<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 29, 1997
REGISTRATION STATEMENT NO. 33-98110
================================================================================
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
POST-EFFECTIVE AMENDMENT NO. 1
ON
FORM S-3
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
DOANE PRODUCTS COMPANY
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 2047 43-1350515
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Number) Identification No.)
</TABLE>
WEST 20TH STREET AND STATE LINE ROAD
JOPLIN, MISSOURI 64804
(417) 624-6166
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
------------------------
BOB L. ROBINSON
PRESIDENT AND CHIEF EXECUTIVE OFFICER
DOANE PRODUCTS COMPANY
WEST 20TH STREET AND STATE LINE ROAD
JOPLIN, MISSOURI 64804
(417) 624-6166
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
ALAN P. BADEN CHARLES A. SPEARS, JR.
VINSON & ELKINS L.L.P. DILLOW, SPEARS & EIGHMY, L.L.C.
1001 FANNIN, SUITE 2300 301 WEST PACIFIC, SUITE B
HOUSTON, TEXAS 77002 BRANSON, MISSOURI 65616
(713) 758-2222 (417) 336-3355
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective.
If 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, 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 THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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EXPLANATORY NOTE
This Post-Effective Amendment to the Registration Statement contains a
Prospectus relating to certain market-making transactions in the $160,000,000
10 5/8% Senior Notes due 2006 of Doane Products Company. In order to register
under Rule 415 of the Securities Act of 1933 those Senior 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.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
<PAGE> 3
*******************************************************************************
* Information contained herein is subject to completion or amendment. A *
* registration statement relating to these securities has been filed *
* with the Securities and Exchange Commission. These securities may not *
* be sold nor may offers to buy be accepted prior to the time the *
* registration statement becomes effective. This prospectus shall not *
* constitute an offer to sell or the solicitation of an offer to buy nor *
* shall there be any sale of these securities in any State in which such *
* offer, solicitation or sale would be unlawful prior to registration or *
* qualification under the securities laws of any such State. *
*******************************************************************************
SUBJECT TO COMPLETION DATED APRIL 29, 1997
PROSPECTUS
, 1997
$160,000,000
DOANE PRODUCTS COMPANY
10 5/8% SENIOR NOTES DUE 2006
The 10 5/8% Senior Notes due 2006 (the "Notes") were originally offered
(the "Offering") by Doane Products Company (the "Company") pursuant to a
Prospectus dated February 28, 1996. The Notes bear interest at the rate of
10 5/8% per annum, payable semi-annually in arrears on March 1 and September 1
of each year. The Notes will be redeemable, at the Company's option, in whole or
in part from time to time on or after March 1, 2001, initially at 105.313% of
their principal amount and thereafter at prices declining to 100% at March 1,
2004 until maturity, in each case together with accrued and unpaid interest to
the redemption date. In addition, at any time on or prior to March 1, 1999, the
Company may redeem up to 35% of the aggregate principal amount of the Notes
originally issued with the net cash proceeds of one or more public equity
offerings, at 109.625% of their principal amount, together with accrued and
unpaid interest, if any, to the redemption date; provided that at least $104
million in principal amount of Notes remain outstanding immediately after any
such redemption. Upon a Change of Control (as defined herein), each holder of
Notes will have the right to require the Company to repurchase all or any part
of such holder's Notes at a purchase price equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest to the date of
purchase.
The Notes are general senior unsecured obligations of the Company,
ranking senior to all subordinated indebtedness of the Company and pari passu
in right of payment to all other senior indebtedness of the Company. However,
the Senior Credit Facility (as defined herein) and the Industrial Development
Bonds (as defined herein) are secured by a first priority lien on substantially
all of the Company's assets. Therefore, holders of such secured indebtedness
will have claims to the assets constituting collateral for such indebtedness
that are effectively senior in right of payment to the claims of holders of the
Notes. At December 31, 1996, the Company had outstanding approximately $206.6
million in aggregate principal amount of senior indebtedness (excluding trade
payables and other accrued liabilities), of which approximately $46.6 million
was secured indebtedness. In addition, at December 31, 1996, the Company had
approximately $22.7 million in unused senior secured borrowing capacity under
the Senior Credit Facility. On March 12, 1997, the Company incurred an
additional $6,000,000 in senior secured indebtedness as a result of the issuance
of the Industrial Development Bonds.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
This Prospectus has been prepared for use by Donaldson, Lufkin &
Jenrette Securities Corporation ("DLJSC") in connection with offers and sales
of the Notes that may be made by it from time to time in market-making
transactions at negotiated prices relating to prevailing market prices at the
time of sale. The Company has been advised by DLJSC that it currently makes a
market in the Notes; however, it is not obligated to do so. Any such market
making may be discontinued at any time, and there is no assurance as to the
liquidity of, or trading market for, the Notes. DLJSC may act as principal or
agent in such transactions. See "Plan of Distribution."
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AVAILABLE INFORMATION
The Company is complying with the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). The
registration statement of which this Prospectus forms a part, as well as
reports, proxy statements and other information filed by the Company, may be
inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549; 7 World Trade
Center, New York, New York 10048; and Northwestern Atrium Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material
can be obtained at prescribed rates from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. Such material may
also be accessed electronically by means of the Commission's home page on the
internet at http://www.sec.gov.
This Prospectus constitutes a part of the Post-Effective Amendment on
Form S-3 to the Registration Statement on Form S-1 (together with all
amendments and exhibits thereto, the "Registration Statement") filed with the
Commission under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the Notes. This Prospectus does not contain all of the
information set forth in such Registration Statement, certain parts of which
are omitted in accordance with the rules and regulations of the Commission.
Reference is made to such Registration Statement and to the exhibits thereto for
further information with respect to the 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.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The Company's Annual Report on Form 10-K (and related exhibits) for
the year ended December 31, 1996, previously filed by the Company with the
Commission, is incorporated by reference in this Prospectus.
All documents filed by the Company after the date of this Prospectus
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, 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 which also is or
is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statements as modified or
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superseded shall be deemed, except as so modified or superseded, to constitute
a part of this Prospectus.
The Company will provide without charge to each person to whom a copy
of this Prospectus is delivered, upon written or oral request of such person, a
copy of any or all of the documents referred to above which have been or may be
incorporated by reference in this Prospectus (other than certain exhibits to
such documents). Requests for such documents should be directed to Doane
Products Company, P.O. Box 879, Joplin, Missouri 64802, Attention:
Corporate Secretary (Telephone: (417) 624-6166).
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Notes
in any market making transaction with which this Prospectus may be delivered.
RATIOS OF EARNINGS
TO FIXED CHARGES AND EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
<TABLE>
<CAPTION>
PREDECESSOR PREDECESSOR SUCCESSOR SUCCESSOR
----------- ----------- --------- ---------
NINE THREE
MONTHS MONTHS YEAR
ENDED ENDED ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30, DECEMBER 31, DECEMBER 31,
1992 1993 1994 1995 1995 1996
-------------------------------------------------------------------------
(dollars in thousands)
<S> <C> <C> <C> <C> <C> <C>
RATIO OF EARNINGS TO 22.4x 17.2x 13.1x 5.6x 1.3x .9x
FIXED CHARGES (1)
RATIO OF EARNINGS TO 22.4x 17.2x 13.1x 5.6x 1.1x .8x
COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS (2)
</TABLE>
- ---------------
(1) For the purpose of calculating the ratio of earnings to fixed charges (i)
earnings consist of income before income taxes and extraordinary items plus
fixed charges (including capitalized interest), and (ii) fixed charges consist
of interest (including capitalized interest) on all indebtedness, amortization
of deferred financing costs and that portion of rental expense that management
believes to be representative of interest.
(2) For the purpose of calculating the ratio of earnings to combined fixed
charges and preferred stock dividends (i) earnings consist of income before
income taxes and extraordinary items plus fixed charges (including capitalized
interest), and (ii) fixed charges consist of interest (including capitalized
interest) on all indebtedness, amortization of deferred financing costs and that
portion of rental expense that management believes to be representative of
interest. Dividends on the Company Preferred Stock (as defined herein) are
payable quarterly and are payable through the accretion of liquidation value or
the issuance of additional shares of Company Preferred Stock on each dividend
payment date through September 30, 2000.
3
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THE COMPANY
The Company is the second largest producer of dry pet food products in
the United States, accounting for approximately 22% of the total volume of such
products in 1996, and is the largest producer of private label dry pet food in
the United States. The Company produces, markets and distributes a wide
selection of dry pet food products under private labels for approximately 300
customers, including mass merchandisers, membership clubs, national and
regional grocery chains, specialty pet store chains, farm and feed store
chains, and grocery and feed mill wholesalers and cooperatives. The Company
also manufactures branded pet food products for national pet food companies in
accordance with customer specifications and standards. In addition, the Company
remarkets non-manufactured pet products, manufactures and sells pet food
production equipment and parts, and fabricates other steel products to customer
specifications. The Company manufactures and distributes its pet food products
utilizing twelve manufacturing and warehouse facilities and three additional
distribution warehouse facilities, all of which are located in proximity to
customers, raw materials and transportation networks.
On October 5, 1995, the Company was acquired (the "Acquisition") as a
result of the mergers of two wholly-owned subsidiaries of DPC Acquisition Corp.
("DPCAC") and the Company's predecessor, Doane Products Company (the
"Predecessor"), with the Company being the surviving entity (sometimes referred
to herein as the "Successor"). DPCAC and such subsidiaries were formed to
acquire the Predecessor by a group of investors that included certain
affiliates of DLJSC (the "Investors").
The Acquisition was financed through (i) a senior credit facility (the
"Senior Credit Facility") that provides term loan and revolving loan
borrowings, (ii) the proceeds of the issuance of the Notes, and (iii) a
securities purchase agreement with the Investors providing for the sale of (a)
the Company Preferred Stock and warrants to purchase common stock of DPCAC, and
(b) common stock of DPCAC. As used herein, the term "Acquisition" means the
acquisition of the Company by DPCAC, the refinancing of existing indebtedness
of Predecessor and the payment of related fees and expenses.
