**UNITED STATESSECURITIES AND EXCHANGE COMMISSION**

**WASHINGTON, D. C.  20549**

 

**FORM 10-K/A**

**Amendment No. 1**

 
|   | **ý** | **ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE  SECURITIES EXCHANGE ACT OF 1934**     |   |
|--------|------------|-----------------------------------------------------------------------------------------------|--------|
|   |       | **For the Fiscal Year Ended: September 30, 2003**                                             |   |
|   |       |                                                                                          |   |
|   |       | **OR**                                                                                        |   |
|   | **o**      | **TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE  SECURITIES EXCHANGE ACT OF 1934** |   |

 

**Commission File Number: 0- 20330**

 

**GARDENBURGER, INC.**

(Exactname of registrant as specified in its charter)

 

| **OREGON**                                                       |   | **93-0886359**                         |   |
|------------------------------------------------------------------|--------|----------------------------------------|--------|
| (State  or other jurisdiction  of incorporation or organization) |   | (I.R.S.  Employer  Identification No.) |   |

 

**15615 Alton Parkway, Suite 350,Irvine, California 92618**

(Addressof principal executive offices)

 

Registrant’stelephone number, including area code:  **(949)255-2000**

 

Securities registered pursuant to Section 12(b) ofthe Act: **None**

Securities registered pursuant to Section 12(g) ofthe Act:

**Common Stock, no par value**

(Titleof Class)

 

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Indicate by check mark whether the Registrant(1) has filed all reports required to be filed by Section 13 or 15(d) of theSecurities Exchange Act of 1934 during the preceding 12 months (or for suchshorter period that the Registrant was required to file such reports), and (2)has been subject to such filing requirements for the past 90 days:    Yes ý    Noo

 

Indicate by check mark if disclosure ofdelinquent filers pursuant to Item 405 of Regulation S-K is not containedherein, and will not be contained, to the best of Registrant’s knowledge, indefinitive proxy or information statements incorporated by reference in PartIII of this Form 10-K, or any amendment to this Form 10-K.   o

 

Indicate by check mark whether the registrantis an accelerated filer (as defined in Rule 12b-2 of the Act).

Yes o   Noý

 

The aggregate market value of the votingand non-voting common equity held by non-affiliates of the Registrant was$1,755,695 computed by reference to the last sales price as reported by theNASD’s OTC Bulletin Board ($0.31) as of the last business day of theRegistrant’s most recently completed second fiscal quarter, March 31, 2003.

 

The number of shares outstanding of theRegistrant’s Common Stock as of December 22, 2003 was 9,002,101 shares.

 

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**Documents Incorporated by Reference**

None.

 

 

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**GARDENBURGER, INC.**

**2003 FORM 10-K/A ANNUAL REPORT**

**TABLE OF CONTENTS**

 
| **PART III** |                                                                                             |
|--------------|--------------------------------------------------------------------------------------------------|
|         |                                                                                             |
| Item  10.    | Directors  and Executive Officers of the Registrant                                              |   |
|         |                                                                                             |   |
| Item  11.    | Executive  Compensation                                                                          |   |
|         |                                                                                             |   |
| Item  12.    | Security  Ownership of Certain Beneficial Owners and Management and Related Stockholder  Matters |   |
|         |                                                                                             |   |
| Item  13.    | Certain  Relationships and Related Transactions                                                  |   |
|         |                                                                                             |   |
| Item  14.    | Principal  Accountant Fees and Services                                                          |   |
|         |                                                                                             |   |
| **PART IV**  |                                                                                             |
|         |                                                                                             |   |
| Item  15.    | Exhibits,  Financial Statement Schedules and Reports on Form 8-K                                 |   |
|         |                                                                                             |   |
| Signatures   |                                                                                             |

 

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**EXPLANATORYNOTE**

 

Gardenburger,Inc. is filing this Amendment No. 1 on Form 10-K/A (this “Amendment”)to amend its Annual Report on Form 10-K for the fiscal year endedSeptember 30, 2003, as filed with the Securities and Exchange Commissionon December 29, 2003 (the “Form 10-K”). The purpose of this Amendment isto provide the information in Items 10, 11, 12, 13 and 14 of Part IIIof the Form 10-K that was to be incorporated by reference fromGardenburger’s proxy statement for its 2004 Annual Meeting of Shareholderswhich had been expected to be filed within 120 days after fiscal year end.  The complete text of Items 10, 11, 12,13 and 14 of Part III is set forth below. In addition, Item 15 of Part IV of the Form 10-K isamended and restated in its entirety in order to include new exhibits 31.1 and31.2.

 

**PART III**

 

**Item10****.  Directorsand Executive Officers of the Registrant**

 

**BOARD OF DIRECTORS**

 

There are nofamily relationships among our executive officers and directors. Following arethe members of our board of directors as of December 31, 2003 and theirbiographical information:

 
| **Name**              |   | **Position**                                                  |   | **Age** |   | **Director  Since** |
|-----------------------|--------|---------------------------------------------------------------|--------|---------|--------|---------------------|
| Kyle A.  Anderson     |   | Director                                                      |   | 47      |   | 1999                |
| Charles E.  Bergeron  |   | Director                                                      |   | 58      |   | 2003                |
| Alexander P.  Coleman |   | Director                                                      |   | 36      |   | 1998                |
| Richard L.  Mazer     |   | Director                                                      |   | 58      |   | 1998                |
| Kevin M.  Reilly      |   | Director                                                      |   | 39      |   | 2003                |
| Scott C.  Wallace     |   | President,  Chief Executive Officer and Chairman of the Board |   | 48      |   | 2001                |
| Paul F.  Wenner       |   | Founder and  Director                                         |   | 56      |   | 1985                |

 

**Kyle A. Anderson** isa founding member of Rosewood Capital Associates, L.L.C., the general partnerof Rosewood Capital III, L.P., a private equity investment fund focused ongrowth companies in the consumer and business services sectors and the owner ofapproximately 32% of the Series C and Series D Shares.  Prior to joining Rosewood Capital Associatesin 1988, Mr. Anderson was a Vice President in the mergers and acquisitionsdepartment at First Boston Corporation, an investment banking firm, for sevenyears. Mr. Anderson earned a B.A. from Princeton University and an M.B.A. fromColumbia University.  Mr. Andersonserves on the Board of Directors of Rubio’s Restaurants, Inc.

 

**Charles E. Bergeron**has been Managing Director of Fuller Trident Group – Oregon, a regional investment banking firm, located in Portland, Oregon, since April 2003.  He was Chief Financial Officer of Epitope, Inc. (predecessor to OraSure Technologies, Inc.), a developer, manufacturer and marketer of oral specimen collection devices and diagnostic products, from January 1998 to December 2000 and Interim President from October 1999 to February 2000. He had previously served as Chief Financial Officer of Epitope Medical Products, a wholly-owned subsidiary of Epitope, Inc., from September 1997 to January 1998.  Mr. Bergeron joined Epitope, Inc. in August 1993 as President and Chief Executive Officer of Agrimax Floral Products, Inc., then a wholly-owned subsidiary of Epitope, Inc.  From 1978 to 1992, Mr. Bergeron was Senior Vice President, Finance of Freightliner Corporation, a Portland, Oregon, truck manufacturer. He holds a B.S. degree in management engineering and an M.S. degree in management science from Rensselaer Polytechnic Institute and an M.B.A. degree from Columbia University.

 

**Alexander P. Coleman**hasbeen Managing Investment Partner for Dresdner Kleinwort Capital LLC, a globalfinancial investment firm and an affiliate of Dresdner Bank AG, since January1996.  Mr. Coleman has beendesignated as a nominee for election as a Director pursuant to the agreementbetween Gardenburger and Dresdner Kleinwort Benson Private Equity Partners LP(“Dresdner”) under

 

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which Dresdner acquired$15,000,000 principal amount of a Convertible Senior Subordinated Note issuedby Gardenburger in March 1998.  Mr.Coleman received an M.B.A. from the University of Cambridge and a B.A. inEconomics from the University of Vermont. Mr. Coleman is a member of the Board of Directors of KMC Telecom, Inc.

