EXHIBIT 10.3
April 14, 1999
Xxxxxxx X. Xxxxx
Executive Vice President and
Chief Financial Officer
Gardenburger, Inc.
0000 X.X. Xxxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
RE: AMENDMENT AND WAIVER OF STOCK PURCHASE AGREEMENT
Dear Xx. Xxxxx:
Pursuant to Section 9.4 of the Stock Purchase Agreement by and among
Gardenburger, Inc. (the "Company") and the Purchasers (as defined therein) dated
as of March 29, 1999 (the "Agreement"), this amends and waives provisions of the
Agreement as specifically set forth herein. Capitalized terms not defined herein
have the meanings assigned to them in the Agreement.
SECTION 7.1(M). The Purchasers waive the Company's obligation under
Section 7.1(m) of the Agreement solely with respect to the requirement to obtain
"agreements to forebear from exercising any rights or remedies resulting from
future events of defaults until December 31, 1999 (other than those arising from
a failure to make an agreed payment)" from (a) Bank of America NT & SA with
respect to the Business Loan Agreement dated April 28, 1998, as amended, by and
between the Company and Bank of America NT & SA or any agreement between the
Company and Bank of America NT & SA intended to replace such agreement (the
"Business Loan Agreement"); (b) Dresdner Kleinwort Xxxxxx Private Equity
Partners LP with respect to the Note Purchase Agreement dated March 27, 1998,
and the related Notes (collectively, the "Dresdner Notes"); and (c) Lease
Agreements dated as of December 17, 1997 and May 28, 1998 by and between the
Company and BA Leasing & Capital Corporation (collectively, the "Lease
Agreements").
In lieu of the obligation specified above, Section 7.1(m) of the
Agreement is amended to provide that the Company shall deliver a certificate
executed by its Chief Financial Officer certifying that, based on the Company's
1999 operating plan and assuming the receipt of at least $32.0 million in gross
proceeds from the sale of the Shares, a default or event of default will not
occur during the period beginning on the Closing Date and ending on December 31,
1999 as a result of the failure of the Company to satisfy the financial
covenants specified in the Business Loan Agreement, the Dresdner Notes or the
Lease Agreements.
The Company's obligation under Section 7.1(m) to obtain waivers of all
events of default that exist as of the Closing Date under the Business Loan
Agreement, the Dresdner Notes and the Lease Agreements is not modified in any
way by this amendment and waiver.
SECTION 7.1(G). The Purchasers waive the condition under Section 7.1(g)
requiring the delivery of irrevocable proxies to Rosewood Capital III, L.P. from
holders of Series A Preferred and Section 7.1(g) of the Agreement is amended to
delete the second sentence only.
EXHIBIT A. Exhibit A (Schedule of Purchasers) of the Agreement is
superseded and replaced by the Exhibit A (Schedule of Purchasers) attached
hereto whereby Xxxxxx & XxXxxxx Capital Management, L.L.C. is no longer a
Purchaser and the persons listed on the Exhibit A attached hereto are deemed to
be Purchasers and are hereby made parties to the Agreement and to this amendment
and waiver.
EXHIBIT B. Exhibit B (Determination of Terms of Series A Stock and
Series B Stock) of the Agreement is superseded and replaced in its entirety by
the Exhibit B (Determination of Terms of Series A Stock and Series B Stock)
attached hereto.
This amendment and waiver agreement will only be effective upon its
execution and delivery by the Company and all of the Purchasers. Except as
provided herein, the Agreement shall remain in full force and effect. This
amendment and waiver may be executed in any number of counterparts, each of
which shall be an original, but all of which together shall constitute one
instrument.
If you agree to the foregoing, please execute this amendment and waiver
where indicated below.
[Signatures follow]
FARALLON CAPITAL PARTNERS, L.P. FARALLON CAPITAL OFFSHORE
FARALLON CAPITAL INSTITUTIONAL INVESTORS, INC.
PARTNERS, L.P. THE COMMON FUND
FARALLON CAPITAL INSTITUTIONAL
PARTNERS II, L.P.
FARALLON CAPITAL INSTITUTIONAL
PARTNERS III, L.P. By: Farallon Capital Management,
TINICUM PARTNERS, L.P. L.L.C., its Agent and
FARALLON CAPITAL (CP) INVESTORS, Attorney-in-Fact
L.P.
By: Farallon Partners, L.L.C., By: /s/ Xxxxx X. Xxxx
its General Partner ---------------------------
Managing Member
BT Capital Investors, L.P.