The Company has financed a new manufacturing and warehouse facility
through the issuance on March 12, 1997 of $6,000,000 of industrial development
revenue bonds (the "Industrial Development Bonds"), which is secured by a
mortgage lien and security interest in certain real and personal property.
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DESCRIPTION OF THE NOTES
GENERAL
The Notes were issued pursuant to an Indenture dated as of March 1,
1996 (the "Indenture") between the Company and U.S. Trust Company of Texas,
N.A., as trustee (the "Trustee"). A copy of the Indenture has been incorporated
by reference as an exhibit to the Registration Statement of which this
Prospectus is a part. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"). The Notes are
subject to all such terms, and Holders of Notes are referred to the Indenture
and the Trust Indenture Act for a statement thereof. The following summary of
certain provisions of the Indenture does not purport to be complete and is
qualified in its entirety by reference to the Indenture, including the
definitions therein of certain terms used below. The definitions of certain
terms used in the following summary are set forth below under "-- Certain
Definitions."
The Notes are general unsecured obligations of the Company ranking
senior to all subordinated Indebtedness of the Company and pari passu in right
of payment to all other senior Indebtedness of the Company. Holders of secured
Indebtedness of the Company, however, including the lenders under the Senior
Credit Facility and the Industrial Development Bonds, will have claims to the
assets constituting collateral for such Indebtedness that are effectively senior
to the claims of holders of the Notes. At December 31, 1996, the Company had
outstanding approximately $206.6 million in aggregate principal amount of senior
Indebtedness, including approximately $46.6 million of secured Indebtedness. In
addition, at December 31, 1996, the Company had approximately $22.7 million in
unused senior secured borrowing capacity under the Senior Credit Facility. On
March 12, 1997, the Company incurred an additional $6,000,000 in senior secured
Indebtedness as a result of the issuance of the Industrial Development Bonds.
PRINCIPAL, MATURITY AND INTEREST
The Notes are limited in aggregate principal amount to $160 million and
will mature on March 1, 2006. Interest on the Notes accrues at the rate of 10
5/8% per annum and is payable semi-annually in arrears on March 1 and September
1 to Holders of record on the immediately preceding February 15 and August 15.
Interest on the Notes accrues from the most recent date to which interest has
been paid or, if no interest has been paid, from the date of original issuance.
Interest is computed on the basis of a 360-day year comprised of twelve 30-day
months. The Notes are payable both as to principal and interest at the office or
agency of the Company maintained for such purpose within the City and State of
New York or, at the option of the Company, payment of interest may be made by
check mailed to the Holders of the Notes at their respective addresses set forth
in the register of Holders of Notes. Until otherwise designated by the Company,
the Company's office or agency in New York will be the office of the Trustee
maintained for such purpose. The Notes were issued in registered form, without
coupons, and in denominations of $1,000 and integral multiples thereof.
5
<PAGE> 8
OPTIONAL REDEMPTION
The Notes will not be redeemable at the Company's option prior to
March 1, 2001. Thereafter, at any time or from time to time, the Notes will be
subject to redemption at the option of the Company, in whole or in part, upon
not less than 30 nor more than 60 days' notice, at the redemption prices
(expressed as percentages of principal amount) set forth below plus accrued and
unpaid interest thereon to the applicable redemption date, if redeemed during
the twelve-month period beginning on March 1 of the years indicated below:
<TABLE>
<CAPTION>
YEAR PERCENTAGE
---- ----------
<S> <C>
2001 ............................................................ 105.313%
2002 ............................................................ 103.542%
2003 ............................................................ 101.771%
2004 and thereafter.............................................. 100.000%
</TABLE>
Notwithstanding the foregoing, on or prior to March 1, 1999, the
Company may redeem at any time or from time to time up to 35% of the aggregate
principal amount of Notes originally issued at a redemption price of 109.625%
of the principal amount thereof, plus accrued and unpaid interest, if any,
thereon to the redemption date, with the net proceeds of one or more Public
Equity Offerings; provided that at least $104 million in aggregate principal
amount of Notes remain outstanding immediately after such redemption; and
provided further, that such redemption shall occur within 90 days of the date
of the closing of any such Public Equity Offering.
If less than all of the Notes are to be redeemed at any time,
selection of Notes for redemption will be made by the Trustee in compliance
with the requirements of the principal national securities exchange, if any, on
which the Notes are listed, or, if the Notes are not so listed, on a pro rata
basis, by lot or by such method as the Trustee shall deem fair and appropriate,
provided that no Notes of $1,000 or less shall be redeemed in part. Notices of
redemption shall be mailed by first class mail at least 30 but not more than 60
days before the redemption date to each Holder of Notes to be redeemed at its
registered address. If any Note is to be redeemed in part only, the notice of
redemption that relates to such 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. On and after the redemption date
(unless the Company shall default in the payment of the redemption price,
together with accrued and unpaid interest to the redemption date), interest
will cease to accrue on Notes or portions thereof called for redemption.
MANDATORY REDEMPTION
Except as set forth below under "Repurchase at the Option of Holders,"
the Company is not required to make mandatory redemption or sinking fund
payments with respect to the Notes.
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<PAGE> 9
REPURCHASE AT THE OPTION OF HOLDERS
Change of Control
Upon the occurrence of a Change of Control, each Holder of Notes will
have the right to require the Company to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of such Holder's Notes pursuant to the
offer described below (the "Change of Control Offer") at an
offer price in cash equal to 101% of the aggregate principal amount thereof
plus accrued and unpaid interest, if any, to the date of purchase (the "Change
of Control Payment"). Within 30 days following any Change of Control, the
Company will mail a notice to each Holder stating: (1) that the Change of
Control Offer is being made pursuant to the covenant entitled "Change of
Control" and that all Notes tendered will be accepted for payment; (2) the
purchase price and the purchase date, which will be no earlier than 30 days nor
later than 60 days from the date such notice is mailed (the "Change of Control
Payment Date"); (3) that any Note not tendered will continue to accrue
interest; (4) that, unless the Company defaults in the payment of the Change of
Control Payment, all Notes accepted for payment pursuant to the Change of
Control Offer will cease to accrue interest after the Change of Control Payment
Date; (5) that Holders electing to have any Notes purchased pursuant to a
Change of Control Offer will be required to surrender the Notes, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Notes
completed, to the Paying Agent at the address specified in the notice prior to
the close of business on the third Business Day preceding the Change of Control
Payment Date; (6) that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than the close of business on the second
Business Day preceding the Change of Control Payment Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holders, the
principal amount of Notes delivered for purchase, and a statement that such
Holder is withdrawing his election to have such Notes purchased; and (7) that
Holders whose Notes are being purchased only in part will be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered,
which unpurchased portion must be equal to $1,000 in principal amount or an
integral multiple thereof. The Company will comply with the requirements of
Rule 14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection
with the repurchase of the Notes in connection with a Change of Control.
On the Change of Control Payment Date, the Company will, to the extent
lawful, (1) accept for payment Notes or portions thereof tendered pursuant to
the Change of Control Offer, (2) deposit with the Paying Agent an amount equal
to the Change of Control Payment in respect of all Notes or portions thereof so
tendered and (3) deliver or cause to be delivered to the Trustee the Notes so
accepted together with an Officers' Certificate stating the Notes or portions
thereof tendered to the Company. The Paying Agent will promptly mail to each
Holder of Notes so accepted the Change of Control Payment for such Notes, and
the Trustee will promptly authenticate and mail to each Holder a new Note equal
in principal amount to any unpurchased portion of the Notes surrendered, if
any; provided that each such new Note will be in a principal amount of $1,000
or an integral multiple thereof. The Company will publicly announce the results
of the Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date.
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<PAGE> 10
With respect to the sale of assets referred to in the definition of
"Change of Control", the phrase "all or substantially all" as used in the
Indenture varies according to the facts and circumstances of the subject
transaction, has no clearly established meaning under New York law (which
governs the Indenture) and is subject to judicial interpretation. Accordingly,
in certain circumstances there may be a degree of uncertainty in ascertaining
whether a particular transaction would involve a disposition of "all or
substantially all" of the assets of a person and therefore it may be unclear
whether a Change of Control has occurred and whether the Notes are subject to a
Change of Control Offer.
Except as described above with respect to a Change of Control, the
Indenture does not contain provisions that permit the Holders of the Notes to
require that the Company repurchase or redeem the Notes in the event of a
takeover, recapitalization or similar restructuring.
The Credit Agreement prohibits the Company from purchasing any Notes
upon a Change of Control and also provides that certain change of control
events with respect to the Company would constitute a default thereunder. Any
future credit agreements to which the Company becomes a party may contain
similar restrictions and provisions. In the event a Change of Control occurs at
a time when the Company is prohibited from purchasing Notes, the Company could
seek the consent of its lenders to the purchase of Notes or could attempt to
refinance the borrowings that contain such prohibition. If the Company does not
obtain such a consent or repay such borrowings, the Company will remain
prohibited from purchasing Notes. In such case, the Company's failure to
purchase tendered Notes would constitute an Event of Default under the
Indenture, which would, in turn, constitute a default under the Credit
Agreement.
Asset Sales
The Indenture provides that the Company will not, and will not permit
any of its Restricted Subsidiaries to, engage in any Asset Sale, unless (x) the
Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the fair market
value (evidenced by a resolution of the Board of Directors set forth in an
Officers' Certificate delivered to the Trustee) of the assets sold or otherwise
disposed of and (y) at least 75% of the consideration therefor received by the
Company or such Restricted Subsidiary is in the form of cash; provided,
however, that the amount of (A) any liabilities (as shown on the Company's or
such Restricted Subsidiary's most recent balance sheet or in the notes thereto)
of the Company or any Restricted Subsidiary (other than liabilities that are by
their terms subordinated in right of payment to the Notes) that are assumed by
the transferee of any such assets and (B) any notes or other obligations
received by the Company or such Restricted Subsidiary from such transferee that
are immediately converted by the Company or such Restricted Subsidiary into
cash (to the extent of the cash received), shall be deemed to be cash for
purposes of this provision; and provided, further, that the 75% limitation
referred to in this clause (y) shall not apply to any Asset Sale in which the
cash portion of the consideration received therefrom, determined in accordance
with the foregoing proviso, is equal to or greater than what the after-tax
proceeds would have been had such Asset Sale complied with the aforementioned
75% limitation.
