EXHIBIT 99.2
AMENDMENT NO. 4 TO RIGHTS AGREEMENT
This Amendment No. 4, dated as of August 18, 2003 (the "Amendment"),
to the Amended and Restated Rights Agreement (the "Rights Agreement") dated as
of July 15, 1999, as amended by Amendment Nos. 1, 2, and 3, by and between
Gardenburger, Inc. (the "Company"), and EquiServe Trust Company, N.A. (the
"Rights Agent").
WITNESSETH:
WHEREAS, the Company and the Rights Agent have entered into the
Rights Agreement; and
WHEREAS, the Board of Directors of the Company, in accordance with
Section 26 of the Rights Agreement, has determined it desirable and in the best
interests of the Company and its shareholders to supplement and amend certain
provisions of the Rights Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties agree as follows:
Section 1. Amendment to Section 1.1. Section 1.1 of the Rights
Agreement is amended to read in its entirety as follows:
"1.1 "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates and Associates
(as such terms are hereinafter defined) of such Person, shall be the Beneficial
Owner (as such term is hereinafter defined) of 15% or more of the Common Shares
of the Company then outstanding, but shall not include: (i) the Company; (ii)
any Subsidiary of the Company; (iii) any employee benefit plan of the Company or
of any Subsidiary of the Company or any entity holding shares of capital stock
of the Company for or pursuant to the terms of any such plan, in its capacity as
an agent or trustee for any such plan; or (iv) any Exempt Person, unless such
Exempt Person becomes the Beneficial Owner of more than the Exempt Percentage of
the Common Shares of the Company then outstanding. "Exempt Person" shall mean
(x) ▇▇▇▇ ▇. ▇▇▇▇▇▇, together with all of his Affiliates and Associates,
including, without limitation, the ▇▇▇▇ ▇. ▇▇▇▇▇▇ Charitable Foundation Trust
(collectively, "▇▇▇▇▇▇"); (y) Dresdner Kleinwort ▇▇▇▇▇▇ Private Equity Partners
LP, together with all of its Affiliates and Associates, or any one or more of
the Affiliates and Associates of Dresdner Kleinwort ▇▇▇▇▇▇ Private Equity
Partners LP (collectively, "Dresdner"); and (z) ▇▇▇▇▇▇ & McBaine Capital
Management, LLC, together with all of its Affiliates and Associates, or any one
or more of the Affiliates and Associates of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Capital Management,
LLC (collectively, "▇▇▇▇▇▇ & McBaine"). "Exempt Percentage" shall mean up to 25%
of the Common Shares of the Company then outstanding. Notwithstanding the
foregoing, (a) no Person shall become an "Acquiring Person" as the result of an
acquisition of Common Shares by the Company which, by reducing the number of
shares outstanding, increases the proportionate number of shares beneficially
owned by such Person to 15% (25% as to any
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▇▇▇▇▇▇ Person) or more of the Common Shares of the Company then outstanding,
provided that if a Person shall become the Beneficial Owner of 15% (25% as to
any Exempt Person) or more of the Common Shares of the Company then outstanding
solely by reason of share purchases by the Company and shall, after such
purchases by the Company, become the Beneficial Owner of any additional Common
Shares of the Company, then such Person shall be deemed to be an "Acquiring
Person;" (b) if the Board of Directors of the Company determines in good faith
that a Person who would otherwise be an "Acquiring Person," as defined pursuant
to the foregoing provisions of this Section 1.1, has become such inadvertently,
and such Person divests as promptly as practicable a sufficient number of Common
Shares so that such Person would no longer be an Acquiring Person, as defined
pursuant to the foregoing provisions of this Section 1.1, then such Person shall
not be deemed to be an "Acquiring Person" for any purposes of this Agreement (so
long as such Person does not become an Acquiring Person after such divestiture);
(c) none of the Purchasers (as defined in that certain Stock Purchase Agreement
dated as of March 29, 1999, by and among the Company and the Purchasers, as
amended by letter agreement dated April 14, 1999) or Holders (as defined in that
certain Preferred Stock Exchange Agreement dated as of January 10, 2002, by and
among the Company and the Holders), together with any one or more or all of each
Purchaser's and Holder's Affiliates and Associates (Purchasers and Holders,
collectively, the "Preferred Investors"), shall become or be deemed to be an
"Acquiring Person," either singly or as a group, solely by reason of being or
becoming the Beneficial Owner of any number of the Company's shares of Series C
Convertible Preferred Stock or Series D Convertible Preferred Stock (together,
the "Convertible Preferred Shares"), or any of the Common Shares into which such
Convertible Preferred Shares are converted or may become convertible; and (d)
none of Dresdner, any of the Preferred Investors or their transferees, Pattico,
Inc. ("Pattico") or any other Persons, or any Affiliates, officers, directors,
shareholders, members, partners or Associates of any of the foregoing Persons
(collectively, the "Negotiating Persons"), shall become or be deemed to be an
"Acquiring Person," either singly or as a group, as a result of either (i)
participation in negotiations of the terms (whether among the Negotiating
Persons, with the Company or otherwise) on which the Negotiating Persons may
consent to or participate in a proposal by Pattico to acquire the Company's
outstanding shares of common stock and take the Company private (a "Going
Private Transaction") or (ii) the consummation of such a Going Private
Transaction.
Section 2. Rights Agreement as Amended. The term "Rights Agreement"
as used in the Rights Agreement shall be deemed to refer to the Rights Agreement
as amended hereby. This Amendment shall be effective as of the date hereof and,
except as set forth herein, the Rights Agreement and all schedules or exhibits
thereto shall remain in full force and effect and be otherwise unaffected
hereby.
Section 3. Officer's Certificate. In accordance with Section 26 of
the Rights Agreement, the Company has provided the Rights Agent a certificate
executed by an authorized officer of the Company, stating that the Amendment is
in compliance with the terms of Section 26 of the Rights Agreement.
Section 4. Counterparts. This Amendment may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all of such counterparts shall together constitute
but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed in their names and on their behalf by and through their duly
authorized officers, as of the day and year first above written.
GARDENBURGER, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
EQUISERVE TRUST COMPANY, N.A.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Account Manager
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