 

**Richard L. Mazer**hasbeen Executive Vice President and Chief Operating Officer of Ventura Foods,LLC, a food processor, since December 1997. Mr. Mazer has been involved in the food industry for more than 15 years,including through his strategic and financial consulting company, The MazerGroup, from 1992 to 1997.  Mr. Mazer ison the Board of Trustees of Food for All (formerly Food Industry CrusadeAgainst Hunger), a charitable organization. Mr. Mazer received B.S. degrees in Economics and Management fromMassachusetts Institute of Technology.

 

**Kevin M. Reilly** was appointed as a Director on December 3,2003.  Mr. Reilly has been a principalat Rosewood Capital Associates, L.L.C. since 1998.  From 1994 to 1998, he served as Chief Financial Officer at HALInvestments Inc., a Dutch investment firm. From 1988 to 1994, Mr. Reilly was a Manager at Arthur Andersen &Co., a public accounting firm.  Mr.Reilly earned a B.S. and an M.B.A. from the University of California atBerkeley.

 

**Scott C. Wallace**joined Gardenburger as President and Chief Executive Officer onJanuary 15, 2001.  Mr. Wallace alsobecame Chairman of the Board in May 2002. Prior to joining Gardenburger, Mr. Wallace served in variouspositions at Mauna Loa Macadamia Nut Corporation (“Mauna Loa”) since 1994, includingPresident and Chief Executive Officer beginning in 1999, President and ChiefOperating Officer from 1998 to 1999, and as President — North America Divisionprior to that.  Before accepting aposition at Mauna Loa, Mr. Wallace held a management position at E.J.Brach Corporation, a candy producer, for six years, and sales positions atEastman Kodak Company, a manufacturer of camera equipment, and Procter andGamble, a consumer products company. Mr. Wallace received a B.S. in Economics from San Francisco StateUniversity.

 

**Paul F. Wenner,**presentlyour Chief Creative Director, founded Gardenburger in 1985 as a soleproprietorship and acted as its Vice President from the date of itsincorporation until December 1989, when he became President, Chief ExecutiveOfficer and Chairman of the Board.  AsChief Creative Director, Mr. Wenner provides advice regarding new productdevelopment and assistance with marketing efforts.  Mr. Wenner relinquished his duties as President in 1994 and asChairman of the Board in 1995.  From1980 through 1984, he owned and operated the Garden House Restaurant andGourmet Cooking School, where he developed the Gardenburger® veggie patty.  The school was affiliated with Mt. HoodCommunity College’s evening educational curriculum.  Mr. Wenner received two Associate of Arts degrees from Mt. HoodCommunity College.

 

**AUDIT COMMITTEE**

 

We have a standing Finance andAudit Committee (the “Audit Committee”), which was composed of Mr. Bergeron(beginning May 1, 2003) (Committee Chair), Mr. Coleman, Mr. Mazer and Ronald C. Kesselman, a formerdirector who resigned his position on December 4, 2003.

 

**AUDIT COMMITTEEFINANCIAL EXPERT**

 

Asrequired by the Sarbanes-Oxley Act of 2002, our Board of Directors hasdetermined that one member of our Audit Committee, Charles E. Bergeron, has thequalifications to be an “audit committee financial expert” as defined in theSEC’s rules and regulations and also meets the standards of independenceadopted by the SEC for membership on an audit committee.

 

**CODE OF ETHICS**

 

We adopted a Code of Ethicsthat applies to all of our employees, including our principal executive officerand our principal financial and accounting officer.  We have filed a copy of our Code of Ethics as exhibit 14 to ourAnnual Report on Form 10-K for our fiscal year ended September 30, 2003. We

 

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willprovide, free of charge to any person, a copy of our Code of Ethics.  Requests should be sent to:  Secretary, Gardenburger, Inc., 15615 AltonParkway, Suite 350, Irvine, California 92618.

 

**EXECUTIVE OFFICERS**

 

Thefollowing table identifies our executive officers as of December 31, 2003, thepositions they hold, and the year in which they began serving in theirrespective capacities.  Our executiveofficers are elected by the Board of Directors annually to hold office untiltheir successors are elected and qualified.

 
| **Name**               |   | **Age** |   | **Current  Position(s) with Company**                         |   | **Officer  Since** |
|------------------------|--------|---------|--------|---------------------------------------------------------------|--------|--------------------|
| Scott C. Wallace       |   | 48      |   | Chief Executive Officer,  President and Chairman of the Board |   | 2001               |
| James W. Linford       |   | 56      |   | Senior Vice President and  Chief Operating Officer            |   | 1997               |
| Robert T. Trebing, Jr. |   | 54      |   | Senior Vice President and  Chief Financial Officer            |   | 2003               |

 

For biographical informationfor Scott C. Wallace, see “Board of Directors” above.

 

**JamesW. Linford**joined Gardenburger in March 1997 as VicePresident of Supply Chain, responsible for our manufacturing operations andlogistics.  Upon the resignation of ourChief Executive Officer in August 2000 and until Mr. Wallace joinedGardenburger in January 2001, Mr. Linford served as Interim President and ChiefExecutive Officer.  In January 2001, Mr.Linford was named Senior Vice President and Chief Operating Officer.  He wasVice President and General Manager of CH2M Hill Food Group from 1995 to 1997,Director of Manufacturing for Ocean Spray Cranberries from 1993 to 1995 andGeneral Manager of Operations for Ore-Ida Foods, a division of the HeinzCompany, from 1987 to 1993.  Mr. Linfordalso serves on the Board of Directors of Portland Brewing Company.

 

**RobertT. Trebing, Jr., C.P.A. (inactive status)**joinedGardenburger in November 2003 as Senior Vice President and Chief FinancialOfficer.  Prior to joining Gardenburger,Mr. Trebing served as Executive Vice President and Chief Financial Officer ofPrandium, Inc., a company engaged in the operation of restaurants in thefull-service and fast-casual segments, since April 1997.  From December 2002 to February 2003, Mr.Trebing also served as the Acting President and Chief Executive Officer ofPrandium, Inc.  He also served asPresident of Chi-Chi’s, Inc., Koo Koo Roo, Inc. and The Hamlet Group, Inc., allrestaurant chains and wholly-owned subsidiaries of Prandium, Inc., sinceDecember 30, 2002.  Mr. Trebing servedin various other positions at Prandium, Inc., since its founding in 1986.  Mr. Trebing received a B.A. from CaliforniaState University at Fullerton and an M.B.A. from the University of SouthernCalifornia.

 

**SECTION 16(a)BENEFICIAL OWNERSHIP REPORTING COMPLIANCE**

 

Section16(a) of the Exchange Act requires our Directors and executive officers andpersons who own more than 10 percent of the outstanding shares of our commonstock (“10 percent shareholders”), to file with the SEC initial reports ofbeneficial ownership and reports of changes in beneficial ownership of sharesof our common stock and other equity securities. To the best of our knowledge,based solely on review of the copies of such reports furnished to us orotherwise in our files and on written representations from our Directors andexecutive officers, our officers, Directors and 10 percent shareholderscomplied with all applicable Section 16(a) filing requirements during fiscal2003 except that Mr. Charles E. Bergeron, a Director, failed to timely file aForm 3, Initial Statement of Beneficial Ownership of Securities.