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<PAGE> 11
Within 360 days after any Asset Sale, the Company may apply the Net
Proceeds from such Asset Sale to (a) permanently reduce Indebtedness under the
Credit Agreement or other Senior Debt (with a permanent reduction of
availability in the case of Indebtedness under the Revolving Credit Facility or
other revolving credit borrowings), (b) permanently reduce long-term
Indebtedness of a Restricted Subsidiary, or (c) an investment in capital
expenditures or other long-term tangible assets, or in another business in each
case, in the same or a similar line of business as the Company was engaged in on
the date of the Indenture. Pending the final application of any such Net
Proceeds, the Company may invest such Net Proceeds in any manner that is not
prohibited by the Indenture. Any Net Proceeds from the Asset Sale that are not
applied or invested as provided in the first sentence of this paragraph will be
deemed to constitute "Excess Proceeds." When the aggregate amount of Excess
Proceeds exceeds $5 million, the Company shall make an offer to all Holders of
Notes (an "Asset Sale Offer") to purchase the maximum principal amount of Notes
that may be purchased out of the Excess Proceeds, at an offer price in cash in
an amount equal to 100% of the principal amount thereof plus accrued and unpaid
interest, if any, to the date of purchase, in accordance with the procedures set
forth in the Indenture. To the extent that the aggregate amount of Notes
tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the
Company may use such deficiency for general corporate purposes. If the aggregate
principal amount of Notes surrendered by Holders thereof exceeds the amount of
Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro
rata basis. Upon completion of such offer to purchase, the amount of Excess
Proceeds shall be reset at zero. The Company will comply with the requirements
of Rule 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations are applicable in
connection with the repurchase of Notes pursuant to an Asset Sale Offer.
CERTAIN COVENANTS
Restricted Payments
The Indenture provides that the Company will not, and will not permit
any of its Restricted Subsidiaries to, directly or indirectly: (i) declare or
pay any dividend or make any distribution on account of the Company's or any
Restricted Subsidiary's Equity Interests (other than dividends or distributions
payable in Equity Interests (other than Disqualified Stock) of the Company or
such Restricted Subsidiary or dividends or distributions payable to the Company
or a Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise
acquire or retire for value any Equity Interests of the Company or any
Restricted Subsidiary or other Affiliate of the Company (other than any such
Equity Interests owned by the Company or a Restricted Subsidiary of the
Company); (iii) purchase, redeem or otherwise acquire or retire for value any
Indebtedness that is subordinated to the Notes; or (iv) make any Restricted
Investment (all such payments and other actions set forth in clauses (i)
through (iv) above being collectively referred to as "Restricted Payments"),
unless, at the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
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(b) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had been
made at the beginning of the applicable four-quarter period, have been
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in the first paragraph of the
covenant described below under the caption "Incurrence of Indebtedness and
Issuance of Preferred Stock"; and
(c) such Restricted Payment (the amount of any such payment, if other
than cash, to be determined by the Board of Directors, whose determination shall
be conclusive and evidenced by a resolution in an Officers' Certificate
delivered to the Trustee), together with the aggregate of all other Restricted
Payments made by the Company and its Restricted Subsidiaries after the date of
the Indenture (including Restricted Payments permitted by the next succeeding
paragraph), shall not exceed the sum of (1) 50% of the Consolidated Net Income
of the Company for the period (taken as one accounting period) commencing
January 1, 1996 and ending on the last day of the Company's most recently ended
fiscal quarter for which internal financial statements are available at the time
of such Restricted Payment (or, if such Consolidated Net Income for such period
is a deficit, 100% of such deficit as a negative number), plus (2) 100% of the
aggregate net cash proceeds received by the Company from the issue, sale or
exercise since the date of the Indenture of Equity Interests of the Company or
of debt securities of the Company that have been converted into such Equity
Interests (other than Equity Interests (or convertible debt securities) sold to,
or exercised by, a Restricted Subsidiary of the Company and other than
Disqualified Stock or debt securities that have been converted into Disqualified
Stock); plus (3) the aggregate cash received by the Company as capital
contributions to the Company after the date on which the Notes are originally
issued plus (4) the amount of the net reduction in Investments in Unrestricted
Subsidiaries resulting from (x) the payment of cash dividends or the repayment
in cash of the principal of loans or the cash return on any Investment, in each
case to the extent received by the Company or any Restricted Subsidiary of the
Company from Unrestricted Subsidiaries, (y) to the extent that any Restricted
Investment that was made after the date of the Indenture is sold for cash or
otherwise liquidated or repaid for cash, the after-tax cash return of capital
with respect to such Restricted Investment (less the cost of disposition, if
any) and (z) the redesignation of Unrestricted Subsidiaries as Restricted
Subsidiaries (valued as provided in the definition of "Investment"), such
aggregate amount of the net reduction in Investments not to exceed in the case
of an Unrestricted Subsidiary, the amount of Restricted Investments previously
made by the Company or any Restricted Subsidiary in such Unrestricted
Subsidiary, which amount was included in the calculation of the amount of
Restricted Payments.
The foregoing provisions do not prohibit (i) the payment of any
dividend within 60 days after the date of declaration thereof, if at said date
of declaration such payment would have complied with the provisions of the
Indenture; (ii) the redemption, repurchase, retirement or other acquisition of
any Equity Interests of the Company, or the defeasance, redemption or
repurchase of subordinated Indebtedness in exchange for, or out of the proceeds
of, the substantially concurrent sale (other than to a Restricted Subsidiary of
the Company) of Equity Interests of the Company (other than any Disqualified
Stock) or out of the proceeds of a substantially concurrent cash capital
contribution received by the Company; (iii) the defeasance, redemption or
repurchase of subordinated Indebtedness with the net proceeds from an
incurrence of Permitted Refinancing Indebtedness; (iv) a Restricted Payment to
DPCAC pursuant to the Tax Sharing Agreement as the same may be amended from
time
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to time in a manner that is not materially adverse to the Company; (v) a
Restricted Payment to DPCAC of $300,000 per year to be used by DPCAC to pay an
annual financial advisory fee of $200,000 to Summit or its Affiliates and an
annual financial advisory fee of $100,000 to DLJ Securities or its Affiliates;
(vi) a Restricted Payment to DPCAC of up to $250,000 per year to be used by
DPCAC to redeem, repurchase or retire for value any Equity Interests of DPCAC
held by one or more employees of DPCAC or the Company or any of its
Restricted Subsidiaries in connection with the termination of such employee's
or employees' employment with such employer for any reason; (vii) a Restricted
Payment to DPCAC in such amounts as may be necessary to pay operating and/or
administrative expenses of DPCAC and the reasonable expenses of the financial
advisors referred to in clause (v) of this paragraph, up to a maximum of the
greater of (a) $400,000 per year or (b) an amount equal to 0.05% of the
consolidated net sales of the Company and its Subsidiaries for the immediately
proceeding fiscal year; and (viii) a Restricted Payment to DPCAC that is used
by DPCAC to pay moving expenses of employees of DPCAC or the Company or any of
its Restricted Subsidiaries, up to a maximum of $100,000 per year.
Not later than the date of making any Restricted Payment, the Company
shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by the covenant "Restricted Payments" were computed,
which calculations may be based upon the Company's latest available financial
statements.
Incurrence of Indebtedness and Issuance of Preferred Stock
The Indenture provides that the Company will not, and will not permit
any of its Restricted Subsidiaries to, directly or indirectly, create, incur,
issue, assume, guarantee or otherwise become directly or indirectly liable with
respect to (collectively, "incur") any Indebtedness (including Acquired Debt)
and that the Company will not issue any Disqualified Stock and will not permit
any of its Restricted Subsidiaries to issue any shares of preferred stock;
provided, however, that the Company or any Guarantor may incur Indebtedness or
issue shares of preferred stock if the Fixed Charge Coverage Ratio for the
Company's most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which such
additional Indebtedness is incurred or such preferred stock is issued,
determined on a pro forma basis (including a pro forma application of the net
proceeds therefrom), as if the additional Indebtedness had been incurred, or
the preferred stock had been issued, as the case may be, at the beginning of
such four-quarter period would have been greater than 2.0 to 1 for Indebtedness
incurred on or prior to March 31, 1999 and greater than 2.5 to 1 for
Indebtedness incurred after March 31, 1999.
