwise defined in this Amendment, all
capitalized terms are as defined in the Agreement.
2. Delafield Series F Stock The second sentence of Section 1.1(b) of the
Agreement is deleted and replaced with the following text: "Subject to the terms
and conditions of this Agreement, in connection with Delafield's purchase of a
Note at the Closing, Delafield shall receive and the Company agrees to issue to
Delafield at the Closing, shares of Series F Stock to initially purchase 850,000
Conversion Shares." The number of shares set forth on the Schedule of Investors
next to Delafield Xxxxxxxxx, Inc. is deleted and replaced with "850,000".
3. Brokerage. Section 2.25 of the Agreement is deleted and replaced with
the following:
"2.25 Brokerage. No third party shall be entitled to receive any brokerage
commissions, finder's fees, fees for financial advisory services or similar
compensation in connection with the transactions contemplated by this Agreement
based on any arrangement or agreement made by or on behalf of the Company other
than the fees and expenses of Delafield pursuant to an agreement between the
Company and Delafield dated April 18, 2002, as amended as of the date hereof.
The fees payable to Delafield are set forth on Schedule 2.25, which fees and
expenses will be paid by the Company."
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4. Board Size. The Purchasers acknowledge and agree that the Company is not
required to appoint the Purchaser Designees to the Board pursuant to Section
8.3(b) of the Agreement until such time as the Purchaser Designees may be
appointed in compliance with Rule 14f-1 under the Exchange Act. In addition,
since only four (4) Purchaser Designees have been identified as of the date
hereof Section 8.3(a) of the Agreement is amended to provide that the Board
shall consist of six (6) individuals. At such time as the fifth Purchaser
Designee has been identified, the Company shall take all necessary action such
that the Board shall consist of seven (7) individuals.
5. Good Standing. The Purchasers acknowledge that the Company ceased to be
in good standing in the State of Illinois in July. The Purchasers waive the
covenant in Section 8.4 of the Agreement with respect to the State of Illinois.
The Purchasers also waive requirement set forth in Section 9.5(e) that the
Company delivery a certificate of good standing from the State of Illinois. The
Purchasers and the Company agree that the Company shall deliver a certificate of
good standing from the State of Illinois after Closing. The Purchasers waive any
breach of the Company's representations and warranties caused by the Company
ceasing to be in good standing in the State of Illinois.
6. Shareholder Approval. The reference in Section 8.7 of the Agreement to
"150 million" Shares is deleted and replaced with "250 million".
7. Listing of Conversion Shares. Section 8.8 of the Agreement is deleted.
8. Executive Officer Retention. The transactions contemplated by Section
8.9 of the Agreement will be completed after Closing; provided, however, that
the number of Conversion Shares underlying the shares of Series F Stock to be
issued to the Executive Officers pursuant to Section 8.9 of the Agreement is
reduced by 100,000.
9. Adoption of 2003 Stock Option Plan. The 2003 Stock Option Plan to be
adopted by the Company pursuant to Section 8.10 of the Agreement shall authorize
the issuance of 12,000,000 shares of Common Stock. The identity of the optionees
and amount of the individual option grants will be determined after Closing.
10. Consents. The Purchasers acknowledge that the Company has not yet
received all necessary consents to this transactions, including CAPCO and
several landlords. The Purchasers and the Company waive this closing condition
contained in Sections 9.3 and 10.4. The Company agrees to use its best efforts
to obtain such consents after Closing.
11. Directors and Officers. Section 9.8 of the Agreement is deleted. The
Purchaser Designees and Executive Officers of the Company will be appointed
after Closing.
12. Consulting Agreement. The following section is added to the Agreement:
"9.12 Consulting Agreement. Agreement of the principal terms of a
consulting agreement between Xxxx Xxxx and the Company on terms satisfactory to
the Purchasers, which includes the issuance of 25,000 shares of Series F Stock
and payment of $50,000."
13. Deliveries by Purchasers. Purchasers acknowledge that the conditions in
Section 10 have been satisfied by each Purchaser, except that the securities to
be surrendered by Briazz Venture or Spinnaker will be delivered to such
Purchaser's legal counsel prior to receipt by such Purchaser of its Series F
Stock or Notes.
14. Tax Forms. The Purchasers agree to deliver to the Company validly
executed IRS Form W-8 BEN or IRS Form W-9 as soon as practicable after Closing.
The Company waives this closing condition.
15. Food Production Agreement. The Purchasers acknowledge that the Company
is in arrears under the terms of the food production agreement between the
Company and Flying Food Group, LLC and waive any breach of the Agreement that
may otherwise result therefrom.
16. Articles of Amendment. Exhibit B to the Agreement is deleted and
replaced in its entirety with the Articles of Amendment attached as Schedule A
hereto.
17. Disclosure Schedule. The Disclosure Schedule delivered by the Company
in connection with the Agreement is deemed to be amended to reflect the terms of
this Amendment. The Purchasers acknowledge receipt of an addendum to the
disclosure schedule which updates and is made a part of the Disclosure Schedule
to the Purchase Agreement, as amended by this Amendment, as of the date hereof.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered by their proper and duly authorized officers as of the
date and year first written above.
COMPANY:
BRIAZZ, INC.,
a Washington corporation
By: /s/ Xxxxxx X. Xxxxxxxx
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Its:
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PURCHASERS:
DEUTSCHE BANK LONDON AG, for itself and as
Administrative Agent, acting through DB
Advisors, LLC
By: /s/ Xxxxx XxxXxxxxx
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Name: Xxxx XxxXxxxxx
Title: Director
Address: 00 Xxxx 00xx Xx.
XX, XX 00000
Fax: 000-000-0000
Attn: Xxxxxxxx Xxxxxx
BRIAZZ VENTURE L.L.C.
By: /s/ Xxx Xxxx Gin
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Name: Xxx Xxxx Gin
Title: Manager
Address: 000 X. Xxxxxxxx, 0X
Xxxxxxx, XX 00000
Fax: 000-000-0000
Attn: Xxx Xxx
[Signature Page to Amendment To Securities Purchase Agreement]
SPINNAKER INVESTMENT PARTNERS, L.P.
By: Spinnaker Capital Partners, LLC
Its: General Partner
By: /s/ X.X. Xxxxxxxx
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Name: X.X. Xxxxxxxx
Title: Manager
Address: 0000 Xxxx Xx.
Xxxxxxxxx, XX 00000
Fax: 000-000-0000
Attn: X.X. Xxxxxxxx
DELAFIELD XXXXXXXXX, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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Name:_________________________________________
Title:________________________________________
Address:______________________________________
______________________________________________
Fax:__________________________________________
Attn:_________________________________________
[Signature Page to Amendment To Securities Purchase Agreement]
