EXECUTION COPY
FIRST AMENDMENT TO
REGISTRATION RIGHTS AGREEMENT
THIS FIRST AMENDMENT (this "AMENDMENT"), dated as of January 10,
2002, to the Registration Rights Agreement, dated as of March 27, 1998, by and
among DRESDNER KLEINWORT ▇▇▇▇▇▇ PRIVATE EQUITY PARTNERS LP, a Delaware limited
partnership ("DRESDNER"), and GARDENBURGER, INC., an Oregon corporation (the
"COMPANY").
WHEREAS, the parties hereto entered into the Registration Rights
Agreement, dated as of March 27, 1998 (the "AGREEMENT"); unless otherwise
defined herein, all capitalized terms used herein (including the recitals
hereto) shall have the meanings assigned to such terms in the Agreement, as
amended hereby;
WHEREAS, the Company has entered into a Preferred Stock Exchange
Agreement, dated as of January 10, 2002 (the "EXCHANGE AGREEMENT") with certain
holders of the Company's (i) Series A Preferred Stock, no par value per share,
and (ii) Series B Preferred Stock, no par value per share (collectively, the
"PREFERRED HOLDERS"), and pursuant to which, among other things, the Company
will issue certain warrants to the Preferred Holders (the "PREFERRED WARRANTS");
WHEREAS, the Company has entered into a Registration Rights
Agreement, dated as of January 10, 2002 (the "PREFERRED REGISTRATION RIGHTS
AGREEMENT") with the Preferred Holders, and pursuant to which, among other
things, the Preferred Holders will have certain registration rights with respect
to the shares of Common Stock issuable upon exercise of the Preferred Warrants
(the "PREFERRED REGISTRABLE SECURITIES");
WHEREAS, the Preferred Holders have requested Dresdner to amend the
Agreement on the terms and conditions set forth in this Amendment;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants contained herein, the parties hereto agree as follows.
1. AMENDMENT OF SECTION 2(d)(ii).
(a) SECTION 2(d)(ii) of the Agreement is hereby amended and
restated in its entirety to read as follows:
If a Demand Registration is an underwritten offering and the
managing underwriters advise the Company and the Preferred Holders,
in the event that the Preferred Holders are exercising their
piggyback rights pursuant to the Preferred Registration Rights
Agreement, in writing that in their opinion the number of
Registrable Securities (which for purposes of this SECTION 2(d)(ii)
shall include the Preferred Registrable Securities) and, if
permitted
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hereunder, other securities, requested to be included in such
offering exceeds the number of Registrable Securities and other
securities, if any, which can be sold in an orderly manner in such
offering within a price range acceptable to holder(s) of a majority
of the Registrable Securities initiating such Demand Registration
pursuant to Section 2(a) and without adversely affecting the
marketability of the offering, then the Company will include in such
Demand Registration (A) first, the number of (i) Registrable
Securities requested to be included in such Demand Registration, and
(ii) the Preferred Registrable Securities to be included pursuant to
the exercise by the Preferred Holders of their piggyback rights
under the Preferred Registration Rights Agreement, pro rata from
among the holders of such Registrable Securities according to the
number of Registrable Securities requested by them to be so
included, and (B) second, any other securities of the Company
requested to be included in such registration, in such manner as the
Company may determine.
(b) SECTION 3(b) of the Agreement is hereby amended and
restated in its entirety to read as follows:
PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback Registration is in
part an underwritten primary registration on behalf of the Company
and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in
such registration exceeds the number which can be sold in an orderly
manner in such offering within a price range acceptable to the
Company and without adversely affecting the marketability of the
offering, then the Company will include in such registration (i)
first, the securities the Company proposes to sell, (ii) second, the
Registrable Securities (which for purposes of this SECTION 3(b)
shall include the Preferred Registrable Securities) requested to be
included in such registration, pro rata from among the holders of
such Registrable Securities according to the number of Registrable
Securities requested by them to be so included, and (iii) third, any
other securities requested to be included in such registration, in
such manner as the Company may determine.
(c) SECTION 3(c) of the Agreement is hereby amended and
restated in its entirety to read as follows:
PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback Registration is
an underwritten secondary registration on behalf of holders of the
Company's securities, and the managing underwriters advise the
Company in writing that in their opinion the number of securities
requested to be included in such registration exceeds the number
which can be sold in an orderly manner in such offering within
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a price range acceptable to the holders initially requesting such
registration and without adversely affecting the marketability of
the offering, then the Company will include in such registration (i)
first, the securities requested to be included therein by the
holders requesting such registration and the Registrable Securities
(which for purposes of this SECTION 3(c) shall include the Preferred
Registrable Securities) requested to be included in such
registration, pro rata from among such holders and the holders of
such Registrable Securities according to the number of Registrable
Securities requested by them to be so included, and (ii) second, any
other securities requested to be included in such registration, in
such manner as the Company may determine.
2. CONDITIONS. This Amendment shall become effective as of the date
hereof upon (i) the execution of the counterparts hereof by the Company and
Dresdner, (ii) the execution and delivery by the Company and the Preferred
Holders of the Preferred Registration Rights Agreement in the form attached
hereto as EXHIBIT A, (iii) the execution by the Preferred Holders of the
Exchange Agreement substantially in the form attached hereto as EXHIBIT B, and
(v) the receipt of an opinion of counsel on behalf of the Company in the form
attached hereto as EXHIBIT C.
3. BINDING ON SUCCESSORS AND ASSIGNS. All the terms and provisions
of this Amendment shall be binding upon and inure to the benefit of the parties
hereto, their respective successors, assigns and legal representatives. Whenever
in this Amendment any of the parties hereto is referred to, such reference shall
be deemed to include the successors and assigns of such party.
4. FURTHER ASSURANCES. Each of the Company and Dresdner, as the case
may be, shall duly execute and deliver, or cause to be executed and delivered,
such further instruments and perform or cause to be performed such further acts
as may be necessary or proper in the reasonable opinion of Dresdner to carry out
the provisions and purposes of this Amendment.
5. EFFECT OF AMENDMENT. To the extent any terms and conditions in
the Agreement shall contradict or be in conflict with any provisions of this
Amendment, the provisions of this Amendment shall govern.
6. EXPENSES. All expenses of Dresdner incurred in connection with
this Amendment, including reasonable expenses of Dresdner's counsel, will be
paid by the Company.
7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF
THE STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE
APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
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8. COUNTERPARTS. This Amendment may be executed in separate
counterparts, each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the date first written above.
DRESDNER KLEINWORT ▇▇▇▇▇▇ PRIVATE EQUITY
PARTNERS LP
By: Dresdner Kleinwort ▇▇▇▇▇▇ Private Equity LLC
Its: General Partner
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Investment Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Investment Partner
GARDENBURGER, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its: President & CEO
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