AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 7, 2003
REGISTRATION STATEMENT NO. 333-70759
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
POST-EFFECTIVE AMENDMENT NO. 2
ON
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
DOANE PET CARE COMPANY
(Exact Name of Registrant as Specified in Its Charter)
<Table>
DELAWARE 2040 43-1350515
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification Number)
</Table>
---------------------
210 WESTWOOD PLACE SOUTH
SUITE 400
BRENTWOOD, TENNESSEE 37027
(615) 373-7774
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
PHILIP K. WOODLIEF
VICE PRESIDENT, FINANCE AND CHIEF FINANCIAL OFFICER
210 WESTWOOD PLACE SOUTH
SUITE 400
BRENTWOOD, TENNESSEE 37027
(615) 373-7774
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
---------------------
COPIES TO:
ALAN P. BADEN
VINSON & ELKINS L.L.P.
666 FIFTH AVENUE
26TH FLOOR
NEW YORK, NEW YORK 10103
(917) 206-8000
(917) 206-8100 (FAX)
---------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
EXPLANATORY NOTE
This post-effective amendment to the registration statement contains a
prospectus relating to certain market-making transactions in the 9 3/4% Senior
Subordinated Notes due 2007 of Doane Pet Care Company. In order to register
under Rule 415 of the Securities Act of 1933, as amended, those notes that will
be offered and sold in market-making transactions, the appropriate box on the
cover page of the registration statement has been checked and the undertakings
required by Item 512(a) of Regulation S-K have been included in Item 17 of Part
II.
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- --------------------------------------------------------------------------------
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT EXCHANGE FOR THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN
OFFER TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED APRIL 7, 2003
DOANE PET CARE COMPANY
9 3/4% SENIOR SUBORDINATED NOTES DUE 2007
---------------------
INTEREST
- Interest on the notes is payable on November 15 and May 15 each year at a
9 3/4% annual rate.
REDEMPTION
- We may redeem some or all of the notes at the redemption prices set forth
in this prospectus.
CHANGE IN CONTROL
- If we experience a change in control, you may require us to repurchase
your notes at a purchase price equal to 101% of the notes' principal
amount plus accrued and unpaid interest.
SECURITY AND RANKING
- The notes are not secured by any collateral.
- They are subordinate to all debt except that they rank equal to existing
and future unsecured senior subordinated debt.
- As of February 28, 2003, the notes were subordinated to $427.0 million of
senior debt.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
This prospectus is to be used by Credit Suisse First Boston LLC ("CSFB")
and J.P. Morgan Securities Inc. ("JPMorgan") in connection with offers and sales
of the notes in market-making transactions in the notes. CSFB and JPMorgan may
act as principal or agent in such transactions. Such sales will be made at
negotiated prices related to prevailing market prices at the time of sale. The
notes are not listed on any securities exchange or admitted to trading in the
National Association of Securities Dealers Automated Quotation System and we do
not intend to make any such listing or seek such admission to trading. CSFB and
JPMorgan currently make a market in the notes; however, neither CSFB nor
JPMorgan is obligated to continue to do so and any market-making may be
discontinued at any time. We receive no portion of the proceeds of sales of the
notes and have paid certain expenses incident to the registration of the notes.
---------------------
CREDIT SUISSE FIRST BOSTON JPMORGAN
The Date of this Prospectus is [ ], 2003.
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS,
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY US, CSFB OR JPMORGAN. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY ANY SECURITY
OTHER THAN THE NOTES OFFERED HEREBY, NOR DOES IT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY ANY OF THE NOTES TO ANY PERSON IN ANY
JURISDICTION IN WHICH IT IS UNLAWFUL TO MAKE SUCH AN OFFER OR SOLICITATION TO
SUCH PERSON. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THE INFORMATION
CONTAINED HEREIN IS CORRECT AS OF ANY DATE SUBSEQUENT TO THE DATE HEREOF.
WHERE YOU CAN FIND MORE INFORMATION
The notes were originally issued by Doane Pet Care Company, a Delaware
corporation, in an exchange offer that expired on May 12, 1999. References in
this prospectus to "we," "us," "our" or "Doane" refer to Doane Pet Care Company
and its subsidiaries. Doane Pet Care Enterprises, Inc., our parent corporation,
was formed in 1995 by a group of investors led by Summit Capital Inc., DLJ
Merchant Banking Partners, L.P., Chase Manhattan Investment Holdings, Inc. and
certain members of management to acquire Doane for an aggregate purchase price
of $249.1 million, including existing indebtedness.
OUR PRINCIPAL EXECUTIVE OFFICES ARE LOCATED AT 210 WESTWOOD PLACE SOUTH, SUITE
400, BRENTWOOD, TENNESSEE 37027, AND OUR TELEPHONE NUMBER IS (615) 373-7774.
This prospectus constitutes part of a post-effective amendment on Form S-3
to the registration statement on Form S-4 filed with the Securities and Exchange
Commission, or the SEC, under the Securities Act of 1933, as amended, in
connection with the exchange offer for the notes. This prospectus does not
contain all of the information set forth in the registration statement, certain
parts of which are omitted in accordance with the rules and regulations of the
Commission. Reference is made to the registration statement and to the exhibits
thereto for further information with respect to our company and the notes. Any
statements contained herein concerning the provisions of any document filed as
an exhibit to the registration statement or otherwise filed with the Commission
or incorporated by reference herein are not necessarily complete, and in each
instance, reference is made to the copy of such document so filed for a more
complete description of the matter involved. Each such statement is qualified in
its entirety by such reference.
We file annual, quarterly and current reports, and other information with
the Securities and Exchange Commission. Our SEC filings are available to the
public over the Internet at the Securities and Exchange Commission's web site at
http://www.sec.gov. You may also read and copy any document we file at the SEC's
public reference room at Judiciary Plaza, 450 Fifth Street, Washington, D.C.
20549. Please call the SEC at 1-800-SEC-0330 for further information on the
public reference room and its copy charges.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
Our annual report on Form 10-K (and related exhibits) for the year ended
December 28, 2002, as previously filed by us with the SEC, is incorporated by
reference in this prospectus.
All documents filed by us after the date of this prospectus pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, prior to the termination of the offering of the notes offered hereby,
shall be deemed to be incorporated herein by reference and to be a part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this prospectus to the extent that a
statement contained herein or in any other subsequently filed document that also
is, or is deemed to be, incorporated by reference herein modifies or supersedes
such statement. Any such statements as modified or superseded shall be deemed,
except as so modified or superseded, to constitute a part of this prospectus.
1
You may request a copy of any of the documents summarized in this
prospectus or incorporated by reference in this prospectus, at no cost, by
writing or telephoning us at the following address and phone number:
Mr. Philip K. Woodlief
Vice President, Finance and Chief Financial Officer
Doane Pet Care Company
210 Westwood Place South
Suite 400
Brentwood, Tennessee 37027
(615) 373-7774
USE OF PROCEEDS
We will not receive any proceeds from the sale of the notes in any
market-making transaction with which this prospectus may be delivered.
RATIO OF EARNINGS TO FIXED CHARGES
For purposes of calculating the ratio of earnings to fixed charges,
earnings available for fixed charges (income (loss) before income taxes plus
fixed charges) is divided by fixed charges (interest expense, net, plus 33% of
rent expense).
<Table>
<Caption>
YEARS ENDED
---------------------------------------------------------------------------
DECEMBER 31, JANUARY 1, DECEMBER 30, DECEMBER 29, DECEMBER 28,
1998(1) 2000 2000(1) 2001(1) 2002
------------ --------------- ------------ ------------ ------------
Ratio of earnings to
fixed charges...... (0.09)x 1.99x 0.89x 0.35x 1.26x
</Table>
- ---------------
(1) The amounts of deficiency in earnings available for fixed charges from a
ratio of 1.0x (in thousands) are $34,288, $5,739, and $38,109 for the years
ended December 31, 1998, December 30, 2000 and December 29, 2001,
respectively.
2
DESCRIPTION OF THE NOTES
GENERAL
The notes were issued under an indenture dated as of November 12, 1998 that
we entered into with Wilmington Trust Company, as trustee. We have summarized
selected provisions of the notes and the indenture below. The summary is not
complete. For a complete description, you should refer to the indenture, which
we have filed with the SEC. Please read "Where You Can Find More Information."
We have used certain capitalized terms in this summary that are defined below
under "-- Certain Definitions." As used in this summary, the term "Company"
refers to Doane Pet Care Company and not to any of its subsidiaries.
Principal of, premium, if any, and interest on the notes will be payable,
and the notes may be exchanged or transferred, at the office or agency of the
Company in the Borough of Manhattan, The City of New York, except that, at the
option of the Company, payment of interest may be made by check mailed to the
registered addresses of the holders.
TERMS OF THE NOTES
The notes are unsecured senior subordinated obligations of the Company,
limited to $150.0 million aggregate principal amount and will mature on May 15,
2007. Each note bears interest at the rate of 9 3/4% per annum from the date of
issuance, or from the most recent date to which interest has been paid or
provided for, payable semi-annually on May 15 and November 15 of each year
commencing on May 15, 1999 to holders of record at the close of business on the
May 1 or November 1, whether or not a business day, immediately preceding the
interest payment date.
OPTIONAL REDEMPTION
The Company has the option to redeem the notes, in whole or in part, at any
time upon not less than 30 nor more than 60 days' prior notice mailed by
first-class mail to the registered address of each holder of notes to be
redeemed, at the following redemption prices, which are expressed as percentages
of principal amount, plus accrued and unpaid interest to the redemption date,
subject to the right of holders of record on the relevant record date to receive
interest due on the relevant interest payment date.
If redeemed during the 12-month period commencing on May 15 of the years
set forth below:
<Table>
<Caption>
PERIOD REDEMPTION PRICE
- ------ ----------------
2002........................................................ 104.875%
2003........................................................ 103.250%
2004........................................................ 101.625%
2005 and thereafter......................................... 100.000%
</Table>
In the case of any partial redemption, selection of the notes for
redemption will be made by the trustee on a pro rata basis, by lot or by a
method that complies with applicable legal and securities exchange requirements,
if any, and that the trustee deems to be fair and appropriate, although no note
of $1,000 in original principal amount or less will be redeemed in part. If any
note is to be redeemed in part only, the notice of redemption relating to that
note shall state the portion of the principal amount thereof to be redeemed. A
new note in principal amount equal to the unredeemed portion thereof will be
issued in the name of the holder thereof upon cancellation of the original note.
RANKING
The payment of Indebtedness evidenced by the notes and the Subsidiary
Guarantees is subordinated in right of payment, as set forth in the indenture,
to the prior payment in full in cash or cash equivalents when due of (i) all
Senior Indebtedness of the Company in the case of the notes and (ii) all
Guarantor Senior Indebtedness of each Subsidiary Guarantor in the case of their
obligations under the Subsidiary Guarantees. However, payment from the money or
the proceeds of U.S. Government Obligations held in any defeasance
3
trust described under "-- Defeasance" below is not subordinate to any Senior
Indebtedness or subject to the restrictions described herein. At February 28,
2003, the aggregate amount of the Company's outstanding Senior Indebtedness was
approximately $427.0 million. Although the indenture contains limitations on the
amount of additional Indebtedness that the Company may incur, under certain
circumstances the amount of such Indebtedness could be substantial and, in any
case, such Indebtedness may be Senior Indebtedness. See "-- Certain
Covenants -- Limitation on Indebtedness."