 

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**Item11****.  ExecutiveCompensation**

 

**DIRECTORCOMPENSATION**

 

During fiscal 2003, threenon-employee Directors, Messrs. Bergeron, Kesselman and Mazer, received feesfor their participation on our Board of Directors and Committees.  Mr. Bergeron received a total of $31,000 andMessrs. Kesselman and Mazer each received a total of $20,000. No otherdirectors received compensation for their participation on the Board ofDirectors.  All non-employee Directorsare reimbursed for their expenses incurred in attending meetings of the Boardof Directors.

 

**EXECUTIVECOMPENSATION**

** **

**Summary Compensation Table**

The following table providesinformation for the fiscal years indicated concerning compensation earned byour Chief Executive Officer and our other executive officers whose salary andbonus during fiscal 2003 exceeded $100,000 (collectively referred to as the“named executive officers”).

 
|                            |   |             |   | **Annual  Compensation** |    | **Long Term  Compensation  Awards** |   |                                    |   |
|---------------------------------|--------|------------------|--------|--------------------------|---------|-------------------------------------|--------|-----------------------------------------|--------|
| **Name and Principal Position** |   | **Fiscal  Year** |   | **Salary (A)**           |    | **Bonus**                           |   | **Securities  Underlying  Options (#)** |   | **All Other  Compen-  sation (B)** |   |
| Scott C. Wallace                |   | 2003             |   | $                        | 270,092 |                                | $      | —                                  |   | — |   | $ | 5,858 |   |
| Chief Executive Officer,        |   | 2002             |   | 252,923                  |    | 15,000                              |   | —                                  |   | 6,856 |   |
| President and Chairman of the   |   | 2001             |   | 170,769                  |    | 45,000                              |   | 150,000                                 |   | 2,954 |   |
| Board (C)                       |   |             |   |                     |    |                                |   |                                    |   |   |   |
|                            |   |             |   |                     |    |                                |   |                                    |   |   |   |
| James W. Linford                |   | 2003             |   | 199,500                  |    | —                              |   | —                                  |   | 4,745 |   |
| Senior Vice President and       |   | 2002             |   | 183,673                  |    | —                              |   | —                                  |   | 3,330 |   |
| Chief Operating Officer (D)     |   | 2001             |   | 210,962                  |    | 191,000                             | (D)    | 150,000                                 |   | 7,159 |   |
|                            |   |             |   |                     |    |                                |   |                                    |   |   |   |
| Lorraine Crawford (E)           |   | 2003             |   | 140,673                  |    | —                              |   | —                                  |   | 1,994 |   |
| Former Vice President of        |   | 2002             |   | 130,721                  |    | —                              |   | 50,000                                  |   | 1,802 |   |
| Finance, Corporate Controller,  |   | 2001             |   | 119,173                  |    | —                              |   | 110,000                                 |   | 1,811 |   |
| Secretary and Treasurer         |   |             |   |                     |    |                                |   |                                    |   |   |   |
|                                 |        |                  |        |                          |         |                                     |        |                                         |        |  |  |  |  |  |

 

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(A)           Amountsshown include cash compensation earned in each respective year, includingamounts deferred at the election of the named executive officer pursuant to our401(k) Plan.

(B)             Amounts included in this column for 2003 areas follows:

 
| **Name**     |   | **401(k)  Matching** |   | **Life  Insurance  Premiums** |
|--------------|--------|----------------------|--------|-------------------------------|
| Mr. Wallace  |   | $                    | 4,183  |                          | $ | 1,675 |
| Mr. Linford  |   | 3,840                |   | 905                           |
| Ms. Crawford |   | 1,629                |   | 365                           |
|              |        |                      |        |                               |  |  |

 

(C)             Mr. Wallace’s 2001 salary includes salaryearned from January 15, 2001, the date he joined Gardenburger.  Mr. Linford was Interim President and ChiefExecutive Officer of Gardenburger from August 2000 until January 15, 2001.

(D)            $155,000 of Mr. Linford’s 2001 bonus was paidpursuant to a retention agreement entered into in 1999 under which he wasentitled to receive an amount equal to his 1999 base salary if he remained anemployee through December 31, 2000.  Theremaining $36,000 bonus for Mr. Linford, which was paid in fiscal 2002, isrelated to his time served as Interim President and Chief Executive Officer.

(E)              Ms. Crawford’s employment with Gardenburgerterminated on December 31, 2003.

 

**Stock Options Granted**

There were no stock optionsgranted to the named executive officers during fiscal 2003.

 

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**Aggregated Option Exercises in Last Fiscalyear and Fiscal Year-End Option Values**

The following table providesinformation concerning unexercised options held at September 30, 2003 withrespect to the named executive officers. No named executive officers exercised any options during fiscal 2003.

 
|              |   | **Number of  Securities Underlying   Unexercised Options  At September 30, 2003 (#)** |   | **Value of  Unexercised  In-The-Money Options  At September 30, 2003 (A)** |   |
|-------------------|--------|---------------------------------------------------------------------------------------|--------|----------------------------------------------------------------------------|--------|
| **Name**          |   | **Exercisable**                                                                       |   | **Unexercisable**                                                          |   | **Exercisable** |   | **Unexercisable** |   |
| Scott C. Wallace  |   | 75,000                                                                                |   | 75,000                                                                     |   | $ | — |   | $ | — |   |
| James W. Linford  |   | 170,753                                                                               |   | 76,667                                                                     |   | — |   | — |   |
| Lorraine Crawford |   | 79,333                                                                                |   | 96,667                                                                     |   | — |   | — |   |
|                   |        |                                                                                       |        |                                                                            |        |  |  |  |  |  |  |

 

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(A)           Based on the market price of the underlyingsecurities at September 30, 2003, $0.27 per share.

 

**EMPLOYMENT, SEVERANCE AND CHANGE IN CONTROLARRANGEMENTS**

 

**Employmentand Change in Control Agreements with Scott C. Wallace**

Gardenburger entered into anagreement with Scott C. Wallace dated January 15, 2001 and supplemented April30, 2003, regarding the terms of his employment as President and ChiefExecutive Officer of Gardenburger. Pursuant to the agreement,Mr. Wallace’s base salary is $240,000 per year, subject to review andadjustment by the Board of Directors in its sole discretion.  Mr. Wallace is also entitled to anannual performance bonus of up to 50 percent of his base salary formeeting strategic and financial goals established by the CompensationCommittee, provided that he was guaranteed a minimum bonus of $60,000 for hisfirst year of employment, which was paid in fiscal 2002 and allocated $45,000to fiscal 2001 and $15,000 to fiscal 2002.  Mr. Wallace is also entitled to participate in our 401(k) plan,stock incentive plan and health and welfare benefit programs made available toother officers and to four weeks’ paid vacation annually.

 

Mr. Wallace will be entitled toseverance equal to one year’s base salary payable over 12 months in the eventof involuntary termination other than for cause or due to death or disability.  As used in Mr. Wallace’s employmentagreement, “cause” means (1) any fraud or dishonesty by Mr. Wallaceinvolving Gardenburger, (2) willful misconduct or gross negligence inconnection with performance of his duties, (3) his conviction for committing afelony, (4) the commission by Mr. Wallace of any act in direct competitionwith or materially detrimental to the best interests of Gardenburger, or (5)willful and continued failure by Mr. Wallace to substantially perform hisduties after delivery of a written demand specifying the duties which have notbeen substantially performed.

 

Finally, the agreement providesfor a special bonus payable upon the completion of a sale of Gardenburger.  The special bonus will be equal to onepercent (1%) of the sale price up to $100 million and two percent(2%) of the portion, if any, of the sale price in excess of$100 million.  Mr. Wallace has theright, in his sole discretion, to waive receipt of any portion of the specialbonus if, and to the extent that, he determines that a reduction in the specialbonus would give him an income tax benefit.