The foregoing limitations do not apply to:
(i) Indebtedness incurred by the Company under the Term Loan in an
aggregate principal amount not to exceed $60 million; minus all scheduled
principal repayments required to be made under the Term Loan and all other
principal amounts repaid under the Term Loan more than one Business Day after
the Issue Date;
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(ii) Indebtedness incurred by the Company under the Revolving
Credit Facility in an aggregate principal amount not to exceed $30 million;
(iii) Indebtedness incurred by the Company or a Guarantor in respect
of Capital Lease Obligations or Purchase Money Obligations in an aggregate
principal amount not to exceed $5 million at any time outstanding;
(iv) Existing Indebtedness outstanding on the date of the
Indenture;
(v) the shares of the Company Preferred Stock;
(vi) the incurrence by the Company or any Guarantor of Indebtedness
issued in exchange for, or the proceeds of which are used to extend, refinance,
renew, replace, defease or refund the Senior Secured Bank Debt or any Existing
Indebtedness in whole or in part (the "Refinancing Indebtedness"); provided,
however, that (1) the principal amount of such Refinancing Indebtedness shall
not exceed the principal amount of Indebtedness so extended, refinanced,
renewed, replaced, defeased or refunded (plus the amount of prepayment premium
and reasonable expenses incurred in connection therewith); (2) the Refinancing
Indebtedness shall have a Weighted Average Life to Maturity equal to or greater
than the Weighted Average Life to Maturity of the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; (3) if the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded is pari
passu with or subordinated in right of payment to the Notes, the Refinancing
Indebtedness shall be pari passu with or subordinated, as the case may be, in
right of payment to the Notes or the Subsidiary Guarantees on terms at least as
favorable to the Holders of Notes as those contained in the documentation
governing the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded (any such extension, refinancing, renewal, replacement,
defeasance or refunding being referred to as a "Permitted Refinancing");
(vii) Hedging Obligations that are incurred for the purpose of
fixing or hedging interest rate risk with respect to any Indebtedness that is
permitted by the terms of the Indenture to be outstanding;
(viii) intercompany Indebtedness between or among the Company and
any of its Restricted Subsidiaries;
(ix) intercompany Indebtedness of Restricted Subsidiaries of the
Company to the Company or any of its Restricted Subsidiaries;
(x) Indebtedness of the Company or a Guarantor attributable to
any Currency Agreement, Commodity Agreement or Interest Rate Agreement; and
(xi) other Indebtedness in an aggregate principal amount not to
exceed $20 million at any time outstanding.
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Liens
The Indenture provides that the Company will not, and will not permit
any of its Restricted Subsidiaries to, directly or indirectly, create, incur,
assume or suffer to exist any Lien on any asset now owned or hereafter acquired,
or any income or profits therefrom or assign or convey any right to receive
income therefrom, except Permitted Liens, without effectively providing that the
Notes will be secured equally and ratably with (or prior to) the obligations so
secured for so long as such obligations are so secured.
Dividend and Other Payment Restrictions Affecting Subsidiaries
The Indenture provides that the Company will not, and will not permit
any of its Restricted Subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any Restricted Subsidiary to (a) pay dividends or
make any other distributions to the Company or any of its Restricted
Subsidiaries (1) on its Capital Stock or (2) with respect to any other interest
or participation in, or measured by, its profits, (b) pay any Indebtedness owed
to the Company or any of its subsidiaries, (c) make loans or advances to the
Company or any of its Restricted Subsidiaries or (d) transfer any of its
properties or assets to the Company or any of its Restricted Subsidiaries,
except for such encumbrances or restrictions existing under or by reason of (i)
Existing Indebtedness as in effect on the date of the Indenture, (ii) the
Indenture and the Notes, (iii) the Credit Agreement and any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings thereof; provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are no more restrictive with respect to the
provisions set forth in clauses (a), (b), (c) and (d) than those contained in
the Credit Agreement, as in effect on the date of the Indenture, (iv)
applicable law, (v) any instrument governing Indebtedness or Capital Stock of a
Person acquired by the Company or any of its Restricted Subsidiaries as in
effect at the time of such acquisition (except to the extent such Indebtedness
was incurred in connection with or in contemplation of such acquisition), which
encumbrance or restriction is not applicable to any Person, or the properties
or assets of any Person, other than the Person, or the property or assets of
the Person, so acquired, provided that the Consolidated Cash Flow of such
Person is not taken into account in determining whether such acquisition was
permitted by the terms of the Indenture, (vi) customary nonassignment
provisions in leases entered into in the ordinary course of business and
consistent with past practices, (vii) Purchase Money Obligations for property
acquired in the ordinary course of business that impose restrictions of the
nature described in clause (d) above on the property so acquired, (viii)
restrictions with respect solely to a Subsidiary of the Company imposed
pursuant to a binding agreement (subject only to customary closing conditions
and termination provisions) that has been entered into for the sale or
disposition of all or substantially all of the Capital Stock or assets to be
sold of such Subsidiary, provided that such restrictions apply solely to the
Capital Stock or assets to be sold of such Subsidiary, and such sale or
disposition is permitted under the covenant entitled "Repurchase at Option of
Holders -- Asset Sales", (ix) Purchase Money Obligations for property acquired
in the ordinary course of business that impose restrictions of the type
described in clause (d) above on the property so acquired or (x) Refinancing
Indebtedness, provided that the restrictions contained in the agreements
governing such Refinancing Indebtedness are no more restrictive with respect to
the provisions set forth in clauses (a), (b), (c) and (d) above than those
contained in the agreements governing the Indebtedness being refinanced.
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Limitation on Merger or Consolidation
The Indenture provides that the Company may not consolidate or merge
with or into (whether or not the Company is the surviving corporation), or
sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets in one or more related
transactions, to another corporation, Person or entity unless (i) the Company
is the surviving corporation or the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made is a corporation organized or existing under the laws of the United
States, any state thereof or the District of Columbia; (ii) the Person formed
by or surviving any such consolidation or merger (if other than the Company) or
the Person to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made assumes all the obligations of the Company
under the Notes and the Indenture pursuant to a supplemental indenture in a
form reasonably satisfactory to the Trustee; (iii) immediately after such
transaction no Default or Event of Default exists; and (iv) the Company or any
Person formed by or surviving any such consolidation or merger, or to which
such sale, assignment, transfer, lease, conveyance or other disposition shall
have been made (A) will have Consolidated Net Worth (immediately after the
transaction but prior to any purchase accounting adjustments resulting from the
transaction) equal to or greater than the Consolidated Net Worth of the Company
immediately preceding the transaction and (B) will, at the time of such
transaction and after giving pro forma effect thereto as if such transaction
had occurred at the beginning of the applicable four-quarter period, be
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in the covenant entitled "Incurrence
of Indebtedness and Issuance of Preferred Stock."
Upon any consolidation, merger, lease, conveyance or transfer in
accordance with such covenant, the successor Person formed by such
consolidation or into which the Company is merged or to which such lease,
conveyance or transfer is made shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under the Indenture with the
same as if such successor had been named as the Company herein and thereafter
(except in the case of a lease) the predecessor corporation will be relieved of
all further obligations and covenants under the Indenture and the Notes.
Transactions with Affiliates
The Indenture provides that the Company will not, and will not permit
any of its Restricted Subsidiaries to, sell, lease, license, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into any contract, agreement, understanding,
loan, advance or guarantee with, or for the benefit of, any Affiliate (each of
the foregoing, an "Affiliate Transaction"), unless (a) such Affiliate
Transaction is on terms that are no less favorable to the Company or the
relevant Restricted Subsidiary than those that would have been obtained in a
comparable transaction by the Company or such Restricted Subsidiary with an
unrelated Person and (b) the Company delivers to the Trustee (i) with respect
to any Affiliate Transaction involving aggregate payments in excess of $1
million, a resolution of the Board of Directors set forth in an Officers'
Certificate certifying that such Affiliate Transaction complies with clause (a)
above and such
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Affiliate Transaction is approved by a majority of the disinterested
members of the Board of Directors and (ii) with respect to any Affiliate
Transaction involving aggregate payments in excess of $10 million, an opinion
as to the fairness to the Company or such Restricted Subsidiary from a
financial point of view issued by an investment banking firm of national
standing with expertise in underwriting non-investment grade debt securities;
provided, however, that (i) any employment agreement or stock option agreement
entered into by the Company or any of its Restricted Subsidiaries in the
ordinary course of business and consistent with the past practice of the
Company or such Restricted Subsidiary, (ii) transactions between or among the
Company and its Restricted Subsidiaries, (iii) transactions permitted by the
provisions of the Indenture described above under the covenant "-- Restricted
Payments," (iv) the payment of reasonable fees or indemnities to directors of
the Company or its Restricted Subsidiaries, (v) any issuance of securities or
other payments, awards or grants in cash, securities or otherwise pursuant to,
or the funding of employment arrangements, stock options and stock ownership
plans of the Company entered into in the ordinary course of business and
approved by the Board of Directors and (vi) Affiliate Transactions pursuant to
agreements existing at the time of the Merger, in each case, shall not be
deemed Affiliate Transactions.
Guarantee of the Notes
The Indenture provides that the Company will not permit any Restricted
Subsidiary to incur any Indebtedness or issue any preferred stock unless (i)
such Restricted Subsidiary enters into or has entered into a Guarantee of the
Notes in accordance with the terms of the Indenture or (ii) the total principal
amount of Indebtedness and liquidation preference of preferred stock of such
Restricted Subsidiary does not exceed $2.5 million individually and, together
with the total principal amount of Indebtedness and liquidation preference of
preferred stock of all other Restricted Subsidiaries that are not Guarantors,
does not exceed $5.0 million in the aggregate.
Any such Guarantee of the Notes by a Restricted Subsidiary will be
limited in amount to an amount not to exceed the maximum amount that can be
guaranteed by that Restricted Subsidiary without rendering such Guarantee
voidable under applicable law relating to fraudulent conveyance or fraudulent
transfer or similar laws affecting the rights of creditors generally. With such
limitations, such Guarantee could be effectively subordinated to all other
Indebtedness (including guarantees and other contingent liabilities) of such
Restricted Subsidiary and, depending on the amount of such Indebtedness, such
Restricted Subsidiary's liability on its Guarantee could be reduced to zero.
Upon the sale or other disposition of a Restricted Subsidiary that is a
Guarantor (other than to the Company or an Affiliate of the Company) permitted
by the Indenture, such Restricted Subsidiary will be released and relieved from
all of its obligations under its Guarantee.
Line of Business
The Indenture provides that for so long as any Notes are outstanding,
the Company and its Restricted Subsidiaries will engage primarily in the
business of the production and distribution of pet food and related products
and other businesses that are related to or complementary to the foregoing
(including by reason of the Company's production and distribution systems and
facilities).