"Senior Indebtedness" means the principal of, premium, if any, and
interest, including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization of the Company regardless of whether
post-filing interest is allowed in the proceeding, on, and fees and other
amounts owing in respect of, the senior credit facility and all other
Indebtedness of the Company, whether outstanding on November 12, 1998 or
thereafter issued, unless, in the instrument creating or evidencing the same
pursuant to which the same is outstanding, it is provided that the obligations
in respect of such Indebtedness are not superior in right of payment to the
notes; provided, however, that Senior Indebtedness will not include:
- any obligation of the Company to any subsidiary;
- any liability for federal, state, foreign, local or other taxes owed or
owing by the Company;
- any accounts payable or other liability to trade creditors arising in the
ordinary course of business, including guarantees thereof or instruments
evidencing such liabilities;
- any Indebtedness, guarantee or obligation of the Company that is
expressly subordinate or junior in right of payment to any other
Indebtedness, guarantee or obligation of the Company, including any
Senior Subordinated Indebtedness and any Subordinated Obligations; or
- any capital stock.
"Guarantor Senior Indebtedness" means, with respect to a Subsidiary
Guarantor, whether outstanding on November 12, 1998 or thereafter issued, any
guarantee of the Bank Indebtedness by such Subsidiary Guarantor, all other
guarantees by such Subsidiary Guarantor of Senior Indebtedness of the Company
and all Indebtedness of such Subsidiary Guarantor, including interest and fees
thereon, unless, in the instrument creating or evidencing the same or pursuant
to which the same is outstanding, it is provided that the obligations of such
Subsidiary Guarantor in respect of such Indebtedness are not superior in right
of payment to the obligations of such Subsidiary Guarantor under the Subsidiary
Guarantee; provided, however, that Guarantor Senior Indebtedness shall not
include:
- any obligations of such Subsidiary Guarantor to the Company or any other
Subsidiary of the Company;
- any liability for federal, state, local or other taxes owed or owing by
such Subsidiary Guarantor;
- any accounts payable or other liability to trade creditors arising in the
ordinary course of business (including guarantees thereof or instruments
evidencing such liabilities);
- any Indebtedness, guarantee or obligation of such Subsidiary Guarantor
that is expressly subordinate or junior in right of payment to any other
Indebtedness, guarantee or obligation of such Subsidiary Guarantor,
including any Guarantor Senior Subordinated Indebtedness and Guarantor
Subordinated Obligations of such Subsidiary Guarantor; or
- any capital stock.
Only Indebtedness of the Company that is Senior Indebtedness will rank
senior to the notes and only Indebtedness of each Subsidiary Guarantor that is
Guarantor Senior Indebtedness of such Subsidiary Guarantor will rank senior to
the obligations of such Subsidiary Guarantor under the Subsidiary Guarantee,
each in accordance with the provisions of the indenture. The notes will in all
respects rank equally with all other Senior Subordinated Indebtedness of the
Company and the Subsidiary Guarantee of each Subsidiary Guarantor will rank
equally with Guarantor Senior Subordinated Indebtedness of such Subsidiary
Guarantor. The Company has agreed in the indenture that it will not incur,
directly or indirectly, any Indebtedness
4
that is subordinate or junior in ranking in any respect to Senior Indebtedness
unless such Indebtedness is Senior Subordinated Indebtedness or is expressly
subordinated in right of payment to Senior Subordinated Indebtedness. Unsecured
Indebtedness is not deemed to be subordinate or junior to Indebtedness secured
by a lien merely because it is unsecured.
Neither the Company nor any Subsidiary Guarantor may pay the principal of,
premium, if any, or interest on, or other amounts with respect to, the notes or
make any deposit pursuant to the provisions described under "-- Defeasance"
below or repurchase, redeem or otherwise retire any notes whether directly by
the Company or by any Subsidiary Guarantor under any Subsidiary Guarantee
(collectively, "pay the notes") if:
(1) any Senior Indebtedness in the case of the Company or any
Guarantor Senior Indebtedness of such Subsidiary Guarantor in the case of
such Subsidiary Guarantor is not paid when due; or
(2) any other default on Senior Indebtedness in the case of the
Company or such Guarantor Senior Indebtedness in the case of such
Subsidiary Guarantor occurs and the maturity of such Senior Indebtedness in
the case of the Company or such Guarantor Senior Indebtedness in the case
of such Subsidiary Guarantor is accelerated in accordance with its terms
unless, in either case, (x) the default has been cured or waived and any
such acceleration has been rescinded in writing or (y) such Senior
Indebtedness in the case of the Company or such Guarantor Senior
Indebtedness in the case of such Subsidiary Guarantor has been paid in full
in cash or cash equivalents.
However, the Company or such Subsidiary Guarantor may pay any amounts,
whether directly or pursuant to the Subsidiary Guarantee, without regard to the
foregoing if the Company or such Subsidiary Guarantor and the trustee receive
written notice approving the payment from the representative of the Designated
Senior Indebtedness in the case of the Company or such Guarantor Senior
Indebtedness in the case of such Subsidiary Guarantor with respect to which
either of the events set forth in clause (1) or (2) of the immediately preceding
sentence has occurred and is continuing.
During the continuance of any default, other than a default described in
clause (1) or (2) of the second preceding sentence, with respect to any
Designated Senior Indebtedness pursuant to which the maturity thereof may be
accelerated immediately without further notice, except notice that may be
required to effect the acceleration, or the expiration of any applicable grace
periods, neither the Company (in the case of Designated Senior Indebtedness of
the Company) nor any Subsidiary Guarantor (in the case of Designated Senior
Indebtedness of such Subsidiary Guarantor) may pay any amounts in respect of the
notes, either directly or pursuant to a Subsidiary Guarantee, for a period (a
"payment blockage period") commencing upon the receipt by the Company and the
trustee, with a copy to such Subsidiary Guarantor, of written notice (a
"blockage notice") of default from the representative of the holders of the
Designated Senior Indebtedness specifying an election to effect a payment
blockage period and ending 179 days thereafter (or earlier in certain
circumstances). Notwithstanding the provisions described in the immediately
preceding sentence, unless the holders of the Designated Senior Indebtedness or
the representative of those holders have accelerated the maturity of the
Designated Senior Indebtedness, the Company or such Subsidiary Guarantor may
resume payments on the notes, either directly or pursuant to the Subsidiary
Guarantee, after the end of the payment blockage period. Not more than one
blockage notice may be given in any consecutive 360-day period, irrespective of
the number of defaults with respect to Designated Senior Indebtedness during
that period.
Upon any payment or distribution of the assets of the Company or any
Subsidiary Guarantor to creditors upon a total or partial liquidation or a total
or partial dissolution of the Company or such Subsidiary Guarantor or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or such Subsidiary Guarantor or their respective
properties, (i)the holders of Senior Indebtedness in the case of the Company or
holders of Guarantor Senior Indebtedness of such Subsidiary Guarantor in the
case of such Subsidiary Guarantor will be entitled to receive payment in full in
cash or cash equivalents of all Senior Indebtedness in the case of the Company
or all such Guarantor Senior Indebtedness in the case of such Subsidiary
Guarantor before the holders are entitled to receive any payment, and (ii) until
the Senior Indebtedness (in the case of the Company) or the Guarantor Senior
Indebtedness (in the case of such Subsidiary Guarantor) is paid in full in cash
or cash equivalents, any payment or distribution to which holders
5
would be entitled but for the subordination provisions of the indenture will be
made to holders of the Senior Indebtedness in the case of payments or
distributions made by the Company or the holders of such Guarantor Senior
Indebtedness in the case of payments or distributions made by such Subsidiary
Guarantor, in each case as their respective interests may appear.
If payment of the notes is accelerated because of an event of default, the
Company, the Subsidiary Guarantors or the trustee shall promptly notify the
holders of the Designated Senior Indebtedness and their representatives of the
acceleration. If any Designated Senior Indebtedness is outstanding, neither the
Company (in the case of Designated Senior Indebtedness of the Company) nor any
Subsidiary Guarantor (in the case of Designated Senior Indebtedness of such
Subsidiary Guarantor) may pay the notes, either directly or pursuant to the
Subsidiary Guarantee, until five business days after the representative of such
Designated Senior Indebtedness receives notice of the acceleration and,
thereafter, the Company (in the case of Designated Senior Indebtedness of the
Company) or such Subsidiary Guarantor (in the case of Designated Senior
Indebtedness of such Subsidiary Guarantor) may pay the notes, either directly or
pursuant to the Subsidiary Guarantee, only if the subordination provisions of
the indenture otherwise permit payment at that time.
By reason of the subordination provisions contained in the indenture, in
the event of insolvency, creditors of the Company who are holders of Senior
Indebtedness or creditors of the Subsidiary Guarantors who are holders Guarantor
Senior Indebtedness may recover more, ratably, than the holders of the notes,
and creditors of the Company or the Subsidiary Guarantors who are not holders of
Senior Indebtedness, Guarantor Senior Indebtedness or of Senior Subordinated
Indebtedness, including the notes, may recover less, ratably, than holders of
Senior Indebtedness or the holders of Guarantor Senior Indebtedness and may
recover more, ratably, than holders of Senior Subordinated Indebtedness.
SUBSIDIARY GUARANTEES
Pursuant to the covenant described under "-- Future Note Guarantors," the
Company's obligations under the notes have been, on a joint and several basis,
unconditionally and irrevocably, guaranteed by Doane/Windy Hill Joint Venture,
L.L.C. and DPC Investment Corp. Each Subsidiary Guarantee constitutes an
unsecured senior subordinated obligation of the applicable Subsidiary Guarantor.
See "-- Ranking."
CHANGE OF CONTROL
Upon the occurrence of any of the following events (each a "change of
control"), each holder of notes will have the right to require the Company to
repurchase all or any part of that holder's notes at a purchase price in cash
equal to 101% of the principal amount thereof plus accrued and unpaid interest,
if any, to the date of purchase, subject to the right of holders of record on
the relevant record date to receive interest due on the relevant interest
payment date:
(1) Prior to the first public offering of voting stock of the Company
or Doane Pet Care Enterprises, Inc., as the case may be, the Permitted
Holders cease to be the "beneficial owner," as defined in Rules 13d-3 and
13d-5 under the Exchange Act, directly or indirectly, of majority voting
power of the voting stock of the Company, whether as a result of issuance
of securities of the Company or Doane Pet Care Enterprises, Inc., as the
case may be, any merger, consolidation, liquidation or dissolution of the
Company or Doane Pet Care Enterprises, Inc., as the case may be, any direct
or indirect transfer of securities by any Permitted Holder or otherwise.
For purposes of this paragraph (1) and paragraph (2) below, the Permitted
Holders will be deemed to beneficially own any voting stock of a person
(the "specified corporation") held by any other person (the "parent
corporation") so long as the Permitted Holders beneficially own, directly
or indirectly, a majority of the voting power of the voting stock of the
parent corporation.