 

Mr. Wallace is also a party toa change in control agreement, which expires December 31, 2004, provided thatsuch agreement will automatically continue for 9 months following a change incontrol.  Mr. Wallace’s agreement **provides forseverance in the form of a** lump-sum payment in an amount equal tohis annual base salary as in effect prior to a change in control andcontinuation of all health and welfare benefits for a period of 12 monthsfollowing termination.  Mr. Wallace’sbenefits are in lieu of any severance payment he would otherwise be entitled toreceive under his employment agreement discussed above.

 

For purposes of the change incontrol agreement, we will have “cause” to terminate Mr. Wallace’s employmentin the event of his conviction for the commission of a felony, failure tosubstantially perform assigned duties following written warning and a 30-daycure period, intentionally or grossly negligent conduct that injuresGardenburger, self-dealing or diversion of corporate opportunities, orviolation of a key company policy (in the good faith opinion of two-thirdsof the Directors).  Mr. Wallace

 

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may terminate employment for“good reason” if he experiences a substantial adverse change in the nature orstatus of his responsibilities or is assigned duties inconsistent with hisposition, faces a reduction in salary or benefits, is not paid salary orprovided benefits when due, or is forced to relocate his principal place ofemployment to a location more than 35 miles from his prior place ofemployment.

 

A “change in control” will bedeemed to have occurred if:

 

(a)               anyperson becomes a beneficial owner, directly or indirectly, of Gardenburger’ssecurities representing 50% or more of the then outstanding shares of commonstock or combined voting power of the then outstanding voting securities(subject to certain exceptions);

(b)              individualswho constitute a majority of the Directors in office as of the date of anagreement (including Directors nominated by the Board to replace incumbentDirectors) cease for any reason to constitute at least a majority of the Board;or

(c)               theshareholders of Gardenburger approve (i) a reorganization, merger orconsolidation in which such shareholders will not hold at least 50% of thecommon stock or combined voting power of outstanding securities of theresulting entity immediately following such reorganization, merger orconsolidation, or (ii) a plan of complete liquidation or dissolution ofGardenburger or an agreement for the sale of substantially all ofGardenburger’s assets.

 

No change in control will bedeemed to have occurred as a result of any acquisition, reorganization, merger,consolidation or other transaction unless, as a result of such transaction, thesubordinated debt and preferred stock outstanding as of April 30, 2003 (and assubsequently amended or modified) shall be retired for cash.

 

Certain options granted to thenamed executive officers contain provisions that such options will immediatelybecome exercisable as to shares not previously vested upon (i) termination ofemployment as a result of the optionee’s death or disability or (ii)termination of employment without cause or for good reason following a changein control.  Cause, good reason andchange in control are defined substantially as described above.

 

**EmploymentContract and Severance Arrangement with James W. Linford**

Gardenburger entered into anemployment agreement with Mr. Linford dated March 25, 1997 and amended June 25,2001.  The agreement contains a one-yearnon-compete clause from the date of termination of employment withGardenburger. The agreement also provides for a special bonus payable upon thecompletion of a sale of Gardenburger. The special bonus will be equal to onequarter of one percent (0.25%) of the sale price up to $100 million andone half of one percent (0.5%) of the portion, if any, of the sale pricein excess of $100 million.

 

Mr.Linford is also a party to a severance arrangement with us.  Upon involuntary termination other than forcause, Mr. Linford will receive six months’ gross salary.  Mr. Linford will also be provided withoutplacement services at a cost of up to $12,000.

 

**Agreementand Release with Lorraine Crawford**

Ms. Crawford’s employment withus terminated effective December 31, 2003. In connection with termination of her employment, we entered into anagreement and release of claims with Ms. Crawford. Under this Agreement,Ms. Crawford will receive severance equal to nine months’ gross salary, withadditional salary on a month-to-month basis for up to three months (but not toexceed a total of twelve months) if she does not obtain full-time, permanentemployment, and out placement services not to exceed a total cost of $5,500.All severance amounts are payable on a pro-rated basis in accordance withour regular payroll schedule.  In returnfor benefits conferred to Ms. Crawford under the agreement, Ms. Crawfordprovided a comprehensive release of claims, as did Gardenburger.

 

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**COMPENSATION COMMITTEE INTERLOCKS AND INSIDERPARTICIPATION**

 

Duringfiscal 2003, Directors who served on the Compensation Committee includedMessrs. Coleman, Anderson, Kesselman and Mazer.  None of these individuals is, or has been in the past, an officeror employee of Gardenburger.

 

**Item 12****.  Security Ownership of Certain BeneficialOwners and Management and Related Stockholder Matters**

 

**SECURITY OWNERSHIP OF CERTAIN****BENEFICIAL OWNERS AND MANAGEMENT**

 

The following table sets forth, as ofDecember 31, 2003, certain information furnished to us with respect tobeneficial ownership of our common stock and preferred stock by (i) eachDirector and Director nominee, (ii) the “named executive officers” (as definedunder “Executive Compensation”), (iii) all persons known by us to be beneficialowners of more than 5% of our outstanding common stock or preferred stock, and(iv) all executive officers and Directors as a group.

 
| **Name and Address of Beneficial Owner**                                                                      |   | **Amount and  Nature of Beneficial Ownership (A)** |   |
|---------------------------------------------------------------------------------------------------------------|--------|----------------------------------------------------|--------|
|                                                                                                          |   | **Shares of  Common  Stock (B)**                   |   | **Percentage  of  Class** |   | **Shares of  Preferred  Stock** |   | **Percentage  of  Class** |   |
| Dresdner Kleinwort Benson  Private Equity Partners LP (C)  75 Wall Street  New York, New York 10005           |   | 2,445,574                                          |   | 21.7 | % | — |   | — |   |
|                                                                                                          |   |                                               |   |   |   |   |   |   |   |
| Alexander P. Coleman (C)                                                                                      |   | 2,465,074                                          |   | 21.8 | % | — |   | — |   |
|                                                                                                          |   |                                               |   |   |   |   |   |   |   |
| Gruber & McBaine  Capital Management LLC (D)  50 Osgood Place, Penthouse  San Francisco, California 94133 |   | 1,866,035                                          |   | 19.5 | % | 80,000 |   | 12.3 | % |
|                                                                                                          |   |                                               |   |   |   |   |   |   |   |
| Rosewood Capital III, L.P.  (E)  One Maritime Plaza, Suite 1330  San Francisco, California 94111              |   | 1,464,337                                          |   | 14.0 | % | 206,000 |   | 31.7 | % |
|                                                                                                          |   |                                               |   |   |   |   |   |   |   |
| Kyle A. Anderson (E)                                                                                          |   | 1,477,837                                          |   | 14.1 | % | 206,000 |   | 31.7 | % |
|                                                                                                          |   |                                               |   |   |   |   |   |   |   |
| Kevin M. Reilly                                                                                               |   | —                                             |   | — |   | — |   | — |   |
|                                                                                                          |   |                                               |   |   |   |   |   |   |   |
| Paul F. Wenner15615 Alton Parkway, Suite 350 Irvine, California 92618                                         |   | 1,344,180                                          |   | 13.5 | % | — |   | — |   |
|                                                                                                          |   |                                               |   |   |   |   |   |   |   |
| Farallon Partners, L.L.C.  (F)  One Maritime Plaza, Suite 1325  San Francisco, California 94111               |   | 1,013,097                                          |   | 10.1 | % | 142,000 |   | 21.8 | % |
|                                                                                                          |   |                                               |   |   |   |   |   |   |   |
| Farallon Capital  Management, L.L.C. (F)  One Maritime Plaza, Suite 1325  San Francisco, California 94111     |   | 369,639                                            |   | 3.9 | % | 52,000 |   | 8.0 | % |
|                                                                                                          |   |                                               |   |   |   |   |   |   |   |
| MidOcean Capital Investors,  L.P. (G)  320 Park Avenue, 17th Floor  New York, New York 10022                  |   | 710,843                                            |   | 7.3 | % | 100,000 |   | 15.4 | % |
|                                                                                                          |   |                                               |   |   |   |   |   |   |   |
| Hedgehog Capital LLC  1117 E. Putnam Avenue #320  Riverside, Connecticut 0687                                 |   | 706,650                                            |   | 7.9 | % | — |   | — |   |
|                                                                                                          |   |                                               |   |   |   |   |   |   |   |
| James W. Linford (H)                                                                                          |   | 252,880                                            |   | 2.8 | % | — |   | — |   |
|                                                                                                          |   |                                               |   |   |   |   |   |   |   |
| Scott C. Wallace (I)                                                                                          |   | 117,451                                            |   | 1.3 | % | — |   | — |   |
|                                                                                                          |   |                                               |   |   |   |   |   |   |   |
| Lorraine Crawford                                                                                             |   | 91,000                                             |   | 1.0 | % | — |   | — |   |
|                                                                                                          |   |                                               |   |   |   |   |   |   |   |
| Richard L. Mazer                                                                                              |   | 62,500                                             |   | * |   | — |   | — |   |
|                                                                                                          |   |                                               |   |   |   |   |   |   |   |
| Robert T. Trebing, Jr.                                                                                        |   | —                                             |   | — |   | — |   | — |   |
|                                                                                                          |   |                                               |   |   |   |   |   |   |   |
| Charles E. Bergeron                                                                                           |   | —                                             |   | — |   | — |   | — |   |
|                                                                                                          |   |                                               |   |   |   |   |   |   |   |
| All current executive  officers and Directors as a group (9 persons)(J)                                       |   | 5,719,922                                          |   | 40.7 | % | 206,000 |   | 31.7 | % |

