Exhibit 10.36
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of
March 6, 2003, by and among Briazz Venture, L.L.C., an Illinois limited
liability company (the "Investor") and the officers and directors of BRIAZZ,
INC., a Washington corporation (the "Company"), listed on Exhibit A attached
hereto and incorporated herein by reference (collectively, the "Insiders").
WHEREAS, Investor is investing $2.0 million in a Senior Secured Note, a
Warrant to Purchase Common Stock (Warrant"), and Series D Preferred Stock
("Series D Preferred Stock") pursuant to an Amended and Restated Purchase
Agreement dated as of March 5, 2003 (the "Purchase Agreement");
WHEREAS, the Company has agreed to seek shareholder approval of the
issuance of the shares of common stock ("Common Stock") issuable upon conversion
of the Series D Preferred Stock, the terms and conditions of which are set forth
in Articles of Amendment dated March 3, 2003; and
WHEREAS, in consideration of the execution of the Purchase Agreement by
Investor, the Insiders have agreed to vote the shares of voting capital stock of
the Company owned by them in favor of the Common Stock issuable upon conversion
of the Series D Preferred Stock;
NOW, THEREFORE, in consideration of the foregoing and for other
consideration, the receipt and sufficiency of which are hereby acknowledged,
Investor and the Insiders hereby agree as follows:
1. Approval of Common Stock. The Insiders hereby agree to: (i)
vote all of the shares of voting capital stock of the Company that they
own, of record or beneficially, or over which they have voting
authority or discretion to approve the Common Stock issuable upon
conversion of the Series D Preferred Stock, and (ii) take all other
action that may be necessary or proper to effect the foregoing (whether
in their capacities as a shareholder, member of the Board of Directors
of the Company or committee thereof, officer of the Company, or
otherwise, and including, without limitation, attendance at meetings of
the shareholders or the Board of Directors of the Company in person or
by proxy for the purposes of obtaining a quorum and the execution of
written consents in lieu of meetings).
2. Regulatory Compliance. No provision in this Agreement shall
require any Insider to take any action that would result in the
Company's Board of Directors or any committee of the Board of Directors
to cease to be in compliance with any requirement of federal securities
laws or regulations or interpretations by the Securities and Exchange
Commission thereunder, or any rules or regulations of Nasdaq or any
other exchange or trading system through which shares of the Company's
common stock are quoted or traded.
3. Termination. This Agreement shall terminate upon the later of
(a) approval by Nasdaq of the listing of the shares issuable upon
exercise of the Warrant on the Nasdaq National Market or the Nasdaq
SmallCap Market and (b) approval by the shareholders of the Company of
the Common Stock issuable upon conversion of the Series D Preferred
Stock. This Agreement shall terminate earlier as to any individual
Insider on the date that such Insider ceases to be an officer, director
or employee of or to have a contractual relationship with the Company.
4. No Revocation. The voting agreements set forth herein are
coupled with an interest and may not be revoked.
5. Amendments and Waivers. This Agreement constitutes the full
and complete agreement of the parties hereto with respect to the
subject matter hereof. Any term hereof may be amended and the
observance of any term hereof may be waived only with the written
consent of Investor and a majority in interest of the Insiders. No
waivers of or exceptions to any term, condition, or provision of this
Agreement, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such term,
condition, or provision.
6. Stock Splits, Stock Dividends, etc. In the event of any stock
split, stock dividend, recapitalization, reorganization, or the like,
any securities issued with respect to the shares of the capital stock
of the Company owned by any of the parties hereto shall become subject
to the terms and conditions of this Agreement.
7. Severability. Each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be held to
be prohibited by or invalid under applicable law, such provision shall
be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining
provisions of this Agreement.
8. Governing Law. This Agreement shall be governed by and
construed under the laws of the State of Washington applicable to
agreements executed, delivered, and to be performed entirely with such
State and without regard to the rules of such State regarding conflicts
of laws.
9. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
10. Successors and Assigns. Except as otherwise expressly
provided in this Agreement, the provisions hereof shall inure to the
benefit or, and be binding upon, the Company and the Insiders and their
respective heirs, personal representatives, successors and assigns.
11. Notices. All notices, requests, permissions, waivers, and
other communications hereunder shall be in writing and delivered by
personal delivery or transmitted by facsimile transmission or by a
reputable overnight courier service and shall be deemed to have been
duly given and received: (i) upon personal delivery or receipt of a
facsimile transmission; or (ii) one (1) day after being transmitted by
a reputable overnight courier service, properly addressed and charges
prepaid to the intended recipient as follow:
(a) If to Investor:
Briazz Venture, L.L.C.
c/o New Management, Ltd.
212 North Sangamon, Suite 1-A
Chicago, Illinois 60607
Attention: David Cotton
Telephone: (312) 243-2122
Fax: (312) 243-5088
With a copy (which shall not constitute notice) given in the
manner prescribed above to:
Shefsky & Froelich Ltd.
444 North Michigan Avenue
Suite 2500
Chicago, Illinois 60611
Attention: Michael J. Choate, Esq.
Telephone: (312) 836-4066
Fax: (312) 527-5921
or at such other address as the Investor shall have furnished to the Company and
the Insiders in writing; and
(b) if to any Insider, at the address of such Insider
specified on the Insider's counterpart signature page hereto, or at such other
addresses as the Insider shall have furnished to the Company and Investor in
writing.
SEPARATE SIGNATURE PAGE
VOTING AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year hereinabove first written.
Briazz Venture, L.L.C., an Illinois limited liability
company
/s/ David L. Cotton
-----------------------------
David L. Cotton, Chief Financial Officer
SEPARATE SIGNATURE PAGE
VOTING AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year hereinabove first written.
INSIDER
/s/ Victor D. Alhadeff
----------------------------
Signature
Victor D. Alhadeff
----------------------------
Print Name
3901 7th Avenue South
Suite 200
Seattle WA 98108
Address for Notices
206.613.0500
Facsimile No. for Notices (if any)
EXHIBIT A TO VOTING AGREEMENT
LIST OF INSIDERS
Victor D. Alhadeff