(2) Following the first public offering of voting stock of the Company
or Doane Pet Care Enterprises, Inc., as the case may be, any "person," as
such term is used in Sections 13(d) and 14(d) of the Exchange Act, other
than one or more Permitted Holders, is or becomes the beneficial owner, as
defined in paragraph (1) above, except that a person shall be deemed to
have "beneficial ownership" of
6
all shares that any person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time, directly or
indirectly, of more than 35% of the total voting power of the voting stock
of the Company or Doane Pet Care Enterprises, Inc., as the case may be;
provided that the Permitted Holders beneficially own, as defined in
paragraph (1) above, directly or indirectly, in the aggregate a lesser
percentage of the total voting power of the voting stock of the Company or
Doane Pet Care Enterprises, Inc., as the case may be, than such other
person and do not have the right or ability by voting power, contract or
otherwise to elect or designate for election a majority of the board of
directors of the Company or Doane Pet Care Enterprises, Inc., as the case
may be. For purposes of this paragraph (2), the other person shall be
deemed to beneficially own any voting stock of a specified corporation held
by a parent corporation, if the other person "beneficially owns," as
defined in this paragraph (2), directly or indirectly, more than 35% of the
voting power of the voting stock of the parent corporation and the
Permitted Holders "beneficially own," as defined in paragraph (1) above,
directly or indirectly, in the aggregate a lesser percentage of the voting
power of the voting stock of the parent corporation and do not have the
right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the board of directors of the parent
corporation.
(3) During any period of two consecutive years, individuals who at the
beginning of that period constituted the board of directors, together with
any new directors whose election by the board of directors or whose
nomination for election by the shareholders of the Company was approved by
a vote of a majority of the directors of the Company then still in office
who were either directors at the beginning of that period or whose election
or nomination for election was previously so approved, cease for any reason
to constitute a majority of the board of directors then in office.
Within 30 days following any change of control, unless the Company has
mailed a redemption notice with respect to all the outstanding notes in
connection with the change of control, the Company shall mail a notice to each
holder of record of the notes with a copy to the trustee stating:
- that a change of control has occurred and that the holder has the right
to require the Company to purchase its notes at a purchase price in cash
equal to 101% of the principal amount thereof plus accrued and unpaid
interest, if any, to the date of purchase, subject to the right of
holders of record on a record date to receive interest on the relevant
interest payment date;
- the circumstances and relevant facts and financial information concerning
the change of control;
- the repurchase date, which shall be no earlier than 30 days nor later
than 60 days from the date the notice is mailed; and
- the procedures determined by the Company, consistent with the indenture,
that a holder must follow in order to have its notes purchased.
The Company will comply, to the extent applicable, with the requirements of
Section 14(e) of the Exchange Act and any other securities laws or regulations
in connection with the repurchase of notes pursuant to this covenant. To the
extent that the provisions of any securities laws or regulations conflict with
provisions of the indenture, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its
obligations described in the indenture by virtue thereof.
The occurrence of certain of the events that would constitute a change of
control would constitute a default under the new credit facility. Future Senior
Indebtedness of the Company and its subsidiaries may contain prohibitions of
certain events that would constitute a change of control or require that Senior
Indebtedness to be repurchased upon a change of control. Moreover, the exercise
by the holders of their right to require the Company to repurchase the notes
could cause a default under the Senior Indebtedness, even if the change of
control itself does not, due to the financial effect of the repurchase on the
Company. Finally, the Company's ability to pay cash to the holders upon a
repurchase may be limited by the Company's then existing financial resources. We
cannot assure you that sufficient funds will be available when necessary to make
any required repurchases. Even if sufficient funds were otherwise available, the
terms of the new credit facility generally prohibit the Company's prepayment of
the notes prior to their scheduled maturity. Consequently, if the Company is not
able to prepay the senior credit facility and any other Senior
7
Indebtedness containing similar restrictions or obtain requisite consents or
waivers, as described above, the Company will be unable to fulfill its
repurchase obligations if holders of the notes exercise their repurchase rights
following a change of control, thereby resulting in a default under the
indenture.
CERTAIN COVENANTS
The indenture contains certain covenants including the following:
Limitation on Indebtedness. The Company shall not, and shall not permit
any of its subsidiaries to, incur any Indebtedness; provided, however, that the
Company and any of its subsidiaries may incur Indebtedness if on the date
thereof the Consolidated Coverage Ratio would be greater than 2.00:1.00.
(2) Notwithstanding the foregoing paragraph (1), the Company and its
subsidiaries may incur the following Indebtedness:
(a) Indebtedness incurred in connection with the senior credit
facility provided that the aggregate principal amount of Indebtedness
incurred pursuant to this clause does not exceed an amount outstanding at
any time equal to $330.0 million less the aggregate amount of permanent
reductions of commitments to extend credit thereunder and repayments of
principal thereof, without duplication of repayments required as a result
of the reductions of commitments;
(b) Indebtedness of the Company to any wholly-owned subsidiary and of
any subsidiary to the Company or any wholly-owned subsidiary;
(c) Indebtedness represented by the notes, any Indebtedness, other
than the Indebtedness described in clauses (a) and (b) above, outstanding
on November 12, 1998 and any Refinancing Indebtedness incurred in respect
of any Indebtedness described in this clause;
(d) Indebtedness represented by the Subsidiary Guarantees and certain
guarantees of Indebtedness;
(e) Indebtedness under currency agreements and interest rate
agreements that are entered into for bona fide hedging purposes of the
Company or its subsidiaries, as determined in good faith by the board of
directors or senior management of the Company, and correspond in terms of
notional amount, duration, currencies and interest rates, as applicable, to
Indebtedness of the Company or its subsidiaries incurred without violation
of the indenture or to business transactions of the Company or its
subsidiaries on customary terms entered into in the ordinary course of
business; and
(f) Indebtedness of the Company or any of its subsidiaries, which may
comprise Indebtedness incurred in connection with the senior credit
facility, in an aggregate principal amount at any time outstanding not in
excess of $15.0 million.
(3) Notwithstanding any other provision of this covenant, the Company shall
not incur any Indebtedness:
- pursuant to paragraph (2) above if the proceeds thereof are used,
directly or indirectly, to repay, prepay, redeem, defease, retire, refund
or refinance any Subordinated Obligations unless that Indebtedness shall
be subordinated to the notes to at least the same extent as such
Subordinated Obligations or
- pursuant to paragraph (1) or (2) if such Indebtedness is subordinate or
junior in ranking in any respect to any Senior Indebtedness unless such
Indebtedness is Senior Subordinated Indebtedness or is expressly
subordinated in right of payment to Senior Subordinated Indebtedness.
(4) The Company shall not incur any Indebtedness secured by a lien that is
not Senior Indebtedness unless contemporaneously therewith effective provision
is made to secure the notes equally and ratably with that Indebtedness for so
long as it is secured by a lien.
8
Limitation on Restricted Payments. (1) The Company will not, and will not
permit any subsidiary, directly or indirectly to:
- declare or pay any dividend or make any distribution on or in respect of
its capital stock, including any payment in connection with any merger or
consolidation involving the Company, except dividends or distributions
payable in its capital stock, other than Disqualified Stock, and
dividends or distributions payable to the Company or another subsidiary,
and, if the subsidiary is not a wholly-owned subsidiary, to its other
stockholders on a pro rata basis;
- purchase, redeem, retire or otherwise acquire for value any capital stock
of the Company or any subsidiary held by persons other than the Company
or another subsidiary;
- purchase, repurchase, redeem, defease or otherwise acquire or retire for
value, prior to scheduled maturity, scheduled repayment or scheduled
sinking fund payment, any Subordinated Obligations, other than the
purchase, repurchase or other acquisition of Subordinated Obligations
purchased in anticipation of satisfying a sinking fund obligation,
principal installment or final maturity, in each case due within one year
of the date of acquisition; or
- make any investment, other than a Permitted Investment, in any person
(any such dividend, distribution, purchase, redemption, repurchase,
defeasance, other acquisition, retirement or investment being herein
referred to as a "restricted payment"), if at the time the Company or the
subsidiary makes the restricted payment: a default shall have occurred
and be continuing, or would result therefrom; the Company could not incur
at least an additional $1.00 of Indebtedness pursuant to paragraph (1)
under "-- Limitation on Indebtedness;" or the aggregate amount of the
restricted payment and all other restricted payments declared or made
subsequent to, but not on, November 12, 1998 would exceed the sum of:
(a) 50% of the Consolidated Net Income, disregarding any impact on
Consolidated Net Income caused by the Company's distribution to Doane Pet
Care Enterprises, Inc. on November 12, 1998 of an amount required to enable
Doane Pet Care Enterprises, Inc. to repay in full the convertible
subordinated promissory note issued to Heinz Pet Products Company, accrued
during the period from November 12, 1998 to the end of the most recent
fiscal quarter ending prior to the date of the restricted payment as to
which financial results are available, but in no event more than 135 days
prior to the date of the restricted payment, or, in case the Consolidated
Net Income shall be a deficit, minus 100% of that deficit;
(b) the aggregate Net Cash Proceeds received by the Company from the
issue or sale of its capital stock, other than Disqualified Stock, or other
cash contributions to its capital subsequent to November 12, 1998, other
than an issuance or sale to a subsidiary of the Company or an employee
stock ownership plan or other trust established by the Company or any of
its subsidiaries;
(c) aggregate Net Cash Proceeds from the issue or sale of its capital
stock to an employee stock ownership plan or similar trust, provided,
however, that if the plan or trust incurs any Indebtedness to or guaranteed
by the Company to finance the acquisition of the capital stock, the
aggregate amount shall be limited to any increase in the Consolidated Net
Worth of the Company resulting from principal repayments made by the plan
or trust with respect to Indebtedness incurred by it to finance the
purchase of the capital stock; and
(d) the amount by which Indebtedness of the Company or its
subsidiaries is reduced on the Company's balance sheet upon the conversion
or exchange, other than by a subsidiary, subsequent to November 12, 1998 of
any Indebtedness of the Company or its subsidiaries convertible or
exchangeable for capital stock, other than Disqualified Stock, of the
Company, less the amount of any cash, or other property, distributed by the
Company or any subsidiary upon the conversion or exchange.
