Amendment and Extension Letter to Securities Purchase Agreement among Boulder Specialty Brands, Inc. and Investors
This letter agreement, dated February 15, 2007, is between Boulder Specialty Brands, Inc. and certain investors managed by Och-Ziff Capital Management Group and Glenview Capital Management. It amends the original Securities Purchase Agreement by extending key deadlines, including the final termination date for closing, due to delays in SEC approval. The new deadlines are set for May 2007, with possible further extensions, but not beyond specified limits. The agreement also acknowledges amendments to related merger and debt commitment documents. All parties confirm their consent by signing this letter.
EXECUTION COPY
February 15, 2007
Och-Ziff Capital Management Group, LLC
Attention: Joel M. Frank, David Stonehill
9 West 57th St., 39th floor
New York, NY 10019
Glenview Capital Management, LLC
Attention: Mark Horowitz
767 Fifth Avenue, 44th Floor
New York, NY 10153
Dear Joel, David and Mark,
Article VI of the Securities Purchase Agreement by and among Boulder Specialty Brands, Inc. (“Boulder”) and the Investors listed therein, dated September 25, 2006 (the “Purchase Agreement”), sets forth various provisions regarding the termination of the Purchase Agreement. One such event is if the Closing has not occurred on or before February 16, 2007 (the “Final Termination Date”) and Boulder and the Requisite Investors have not agreed on an extension to the Final Termination Date. In light of recognized delays in obtaining SEC approval of the Proxy Statement, and as contemplated and permitted by subsection 6.1(i) of the Purchase Agreement, Boulder hereby agrees to, and requests that the Requisite Investors execute this letter agreement as confirmation of its agreement to, extend the Final Termination Date to May 31, 2007, and therefore to amend subsection 6.1(i) of the Purchase Agreement by substituting “February 16, 2007” with “May 31, 2007". In addition, the parties further agree to amend subsection 6.1(iii)(B) of the Purchase Agreement by substituting “January 10, 2007” with “May 7, 2007” and “January 5, 2007” with “April 30, 2007".
Notwithstanding the new May 31, 2007 Final Termination Date and the new May 7, 2007 and April 30, 2007 dates relevant to Section 6.1(iii)(B) of the Purchase Agreement, as described above, Boulder and the undersigned Requisite Investors agree that the Final Termination Date and each of the applicable dates relevant to Section 6.1(iii)(B) shall automatically extend beyond May 31, 2007, May 7, 2007 and April 30, 2007, respectively, by the same number of days as the delivery of the December 31, 2006 audited financial statements of GFA Holdings, Inc. to Boulder extends beyond March 16, 2007; provided, however, that the new May 31, 2007 Termination Date under Section 6.1(i) of the Purchase Agreement shall not extend beyond June 30, 2007 and the new April 30, 2007 and May 7, 2007 dates relevant to Section 6.1(iii)(B) of the Purchase Agreement shall not extend beyond May 18, 2007 and May 25, 2007, respectively.
Extension Letter
February 15, 2007
Page 2 of 5
Capitalized terms used but not defined in this letter agreement shall have the respective meanings assigned to such terms in the Purchase Agreement.
If the undersigned Requisite Investors are agreeable to the contents of this letter agreement, please execute the acknowledgement and agreement set forth below. Although not legally required, as previously discussed, we have also provided space below for the consent of all of the other Investors to this letter agreement. Finally, by executing below, you acknowledge and consent to the amendments that have been made to the Agreement and Plan of Merger and to the Debt Commitment Letter with Bank of America and Banc of America Securities, copies of which are attached hereto. Should you have any questions regarding this letter, please feel free to contact me directly.
| Very truly yours, | |
BOULDER SPECIALTY BRANDS, INC. | |
By: /s/ Stephen B. Hughes | |
| Stephen B. Hughes, Chairman and CEO |
| cc: | O’Melveny & Myers LLP Times Square Tower 7 Times Square New York, NY, 10036 |
Extension Letter
February 15, 2007
Page 3 of 5
OF REQUISITE INVESTORS TO LETTER AGREEMENT
REQUISITE INVESTORS:
OZ MASTER FUND, LTD.
By: OZ Management, L.L.C., its Investment Manager
By: /s/ Joel Frank
Name: Joel Frank
Title: Chief Financial Officer
OZ Global Special Investments Master Fund, L.P.
By: OZ Management, L.L.C., its Investment Manager
By: /s/ Joel Frank
Name: Joel Frank
Title: Chief Financial Officer
GPC LVII, LLC
By: OZ Management, L.L.C., its Investment Manager
By: /s/ Joel Frank
Name: Joel Frank
Title: Chief Financial Officer
Fleet Maritime, Inc.
By: OZ Management, L.L.C., its Investment Manager
By: /s/ Joel Frank
Name: Joel Frank
Title: Chief Financial Officer
Extension Letter
February 15, 2007
Page 4 of 5
Glenview Capital Partners, L.P.
By: Glenview Capital Management, LLC its investment manager
By: /s/ Richard Barrera
Name: Richard Barrera
Title: Managing Member
Glenview Institutional Partners, L.P.
By: Glenview Capital Management, LLC its investment manager
By: /s/ Richard Barrera
Name: Richard Barrera
Title: Managing Member
GCM Little Arbor Partners, L.P.
By: Glenview Capital Management, LLC its investment manager
By: /s/ Richard Barrera
Name: Richard Barrera
Title: Managing Member
GCM Little Arbor Institutional Partners, L.P.
By: Glenview Capital Management, LLC its investment manager
By: /s/ Richard Barrera
Name: Richard Barrera
Title: Managing Member
GCM Little Arbor Master Fund Ltd.
By: Glenview Capital Management, LLC its investment manager
By: /s/ Richard Barrera
Name: Richard Barrera
Title: Managing Member
Extension Letter
February 15, 2007
Page 5 of 5
Glenview Capital Master Fund Ltd.
By: Glenview Capital Management, LLC its investment manager
By: /s/ Richard Barrera
Name: Richard Barrera
Title: Managing Member