 

----

*Less than one percent

 

8

----

 

(A)           Applicable percentage of ownership is based on9,002,101 shares of common stock and 650,000 shares of preferred stockoutstanding as of December 31, 2003. Beneficial ownership is determined in accordance with the rules of theSecurities and Exchange Commission (the “SEC”), and is based on voting andinvestment power with respect to shares. Shares of common stock subject to options, warrants or other convertiblesecurities that are exercisable currently or within 60 days after December 31,2003 are deemed outstanding for purposes of computing the percentage ownershipof the person or group holding such options, warrants or convertiblesecurities, but are not deemed outstanding for computing the percentage of anyother person.  Unless otherwiseindicated, to the best of our knowledge, each of the persons named above hassole voting and investment power with respect to all shares shown as beingbeneficially owned by them.

(B)             Includes shares of commonstock subject to options exercisable within 60 days after December 31, 2003 asfollows:

 
| **Name**                                                |   | **Number of Options** |
|---------------------------------------------------------|--------|-----------------------|
| Mr. Wenner                                              |   | 953,000               |
| Mr. Linford                                             |   | 187,420               |
| Mr. Wallace                                             |   | 112,500               |
| Ms. Crawford                                            |   | 91,000                |
| Mr. Coleman                                             |   | 19,500                |
| Mr. Mazer                                               |   | 50,500                |
| Mr. Anderson                                            |   | 13,500                |
|                                                    |   |                  |
| All current executive officers and Directors as a group |   | 1,336,420             |

 

(C)             Includes 1,729,854 shares of common stock thatDresdner has the right to acquire upon conversion of the ConvertibleNotes.  The conversion price was $9.78as of December 31, 2003.  Also includeswarrants to purchase 557,981 shares of our common stock.  Mr. Coleman is an Authorized Person andManaging Investment Partner for Dresdner Kleinwort Capital, the General Partnerof Dresdner.  Mr. Coleman disclaimsbeneficial ownership of all shares owned by Dresdner.

 

(D)            Gruber & McBaine Capital Management, LLC(“GMCM”), has shared voting and dispositive power with respect to 1,161,510shares of common stock.  Jon D.Gruber and J. Patterson McBaine are the managers of GMCM, an investmentadviser, and Thomas O. Lloyd-Butler is a member of GMCM.  Mr. Gruber has sole voting and dispositivepower as to 135,850 shares of common stock and Mr. McBaine has sole voting anddispositive power as to 195,000 shares of common stock. Also includes 80,000shares of preferred stock (convertible into 500,000 shares of common stock)which GMCM and its affiliates either own or with respect to which they havevoting or dispositive power and warrants to purchase 68,675 shares of commonstock issued to GMCM and its affiliates.

 

(E)              Includes 1,287,500 shares of common stockissuable upon conversion of 206,000 shares of preferred stock and warrants topurchase 176,837 shares of common stock. Kyle A. Anderson may be deemed to be a beneficial owner of such sharesbased on his position as a founding member of Rosewood Capital Associates,L.L.C., the general partner of Rosewood Capital III, L.P. (together,“Rosewood”).  Mr. Anderson disclaimsbeneficial ownership of all such shares.

 

(F)              Each of the entities affiliated with FarallonPartners, L.L.C. (“FPLLC”) and the accounts managed by Farallon CapitalManagement, L.L.C. (“FCMLLC”), a registered investment adviser (together suchentities and accounts, “Farallon”), that acquired shares of preferred stockholds such securities directly in its own name.  In addition, two of such entities own an aggregate of 3,700shares of common stock.  FPLLC, as the generalpartner of certain of such entities, and FCMLLC, pursuant to investmentmanagement agreements, each may, for purposes of Rule 13d-3 under theSecurities Exchange Act of 1934 (the “Exchange Act”), be deemed to ownbeneficially the shares held by such entities and accounts, as well as theshares of common stock into which the shares of preferred stock areconvertible.  Each of FCMLLC and FPLLC,and each managing member thereof, disclaim any beneficial ownership of suchshares.  All of the above-mentionedentities and persons disclaim group attribution.  The 142,000 and 52,000 shares of preferred stock owned by FPLLCand FCMLLC, respectively, are convertible into 887,500 and 325,000 shares ofcommon stock, respectively.  Alsoincludes warrants to purchase 121,897 shares of common stock held by FPLLC andwarrants for 44,639 shares of common stock held by FCMLLC.  The following people have shared voting anddispositive power with respect to the Farallon shares as managing members ofFPLLC and FCMLLC: Joseph F. Downes, Enrique H. Boilini, David I. Cohen, Chan R.Ding, William F. Duhamel, Charles E. Ellwein, Andrew B. Fremder, Richard B.Fried, Monica R. Landry, William F. Mellin, Stephen L. Millham, Meridee A.Moore, Rajiv A. Patel, **Derek Schrier**, Thomas F. Steyer and Mark C. Wehrly.

 

(G)             Includes 100,000 sharesof preferred stock, which are currently convertible into 625,000 shares ofcommon stock and warrants to purchase 85,843 shares of common stock held byMidOcean Capital Investors, L.P.  UltramarCapital, Ltd., MidOcean Capital Partners, L.P, Existing Fund GP, Ltd., MidOceanPartners, LP and MidOcean Associates, SPC may all be deemed to be beneficialowners of the shares as a result of their direct or indirect controlrelationship with MidOcean Capital Investors, L.P. MidOcean Capital Partners,L.P. is the general partner of MidOcean Capital Investors, L.P.  Existing Fund GP, Ltd. is the generalpartner of MidOcean Capital Partners, L.P. MidOcean Partners, LP is the soleowner of Existing Fund GP, Ltd. and MidOcean Associates, SPC is the generalpartner of MidOcean Partners, LP.   J.Edward Virtue may be deemed the beneficial owner of the shares because heindirectly controls the securities, but disclaims beneficial ownership exceptto the extent of his pecuniary interest therein.

 

(H)            Includes 54,460 shares held in Mr. Linford’s401(k) Plan account.

 

(I)                 Includes 4,951 shares held in Mr. Wallace’s401(k) Plan account.

 

(J)                Included in the shares of common stock are theshares beneficially owned by Dresdner and Rosewood.  The 206,000 shares of preferred stock are held by Rosewood.