(2) The provisions of paragraph (1) shall not prohibit:
- any purchase or redemption of capital stock or Subordinated Obligations
of the Company made by exchange for, or out of the proceeds of the
substantially concurrent sale of, capital stock of the Company, other
than Disqualified Stock and other than capital stock issued or sold to a
subsidiary or
9
an employee stock ownership plan or other trust established by the
Company or any of its subsidiaries; provided, however, that the purchase
or redemption shall be excluded in the calculation of the amount of
restricted payments and the Net Cash Proceeds from the sale shall be
excluded from clause (B) of paragraph (1) above;
- any purchase or redemption of Subordinated Obligations of the Company
made by exchange for, or out of the proceeds of the substantially
concurrent sale of, Subordinated Obligations of the Company; provided,
however, that the purchase or redemption shall be excluded in the
calculation of the amount of restricted payments;
- any purchase or redemption of Subordinated Obligations from Net Available
Cash to the extent permitted under "-- Limitation on Sales of Assets and
Subsidiary Stock" below; provided, however, that the purchase or
redemption shall be excluded in the calculation of the amount of
restricted payments;
- dividends paid within 60 days after the date of declaration if at the
date of declaration the dividend would have complied with this provision;
provided, however, that the dividend shall be included in the calculation
of the amount of restricted payments;
- payment of dividends or other distributions by the Company for the
purposes set forth in clauses (A) through (C) below; provided, however,
that any dividend or distribution described in clauses (A) and (B) will
be excluded in the calculation of the amount of restricted payments and
any dividend or distribution described in clause (C) will be included in
the calculation of the amount of restricted payments:
(a) in amounts equal to the amounts required for Doane Pet Care
Enterprises, Inc. to pay franchise taxes and other fees required to
maintain its legal existence and provide for audit, accounting, legal
and other operating costs of up to $500,000 per fiscal year;
(b) in amounts equal to amounts required for Doane Pet Care
Enterprises, Inc. to pay federal, state and local income taxes to the
extent those income taxes are attributable to the income of the Company
and its subsidiaries; and
(c) in amounts equal to amounts expended by the Company or Doane
Pet Care Enterprises, Inc. to repurchase capital stock of the Company or
Doane Pet Care Enterprises, Inc. owned by employees, including former
employees, of the Company or its subsidiaries or their assigns, estates
and heirs; provided that the aggregate amount paid, loaned or advanced
pursuant to this clause (C) shall not, in the aggregate, exceed the sum
of $3.0 million plus any amounts contributed by Doane Pet Care
Enterprises, Inc. to the Company as a result of resales of the
repurchased shares of capital stock; or
- any repurchase of equity interest deemed to occur upon exercise of stock
options if those equity interests represent a portion of the exercise
price of the options.
Limitation on Restrictions on Distributions From Subsidiaries. Except for
agreements of IPES, Doane Pet Care Spain, S.A. or Effeffe, S.p.a. governing
Indebtedness existing prior to November 12, 1998 or incurred thereafter in
accordance with the "-- Limitation of Indebtedness" restrictions described
above, the Company shall not, and shall not permit any of its subsidiaries to:
(1) create or permit to exist or become effective any consensual
encumbrance or restriction on the ability of any subsidiary to pay
dividends, make any other distributions on its capital stock or pay any
Indebtedness or other obligation owed to the Company;
(2) make any loans or advances to the Company; or
(3) transfer any of its property or assets to the Company except:
- any encumbrance or restriction pursuant to an agreement in effect on
November 12, 1998, including those arising under or in connection with
the senior credit facility;
10
- any encumbrance or restriction with respect to a subsidiary pursuant
to an agreement relating to any Indebtedness incurred by a subsidiary
prior to the date on which that subsidiary was acquired by the
Company, other than Indebtedness incurred as consideration in, or to
provide all or any portion of the funds or credit support utilized to
consummate, the transaction or series of related transactions pursuant
to which that subsidiary was acquired by the Company;
- any encumbrance or restriction with respect to a subsidiary pursuant
to an agreement effecting a refinancing of Indebtedness incurred
pursuant to an agreement referred to in this subsection or contained
in any amendment, supplement or modification, including an amendment
and restatement, to an agreement referred to in this subsection;
provided, however, that the encumbrances and restrictions contained in
any such refinancing agreement or amendment taken as a whole are no
less favorable to the holders of the notes in any material respect
than encumbrances and restrictions contained in the agreements;
- any encumbrance or restriction:
(a) that restricts in a customary manner the subletting, assignment
or transfer of any property or asset that is subject to a lease,
license, or similar contract,
(b) by virtue of any transfer of, agreement to transfer, option or
right with respect to, or lien on, any property or assets of the Company
or any subsidiary not otherwise prohibited by the indenture, or
(c) contained in security agreements securing Indebtedness of a
subsidiary to the extent such encumbrance or restrictions restrict the
transfer of the property subject to those security agreements;
-- any restriction imposed by applicable law;
-- any restriction with respect to a subsidiary imposed pursuant to
an agreement entered into for the sale or disposition of all or
substantially all the capital stock or assets of that subsidiary
pending the closing of the sale or disposition; and
-- purchase obligations for property acquired in the ordinary course
of business that impose certain restrictions on the property so
acquired.
Limitation on Sales of Assets. The Company shall not, and shall not permit
any subsidiary to, make any Asset Disposition unless:
- the Company or subsidiary receives consideration, including by way of
relief from, or by any other person assuming sole responsibility for, any
liabilities, contingent or otherwise, at the time of the Asset
Disposition at least equal to the fair market value of the shares and
assets subject to the Asset Disposition,
- at least 85% of the consideration thereof received by the Company or
subsidiary is in the form of cash and
- an amount equal to 100% of the Net Available Cash from the Asset
Disposition is applied by the Company, or the subsidiary, as the case may
be:
(A) first, to the extent the Company elects, or is required by the
terms of any Senior Indebtedness or Indebtedness, other than preferred
stock, of a wholly-owned subsidiary, to prepay, repay or purchase Senior
Indebtedness or such Indebtedness, other than preferred stock, of a
wholly-owned subsidiary, in each case other than Indebtedness owed to the
Company or an Affiliate of the Company, within one year after the later of
the date of the Asset Disposition or the receipt of the Net Available Cash;
(B) second, to the extent of the balance of Net Available Cash after
application in accordance with clause (A), to the extent the Company or the
subsidiary elects, to reinvest in Additional Assets, including by means of
an investment in Additional Assets by a subsidiary with Net Available Cash
received by the Company or another subsidiary, within one year after the
later of the date of the Asset Disposition or the receipt of the Net
Available Cash;
11
(C) third, to the extent of the balance of the Net Available Cash
after application in accordance with clauses (A) and (B), to make an offer
to purchase notes pursuant and subject to the conditions of the indenture
to the holders of notes at a purchase price of 100% of the principal amount
thereof plus accrued and unpaid interest to the purchase date; and
(D) fourth, to the extent of the balance of the Net Available Cash
after application in accordance with clauses (A), (B) and (C), to acquire
Additional Assets, other than Indebtedness and capital stock, or to prepay,
repay or purchase Indebtedness of the Company, other than Indebtedness owed
to an Affiliate of the Company and other than Disqualified Stock of the
Company, or Indebtedness of any subsidiary, other than Indebtedness owed to
the Company or an Affiliate of the Company, in each case described in this
clause (D) within one year from the receipt of the Net Available Cash or,
if the Company has made an offer pursuant to clause (C), six months from
the date the offer is completed.
In connection with any prepayment, repayment or purchase of Indebtedness
pursuant to clause (A), (C) or (D) above, the Company or such subsidiary shall
retire such Indebtedness and shall cause the related loan commitment, if any, to
be permanently reduced in an amount equal to the principal amount so prepaid,
repaid or purchased. Notwithstanding the foregoing provisions, the Company and
its subsidiaries shall not be required to apply any Net Available Cash in
accordance herewith except to the extent that the aggregate Net Available Cash
from all Asset Dispositions that are not applied in accordance with this
covenant at any time exceed $1.0 million. The Company shall not be required to
make an offer for the notes pursuant to this covenant if the Net Available Cash
available therefor, after application of the proceeds as provided in clauses (A)
and (B), is less than $10.0 million for any particular Asset Disposition, which
lesser amounts shall be carried forward for purposes of determining whether an
offer is required with respect to the Net Available Cash from any subsequent
Asset Disposition.
For purposes of this covenant, the following will be deemed to be cash:
- the assumption of Indebtedness, other than Disqualified Stock, of the
Company or any subsidiary and the release of the Company or the
subsidiary from all liability on that Indebtedness in connection with the
Asset Disposition and
- securities received by the Company or any subsidiary of the Company from
the transferee that are promptly converted by the Company or such
subsidiary into cash.
(2) In the event of an Asset Disposition that requires the purchase of
notes pursuant to clause (1)(C) above, the Company will be required to purchase
notes tendered pursuant to an offer by the Company for the notes at a purchase
price of 100% of their principal amount plus accrued interest to the purchase
date in accordance with the procedures, including prorating in the event of
oversubscription, set forth in the indenture. If the aggregate purchase price of
the notes tendered pursuant to the offer is less than the Net Available Cash
allotted to the purchase of the notes, the Company will apply the remaining Net
Available Cash in accordance with clause (1)(D) above.
(3) The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of the notes pursuant to the
indenture. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this covenant, the Company will comply
with the applicable securities laws and regulations and will not be deemed to
have breached its obligations under the indenture by virtue thereof.
Limitation on Affiliate Transactions. (1) The Company will not, and will
not permit any subsidiary to, directly or indirectly, enter into or conduct any
transaction, including the purchase, sale, lease or exchange of any property or
the rendering of any service, with any Affiliate of the Company (an "affiliate
transaction") unless:
- the terms of the affiliate transaction are no less favorable to the
Company or the subsidiary, as the case may be, than those that could be
obtained at the time of the transaction in arm's-length dealings with a
person who is not an Affiliate;
12
- in the event the affiliate transaction involves an aggregate amount in
excess of $1.0 million, the terms of the transaction have been approved
by a majority of the members of the board of directors of the Company and
by a majority of the disinterested members of the board, if any (and such
majority or majorities, as the case may be, determines that such
affiliate transaction satisfies the criteria above); and
- in the event the affiliate transaction involves an aggregate amount in
excess of $5.0 million, the Company has received a written opinion from
an independent investment banking firm of nationally recognized standing
that the affiliate transaction is fair to the Company or the subsidiary,
as the case may be, from a financial point of view. (2) The provisions of
the foregoing paragraph (1) will not prohibit:
- any restricted payment permitted to be paid pursuant to the covenant
described under "-- Limitation on Restricted Payments;"
- the performance of the Company's or subsidiary's obligations under any
employment contract, collective bargaining agreement, employee benefit
plan, related trust agreement or any other similar arrangement heretofore
or hereafter entered into in the ordinary course of business;
- payment of compensation to, and indemnity provided on behalf of,
employees, officers, directors or consultants in the ordinary course of
business;
- maintenance in the ordinary course of business of benefit programs or
arrangements for employees, officers or directors, including vacation
plans, health and life insurance plans, deferred compensation plans, and
retirement or savings plans and similar plans; or
- any transaction between the Company and a wholly-owned subsidiary or
between wholly-owned subsidiaries.
Limitation on Sale of Subsidiary Capital Stock. The Company will not, and
will not permit any subsidiary to, transfer, convey, sell, lease or otherwise
dispose of any capital stock of any subsidiary to any person, other than to the
Company or a wholly-owned subsidiary, and the Company will not permit any
subsidiary to issue any of its capital stock to any person other than to the
Company or a wholly-owned subsidiary; provided, however, that the foregoing
shall not prohibit the conveyance, sale, lease or other disposition of all the
capital stock of a subsidiary if the net cash proceeds from that transfer,
conveyance, sale, lease, other disposition or issuance are applied in accordance
with the covenant described above under "-- Limitation on Sales of Assets."
SEC Reports. Notwithstanding that the Company may not be required to be
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Company shall file with the SEC, and within 15 days after the reports
are filed, provide the trustee and the holders, at their addresses as set forth
in the register of notes, with the annual reports and the information, documents
and other reports that are otherwise required pursuant to Section 13 and 15(d)
of the Exchange Act. In addition, following the registration of the common stock
of the Company pursuant to Section 12(b) or 12(g) of the Exchange Act, the
Company shall furnish to the trustee and the holders, promptly upon their
becoming available, copies of the Company's annual report to stockholders and
any other information provided by the Company to its public stockholders
generally.