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Reports
The Indenture provides that whether or not required by the rules and
regulations of the Commission, so long as any Notes are outstanding, the
Company will furnish to the Holders of Notes (i) all quarterly and annual
financial information that is substantially equivalent to that which would be
required to be contained in a filing with the Commission on Forms 10-Q and 10-K
if the Company were required to file such Forms, including a "Management's
Discussion and Analysis of Financial Condition and Result of Operations" and,
with respect to the annual information only, a report thereon by the Company's
certified independent accountants and (ii) all reports that is substantially
equivalent to that which would be required to be filed with the Commission on
Form 8-K if the Company were required to file such reports. In addition,
whether or not required by the rules and regulations of the Commission, the
Company will file a copy of all such information with the Commission for public
availability (unless the Commission will not accept such a filing) and make
such information available to investors who request it in writing.
EVENTS OF DEFAULT AND REMEDIES
The Indenture provides that each of the following constitutes an Event
of Default: (i) default for 30 days in the payment when due of interest on the
Notes; (ii) default in payment when due of the principal of or premium, if any,
on the Notes; (iii) failure by the Company for 30 days after written notice
from the Trustee or the holders of 25% of the outstanding Notes to comply with
the provisions described under the covenants "Incurrence of Indebtedness and
Issuance of Preferred Stock," "Restricted Payments," "Change of Control,"
"Asset Sales," and "Merger, Consolidation or Sale of Assets"; (iv) failure by
the Company for 60 days after written notice from the Trustee or the holders of
25% of the outstanding Notes to comply with any of its other agreements in the
Indenture or the Notes; (v) default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or any of
its Restricted Subsidiaries) whether such Indebtedness or guarantee now exists,
or is created after the date of the Indenture, which default (a) is caused by a
failure to pay principal of or premium, if any, or interest on such
Indebtedness prior to the expiration of the grace period provided in such
Indebtedness (a "Payment Default") or (b) results in the acceleration of such
Indebtedness prior to its express maturity and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any
other such Indebtedness under which there has been a Payment Default or the
maturity of which has been so accelerated, aggregates $5 million or more; (vi)
failure by the Company or any of its Restricted Subsidiaries to pay final
judgments aggregating in excess of $5 million, which judgments are not paid,
discharged or stayed for a period of 60 days; and (vii) certain events of
bankruptcy or insolvency with respect to the Company or any Restricted
Subsidiary that is a Significant Subsidiary.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately. Notwithstanding the
foregoing, in the case of an Event of Default arising from certain events of
bankruptcy or insolvency with respect to the Company, any Restricted Subsidiary
that is a
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Significant Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary, all outstanding Notes will
become due and payable without further action or notice. Holders of the Notes
may not enforce the Indenture or the Notes except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in principal amount of
the then outstanding Notes may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders of the Notes notice of any
continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in their interest.
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding payment of the premium that the Company would have
had to pay if the Company then had elected to redeem the Notes pursuant to the
optional redemption provisions of the Indenture, an equivalent premium shall
also become and be immediately due and payable to the extent permitted by law
upon the acceleration of the Notes. If an Event of Default occurs prior to
March 1, 2001, by reason of any willful action (or inaction) taken (or not
taken) by or on behalf of the Company with the intention of avoiding the
prohibition on redemption of the Notes prior to such date, then the premium
specified in the Indenture shall also become immediately due and payable to the
extent permitted by law upon the acceleration of the Notes.
The Holders of a majority in aggregate principal amount of the Notes
then outstanding by notice to the Trustee may on behalf of the Holders of all
of the Notes waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of
Default in the payment of interest on, or the principal of, the Notes.
The Company is required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Company is required upon
becoming aware of any Default or Event of Default, to deliver the Trustee a
statement specifying such Default or Event of Default.
NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS
No past, present or future director, officer, employee, incorporator
or stockholder of the Company, as such, shall have any liability for any
obligations of the Company under the Notes, the Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder of Notes by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Notes. Such waiver may not be effective to waive liabilities under the
federal securities laws and it is the view of the Commission that such a waiver
is against public policy.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
The Company may, at its option and at any time, elect to have all of
its obligations discharged with respect to the outstanding Notes ("Legal
Defeasance") except for (i) the rights of Holders of outstanding Notes to
receive payments in respect of the principal of, premium, if any, and interest
on
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such Notes when such payments are due, (ii) the Company's obligations with
respect to the Notes concerning issuing temporary Notes, registration of Notes,
mutilated, destroyed, lost or stolen Notes and the maintenance of an office or
agency for payment and money for security payments held in trust, (iii) the
rights, powers, trusts, duties and immunities of the Trustee, and the Company's
obligations in connection therewith, and (iv) the Legal Defeasance provisions
of the Indenture. In addition, the Company may, at its option and at any time,
elect to have the obligations of the Company released with respect to certain
covenants that are described in the Indenture ("Covenant Defeasance") and
thereafter any omission to comply with such obligations shall not constitute a
Default or Event of Default with respect to the Notes. In the event Covenant
Defeasance occurs, certain events (not including nonpayment, bankruptcy,
receivership, rehabilitation and insolvency events) described under "Events of
Default" will no longer constitute an Event of Default with respect to the
Notes.
In order to exercise either Legal Defeasance or Covenant Defeasance,
(i) the Company must irrevocably deposit with the Trustee, in trust, for the
benefit of the Holders of the Notes, cash in U.S. dollars, non-callable
Government Securities, or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent
public accountants, to pay the principal of, premium, if any, and interest on
the outstanding Notes on the stated maturity or on the applicable redemption
date, as the case may be, of such principal or installment of principal of,
premium, if any, or interest on the outstanding Notes; (ii) in the case of
Legal Defeasance, the Company shall have delivered to the Trustee an opinion of
counsel in the United States reasonably acceptable to the Trustee confirming
that (A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of the Indenture, there
has been a change in the applicable federal income tax law, in either case to
the effect that, and based thereon such opinion of counsel shall confirm that,
the Holders of the outstanding Notes will not recognize income, gain or loss
for federal income tax purposes as a result of such Legal Defeasance and will
be subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Legal Defeasance had not
occurred; (iii) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee an opinion of counsel in the United States reasonably
acceptable to the Trustee confirming that the Holders of the outstanding Notes
will not recognize income, gain or loss for federal income tax purposes as a
result of such Covenant Defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as would have been
the case if such Covenant Defeasance had not occurred; (iv) no Default or Event
of Default shall have occurred and be continuing on the date of such deposit or
insofar as Events of Default from bankruptcy or insolvency events are
concerned, at any time in the period ending on the 91st day after the date of
deposit; (v) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under any material agreement or
instrument (other than the Indenture) to which the Company or any of its
Restricted Subsidiaries is a party or by which the Company or any of its
Restricted Subsidiaries is bound; (vi) the Company shall have delivered to the
Trustee an opinion of counsel to the effect that after the 91st day following
the deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally; (vii) the Company shall have delivered to the
Trustee an Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders of Notes over the other
creditors of the Company or the Guarantors with the intent of defeating,
hindering, delaying or defrauding creditors of the
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Company or the Guarantors; (viii) the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the trust resulting from the
deposit does not constitute, or is qualified as, a regulated investment company
under the Investment Company Act of 1940; and (ix) the Company shall have
delivered to the Trustee an Officers' Certificate and an opinion of counsel,
each stating that all conditions precedent provided for relating to the Legal
Defeasance or the Covenant Defeasance have been complied with.
TRANSFER AND EXCHANGE
A Holder may transfer or exchange Notes in accordance with the
Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company is not required to transfer or exchange
any Note selected for redemption. Also, the Company is not required to transfer
or exchange any Note for a period of 15 days before a selection of Notes to be
redeemed.
The registered Holder of a Note will be treated as its owner for all
purposes.
AMENDMENT, SUPPLEMENT AND WAIVER
Except as provided in the next succeeding paragraphs, the Indenture or
the Notes may be amended or supplemented with the consent of the Holders of at
least a majority in principal amount of the Notes then outstanding (including
consents obtained in connection with a tender offer or exchange offer for
Notes), and any existing default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes (including consents
obtained in connection with a tender offer or exchange offer for Notes).
Without the consent of each Holder affected, an amendment or waiver
may not (with respect to any Notes held by a non-consenting Holder of Notes):
(i) reduce the principal amount of Notes whose Holders must consent to an
amendment, supplement or waiver, (ii) reduce the principal of or change the
fixed maturity of any Note, (iii) reduce the redemption price or change the
time at which at any Note may be redeemed, (iv) reduce the repurchase price for
the offers to purchase described above under the caption "Repurchase at the
Option of Holder" or change the time at which any Note may be repurchased
thereunder, (v) reduce the rate of or change the time for payment of interest
on any Note, (vi) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on the Notes (except a rescission
of acceleration of the Notes by the Holders of at least a majority in aggregate
principal amount of the Notes and a waiver of the payment default that resulted
from such acceleration), (vii) make any Note payable in money other than that
stated in the Notes, (viii) make any change in the provisions of the Indenture
relating to waivers of past Defaults or the rights of Holders of Notes to
receive payments of principal of or premium, if any, or interest on the Notes,
(ix) waive a redemption payment with respect to any Note or (x) make any change
in the foregoing amendment and waiver provisions.
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Without the consent of at least 66 2/3% in principal amount of the
Notes then outstanding (including consents obtained in connection with a tender
offer or exchange offer for Notes), no waiver or amendment to the Indenture may
make any change in the provisions described above under the caption "Change of
Control" if such change would adversely affect the rights of any Holder of
Notes.
Notwithstanding the foregoing, without the consent of any Holder of
Notes, the Company and the Trustee may amend or supplement the Indenture or the
Notes to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Company's or any Guarantor's obligations to
Holders of the Notes in the case of a merger or consolidation, to make any
change that would provide any additional rights or benefits to the Holders of
the Notes or that does not adversely affect the legal rights under the
Indenture of any such Holder, or to comply with requirements of the Commission
in order to effect or maintain the qualification of the Indenture under the
Trust Indenture Act.