 

9

----

 

**EQUITY COMPENSATION PLAN INFORMATION**

 

The following table setsforth information, as of September 30, 2003, about shares of our common stockthat may be issued upon the exercise of options granted under our equitycompensation plans and arrangements, divided between plans approved by ourshareholders and plans or arrangements not submitted to our shareholders forapproval.

** **
| **Plan Category**                                      |   | **Number ofsecurities to beissued uponexercise ofoutstandingoptions, warrantsand rights** |   | **Weighted averageexercise price ofoutstandingoptions, warrantsand rights** |   | **Number of securitiesremaining available forfuture issuance underequity compensationplans (excludingsecurities reflected infirst column)** |    |
|--------------------------------------------------------|--------|-------------------------------------------------------------------------------------------|--------|-----------------------------------------------------------------------------|--------|---------------------------------------------------------------------------------------------------------------------------------------------|---------|
| Equity compensation plans approved by shareholders     |   | 2,635,623                                                                                 |   | $                                                                           | 3.32   |                                                                                                                                        | 715,400 |   |
|                                                   |   |                                                                                      |   |                                                                        |   |                                                                                                                                        |    |
| Equity compensation plans not approved by shareholders |   | 2,409,462                                                                                 | (1)    | 1.78                                                                        |   | —                                                                                                                                      |    |
| Total                                                  |   | 5,045,085                                                                                 |   | $                                                                           | 2.58   |                                                                                                                                        | 715,400 |   |

 

----

(1)               Includes 1,115,962 warrants exercisablefor our common stock at $0.28 per share plus options granted pursuant to plansnot approved by our shareholders.  SeeNote 12 of Notes to Financial Statements under the heading “Non-Plan Options”for a description of the material terms of options granted without shareholderapproval and not requiring shareholder approval, which information isincorporated herein by reference.

 

**Item13****.      CertainRelationships and Related Transactions**

 

**RELATED PARTY TRANSACTIONS**

 

TheBoard of Directors has adopted a policy that any transactions betweenGardenburger and its officers, Directors, employees and affiliates will be onterms no less favorable than can be obtained from unaffiliated parties.  Any such transactions will be subject to theapproval of a majority of the disinterested members of the Board of Directors.

 

InNovember 2003, we entered into an employment agreement with Mr. Robert T.Trebing, Jr.  Mr. Trebing is currentlyemployed as Senior Vice President and Chief Financial Officer of Gardenburger,Inc.  Mr. Trebing also serves asSecretary and Treasurer of Gardenburger, Inc. Pursuant to his agreement, his annual salary is $200,000.  Mr. Trebing will also be eligible toparticipate in a performance-based bonus plan. The employment agreement also provides Mr. Trebing with a bonus uponsale of Gardenburger equal to 0.25% of the total consideration received, asdefined in the agreement. Mr. Trebing’s employment agreement also provides forseverance benefits upon involuntary termination other than for cause equal to12 months of salary.

 

Mr.Mazer, one of our Directors, is Executive Vice President and Chief OperatingOfficer of Ventura Foods, LLC. Beginning in the latter part of fiscal 2001, we began purchasingbarbecue sauce from Ventura Foods and, during fiscal 2003, we paid VenturaFoods $735,000 for barbecue sauce.  Webelieve that the price paid to Ventura Foods is fair in comparison with prices that would be paid to an independentthird party for similar barbecue sauce.

 

10

----

 

**Item14****.  PrincipalAccountant Fees and Services**

 

**FEES PAID TO INDEPENDENT PUBLIC ACCOUNTANTS**

 

Thefollowing fees were paid to KPMG LLP, our principal accountant for the audit ofour annual financial statements and related services in fiscal 2003 and 2002:

 
|               |   | **2003** |    | **%  approved  by Audit  Committee** |   | **2002** |   | **%  approved  by Audit  Committee** |   |
|--------------------|--------|----------|---------|--------------------------------------|--------|----------|--------|--------------------------------------|--------|
| Audit Fees         |   | $        | 129,000 |                                 | n/a    |     | $      | 95,000                               |   | n/a |   |
| Audit Related Fees |   | —   |    | —                               |   | —   |   | —                               |   |
| Tax Fees (A)       |   | 77,000   |    | 100                                  | %      | 34,000   |   | 0                                    | %      |
| All Other Fees (B) |   | 19,000   |    | 100                                  | %      | 10,000   |   | 0                                    | %      |
|               |   | $        | 225,000 |                                 |   |     | $      | 139,000                              |   |   |   |

 

----

(A)                                   Consists of corporate tax complianceassistance and other tax consulting.

 

(B)                                     Consists of fees for the audit of our employeebenefit plan and other miscellaneous consulting services.

 

**Pre-Approval Policies**

Prior toretaining KPMG LLP to provide services, we discuss the services with theChairman of the Audit Committee.  Hethen reviews the request and, if he determines it necessary, he discusses thepotential services with other members of the Audit Committee.  The decision is then communicated back tothe Company and, if approved, it is formally approved at the next AuditCommittee meeting.

 

**PART IV**

 

**Item15****.  Exhibits,Financial Statement Schedules and Reports on Form 8-K**

 

**(c)****            Exhibits**

The exhibits filed as a part ofthis report are listed below and this list is intended to comprise the exhibitindex:

 
| **Exhibit No.** |   | **Description**                                                                                                                                                                                                                           |
|-----------------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| 3.1             |   | Restated Articles of  Incorporation, as amended January 9, 2002 (15)                                                                                                                                                                      |
|            |   |                                                                                                                                                                                                                                      |
| 3.2             |   | 1995  Restated Bylaws, as amended July 13, 1999 (11)                                                                                                                                                                                      |
|            |   |                                                                                                                                                                                                                                      |
| 10.1            |   | Amended and  Restated Rights Agreement between the Company and First Chicago Trust Company  of New York, dated July 15, 1999 (11)                                                                                                         |
|            |   |                                                                                                                                                                                                                                      |
| 10.2            |   | Amendment  No. 1 dated as of January 2, 2002 to Rights Agreement dated as of July 15,  1999 between First Chicago Trust Company of New York and the Company, dated  effective as of January 2, 2002 (16)                                  |
|            |   |                                                                                                                                                                                                                                      |
| 10.3            |   | Amendment  No. 2 dated as of January 10, 2002 to the Amended and Restated Rights  Agreement dated as of July 15, 1999, between the Company and EquiServe Trust  Company, N.A. (successor to First Chicago Trust company of New York) (16) |
|            |   |                                                                                                                                                                                                                                      |
| 10.4            |   | Amendment  No. 3 dated as of April 29, 2002 to the Amended and Restated Rights Agreement  dated as of July 15, 1999, between the Company and EquiServe Trust Company,  N.A. (20)                                                          |
|            |   |                                                                                                                                                                                                                                      |
| 10.5            |   | Amendment  No. 4 dated as of August 18, 2003 to the Amended and Restated Rights  Agreement dated as of July 15, 1999, between the Company and EquiServe Trust  Company, N.A. (23)                                                         |
|            |   |                                                                                                                                                                                                                                      |
| 10.6            |   | Purchase and  Sale Agreement and Receipt for Earnest Money between the Company and John M.  Hopkins, dated October 5, 2000 (13)                                                                                                           |

 