Future Note Guarantors. The Company will cause each subsidiary, other than
foreign subsidiaries, that incurs Indebtedness or that is a guarantor of
Indebtedness incurred pursuant to clause (2)(a) of the covenant described under
"-- Limitation on Indebtedness" to execute and deliver to the trustee a note
guarantee pursuant to which each subsidiary, other than foreign subsidiaries,
will guarantee, jointly and severally, to the holders and the trustee, subject
to subordination provisions substantially the same as those described above, the
full and prompt payment of the notes. Each note guarantee will be limited in
amount to an amount not to exceed the maximum amount that can be guaranteed by
that subsidiary without rendering the note guarantee, as it relates to such
subsidiary, voidable under applicable law relating to fraudulent conveyance or
fraudulent transfer or similar laws affecting the rights of creditors generally.
13
Limitation on Lines of Business. The Company will not, and will not permit
any subsidiary to, engage in any business, other than the pet food business and
other business activities that are incidental or related thereto.
Merger and Consolidation. The Company shall not consolidate with or merge
with or into, or convey, transfer or lease all or substantially all of its
assets to, any person, unless:
- the resulting, surviving or transferee person (the "successor company")
is a corporation organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia and the
successor company, if not the Company, expressly assumes, by supplemental
indenture, executed and delivered to the trustee, in form satisfactory to
the trustee, all the obligations of the Company under the notes and the
indenture;
- immediately after giving effect to the transaction, and treating any
Indebtedness that becomes an obligation of the successor company or any
subsidiary of the successor company as a result of the transaction as
having been incurred by the successor company or that subsidiary at the
time of the transaction, no default shall have occurred and be
continuing;
- immediately after giving effect to the transaction, the successor company
would be able to incur at least an additional $1.00 of Indebtedness
pursuant to paragraph (1) of "-- Limitation on Indebtedness;"
- immediately after giving effect to the transaction, the successor company
will have Consolidated Net Worth in an amount that is not less than the
Consolidated Net Worth of the Company immediately prior to the
transaction; and
- the Company shall have delivered to the trustee an officers' certificate
and an opinion of counsel, each stating that the consolidation, merger or
transfer and the supplemental indenture, if any, comply with the
indenture.
The successor company will succeed to, and be substituted for, and may
exercise every right and power of, the Company under the indenture, but the
predecessor, the Company, in the case of a lease of all or substantially all of
its assets, will not be released from the obligation to pay the principal of and
interest on the notes.
Notwithstanding the foregoing clauses, any subsidiary of the Company may
consolidate with, merge into or transfer all or part of its properties and
assets to the Company or another wholly-owned subsidiary of the Company, and the
Company may merge with an Affiliate incorporated solely for the purpose of
reincorporating the Company in another jurisdiction to realize tax or other
benefits.
EVENTS OF DEFAULT
An event of default is defined in the indenture as:
(1) a default by the Company in any payment of interest on any note
when due and payable, continued for 30 days,
(2) a default by the Company in the payment of principal of any note
when due and payable at its stated maturity, upon optional redemption, upon
required repurchase, upon declaration or otherwise,
(3) the failure by the Company to comply with its obligations under
"-- Merger and Consolidation" above,
(4) the failure by the Company to comply for 30 days after notice with
any of its obligations under the covenants described under "-- Change of
Control" or under "-- Certain Covenants" above, in each case, other than a
failure to purchase notes, which shall constitute an event of default,
other than "-- Merger and Consolidation,"
(5) the failure by the Company to comply for 60 days after notice with
its other agreements contained in the indenture,
14
(6) Indebtedness of the Company or any subsidiary is not paid within
any applicable grace period after final maturity or is accelerated by the
holders thereof because of a default and the total amount of such
Indebtedness unpaid or accelerated exceeds $5.0 million and the default
shall not have been cured or the acceleration rescinded within a 10-day
period (the "cross acceleration provision"),
(7) certain events of bankruptcy, insolvency or reorganization of the
Company or a significant subsidiary (the "bankruptcy provisions"),
(8) any judgment or decree for the payment of money in excess of $5.0
million, to the extent not covered by insurance, is entered against the
Company or a significant subsidiary and the judgment or decree shall remain
undischarged or unstayed for a period of 60 days after it becomes final and
non-appealable (the "judgment default provision") or
(9) the failure of any note guarantee to be in full force and effect,
except as contemplated by the terms thereof, or the denial or
disaffirmation by any note guarantor of its obligations under the indenture
or any note guarantee if such default continues for 10 days.
However, a default under clauses (4) and (5) will not constitute an event
of default until the trustee or the holders of at least 25% in principal amount
of the outstanding notes notify the Company of the default and the Company does
not cure the default within the time specified in clauses (4) and (5) hereof
after receipt of the notice.
If an event of default occurs and is continuing, the trustee or the holders
of at least 25% in principal amount of the outstanding notes by notice to the
Company may declare the principal of and accrued and unpaid interest on all the
notes to be due and payable. Upon such a declaration, the principal and accrued
and unpaid interest shall be due and payable immediately. If an event of default
relating to certain events of bankruptcy, insolvency or reorganization of the
Company occurs and is continuing, the principal of and accrued and unpaid
interest on all the notes will become and be immediately due and payable without
any declaration or other act on the part of the trustee or any holders. Under
certain circumstances, the holders of a majority in principal amount of the
outstanding notes may rescind any such acceleration with respect to the notes
and its consequences.
Subject to the provisions of the indenture relating to the duties of the
trustee, if an event of default occurs and is continuing, the trustee will be
under no obligation to exercise any of the rights or powers under the indenture
at the request or direction of any of the holders unless the holders have
offered to the trustee reasonable indemnity or security against any loss,
liability or expense. Except to enforce the right to receive payment of
principal, premium, if any, or interest when due, no holder may pursue any
remedy with respect to the indenture or the notes unless:
- the holder has previously given the trustee notice that an event of
default is continuing,
- holders of at least 25% in principal amount of the outstanding notes have
requested the trustee to pursue the remedy,
- the holders have offered the trustee reasonable security or indemnity
against any loss, liability or expense,
- the trustee has not complied with their request within 60 days after
receipt of the request and the offer of security or indemnity and
- the holders of a majority in principal amount of the outstanding notes
have not given the trustee a direction that, in the opinion of the
trustee, is inconsistent with the request within that 60-day period.
Subject to certain restrictions, the holders of a majority in principal
amount of the outstanding notes are given the right to direct the time, method
and place of conducting any proceeding for any remedy available to the trustee
or of exercising any trust or power conferred on the trustee. The trustee,
however, may refuse to follow any direction that conflicts with law or the
indenture or that the trustee determines is unduly prejudicial to the rights of
any other holder or that would involve the trustee in personal liability. Prior
to taking any
15
action under the indenture, the trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action.
The indenture provides that if a default occurs and is continuing and is
known to the trustee, the trustee must mail to each holder notice of the default
within 90 days after it occurs. Except in the case of a default in the payment
of principal of, premium, if any, or interest on any note, the trustee may
withhold notice if and so long as a committee of its trust officers in good
faith determines that withholding notice is in the interests of the holders of
notes. In addition, the Company is required to deliver to the trustee, within
120 days after the end of each fiscal year, a certificate indicating whether the
signers thereof know of any default that occurred during the previous year. The
Company also is required to deliver to the trustee, within 30 days after the
occurrence thereof, written notice of any events that would constitute certain
defaults, their status and what action the Company is taking or proposes to take
in respect thereof.
AMENDMENTS AND WAIVERS
Subject to certain exceptions, the indenture may be amended with the
consent of the holders of a majority in principal amount of the notes then
outstanding and any past default or compliance with any provisions may be waived
with the consent of the holders of a majority in principal amount of the notes
then outstanding. However, without the consent of each holder of an outstanding
note affected, no amendment may, among other things:
- reduce the amount of notes whose holders must consent to an amendment,
- reduce the rate of or extend the time for payment of interest on any
note,
- reduce the principal of or extend the stated maturity of any note,
- reduce the premium payable upon the redemption or repurchase of any note
or change the time at which any note may be redeemed as described under
"--Optional Redemption" above,
- make any note payable in money other than that stated in the note,
- make any change to the subordination provisions of the indenture that
adversely affects the rights of any holder of the notes,
- impair the right of any holder to receive payment of principal of and
interest on the holder's notes on or after the due dates therefor or to
institute suit for the enforcement of any payment on or with respect to
the holder's notes, or
- make any change in the amendment provisions that require each holder's
consent or in the waiver provisions.
Without the consent of any holder, the Company and the trustee may amend
the indenture to:
- cure any ambiguity, omission, defect or inconsistency, to provide for the
assumption by a successor corporation of the obligations of the Company
under the indenture,
- provide for uncertificated notes in addition to or in place of
certificated notes, provided that the uncertificated notes are issued in
registered form for purposes of Section 163(f) of the Internal Revenue
Code of 1986, or in a manner such that the uncertificated notes are
described in Section 163(f) (2) (B) of the Internal Revenue Code of 1986,
- add guarantees with respect to the notes,
- secure the notes,
- add to the covenants of the Company for the benefit of the holders of the
notes, or
- surrender any right or power conferred upon the Company, to make any
change that does not adversely affect the rights of any holder or to
comply with any requirement of the SEC in connection with the
qualification of the indenture under the Trust Indenture Act.
16
However, no amendment may be made to the subordination provisions of the
indenture that adversely affects the rights of any holder of Senior Indebtedness
or Guarantor Senior Indebtedness then outstanding unless the holders of that
Senior Indebtedness or Guarantor Senior Indebtedness, or any group or
representative thereof authorized to give a consent, consent to the change.
The consent of the holders is not necessary under the indenture to approve
the particular form of any proposed amendment. It is sufficient if the consent
approves the substance of the proposed amendment. After an amendment under the
indenture becomes effective, the Company is required to mail to the holders a
notice briefly describing the amendment. However, the failure to give notice to
all the holders, or any defect therein, will not impair or affect the validity
of the amendment.
DEFEASANCE
The Company at any time may terminate all its obligations under the notes
and the indenture and all obligations of the Subsidiary Guarantors under the
Subsidiary Guarantee and this indenture ("legal defeasance"), except for certain
obligations, including those respecting the defeasance trust and obligations to
register the transfer or exchange of the notes, to replace mutilated, destroyed,
lost or stolen notes and to maintain a registrar and paying agent in respect of
the notes. The Company at any time may terminate its obligations under covenants
described under "-- Certain Covenants," other than "-- Merger and
Consolidation," the operation of the cross acceleration provision, the
bankruptcy provisions with respect to subsidiaries and the judgment default
provision described under "-- Events of Default" above and the limitations
contained under "-- Certain Covenants -- Merger and Consolidation" above
("covenant defeasance").
The Company may exercise its legal defeasance option notwithstanding its
prior exercise of its covenant defeasance option. If the Company exercises its
legal defeasance option, payment of the notes may not be accelerated because of
an event of default with respect thereto. If the Company exercises its covenant
defeasance option, payment of the notes may not be accelerated because of an
event of default specified in clause (4), (6), (7) with respect only to
subsidiaries, (8) or (9) under "-- Events of Default" above or because of the
failure of the Company to comply with certain clauses under "-- Certain
Covenants -- Merger and Consolidation" above.