GOVERNING LAW
The Indenture, the Notes and any Guarantees are governed by and
construed in accordance with the laws of the State of New York without giving
effect to applicable principles of conflicts of laws to the extent that the
application of the law of another jurisdiction would be required thereby.
THE TRUSTEE
U.S. Trust Company of Texas, N.A. is the Trustee under the Indenture
and has been appointed by the Company as Registrar and Paying Agent with respect
to the Notes.
The Indenture contains certain limitations on the rights of the
Trustee, should it become a creditor of the Company, to obtain payment of
claims in certain cases, or to realize on certain property received in respect
of any such claim as security or otherwise. The Trustee will be permitted to
engage in other transactions; however, if it acquires any conflicting interest
it must eliminate such conflict within 90 days, apply to the Commission for
permission to continue or resign.
The Holders of a majority in principal amount of the then outstanding
Notes will have the right to direct the time, method and place of conducting
any proceeding for exercising any remedy available to the Trustee, subject to
certain exceptions. The Indenture provides that in case an Event of Default
shall occur (which shall not be cured), the Trustee will be required, in the
exercise of its power, to use the degree of care of a prudent man in the
conduct of his own affairs. Subject to such provisions, the Trustee will be
under no obligation to exercise any of its rights or powers under the Indenture
at the request of any Holder of Notes, unless such Holder shall have offered to
the Trustee security and indemnity satisfactory to it against any loss,
liability or expense.
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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 such terms, as
well as any other capitalized terms used herein for which no definition is
provided.
"Acquired Debt" means, with respect to any specified Person: (i)
Indebtedness of any other Person existing at the time such other Person was
acquired by such specified Person or a Restricted Subsidiary of such specified
person merged with or into or became a Restricted Subsidiary of such specified
Person, including Indebtedness incurred in connection with, or in contemplation
of, such other Person merging with or into or becoming a Restricted Subsidiary
of such specified Person and (ii) Indebtedness encumbering any asset acquired
by such specified Person.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall
mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided, however,
that beneficial ownership of 10% or more of the voting securities of a Person
shall be deemed to be control. Notwithstanding the foregoing, in no event will
the Underwriter or any of its Affiliates be deemed an Affiliate of the Company.
"Asset Sale" means (i) the sale, lease, conveyance or other
disposition (collectively, "dispositions") of any assets (including by way of a
sale and leaseback transaction) other than dispositions of inventory in the
ordinary course of business, (ii) the issuance by any Restricted Subsidiary of
Equity Interests of such Restricted Subsidiary and (iii) the disposition by the
Company of any of its Restricted Subsidiaries of Equity Interests of any
Restricted Subsidiary of the Company, in the case of either clause (i), (ii) or
(iii), whether in a single transaction or a series of related transactions (a)
that have a fair market value in excess of $1.5 million or (b) for net proceeds
in excess of $1.5 million. Notwithstanding the foregoing, the following will
not be deemed to be Asset Sales: (i) a disposition of assets by the Company to
a Restricted Subsidiary or by a Restricted Subsidiary to the Company or another
Restricted Subsidiary , (ii) an issuance of Equity Interests by a Restricted
Subsidiary to the Company or to another Restricted Subsidiary, (iii) a
disposition consisting of a Restricted Payment permitted by the covenant
described above under the caption "-Restricted Payments", (iv) a disposition by
the Company or any of its Restricted Subsidiaries of Equity Interests of any
Unrestricted Subsidiary of the Company and (v) the disposition of all or
substantially all of the assets of the Company and its Restricted Subsidiaries
taken as a whole permitted by the covenant described above under the caption
"-- Merger, Consolidation or Sale of Assets."
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital
lease that would at such time be so required to be capitalized on the balance
sheet in accordance with GAAP.
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"Capital Stock" means any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock, including,
without limitation, with respect to partnerships, partnership interests
(whether general or limited) and any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, such partnership.
"Cash Equivalents" means (i) United States dollars, (ii) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof having maturities of not
more than six months from the date of acquisition, (iii) certificates of
deposit and eurodollar time deposits with maturities of six months or less from
the date of acquisition, bankers' acceptances with maturities not exceeding six
months and overnight bank deposits, in each case with any commercial bank,
depository institution or trust company incorporated or doing business under
the laws of the United States of America, any state thereof or the District of
Columbia or a branch or subsidiary of any such depository institution or trust
company operating outside the United States, provided, that such depository
institution or trust company has, at the time of the Investment, having capital
and surplus in excess of $500 million, (iv) repurchase obligations with a term
of not more than seven days for underlying securities of the types described in
clauses (ii) and (iii) entered into with any financial institution meeting the
qualifications specified in clause (iii) above, (v) commercial paper having the
highest rating obtainable from Moody's Investors Service, Inc. or Standard &
Poor's Corporation and in each case maturing within six months after the date
of acquisition and (vi) money market mutual or similar funds having assets in
excess of $500 million.
"Change of Control" means the occurrence of any of the following: (i)
the sale, lease, transfer, conveyance or other disposition, in one or a series
of related transactions, of all or substantially all of the assets of DPCAC (so
long as DPCAC is the Company's Parent) or the Company to any Person or group
(as such term is used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act)
other than the Principals or their Related Parties, (ii) the adoption of a plan
relating to the liquidation or dissolution of DPCAC (so long as DPCAC is the
Company's Parent) or the Company, (iii) any Person or group (as defined above),
other than the Principals or their Related Parties, is or becomes the
"beneficial owner" (as defined in Rules 13d-2 and 13d-5 under the Exchange
Act), directly or indirectly, of more than 40% of the total voting power of the
Voting Stock of DPCAC (so long as DPCAC is the Company's Parent) or the
Company, including by way of merger, consolidation or otherwise; provided, that
the Principals or their Related Parties "beneficially own" (as defined in Rules
13d-3 and 13d-5 under the Exchange Act), directly or indirectly, in the
aggregate a lesser percentage of the total voting power of the Voting Stock of
the Company than such other Person (for the purposes of this clause (iii), any
Person shall be deemed to beneficially own any Voting Stock of a corporation
held by any other corporation (the "parent corporation"), if such Person
"beneficially owns" (with respect to any Person or group other than the
Principals or their Related Parties, as defined in clause (iii) above or, with
respect to the Principals or their Related Parties, as defined in the proviso
to clause (iii) above), directly or indirectly, more than 50% of the voting
power of the Voting Stock of such parent corporation and (iv) the first day on
which a majority of the members of the Board of Directors of DPCAC (so long as
DPCAC is the Company's Parent) or the Company are not Continuing Directors. For
purposes of the foregoing, DPCAC shall be deemed to
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be the Company's Parent so long as it owns more than 50% of the voting power of
the Voting Stock of the Company.
"Commodity Agreement" means any commodity futures contract, commodity
option or other similar agreement or arrangement entered into by the Company or
any Subsidiary designed to protect the Company or any of its Subsidiaries
against fluctuations in the price of commodities actually used to produce
products in the ordinary course of business of the Company and its
Subsidiaries.
"Company Preferred Stock" means the Company's 14.25% Senior
Exchangeable Preferred Stock Due 2007, including any shares thereof issued in
lieu of cash dividends.
"Consolidated Cash Flow" means, with respect to any Person for any
period, the Consolidated Net Income of such Person and its Restricted
Subsidiaries for such period, plus (a) an amount equal to any extraordinary
loss plus any net loss realized in connection with an asset sale, to the extent
that such losses were deducted in computing Consolidated Net Income, plus (b)
provision for taxes based on income or profits of such Person for such period,
to the extent such provision for taxes was deducted in computing Consolidated
Net Income, plus (c) Consolidated Interest Expense of such Person for such
period, to the extent such amount was deducted in computing Consolidated Net
Income, plus (d) depreciation and amortization (including amortization of
goodwill and other intangibles and amortization of deferred compensation in
respect of non-cash compensation but excluding amortization of prepaid cash
expenses that were paid in a prior period) of such Person for such period, to
the extent such depreciation and amortization were deducted in computing
Consolidated Net Income, plus (e) the interest component of Capital Lease
Obligations, plus (f) all other non-cash items to the extent such items were
deducted from net sales in determining Consolidated Net Income, in each case,
for such period without duplication on a consolidated basis and determined in
accordance with GAAP.
"Consolidated Interest Expense" means, with respect to any Person for
any period, the aggregate consolidated interest, whether expensed or
capitalized, paid, accrued or scheduled to be paid or accrued, of such Person
and its Restricted Subsidiaries for such period (including (i) amortization of
original issue discount and deferred financing costs (other than deferred
financing costs incurred in connection with the Merger) and noncash interest
payments and accruals, (ii) the interest portion of all deferred payment
obligations, calculated in accordance with the effective interest method and
(iii) the interest component of any payments associated with Capital Lease
Obligations and net payments (if any) pursuant to Hedging Obligations, in each
case, to the extent attributable to such period, but excluding (x) commissions,
discounts and other fees and charges incurred with respect to letters of credit
and bankers' acceptances financing and (y) any interest expense on Indebtedness
of another Person that is Guaranteed by such Person or secured by a Lien on
assets of such Person) determined in accordance with GAAP. Consolidated
Interest Expense of the Company shall not include any prepayment premiums or
amortization of original issue discount or deferred financing costs, to the
extent such amounts are incurred as a result of the prepayment on the date of
this Indenture of any Indebtedness of the Company with the proceeds of the
Notes.
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<PAGE> 26
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided, that (i) the Net Income of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid to the referent Person or a Restricted Subsidiary thereof,
(ii) the Net Income of any Person that is a Restricted Subsidiary (other than a
Wholly Owned Restricted Subsidiary) shall be included only to the extent of the
amount of dividends or distributions paid to the referent Person or a
Restricted Subsidiary thereof, (iii) the Net Income of any Person acquired in a
pooling of interests transaction for any period prior to the date of such
acquisition shall be excluded and (iv) the cumulative effect of a change in
accounting principles shall be excluded.
