EXHIBIT 10.49
August 1, 2003
Mr. Victor D. Alhadeff
Chief Executive Officer
BRIAZZ, INC.
3901 7th Avenue South, Suite 200
Seattle, WA 98108
Dear Victor:
This will confirm the understanding of BRIAZZ, INC. ("BRIAZZ") and
Delafield Hambrecht, Inc. ("DH") regarding the terms of BRIAZZ's engagement of
DH. This letter agreement amends the engagement agreement dated April 18, 2002
between BRIAZZ and DH (the "Agreement"). Capitalized terms used but not defined
herein are as defined in the Agreement.
DH acknowledges that (a) BRIAZZ has completed Financings with Flying Food
Group, L.L.C., Briazz Venture, L.L.C. and Spinnaker Investment Partners, L.P. as
further described in reports filed by BRIAZZ with the SEC, and (b) BRIAZZ is
seeking an additional Financing as further described in the Securities Purchase
Agreement Among BRIAZZ, INC., Deutsche Bank London AG, acting through DB
Advisors, LLC, Briazz Venture, L.L.C., Spinnaker Investment Partners, L.P. and
DH dated May 28, 2003, as amended on August 1, 2003 (the "Purchase Agreement").
In connection with such Financings, DH and BRIAZZ hereby amend the
Agreement to provide that, in the event that the Financing contemplated by the
Purchase Agreement closes:
1. In satisfaction of all fees owed to DH under the Purchase Agreement,
BRIAZZ will:
(a) issue DH at the closing of such Financing (i) $100,000 principal
amount of non-convertible promissory notes and (ii) shares of
Series F Convertible Preferred Stock convertible into 850,000
shares of Common Stock, all on the terms set forth in the
Purchase Agreement, and
(b) pay DH by wire transfer or check (i) $100,000 from the proceeds
of the closing at the time of closing, and (ii) an additional
$100,000 at the end of BRIAZZ's third fiscal quarter of 2003;
provided, however, that if BRIAZZ fails to make any payment
required by this paragraph 1 within five business days after
receipt of written notice that such payment was not received, the
fee arrangement set forth in this paragraph 1 will automatically
terminate, and BRIAZZ will pay to DH upon demand $751,390.22,
less any amounts paid pursuant to this paragraph 1.
2. The Agreement will be terminated upon such closing, and BRIAZZ and DH
will have no further obligations under the Agreement, except that such
termination will not affect the obligations set forth in paragraph 1
above, in sections 3, 4, 5
and 7 of the Agreement, or in the separate indemnification letter
entered into under the Agreement.
If BRIAZZ does not close the Financing contemplated by the Purchase
Agreement, the Agreement will continue in full force and effect.
Please confirm that the foregoing is in accordance with your understanding
of our agreement by signing and returning to us a copy of this agreement.
Very truly yours,
DELAFIELD HAMBRECHT, INC.
By /s/ John D. Delafield
--------------------------------------
John D. Delafield
President & Chief Executive Officer
Accepted and agreed to as of the date set forth above:
BRIAZZ, INC.
By /s/ Victor D. Alhadeff
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Victor D. Alhadeff
Chief Executive Officer
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