In order to exercise either defeasance option, the Company must irrevocably
deposit in trust with the trustee money or U.S. Government Obligations for the
payment of principal, premium, if any, and interest on the notes to redemption
or maturity, as the case may be, and must comply with certain other conditions,
including delivery to the trustee of an opinion of counsel to the effect that
holders of the notes will not recognize income, gain or loss for federal income
tax purposes as a result of the deposit and defeasance and will be subject to
federal income tax on the same amount and in the same manner and at the same
times as would have been the case if the deposit and defeasance had not
occurred, and, in the case of legal defeasance only, the opinion of counsel must
be based on a ruling of the Internal Revenue Service or other change in
applicable federal income tax law.
THE TRUSTEE
Wilmington Trust Company is the trustee under the indenture.
GOVERNING LAW
The indenture provides that it and the notes will be governed by, and
construed in accordance with, the laws of the State of New York without giving
effect to applicable principles of conflicts of law to the extent that the
application of the law of another jurisdiction would be required thereby.
CERTAIN DEFINITIONS
Set forth below are certain defined terms used in the indenture. Reference
is made to the indenture for a full disclosure of all of the following terms, as
well as any other capitalized terms used herein for which no definition is
provided.
17
"Additional Assets" means:
(1) any property or assets, other than Indebtedness and capital stock,
to be used by the Company or a subsidiary in the pet food business and
other business activities that are incidental or related thereto;
(2) the capital stock of a person that becomes a subsidiary as a
result of the acquisition of that capital stock by the Company or another
subsidiary; or (3) capital stock constituting a minority interest in any
person that at the time is a subsidiary; provided, however, that, in the
case of clauses (2) and (3), the subsidiary is primarily engaged in the pet
food business and other business activities that are incidental or related
thereto.
"Affiliate" of any specified person means any other person, directly or
indirectly, controlling or controlled by or under direct or indirect common
control with the specified person, any person who is a director or officer of
that person or any subsidiary of that person. For the purposes of this
definition, "control" when used with respect to any person means the power to
direct the management and policies of that person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing. For purposes of the covenants described under "Certain
Covenants -- Limitation on Sales of Assets," "-- Limitation on Restricted
Payments," "-- Limitation on Sale of Subsidiary Capital Stock" and
"-- Limitation on Affiliate Transactions" only, "Affiliate" shall also mean any
beneficial owner of shares representing 5% or more of the total voting power of
the voting stock, on a fully diluted basis, of the Company or of rights or
warrants to purchase the voting stock, whether or not currently exercisable, and
any person who would be an Affiliate of any such beneficial owner pursuant to
the first sentence hereof.
"Asset Disposition" means any sale, lease, transfer, issuance or other
disposition, or series of related sales, leases, transfers, issuances or
dispositions that are part of a common plan, of shares of capital stock of a
subsidiary, other than directors' qualifying shares, property or other assets
(each referred to for the purposes of this definition as a "disposition") by the
Company or any of its subsidiaries, including any disposition by means of a
merger, consolidation or similar transaction, other than:
- a disposition by a subsidiary to the Company or a wholly-owned subsidiary
or by the Company or a subsidiary to a wholly-owned subsidiary;
- a disposition of inventory or Temporary Cash Investments in the ordinary
course of business;
- a disposition of obsolete equipment or equipment that is no longer useful
in the conduct of the business of the Company and its subsidiaries and
that is disposed of in each case in the ordinary course of business;
- the sale of other assets so long as the fair market value of the assets
disposed of pursuant to this clause does not exceed $1.0 million in the
aggregate in any fiscal year and $5.0 million in the aggregate prior to
May 15, 2007;
- for the purposes of the covenant described under "Certain
Covenants -- Limitation on Sales of Assets" only, a disposition subject
to the covenant described under "-- Limitation on Restricted Payments;"
and
- the disposition of all or substantially all of the assets of the Company
in the manner permitted pursuant to the provisions described under the
caption "-- Certain Covenants -- Merger and Consolidation" or any
disposition that constitutes a change of control pursuant to the
indenture.
"Attributable Indebtedness" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value, discounted at the
interest rate borne by the notes, compounded annually, of the total obligations
of the lessee for rental payments during the remaining term of the lease
included in the Sale/Leaseback Transaction, including any period for which the
lease has been extended.
"Bank Indebtedness" means any and all amounts payable under or in respect
of the senior credit agreement and any Indebtedness that is incurred to refund,
refinance, replace, renew, repay or extend (including pursuant to any defeasance
or discharge mechanism) Indebtedness under such senior credit
18
agreement including Indebtedness that refinances such Indebtedness, as amended
from time to time, including principal, premium (if any), interest (including
interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company whether or not a claim for post filing
interest is allowed in such proceedings), fees, charges, expenses, reimbursement
obligations, guarantees and all other amounts payable thereunder or in respect
thereof (including, without limitation, cash collateralization of letters of
credit).
"Capitalized Lease Obligations" means an obligation that is required to be
classified and accounted for as a capitalized lease for financial reporting
purposes in accordance with GAAP, and the amount of Indebtedness represented by
such obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP, and the stated maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date the lease may be terminated without penalty.
"Consolidated Cash Flow" for any period means the Consolidated Net Income
for that period, plus, to the extent deducted in calculating the Consolidated
Net Income:
- income tax expense,
- Consolidated Interest Expense,
- depreciation expense,
- amortization expense, in each case for that period,
- other non-cash charges reducing Consolidated Net Income, excluding any
non-cash charge to the extent that it represents an accrual of or reserve
for cash charges in any future period or amortization of a prepaid cash
expense that was paid in a prior period,
- expenses and non-recurring fees arising from the merger, transition costs
and expenses of integrating the former operations of Windy Hill Pet Food
Company, Inc. (now part of the operations of the Company) and the Company
and the costs, expenses and fees arising from the issuance of the
outstanding notes and the consummation of the transactions contemplated
by senior credit agreement,
in each case for such period, and minus, to the extent not already deducted in
calculating Consolidated Net Income, the aggregate amount of "earnout" payments
paid in cash during the period in connection with acquisitions previously made
by the Company and non-cash items increasing Consolidated Net Income for the
period.
"Consolidated Coverage Ratio" as of any date of determination means the
ratio of the aggregate amount of Consolidated Cash Flow for the period of the
most recent four consecutive fiscal quarters ending prior to the date of the
determination to Consolidated Interest Expense for those four fiscal quarters;
provided, however, that:
(1) if the Company or any of its subsidiaries has incurred any
Indebtedness since the beginning of that period that remains outstanding or
if the transaction giving rise to the need to calculate the Consolidated
Coverage Ratio is an incurrence of Indebtedness, or both, Consolidated Cash
Flow and Consolidated Interest Expense for the period shall be calculated
after giving effect on a pro forma basis to the Indebtedness as if the
Indebtedness had been incurred on the first day of that period and the
discharge of any other Indebtedness repaid, repurchased, defeased or
otherwise discharged with the proceeds of the new Indebtedness as if the
discharge had occurred on the first day of the period;
(2) if since the beginning of the period the Company or any of its
subsidiaries shall have made any Asset Disposition, Consolidated Cash Flow
for the period shall be reduced by an amount equal to the Consolidated Cash
Flow, if positive, attributable to the assets that are the subject of the
Asset Disposition for the period or increased by an amount equal to the
Consolidated Cash Flow, if negative, attributable thereto for the period,
and Consolidated Interest Expense for the period shall be reduced by an
amount equal to the Consolidated Interest Expense attributable to any
Indebtedness of the Company or any of its subsidiaries repaid, repurchased,
defeased or otherwise discharged with respect to the Company and its
continuing subsidiaries in connection with the Asset Disposition for that
period, or, if the capital stock of
19
any subsidiary of the Company is sold, the Consolidated Interest Expense
for the period directly attributable to the Indebtedness of that subsidiary
to the extent the Company and its continuing subsidiaries are no longer
liable for that Indebtedness after the sale;
(3) if since the beginning of the period the Company or any of its
subsidiaries, by merger or otherwise, shall have made an investment in any
subsidiary of the Company, or any person that becomes a subsidiary of the
Company, or an acquisition of assets, including any investment in a
subsidiary of the Company or any acquisition of assets occurring in
connection with a transaction causing a calculation to be made hereunder,
which constitutes all or substantially all of an operating unit of a
business, Consolidated Cash Flow and Consolidated Interest Expense for the
period shall be calculated after giving pro forma effect thereto, including
the incurrence of any Indebtedness and including the pro forma expenses and
cost reductions calculated on a basis consistent with Regulation S-X of the
Securities Act, as if such investment or acquisition occurred on the first
day of the period; and
(4) if since the beginning of the period any person, that subsequently
became a subsidiary of the Company or was merged with or into the Company
or any subsidiary of the Company since the beginning of the period shall
have made any Asset Disposition or any investment or acquisition of assets
that would have required an adjustment pursuant to clause (2) or (3) above
if made by the Company or a subsidiary of the Company during that period,
Consolidated Cash Flow and Consolidated Interest Expense for that period
shall be calculated after giving pro forma effect thereto as if the Asset
Disposition, investment or acquisition occurred on the first day of the
period.
For purposes of this definition, whenever pro forma effect is to be given
to an acquisition of assets, the amount of income or earnings relating thereto
and the amount of Consolidated Interest Expense associated with any Indebtedness
incurred in connection therewith, the pro forma calculations shall be determined
in good faith by a responsible financial or accounting officer of the Company.
If any Indebtedness bears a floating rate of interest and is being given pro
forma effect, the interest expense on that Indebtedness shall be calculated as
if the rate in effect on the date of determination had been the applicable rate
for the entire period, taking into account any interest rate agreement
applicable to that Indebtedness if the interest rate agreement has a remaining
term in excess of 12 months.
"Consolidated Interest Expense" means, for any period, the total interest
expense of the Company and its subsidiaries, plus, to the extent not included in
that interest expense:
- interest expense attributable to Capitalized Lease Obligations and
imputed interest with respect to Attributable Indebtedness;
- amortization of debt discount and debt issuance cost, other than those
debt discounts and debt issuance costs incurred on November 12, 1998;
- capitalized interest;
- non-cash interest expense;
- commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing;
- interest actually paid by the Company or any subsidiary under any
guarantee of Indebtedness or other obligation of any other person;
- net costs associated with currency agreements and interest rate
agreements, including amortization of fees;
- the product of all preferred stock dividends in respect of all preferred
stock of subsidiaries of the Company and Disqualified Stock of the
Company held by persons other than the Company or a wholly-owned
subsidiary multiplied by a fraction, the numerator of which is one and
the denominator of which is one minus the then current combined federal,
state and local statutory tax rate of the Company, expressed as a
decimal, in each case, determined on a consolidated basis in accordance
with GAAP; and
20
- the cash contributions to any employee stock ownership plan or similar
trust to the extent those contributions are used by the plan or trust to
pay interest or fees to any person, other than the Company, in connection
with Indebtedness incurred by the plan or trust.