"Consolidated Net Worth" means, with respect to any Person as of any
date, the sum of (i) the consolidated equity of the common stockholders of such
Person and its consolidated Restricted Subsidiaries as of such date plus (ii)
the respective amounts reported on such Person's balance sheet as of such date
with respect to any series of preferred stock (other than Disqualified Stock)
that by its terms is not entitled to the payment of dividends unless such
dividends may be declared and paid only out of net earnings in respect of the
year of such declaration and payment, but only to the extent of any cash
received by such Person upon issuance of such preferred stock, less (x) all
write-ups (other than write-ups resulting from foreign currency translations
and write-ups of tangible assets of a going concern business made within 12
months after the acquisition of such business) subsequent to the date of the
Indenture in the book value of any asset owned by such Person or a consolidated
Restricted Subsidiary of such Person, (y) all investments as of such date in
unconsolidated Subsidiaries and in Persons that are not Restricted Subsidiaries
(except, in each case, Permitted Investments), and (z) all unamortized debt
discount and expense and unamortized deferred charges as of such date, all of
the foregoing determined in accordance with GAAP.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the date of the Indenture or (ii) was nominated for
election or elected to such Board of Directors with the affirmative vote of a
majority of the Continuing Directors who were members of such Board at the time
of such nomination or election.
"Credit Agreement" means that certain Revolving Credit and Term Loan
Agreement, dated as of October 5, 1995, by and among the Company, the lenders
party thereto and Mercantile Bank of St. Louis National Association, as agent,
as amended on February 28, 1996 and on June 28, 1996, providing for (i) up to
$60 million of Term Loan borrowings and (ii) up to $25 million of borrowings
under the Revolving Credit Facility, including any related notes, guarantees,
collateral documents, instruments and agreements executed in connection
therewith, and in each case as amended, modified, renewed, refunded, replaced
or refinanced from time to time.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect
the Company or any of its Subsidiaries against fluctuation in the values of the
currencies of the countries (other than the United States) in
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<PAGE> 27
which the Company or its Subsidiaries conduct business and which is required
under any bank agreement to which the Company is or hereafter becomes a party.
"DLJ Securities" means Donaldson, Lufkin & Jenrette Securities
Corporation.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Disqualified Stock" means any Capital Stock which, 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, or redeemable
at the option of the Holder thereof, in whole or in part, on or prior to March
1, 2006.
"DPCAC" means DPC Acquisition Corp. and its successors.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Existing Indebtedness" means Indebtedness of the Company and its
Subsidiaries (other than the Senior Secured Bank Debt) in existence on the date
of the Indenture, until such amounts are repaid.
"Fixed Charge Coverage Ratio" means with respect to any Person for any
period, the ratio of the Consolidated Cash Flow of such Person for such period
to the Fixed Charges of such Person for such period. In the event that the
Company or any of its Restricted Subsidiaries incurs, assumes, guarantees or
redeems any Indebtedness (other than revolving credit borrowings) or if the
Company issues or redeems any preferred stock, in each case subsequent to the
commencement of the period for which the Fixed Charge Coverage Ratio is being
calculated but prior to the date of the event for which the calculation of the
Fixed Charge Coverage Ratio is made (the "Transaction Date"), then the Fixed
Charge Coverage Ratio shall be calculated giving pro forma effect to such
incurrence, assumption, guarantee or redemption of Indebtedness, or such
issuance or redemption of preferred stock, as if the same had occurred at the
beginning of the applicable four-quarter period. For purposes of making the
computation referred to above, acquisitions (including all mergers and
consolidations), dispositions and discontinuance of operations that have been
made by the Company or any of its Restricted Subsidiaries during the
four-quarter reference period or subsequent to such reference period and on or
prior to the Transaction Date shall be calculated on a pro forma basis assuming
that all such acquisitions, dispositions and discontinuance of operations had
occurred on the first day of the four-quarter reference period; provided,
however, that Fixed Charges shall be reduced by amounts attributable to
operations that are so disposed of or discontinued only to the extent that the
obligations giving rise to such Fixed Charges would no longer be obligations
contributing to the Company's Fixed Charges subsequent to the Transaction Date.
If any Indebtedness bears a floating rate of interest and is being given pro
forma effect, the interest on such Indebtedness shall be calculated as if the
rate in effect on the date of determination had been the applicable rate for
the entire period.
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"Fixed Charges" means, with respect to any Person for any period, the
sum, without duplication, of (a) Consolidated Interest Expense, (b)
commissions, discounts and other fees and charges incurred with respect to
letters of credit and bankers' acceptances financing, (c) any interest expense
on Indebtedness of another Person that is Guaranteed by such Person or secured
by a Lien on assets of such Person, (d) the interest component of Capital Lease
Obligations, and (e) the product of (i) all cash dividend payments on any
series of preferred stock of such Person, times (ii) 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 such Person, expressed
as a decimal, determined, in each case, on a consolidated basis and in
accordance with GAAP.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect in the United States on the date of the
Indenture.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business) direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"Guarantor" means any Restricted Subsidiary of the Company that
executes a Guarantee in accordance with the provisions of the Indenture, and
its respective successors and assigns.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates in each case that are required under any bank agreements to
which the Company is or hereafter becomes a party.
"Indebtedness" means, with respect to any Person, any indebtedness of
such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or representing Capital
Lease Obligations or the balance deferred and unpaid of the purchase price of
any property or representing any Hedging Obligations, except any such balance
that constitutes an accrued expense or trade payable, if and to the extent any
of the foregoing indebtedness (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP, as well as all indebtedness of others secured
by a Lien on any asset of such Person (whether or not such indebtedness is
assumed by such Person) and, to the extent not otherwise included, the
Guarantee of any Indebtedness of such Person or any other Person.
"Interest Rate Agreement" means any interest rate protection
agreement, interest rate future, interest rate option, interest rate swap,
interest rate cap or other interest rate hedge arrangement to or
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<PAGE> 29
which the Company or any Restricted Subsidiary is or hereafter becomes a party
or a beneficiary and which is required under any bank agreement to which the
Company is or hereafter becomes a party.
"Investments" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of loans
(including Guarantees), advances or capital contributions (excluding
commission, travel and similar advances to officers and employees made in the
ordinary course of business), purchases or other acquisitions for consideration
of Indebtedness, Equity Interests or other securities and all other items that
are or would be classified as investments on a balance sheet prepared in
accordance with GAAP. For purposes of the covenant described above under
"Certain Covenants -- Restricted Payments," (i) "Investment" in a Subsidiary
shall include the portion (proportionate to the Company's Equity Interest in
such Subsidiary) of the fair market value (as determined in good faith by the
Board of Directors) of such Subsidiary at the time that such Subsidiary is
designated an Unrestricted Subsidiary; provided that upon a redesignation of
such Subsidiary as a Restricted Subsidiary, the Company shall be deemed to
continue to have a permanent "Investment" in an Unrestricted Subsidiary in an
amount (if positive) equal to (x) the Company's "Investment" in such Subsidiary
at the time of such redesignation less (y) the portion (proportionate to the
Company's Equity Interest in such Subsidiary) of the fair market value (as
determined in good faith by the Board of Directors) of the net assets of such
Subsidiary at the time of such redesignation; and (ii) any property transferred
to or from an Unrestricted Subsidiary shall be valued at its fair market value
at the time of such transfer, in each case as determined in good faith by the
Board of Directors.
"Issue Date" means the date the Notes are originally issued under the
Indenture.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease
in the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement
under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction).
"Merger" means the merger of DPC Subsidiary Acquisition Corp. and
the Company, pursuant to that certain Agreement and Plan of Merger dated as of
August 31, 1995 among the Company, DPC Acquisition Corp. and DPC Subsidiary
Acquisition Corp.
"Net Income" means, with respect to any Person, the net income (loss)
of such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however, (a) any gain (but not
loss), together with any related provision for taxes on such gain (but not
loss), realized in connection with (i) any Asset Sale (including, without
limitation, dispositions pursuant to sale and leaseback transactions), or (ii)
the disposition of any securities or the extinguishment of any Indebtedness of
such Person or any of its Restricted Subsidiaries, and (b) any extraordinary
gain (but not loss), together with any related provision for taxes on such
extraordinary gain (but not loss).
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"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any Asset Sale, net
of the direct costs relating to such Asset Sale (including, without limitation,
legal, accounting and investment banking fees, and sales commissions) and any
relocation expenses incurred as a result thereof, taxes paid or payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), amounts required to be applied to
the repayment of Indebtedness secured by a Lien on the asset or assets the
subject of such Asset Sale and any reserve for adjustment in respect of the
sale price of such asset or assets.
"Obligations" means any principal, premium, interest (including
post-petition interest), penalties, fees, indemnifications, reimbursements,
damages and other liabilities payable under the documentation governing any
Indebtedness.
"Permitted Investments" means (a) any Investments in the Company or in
a Restricted Subsidiary of the Company; (b) any Investments in Cash
Equivalents; (c) Investments by the Company or any Restricted Subsidiary of the
Company in a Person, if as a result of such Investment (i) such Person becomes
a Restricted Subsidiary of the Company or (ii) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys substantially
all of its assets to, or is liquidated into, the Company or a Restricted
Subsidiary of the Company; (d) Investments in any Person engaged primarily in
businesses permitted to be engaged in by the Company or any of its Restricted
Subsidiaries pursuant to the "Line of Business" covenant in an aggregate amount
not to exceed $5 million at any time outstanding; (e) Investments in
Unrestricted Subsidiaries in an aggregate amount not to exceed $15 million at
any time outstanding; (f) receivables owing to the Company or any of its
Restricted Subsidiaries if created or acquired in the ordinary course of
business; and (g) 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.