11

----

 
| **Exhibit No.** |   | **Description**                                                                                                                                                                                                      |
|-----------------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| 10.7            |   | Office Space  Lease by and between The Irvine Company and Gardenburger, Inc. dated August  21, 2003. (24)                                                                                                            |
|            |   |                                                                                                                                                                                                                 |
| 10.8            |   | Facility  Lease by and between Freeport Center Associates, a Utah general partnership  and the Company, dated May 28, 1997  (3)                                                                                 |
|            |   |                                                                                                                                                                                                                 |
| 10.9            |   | Addendum,  dated August 1, 1997, to Facility Lease by and between Freeport Center  Associates and the Company (4)                                                                                                    |
|            |   |                                                                                                                                                                                                                 |
| 10.10           |   | Lease  Extension, dated October 17, 2002, to Facility Lease dated May 28, 1997 by  and between Freeport Center Associates and the Company (20)                                                                       |
|            |   |                                                                                                                                                                                                                 |
| 10.11           |   | Warehouse  Lease between Freeport Center Associates and the Company, dated January 25,  1999 (8)                                                                                                                     |
|            |   |                                                                                                                                                                                                                 |
| 10.12           |   | Note  Purchase Agreement, dated as of March 27, 1998, between the Company and  Dresdner Kleinwort Benson Private Equity Partners L.P. (5)                                                                            |
|            |   |                                                                                                                                                                                                                 |
| 10.13           |   | First  Amendment to Note Purchase Agreement, dated December 30, 1999, between the  Company and Dresdner Kleinwort Benson Private Equity Partners L.P. (12)                                                           |
|            |   |                                                                                                                                                                                                                 |
| 10.14           |   | Second  Amendment, dated as of January 10, 2002, to the Note Purchase Agreement,  dated as of March 27, 1998, between Dresdner Kleinwort Benson Private Equity  Partners L.P. and the Company (18)                   |
|            |   |                                                                                                                                                                                                                 |
| 10.15           |   | Third  Amendment, dated as of September 30, 2002, to the Note Purchase Agreement,  dated as of March 27, 1998, between Dresdner Kleinwort Benson Private Equity  Partners L.P. and the Company (20)                  |
|            |   |                                                                                                                                                                                                                 |
| 10.16           |   | Fourth  Amendment, dated as of December 31, 2002, to the Note Purchase  Agreement, dated as of March 27, 1998, by and among Dresdner Kleinwort Benson  Private Equity Partners L.P. and Gardenburger, Inc. (21) |
|            |   |                                                                                                                                                                                                                 |
| 10.17           |   | Amended and  Restated Convertible Senior Subordinated Note dated January 10, 2002, issued  by the Company to Dresdner Kleinwort Benson Private Equity Partners L.P. (18)                                             |
|            |   |                                                                                                                                                                                                                 |
| 10.18           |   | Warrant  Agreement, dated as of January 10, 2002, between Dresdner Kleinwort Benson  Private Equity Partners L.P. and the Company (18)                                                                               |
|            |   |                                                                                                                                                                                                                 |
| 10.19           |   | Form of  Warrant issued to Dresdner Kleinwort Benson Private Equity Partners L.P. and  holders of the Company’s preferred stock (18)                                                                            |
|            |   |                                                                                                                                                                                                                 |
| 10.20           |   | Registration  Rights Agreement, dated as of March 27, 1998, between the Company and  Dresdner Kleinwort Benson Private Equity Partners L.P. (5)                                                                      |
|            |   |                                                                                                                                                                                                                 |
| 10.21           |   | First  Amendment, dated as of January 10, 2002, to Registration Rights Agreement,  dated as of March 27, 1998, between Dresdner Kleinwort Benson Private Equity  Partners L.P. and the Company (18)                  |
|            |   |                                                                                                                                                                                                                 |
| 10.22           |   | Revolving  Credit and Term Loan Agreement dated as of January 10, 2002, between  Gardenburger, Inc., CapitalSource Finance LLC, as administrative agent and  collateral agent for Lenders, and the Lenders (18)      |
|            |   |                                                                                                                                                                                                                 |
| 10.23           |   | First  Amendment, dated as of September 30, 2002, to Revolving Credit and Term Loan  Agreement, dated as of January 10, 2002, between CapitalSource Finance LLC  and the Company (20)                                |
|            |   |                                                                                                                                                                                                                 |
| 10.24           |   | Second Amendment, dated  December 31, 2002, to Revolving Credit and Term Loan Agreement, dated January  10, 2002, between CapitalSource Finance LLC and Gardenburger, Inc. (21)                                      |

 

12

----

 
| **Exhibit No.** |   | **Description**                                                                                                                                                                                                                                                                  |
|-----------------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| 10.25           |   | Third Amendment, dated  March 31, 2003, to Revolving Credit and Term Loan Agreement, dated January  10, 2002, between CapitalSource Finance LLC and Gardenburger, Inc. (22)                                                                                                      |
|            |   |                                                                                                                                                                                                                                                                             |
| 10.26           |   | Stock  Purchase Agreement, dated March 29, 1999, by and between Gardenburger, Inc.  and Rosewood Capital III, L.P., Farallon Capital Management LLC, Gruber &  McBaine Capital Management, LLC, BT Capital Investors LP and certain other  purchasers identified therein (7) |
|            |   |                                                                                                                                                                                                                                                                             |
| 10.27           |   | Amendment  and Waiver of Stock Purchase Agreement, dated April 14, 1999, by and  between Gardenburger, Inc., and the Purchasers identified on Exhibit A  thereto (9)                                                                                                        |
|            |   |                                                                                                                                                                                                                                                                             |
| 10.28           |   | Investor  Rights Agreement, dated April 14, 1999, by and between Gardenburger,  Inc., and the investors identified on Exhibit A thereto (9)                                                                                                                            |
|            |   |                                                                                                                                                                                                                                                                             |
| 10.29           |   | Preferred  Stock Exchange Agreement, dated as of January 10, 2002, by and among the  Company and the holders of its preferred stock (18)                                                                                                                                         |
|            |   |                                                                                                                                                                                                                                                                             |
| 10.30           |   | Registration  Rights Agreement, dated as of January 10, 2002, by and among the Company and  the holders of its preferred stock (18)                                                                                                                                              |
|            |   |                                                                                                                                                                                                                                                                             |
| 10.31           |   | Paul F.  Wenner Stock Option Agreement dated January 20, 1992 (2) (6)                                                                                                                                                                                                            |
|            |   |                                                                                                                                                                                                                                                                             |
| 10.32           |   | Amendment  effective May 8, 2001 to Stock Option Agreement dated January 20, 1992  between Gardenburger, Inc. and Paul F. Wenner (6) (15)                                                                                                                                        |
|            |   |                                                                                                                                                                                                                                                                             |
| 10.33           |   | 1992 First  Amended and Restated Combination Stock Option Plan, as amended (“1992 Plan”)  (6) (10)                                                                                                                                                                     |
|            |   |                                                                                                                                                                                                                                                                             |
| 10.34           |   | Form of  Incentive Stock Option Agreement for Option grants to executive officers  under 1992 Plan after May 24, 1995 (6) (8)                                                                                                                                                    |
|            |   |                                                                                                                                                                                                                                                                             |
| 10.35           |   | Form of  Non-Statutory Stock Option Agreement for Option grants to executive officers  under 1992 Plan after May 24, 1995 (6) (8)                                                                                                                                                |
|            |   |                                                                                                                                                                                                                                                                             |
| 10.36           |   | Incentive  Stock Option Agreement with Scott C. Wallace dated January 15, 2001 (6) (19)                                                                                                                                                                                          |
|            |   |                                                                                                                                                                                                                                                                             |
| 10.37           |   | 2001 Stock  Incentive Plan as Amended and Restated Effective June 1, 2001 (“2001 Plan”)  (6) (15)                                                                                                                                                                      |
|            |   |                                                                                                                                                                                                                                                                             |
| 10.38           |   | Form  of Award Agreement under the Gardenburger, Inc. 2001 Stock Incentive Plan (6)  (22)                                                                                                                                                                                        |
|            |   |                                                                                                                                                                                                                                                                             |
| 10.39           |   | Form of  Director Nonqualified Stock Option Agreement under 2001 Plan (6) (19)                                                                                                                                                                                                   |
|            |   |                                                                                                                                                                                                                                                                             |
| 10.40           |   | Paul F.  Wenner Employment Agreement and Amendment thereto (1) (6)                                                                                                                                                                                                               |
|            |   |                                                                                                                                                                                                                                                                             |
| 10.41           |   | Employment  Agreement dated January 15, 2001 between Gardenburger, Inc. and Scott C.  Wallace (6) (14)                                                                                                                                                                           |
|            |   |                                                                                                                                                                                                                                                                             |
| 10.42           |   | Supplement,  dated April 30, 2003, to Employment Agreement, dated January 15, 2001,  between Gardenburger, Inc. and Scott C. Wallace (6) (22)                                                                                                                                    |
|            |   |                                                                                                                                                                                                                                                                             |
| 10.43           |   | Change  in Control Agreement dated April 30, 2003 between Gardenburger, Inc. and  Scott C. Wallace (6) (22)                                                                                                                                                                      |
|            |   |                                                                                                                                                                                                                                                                             |
| 10.44           |   | Employment  Agreement dated March 25, 1997 between Gardenburger, Inc. and James W.  Linford, with addenda (6) (15)                                                                                                                                                               |
|            |   |                                                                                                                                                                                                                                                                             |
| 10.45           |   | Change  in Control Agreement, dated October 30, 2001, between Gardenburger Inc. and  James W. Linford (6) (15)                                                                                                                                                                   |