"Consolidated Net Income" means, for any period, the net income (loss) of
the Company and its consolidated subsidiaries; provided, however, that there
shall not be included in Consolidated Net Income:
(1) any net income (loss) of any person if the person is not a
subsidiary, except that subject to the limitations contained in clause (4)
below, the Company's equity in the net income of any person for the period
shall be included in Consolidated Net Income up to the aggregate amount of
cash actually distributed by the person during that period to the Company
or a subsidiary as a dividend or other distribution, subject, in the case
of a dividend or other distribution to a subsidiary, to the limitations
contained in clause (3) below, and the Company's equity in a net loss of
any such person for that period shall be included in determining
Consolidated Net Income;
(2) any net income (loss) of any person acquired by the Company or a
subsidiary in a pooling of interests transaction for any period prior to
the date of acquisition;
(3) any net income (loss) of any subsidiary if the subsidiary is
subject to restrictions, directly or indirectly, on the payment of
dividends or the making of distributions by that subsidiary, directly or
indirectly, to the Company, except that subject to the limitations
contained in (4) below, the Company's equity in the net income of any such
subsidiary for such period shall be included in Consolidated Net Income up
to the aggregate amount of cash that could have been distributed by the
subsidiary during the period to the Company or another subsidiary as a
dividend, subject, in the case of a dividend that could have been made to
another subsidiary, to the limitation contained in this clause, and the
Company's equity in a net loss of any such subsidiary for the period shall
be included in determining Consolidated Net Income;
(4) any gain, but not loss, realized upon the sale or other
disposition of any assets of the Company or its consolidated subsidiaries,
including pursuant to any Sale/Leaseback Transaction, that are not sold or
otherwise disposed of in the ordinary course of business and any gain or
loss realized upon the sale or other disposition of any capital stock of
any person;
(5) any extraordinary gain or loss; and
(6) the cumulative effect of a change in accounting principles.
"Consolidated Net Worth" means the total of the amounts shown on the
balance sheet of the Company and its consolidated subsidiaries, determined on a
consolidated basis in accordance with GAAP, as of the end of the most recent
fiscal quarter of the Company ending prior to the taking of any action for the
purpose of which the determination is being made as the par or stated value of
all outstanding capital stock of the Company plus paid in capital or capital
surplus relating to such capital stock plus any retained earnings or earned
surplus less any accumulated deficit and any amounts attributable to
Disqualified Stock.
"Designated Senior Indebtedness" means the Indebtedness incurred in
connection with the senior credit facility and any other Senior Indebtedness
that, at the date of determination, has an aggregate principal amount
outstanding of, or under which, at the date of determination, the holders
thereof are committed to lend up to, at least $5.0 million and is specifically
designated by the Company in the instrument evidencing or governing such Senior
Indebtedness as "Designated Senior Indebtedness" for purposes of the indenture.
"Disqualified Stock" means, with respect to any person, any capital stock
of that person that by its terms, or by the terms of any security into which it
is convertible or for which it is exchangeable, or upon the happening of any
event:
- matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise;
- is convertible or exchangeable at the option of the holder for
Indebtedness or Disqualified Stock; or
21
- is redeemable at the option of the holder thereof, in whole or in part,
in each case on or prior to 123 days after the stated maturity of the
notes.
"Equity Investors" means the equity owners, including those holding
warrants, of Doane Pet Care Enterprises, Inc. on November 12, 1998.
"Guarantor Senior Subordinated Indebtedness" means, with respect to a
Subsidiary Guarantor, the obligations of such Subsidiary Guarantor under the
Subsidiary Guarantee and any other Indebtedness of such Subsidiary Guarantor
that specifically provides that such Indebtedness is to rank pari passu in right
of payment with the obligations of such Subsidiary Guarantor under the
Subsidiary Guarantee and is not subordinated by its terms in right of payment to
any Indebtedness or other obligation of such Subsidiary Guarantor which is not
Guarantor Senior Indebtedness of such Subsidiary Guarantor.
"Guarantor Subordinated Obligation" means, with respect to a Subsidiary
Guarantor, any Indebtedness of such Subsidiary Guarantor (whether outstanding on
November 12, 1998 or thereafter Incurred) which is subordinate or junior in
right of payment to the obligations of such Subsidiary Guarantor under the
Subsidiary Guarantee pursuant to a written agreement.
"Indebtedness" means, with respect to any person on any date of
determination, without duplication:
(1) the principal of and premium, if any, in respect of indebtedness
of that person for borrowed money,
(2) the principal of and premium, if any, in respect of obligations of
that person evidenced by bonds, debentures, notes or other similar
instruments,
(3) all obligations of that person in respect of letters of credit or
other similar instruments, including reimbursement obligations with respect
thereto, other than obligations with respect to letters of credit securing
obligations (other than obligations described in clauses (1), (2) and (5))
entered into in the ordinary course of business of such person to the
extent that such letters of credit are not drawn upon or, if and to the
extent drawn upon, the drawing is reimbursed no later than the third
business day following receipt by the person of a demand for reimbursement
following payment on the letter of credit,
(4) all obligations of that person to pay the deferred and unpaid
purchase price of property or services, other than contingent or "earn-out"
payment obligations and trade payables and accrued expenses incurred in the
ordinary course of business, which purchase price is due more than six
months after the date of placing such property in service or taking
delivery and title thereto or the completion of such services,
(5) all Capitalized Lease Obligations and all Attributable
Indebtedness of that person,
(6) all Indebtedness of other persons secured by a lien on any asset
of that person, whether or not such Indebtedness is assumed by that person,
provided, however, that the amount of Indebtedness of such person shall be
the lesser of the fair market value of the asset at the date of
determination and the amount of such Indebtedness of such other persons,
(7) all Indebtedness of other persons to the extent guaranteed by such
person,
(8) the amount of all obligations of such person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock or,
with respect to any subsidiary of the Company, any preferred stock, but
excluding, in each case, any accrued dividends, and
(9) to the extent not otherwise included in this definition,
obligations of such person under currency agreements and interest rate
agreements.
The amount of Indebtedness of any person at any date shall be the
outstanding balance at that date of all unconditional obligations as described
above as such amount would be reflected on a balance sheet in accordance with
GAAP and the maximum liability, upon the occurrence of the contingency giving
rise to the obligation, of any contingent obligations at that date.
22
"Net Available Cash" from an Asset Disposition means cash payments
received, including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or otherwise, but only as
and when received, but excluding any other consideration received in the form of
assumption by the acquiring person of Indebtedness or other obligations relating
to the properties or assets that are the subject of such Asset Disposition or
received in any other noncash form, therefrom, in each case net of:
- all legal, title and recording tax expenses, commissions and other fees
and expenses incurred, and all federal, state, foreign and local taxes
required to be paid or accrued as a liability under GAAP, as a
consequence of such Asset Disposition;
- all payments made on any Indebtedness that is secured by any assets
subject to such Asset Disposition, in accordance with the terms of any
lien upon such assets, or which must by its terms, or in order to obtain
a necessary consent to such Asset Disposition, or by applicable law, be
repaid out of the proceeds from such Asset Disposition; -- all
distributions and other payments required to be made to any person owning
a beneficial interest in assets subject to sale or minority interest
holders in subsidiaries or joint ventures as a result of such Asset
Disposition;
- the deduction of appropriate amounts to be provided by the seller as a
reserve, in accordance with GAAP, against any liabilities associated with
the assets disposed of in such Asset Disposition and retained by the
Company or any subsidiary of the Company after such Asset Disposition;
and
- any portion of the purchase price from an Asset Disposition placed in
escrow, whether as a reserve for adjustment of the purchase price, for
satisfaction of indemnities in respect of such Asset Disposition or
otherwise in connection with such Asset Disposition, provided, however,
that upon the termination of such escrow, Net Available Cash shall be
increased by any portion of funds therein released to the Company or any
subsidiary.
"Net Cash Proceeds," with respect to any issuance or sale of capital stock
or Indebtedness, means the cash proceeds of the issuance or sale net of
attorneys' fees, accountants' fees, underwriters' or placement agents' fees,
discounts or commissions and brokerage, consultant and other fees actually
incurred in connection with the issuance or sale and net of taxes paid or
payable as a result of the issuance or sale.
"Permitted Holders" means the Equity Investors and their respective
Affiliates.
"Permitted Investment" means:
- any investment in a subsidiary of the Company or a person that will, upon
making the investment, become a subsidiary; provided, however, that the
primary business of the subsidiary is the pet food business and other
business activities that are incidental or related thereto;
- any investment in another person if as a result of such investment such
other person is merged or consolidated with or into, or transfers or
conveys all or substantially all its assets to, the Company or a
subsidiary of the Company; provided, however, that the person's primary
business is the pet food business and other business activities that are
incidental or related thereto;
- any investment in Temporary Cash Investments;
- receivables owing to the Company or any of its subsidiaries, if created
or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms;
- payroll, travel and similar advances to cover matters that are expected
at the time of such advances ultimately to be treated as expenses for
accounting purposes and that are made in the ordinary course of business;
- loans or advances to employees made in the ordinary course of business of
the Company or such subsidiary;
- stock, obligations or securities received in settlement of debts created
in the ordinary course of business and owing to the Company or any of its
subsidiaries or in satisfaction of judgments or claims;
23
- investments the payment for which consists exclusively of equity
securities, exclusive of Disqualified Stock, of the Company;
- any investment that existed on November 12, 1998;
- loans or advances to employees and directors to purchase equity
securities of the Company or Doane Pet Care Enterprises, Inc.; provided
that the aggregate amount of loans and advances shall not exceed $2.0
million at any time outstanding;
- any investment in another person to the extent such investment is
received by the Company or any subsidiary as consideration for Asset
Disposition effected in compliance with the covenant under
"-- Limitations on Sales of Assets;" -- prepayment and other credits to
suppliers made in the ordinary course of business consistent with the
past practices of the Company and its subsidiaries;
- investments in connection with pledges, deposits, payments or performance
bonds made or given in the ordinary course of business in connection with
or to secure statutory, regulatory or similar obligations, including
obligations under health, safety or environmental obligations; and
- any investment in another person provided that the aggregate investments
made pursuant to this clause shall not exceed in the aggregate $4.0
million at any one time outstanding, measured as of the date made and
without giving effect to subsequent changes in value, provided further
that such amount shall be increased by an amount equal to any return of
capital received from any investment.
"Sale/Leaseback Transaction" means an arrangement relating to property now
owned or hereafter acquired whereby the Company or a subsidiary transfers that
property to a person and the Company or a subsidiary leases it from that person.
"Senior Subordinated Indebtedness" means the notes and any other
Indebtedness of the Company that specifically provides that such Indebtedness is
to rank equally with the notes in right of payment and is not subordinated by
its terms in right of payment to any Indebtedness or other obligation of the
Company that is not Senior Indebtedness.
"Subordinated Obligation" means any Indebtedness of the Company, whether
outstanding on November 12, 1998 or thereafter incurred, that is subordinate or
junior in right of payment to the notes pursuant to a written agreement.
"Subsidiary Guarantee" means any guarantee pursuant to a supplemental
indenture which may from time to time be executed and delivered by a subsidiary
of the company pursuant to the indenture.
"Subsidiary Guarantors" means any Subsidiary which is required to guarantee
the Notes pursuant to the covenant described under "-- Future Note Guarantors."