By: /s/ Xxxxx X. Xxxx
---------------------------
Managing Member
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Xxxxxxx X. Xxxxx, III, Partner
BT Investment Partners, Inc.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Xxxxxxx X. Xxxxx, III, Partner
U.S. Development Capital Investment
Company
By: /s/ Xxx Xxxx /s/ Xxxxx X. Xxxx
------------------------------- -----------------------------------
Xxx Xxxx, Secretary Xxxxx X. Xxxx
GARDENBURGER, INC.
By /s/ Xxxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------- -----------------------------------
Xxxxxxx X. Xxxxx, Executive Vice Xxxxxxx X. Xxxxxxxxx
President and Chief Financial Officer
Lagunitas Partners, X.X.
Xxxxxx & McBaine International
Lockheed Xxxxxx
Xxxxxxxx College
By: /s/ Xxxxxxx XxXxxxx
------------------------------
X. Xxxxxxxxx XxXxxxx,
Xxxxxx & XxXxxxx Capital Management LLC,
Member Manager
Lagunitas Partners, L.P. - General Partner
Xxxxxx & McBaine International - Attorney in
Fact
Lockheed Xxxxxx - Attorney in Fact
Xxxxxxxx College - Attorney in Fact
ROSEWOOD CAPITAL III, L.P.
By: Rosewood Capital Associates, LLC,
General Partner
By /s/ Xxxx X. Xxxxxxxx
-----------------------------
Xxxx X. Xxxxxxxx, Principal
EXHIBIT A
SCHEDULE OF PURCHASERS
TOTAL
PURCHASER NAME, NO. OF SHARES NO. OF SHARES PURCHASE
ADDRESS, FAX NO. OF SERIES A STOCK OF SERIES B STOCK AMOUNT
------------------------------------------------- ----------------- ----------------- -----------
Rosewood Capital III, L.P. 850,000 150,000 $10,000,000
Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
(000) 000-0000
Farallon Capital Partners, L.P* 238,000 42,000 $2,800,000
Farallon Capital Institutional Partners, L.P.* 255,000 45,000 $3,000,000
Farallon Capital Institutional Partners II, L.P.* 42,500 7,500 $500,000
Farallon Capital Offshore Investors, Inc.* 212,500 37,500 $2,500,000
The Common Fund* 8,500 1,500 $100,000
Farallon Capital (CP) Investors, L.P.* 25,500 4,500 $300,000
Farallon Capital Institutional Partners III, L.P.* 51,000 9,000 $600,000
Tinicum Partners, L.P.* 17,000 3,000 $200,000
BT Capital Investors, L.P. 425,000 75,000 $5,000,000
Attn: Xxxxxxx X. Xxxxx III
000 Xxxxxxx Xxxxxx, Mailstop 2255
Xxx Xxxx, XX 00000
Ph: 000-000-0000
Fax: 000-000-0000
BT Investment Partners, Inc. 127,500 22,500 $1,500,000
U.S. Development Capital Investment Company 127,500 22,500 $1,500,000
Attn: Xxx Xxxx, Secretary
000 Xxxxxxxxx Xxxx Xxxxxx, Xxxxx 000
1000 Xxxxxxxxx Road, N.E.
Xxxxxxx, XX 00000
Ph: 000-000-0000
Fax: 000-000-0000
--------
* *c/o Farallon Capital Management LLC, Xxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, Attn: Xxxxx Xxxx and Xxxxx Xxxxx, Facsimile: (415)
421-2133.
A-1
TOTAL
PURCHASER NAME, NO. OF SHARES NO. OF SHARES PURCHASE
ADDRESS, FAX NO. OF SERIES A STOCK OF SERIES B STOCK AMOUNT
------------------------------------------------- ----------------- ----------------- -----------
Lagunitas Partners, L.P. 191,250 33,750 $2,250,000
Attn: X. Xxxxxxxxx McBaine, Member Manager
00 Xxxxxx Xxxxx, Xxxxxxxxx
Xxx Xxxxxxxxx, XX 00000
Ph: 000-000-0000
Fax: 000-000-0000
Xxxxxx & McBaine International 63,750 11,250 $750,000
Lockheed Xxxxxx 59,500 10,500 $700,000
Xxxxxxxx College 25,500 4,500 $300,000
Xxxxx X. Xxxx 21,250 3,750 $250,000
00 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Ph: 000-000-0000
Fax: 000-000-0000
Xxxxxxx X. Xxxxxxxxx 21,250 3,750 $250,000
000 X. Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Ph: 000-000-0000
Fax: 000-000-0000
Total 2,762,500 487,500 $32,500,000
A-2