 

13

----

 
| **Exhibit No.** |   | **Description**                                                                                                                                        |
|-----------------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------|
| 10.46           |   | Form of  Indemnification Agreement between the Company and its Officers and Directors  (6) (8)                                                         |
|            |   |                                                                                                                                                   |
| 10.47           |   | Form of sale  bonus agreement entered into by Gardenburger, Inc. with Lorraine Crawford and  five members of non-executive management (6) (21)         |
|            |   |                                                                                                                                                   |
| 10.48           |   | Agreement  and Release of All Claims dated October 1, 2003 by and between Gardenburger,  Inc. and Lorraine Crawford (6) (24)                           |
|            |   |                                                                                                                                                   |
| 10.49           |   | Employment  Agreement dated November 12, 2003 by and between Gardenburger, Inc. and  Robert T. Trebing, Jr. (6) (24)                                   |
|            |   |                                                                                                                                                   |
| 10.50           |   | Option  Agreement dated April 14, 1996 between Gardenburger, Inc. and Lyle G. Hubbard  relating to 300,000 shares of common stock (6) (20)             |
|            |   |                                                                                                                                                   |
| 14              |   | Code of  Ethics (24)                                                                                                                                   |
|            |   |                                                                                                                                                   |
| 16              |   | Letter re:  Change in Certifying Public Accountant (17)                                                                                                |
|            |   |                                                                                                                                                   |
| 23              |   | Consent of  KPMG LLP (24)                                                                                                                              |
|            |   |                                                                                                                                                   |
| 31.1            |   | Certification of Scott C.  Wallace Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002                                                           |
|            |   |                                                                                                                                                   |
| 31.2            |   | Certification of Robert T.  Trebing, Jr. Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002                                                     |
|            |   |                                                                                                                                                   |
| 32.1            |   | Certification of Scott C.  Wallace Pursuant to 18 U.S.C. Section 1350 as adopted pursuant toSection 906  of the Sarbanes-Oxley Act of 2002 (24)        |
|            |   |                                                                                                                                                   |
| 32.2            |   | Certification of Robert T.  Trebing, Jr. Pursuant to 18 U.S.C. Section 1350 as adopted pursuant to  Section 906 of the Sarbanes-Oxley Act of 2002 (24) |
|            |   |                                                                                                                                                   |
| 99              |   | Description  of Common Stock of Gardenburger, Inc.   (20)                                                                                         |

 

----

| (1)  | Incorporated by reference  to the Company’s Form S-1 Registration Statement (Commission File No.  33-46623) filed May 6, 1992.               |
|------|---------------------------------------------------------------------------------------------------------------------------------------------------|
| (2)  | Incorporated by reference  to the Company’s 1992 Form 10-K Annual Report, filed March 23, 1993  (Commission File No. 0-20330).               |
| (3)  | Incorporated by reference  to the Company’s Form 10-Q Quarterly Report for the quarter ended June 30,  1997, filed August 14, 1997.          |
| (4)  | Incorporated by reference  to the Company’s 1997 Form 10-K Annual Report, filed March 31, 1998.                                              |
| (5)  | Incorporated by reference  to the Company’s Form 10-Q for the quarter ended March 31, 1998, filed May  15, 1998.                             |
| (6)  | Management contract or  compensatory plan or arrangement.                                                                                         |
| (7)  | Incorporated by reference  to the Company’s Form 8-K Current Report, filed April 1, 1999.                                                    |
| (8)  | Incorporated by reference  to the Company’s Form 10-K for the year ended December 31, 1998, filed March  31, 1999.                           |
| (9)  | Incorporated by reference  to the Company’s Form 10-Q for the quarter ended March 31, 1999, filed May  17, 1999.                             |
| (10) | Incorporated by reference  to the Company’s Form 10-Q for the quarter ended June 30, 1999, filed August  13, 1999.                           |
| (11) | Incorporated by reference  to the Company’s Registration Statement on Form S-8 (No. 333-92665), filed  December 13, 1999.                    |
| (12) | Incorporated by reference  to the Company’s Form 10-Q for the quarter ended December 31, 1999, filed  February 9, 2000.                      |
| (13) | Incorporated by reference  to the Company’s 2000 Form 10-K Annual Report, filed December 26, 2000.                                           |
| (14) | Incorporated by reference  to the Company’s Form 10-Q for the quarter ended December 31, 2000, filed  February 14, 2001.                     |
| (15) | Incorporated by reference  to the Company’s Form 10-Q for the quarter ended December 31, 2001, filed  February 13, 2002.                     |
| (16) | Incorporated by reference  to the Company’s Form 10-Q for the quarter ended June 30, 2002, filed August  9, 2002.                            |
| (17) | Incorporated by reference  to the Company’s Form 8-K/A dated May 16, 2002 and filed May 30, 2002.                                            |
| (18) | Incorporated by reference  to the Company’s Form 8-K dated January 10, 2002 and filed January 17, 2002.                                      |
| (19) | Incorporated by reference  to the Company’s 2001 Form 10-K Annual Report, filed December 10, 2001.                                           |
| (20) | Incorporated by reference  to the Company’s 2002 Form 10-K Annual Report, filed December 19, 2002.                                           |
| (21) | Incorporated by reference  to the Company’s Quarterly Report on Form 10-Q for the quarter ended December  31, 2002, filed February 13, 2003. |
| (22) | Incorporated by reference  to the Company’s Quarterly Report on Form 10-Q for the quarter ended March  31, 2003, filed May 14, 2003.         |
| (23) | Incorporated by reference  to the Company’s Form 8-K dated August 18, 2003 and filed August 19, 2003.                                        |
| (24) | Incorporated by reference  to the Company’s 2003 Form 10-K Annual Report, filed December 29, 2003.                                           |

 

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**SIGNATURES**

 

Pursuant to the requirements ofSection 13 or 15(d) of the Securities Exchange Act of 1934, the registrant hasduly caused this Amendment to its report to be signed on its behalf by theundersigned, thereunto duly authorized.

 

Date: January 29, 2004

 
|   | **GARDENBURGER, INC.** |
|--------|------------------------|
|   |                   |   |
|   |                   |   |
|   | By:                    | /s/ ROBERT  T. TREBING, JR. |   |
|   |                   | Robert T.  Trebing, Jr. |
|   |                   | Senior Vice  President and Chief Financial Officer |
|   |                   | (Duly  Authorized Officer and Principal Financial  and Accounting Officer) |

 

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