"Temporary Cash Investments" means any of the following:
(1) any investment in direct obligations of the United States of
America or any agency thereof or obligations guaranteed by the United
States of America or any agency thereof;
(2) investments in time deposit accounts, certificates of deposit and
money market deposits maturing within 180 days of the date of acquisition
thereof issued by a bank or trust company that is organized under the laws
of the United States of America, any state thereof or any foreign country
recognized by the United States of America having capital, surplus and
undivided profits aggregating in excess of $250.0 million, or the foreign
currency equivalent thereof, and whose long-term debt, or whose parent
holding company's long-term debt, is rated "A," or a similar equivalent
rating, or higher by at least one nationally recognized statistical rating
organization, as defined in Rule 436 under the Securities Act;
(3) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clause (1) above entered
into with a bank meeting the qualifications described in clause (2) above;
or
24
(4) investments in commercial paper, maturing not more than 180 days
after the date of acquisition, issued by a corporation, other than an
Affiliate of the Company, organized and in existence under the laws of the
United States of America or any foreign country recognized by the United
States of America with a rating at the time as of which any investment
therein is made of "P-1" (or higher) according to Moody's Investors
Service, Inc. or "A-1" (or higher) according to Standard and Poor's Ratings
Group.
"U.S. Government Obligations" means direct obligations, or certificates
representing an ownership interest in obligations, of the United States of
America, including any agency or instrumentality thereof, for the payment of
which the full faith and credit of the United States of America is pledged and
that are not callable or redeemable at the issuer's option.
PLAN OF DISTRIBUTION
This prospectus has been prepared for use by CSFB and JPMorgan in
connection with offers and sales of the notes in market-making transactions in
the notes. Such sales will be made at negotiated prices related to prevailing
market prices at the time of sale. CSFB and JPMorgan may act as principal or
agent in such transactions. CSFB and JPMorgan have advised us that they
currently make a market in the notes. However, neither CSFB nor JPMorgan is
obligated to do so, and any such market-making may be discontinued at any time
without notice. Accordingly, no assurance can be given as to the liquidity of,
or the trading market for, the notes.
We have agreed to indemnify CSFB and JPMorgan against certain liabilities,
including liabilities under the Securities Act of 1933, as amended, and to
contribute to payments which CSFB and JPMorgan might be required to make in
respect thereof.
For a description of the relationship between each of CSFB and JPMorgan and
us, please see Item 13 -- "Certain Relationships and Related Transactions" of
our Form 10-K.
LEGAL MATTERS
The validity of the notes has been passed upon for Doane by Vinson & Elkins
L.L.P., Houston, Texas.
EXPERTS
The consolidated financial statements of Doane Pet Care Company as of
December 29, 2001 and December 28, 2002, and for each of the years in the
three-year period ended December 28, 2002, have been incorporated by reference
herein and in the registration statement in reliance upon the report of KPMG
LLP, independent accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing. The audit report
covering fiscal 2002 consolidated financial statements refers to a change in
accounting for goodwill and other intangible assets.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS, OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, IN CONNECTION
WITH ANY OFFERING CONTEMPLATED HEREBY, AND, IF GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY DOANE OR
ANY AGENT OR DEALER. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF DOANE SINCE THE DATE HEREOF. THIS PROSPECTUS
SHALL NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY
SECURITIES BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFERING OR SOLICITATION
IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS
NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH
OFFER OR SOLICITATION.
25
DOANE PET CARE COMPANY
9 3/4% SENIOR SUBORDINATED NOTES
DUE 2007
PROSPECTUS
, 2003
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Doane Pet Care Company has authority under Section 145 of the General
Corporation Law (the "DGCL") of the State of Delaware, in which Doane is
incorporated, to indemnify its officers, directors, employees and agents to the
extent provided in such statute. Article VI of Doane's Bylaws provides for
indemnification of Doane's officers, directors, employees and agents.
Section 145 of the DGCL authorizes, among other things, a corporation to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation), by reason of the fact that such person is or was
a director, officer, employee or agent of such corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided that such person acted
in good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe such person's
conduct was unlawful. A Delaware corporation may indemnify past or present
officers and directors of such corporation, or of another corporation or other
enterprise at the former corporation's request, in an action by or in the right
of the corporation to procure a judgment in its favor under the same conditions,
except that no indemnification is permitted without judicial approval if such
person is adjudged to be liable to the corporation. Where a present or former
officer or director is successful on the merits or otherwise in defense of any
action referred to above, or in defense of any claim, issue or matter therein,
the corporation must indemnify such person against the expenses (including
attorney's fees) that such person actually and reasonably incurred in connection
therewith. Section 145 further provides that any indemnification shall be made
by the corporation only as authorized in each specific case upon a determination
by (i) a majority vote of the directors who were not parties to such action,
suit or proceeding, even though less than a quorum, (ii) a committee of such
directors designated by a majority vote of such directors, even though less than
a quorum, (iii) independent counsel if a quorum of disinterested directors so
directs or (iv) the corporation's stockholders. Section 145 provides that
indemnification pursuant to its provision is not exclusive of other rights of
indemnification to which a person may be entitled under any bylaw, agreement,
vote of stockholders or disinterested directors or otherwise.
Section 145 of the DGCL also empowers Doane to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of Doane, or is or was serving at the request of Doane as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against liability asserted against or incurred by
such person in any such capacity, whether or not Doane would have the power to
indemnify such person against such liability under the provisions of Section
145. Doane has purchased and maintains a directors' and officers' liability
policy for such purposes.
Section 102 of the DGCL permits the limitation of directors' personal
liability to Doane or its stockholders for monetary damage for breach of
fiduciary duties as a director except in certain situations including the breach
of a director's duty of loyalty or acts or omissions not made in good faith.
Article Tenth of Doane's Certificate of Incorporation limits directors' personal
liability to the extent permitted by the DGCL.
Section 5 of Article VI of Doane's Bylaws provides that Doane may maintain
insurance, at its expense, to protect itself and any of its directors, officers,
employees or agents, or any person serving at the request of Doane as a
director, officer, employee or agent of another corporation, partnership, joint
venture, proprietorship, employee benefit plan, trust or other enterprise,
against any expense, liability or loss, whether or not Doane would have the
power to indemnify such person against such expense, liability or loss under the
DGCL.
II-1
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling Doane pursuant to
the foregoing provisions, Doane has been informed that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act of 1933 and is therefore unenforceable.
ITEM 16. EXHIBITS
<Table>
<Caption>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
*4.1 -- Indenture dated November 12, 1998 between Doane Pet Care
Company and Wilmington Trust Company (incorporated by
reference to Exhibit 10.12 of Doane Pet Care Enterprises,
Inc. Registration Statement on Form S-1, Reg. No. 333-61027)
*5.1 -- Opinion of Vinson & Elkins L.L.P. (previously filed as
Exhibit 5.1 of Doane Pet Care Company Registration Statement
on Form S-4, Reg. No. 333-70759)
**12.1 -- Statement regarding computation of ratios
**23.1 -- Independent Auditors' Consent
*23.2 -- Consent of Vinson & Elkins L.L.P. (contained in Exhibit 5.1
hereto)
**24.1 -- Powers of Attorney (included herein)
*25.1 -- Statement of Eligibility of Trustee
</Table>
- ---------------
* Previously filed.
** Filed herewith
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that the undertakings set forth in paragraphs (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities
II-2
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
THE UNDERSIGNED REGISTRANT HEREBY UNDERTAKES THAT, FOR PURPOSES OF
DETERMINING ANY LIABILITY UNDER THE SECURITIES ACT OF 1933, EACH FILING OF THE
REGISTRANT'S ANNUAL REPORT PURSUANT TO SECTION 13(A) OR SECTION 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934 THAT IS INCORPORATED BY REFERENCE IN THIS
REGISTRATION STATEMENT SHALL BE DEEMED TO BE A NEW REGISTRATION STATEMENT
RELATING TO THE SECURITIES OFFERED THEREIN, AND THE OFFERING OF SUCH SECURITIES
AT THAT TIME SHALL BE DEEMED TO BE THE INITIAL BONA FIDE OFFERING THEREOF.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
hereby certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this post-effective
amendment to be signed on its behalf by the undersigned, thereunto authorized,
in the City of Nashville, State of Tennessee on the 7th day of April, 2003.
DOANE PET CARE COMPANY
BY: /s/ PHILIP K. WOODLIEF
------------------------------------
PHILIP K. WOODLIEF
Vice President, Finance and Chief
Financial Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Douglas J. Cahill and Philip K. Woodlief and each
of them, each one of whom may act without the joinder of the other, as his true
and lawful attorney-in-fact to sign on his behalf and in the capacity stated
below and to file any and all amendments and post-effective amendments to this
registration statement, with all exhibits thereto, with the Securities and
Exchange Commission, which amendment or amendments may make such changes and
additions to this registration statement as such attorney-in-fact may deem
necessary or appropriate.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated and on the dates indicated.
<Table>
<Caption>
SIGNATURE TITLE DATE
--------- ----- ----
/s/ GEORGE B. KELLY Chairman of the Board and Director April 7,
------------------------------------------------ 2003
George B. Kelly
/s/ DOUGLAS J. CAHILL President, Chief Executive Officer April 7,
------------------------------------------------ and Director (Principal Executive 2003
Douglas J. Cahill Officer)
/s/ PHILIP K. WOODLIEF Vice President, Finance and Chief April 7,
------------------------------------------------ Financial Officer (Principal 2003
Philip K. Woodlief Financial Officer)
/s/ STEPHEN P. HAVALA Corporate Controller (Principal April 7,
------------------------------------------------ Accounting Officer) 2003
Stephen P. Havala
/s/ LAWRENCE S. BENJAMIN Director April 7,
------------------------------------------------ 2003
Lawrence S. Benjamin
/s/ EDWARD H. D'ALELIO Director April 7,
------------------------------------------------ 2003
Edward H. D'Alelio
/s/ JERRY W. FINNEY, JR. Director April 7,
------------------------------------------------ 2003
Jerry W. Finney, Jr.
/s/ MATHEW J. LORI Director April 7,
------------------------------------------------ 2003
Mathew J. Lori
</Table>
II-4
<Table>
<Caption>
SIGNATURE TITLE DATE
--------- ----- ----
/s/ TERRY R. PEETS Director April 7,
------------------------------------------------ 2003
Terry R. Peets
/s/ STEPHEN C. SHERRILL Director April 7,
------------------------------------------------ 2003
Stephen C. Sherrill
/s/ PAUL E. SUCKOW Director April 7,
------------------------------------------------ 2003
Paul E. Suckow
/s/ JEFFREY C. WALKER Director April 7,
------------------------------------------------ 2003
Jeffrey C. Walker
</Table>
II-5
INDEX TO EXHIBITS
<Table>
<Caption>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
*4.1 -- Indenture dated November 12, 1998 between Doane Pet Care
Company and Wilmington Trust Company (incorporated by
reference to Exhibit 10.12 of Doane Pet Care Enterprises,
Inc. Registration Statement on Form S-1, Reg. No. 333-61027)
*5.1 -- Opinion of Vinson & Elkins L.L.P. (previously filed as
Exhibit 5.1 of Doane Pet Care Company Registration Statement
on Form S-4, Reg. No. 333-70759)
**12.1 -- Statement regarding computation of ratios
**23.1 -- Independent Auditors' Consent
*23.2 -- Consent of Vinson & Elkins L.L.P. (contained in Exhibit 5.1
hereto)
**24.1 -- Powers of Attorney (included herein)
*25.1 -- Statement of Eligibility of Trustee
</Table>
- ---------------
* Previously filed.
** Filed herewith