"Permitted Liens" means (a) Liens in favor of the Company; (b) Liens
securing Indebtedness under the Credit Agreement; (c) Liens on property of a
Person existing at the time such Person is merged into or consolidated with the
Company or any Restricted Subsidiary of the Company, provided that such Liens
were not incurred in the contemplation of such merger or consolidation and do
not extend to any assets other than those of the Person merged into or
consolidated with the Company; (d) Liens on property existing at the time of
acquisition thereof by the Company or any Restricted Subsidiary of the Company;
provided that such Liens were not incurred in contemplation of such
acquisition; (e) Liens to secure the performance of statutory obligations,
surety or appeal bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business; (f) Liens existing on the date of
the Indenture; (g) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded, provided
that any reserve or other appropriate provision as shall be required in
conformity with GAAP shall have been made therefor; (h) Liens imposed by law,
such as mechanics', carriers', warehousemen's, materialmen's, and vendors'
Liens, incurred in good faith in the ordinary course of business with respect to
amounts not yet delinquent or being contested in good faith by appropriate
proceedings if a reserve or other appropriate proceedings if a reserve or other
appropriate provisions, if any, as shall be required by
28
<PAGE> 31
GAAP shall have been made therefor; (i) zoning restrictions, easements,
licenses, covenants, reservations, restrictions on the use of real property or
minor irregularities of title incident thereto that do not, in the aggregate,
materially detract from the value of the property or the assets of the Company
or impair the use of such property in the operation of the Company's business;
(j) judgment Liens to the extent that such judgments do not cause or constitute
a Default or an Event of Default; (k) Liens to secure Indebtedness incurred for
the purpose of financing of all or a part of the purchase price of property or
assets acquired or constructed in the ordinary course of business on or after
the date of the Indenture, provided that (i) such property or assets are used in
the same or similar line of business as the Company was engaged in on the date
of the Indenture, (ii) at the time of incurrence of any such Lien, the aggregate
principal amount of the obligations secured by such Lien shall not exceed the
lesser of the cost or fair market value of the assets or property (or portions
thereof) so acquired or constructed, (iii) each such Lien shall encumber only
the assets or property (or portions thereof) so acquired or constructed and
shall attach to such property within 120 days of the purchase or construction
thereof and (iv) any Indebtedness secured by such Lien shall have been permitted
to be incurred under the "Incurrence of Indebtedness and Issuance of Preferred
Stock" covenant; (l) ground leases in respect of the real property on which
facilities owned or leased by the Company or any of its Subsidiaries are
located; (m) Liens arising from UCC financing statements regarding property
leased by the Company or any of its Subsidiaries, provided that such Liens are
granted solely in connection with such leases and not in connection with the
borrowing of money or the obtaining of advances or credit; (n) Liens incurred
and pledges made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and social security benefits; (o) Liens
securing Purchase Money Obligations, the proceeds of which are used solely to
finance the acquisition or lease by the Company or any of its Subsidiaries of
furniture, fixtures or equipment used in the ordinary course of business,
provided that such Purchase Money Obligations are (i) non-recourse to the
Company and its Subsidiaries and (ii) permitted to be incurred under the
covenant entitled "Incurrence of Indebtedness and Issuance of Preferred Stock"
above; (p) Liens securing Indebtedness incurred to refinance Indebtedness that
has been secured by a Lien permitted under the Indebtedness, provided that (i)
any such Lien shall not extend to or cover any assets or property not securing
the Indebtedness so refinanced and (ii) the Refinancing Indebtedness secured by
such Lien shall not have a principal amount in excess of the Indebtedness so
refinanced.
"Principals" means Summit, Summit/DPC Partners, L.P., Chase Manhattan
Holdings, Inc., DLJ Merchant Banking Partners, L.P., DLJ International
Partners, C.V., DLJ Offshore Partners, C.V., DLJ Merchant Banking Funding,
Inc., DLJ First ESC L.L.C., George B. Kelly and Fred R.
Lummis.
"Public Equity Offering" means a bona fide underwritten sale to the
public of Common Stock of the Company or of DPCAC (to the extent the net
proceeds thereof are contributed to the Company as common equity) pursuant to a
registration statement (other than on Form S-8 or any other form relating to
securities issuable under any benefit plan of the Company or DPCAC, as the case
may be) that is declared effective by the Securities and Exchange Commission.
29
<PAGE> 32
"Purchase Money Obligations" of any Person means any obligations of
such Person or any of its Subsidiaries to any seller or any other person
incurred or assumed in connection with the purchase of real or personal
property to be used in the business of such Person or any of its Subsidiaries
within 180 days of such incurrence or assumption.
"Related Party" with respect to any Principal means (i) any
controlling stockholder, general partner majority owned Subsidiary, or spouse
or immediate family member (in the case of an individual) of such Principal or
(ii) any trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding a majority
interest of which consist of such Principal and/or such other Persons referred
to in the immediately preceding clause (i).
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of such
Person that is not an Unrestricted Subsidiary.
"Revolving Credit Facility" means the revolving credit portion of the
Credit Agreement or any replacement revolving credit facility entered into by
the Company and one or more financial institutions.
"Senior Debt" means, with respect to the Company or any Guarantor, any
Indebtedness incurred by the Company or such Guarantor, unless the instrument
under which such Indebtedness is incurred expressly provides that it is on a
parity with or subordinated in right of payment to the Notes or, in the case of
a Guarantor, the Guarantee of the Notes by such Guarantor; provided that Senior
Debt will not include (a) any liability for federal, state, local or other
taxes owed or owing, (b) any Indebtedness owing to any Subsidiaries of the
Company, (c) any trade payables or (d) any Indebtedness that is incurred in
violation of the Indenture.
"Senior Secured Bank Debt" means the Indebtedness outstanding under
the Credit Agreement, together with any refunding or replacement of such
Indebtedness, up to an aggregate maximum principal amount outstanding or
available at any time of $85 million, less all scheduled principal repayments
required to be made under and all other amounts repaid under the Term Loan and
all permanent reductions in availability under the Revolving Credit Facility
that have been made since the date of the Indenture (including, without
limitation, the aggregate amount of all such repayments and reductions made
pursuant to the "Asset Sales" covenant).
"Significant Subsidiary" means any Subsidiary of the Company that
would be a "significant subsidiary" as defined in Article 1, Rule 1-02 of
Regulation S-X, promulgated pursuant to the Act, as such Regulation is in
effect on the date hereof.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
30
<PAGE> 33
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person or a combination
thereof.
"Summit" means Summit Capital, Inc.
"Tax Sharing Agreement" means any tax sharing agreement between the
Company and DPCAC or any other person with which the Company is required to, or
is permitted to, file a consolidated tax return or with which the Company is or
could be part of a consolidated group for tax purposes.
"Term Loan" means the term loan portion of the Credit Agreement.
"Unrestricted Subsidiary" means any Subsidiary of the Company
designated by the Board of Directors of the Company as an Unrestricted
Subsidiary pursuant to a Board Resolution set forth in an Officers' Certificate
and delivered to the Trustees (i) that, (A) at the time of designation, has
total assets not exceeding $1,000 or (B) if such Subsidiary has total assets
exceeding $1,000, then such designation would be permitted by the covenant
entitled "Restricted Payments", (ii) no portion of the Indebtedness or any
other obligations (contingent or otherwise) of such Subsidiary (A) is
guaranteed by the Company or any other Subsidiary (other than another
Unrestricted Subsidiary) of the Company, (B) is recourse to or obligates the
Company or any other Subsidiary (other than another Unrestricted Subsidiary) of
the Company in any way or (C) subjects any property or asset of the Company or
any other Subsidiary (other than another Unrestricted Subsidiary) of the
Company, directly or indirectly, contingently or otherwise, to the satisfaction
thereof, (iii) with which neither the Company nor any other Subsidiary of the
Company (other than another Unrestricted Subsidiary) has any contract,
agreement, arrangement or understanding other than on terms no less favorable
to the Company or such other Subsidiary than those that might be obtained at
the time from persons who are not Affiliates of the Company and (iv) with which
neither the Company nor any other Subsidiary of the Company (other than another
Unrestricted Subsidiary) has any obligation (A) to subscribe for additional
shares of Capital Stock or other Equity Interests therein or (B) to maintain or
preserve such Subsidiary's financial condition or to cause such Subsidiary to
achieve certain levels of operating results. Subject to the preceding sentence,
the Board of Directors of the Company may designate any Restricted Subsidiary
to be an Unrestricted Subsidiary; provided that such designation shall be
deemed to be the making of an Investment by the Company in such Subsidiary and
such designation shall only be permitted if, in addition to the requirements of
the preceding sentence, (i) such Investment is permitted under the covenant
entitled "Restricted Payments" and (ii) no Default or Event of Default would be
in existence following such designation. The Board of Directors of the Company
may designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that such designation shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation shall only be
permitted if (i) such Indebtedness is permitted under the covenant entitled
"Incurrence of Indebtedness and Issuance of Preferred Stock" and (ii) no Default
or Event of Default would be in existence following such designation.
31
<PAGE> 34
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the sum
of the products obtained by multiplying (x) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (y) the
number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (b) the then outstanding
principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person and one or more Wholly Owned Restricted
Subsidiaries of such Person.
PLAN OF DISTRIBUTION
This Prospectus has been prepared for use by DLJSC in connection with
offers and sales of the Notes in market-making transactions at negotiated
prices related to prevailing market prices at the time of the sale. DLJSC may
act as principal or agent in such transactions. DLJSC has advised the Company
that it currently makes a market-making at any time without notice.
Accordingly, no assurance can be given as to the liquidity of, or the trading
market for, the Notes.
DLJSC served as an underwriter in the Offering and received total
underwriting discounts and commissions of $4,800,000 in connection therewith.
LEGAL MATTERS
The validity of the Notes has been passed upon for the Company by
Vinson & Elkins L.L.P., Houston, Texas.
EXPERTS
The financial statements of Doane Products Company-Successor as of and
for the year ended December 31, 1996 and as of and for the three months ended
December 31, 1995, and Doane Products Company-Predecessor as of and for the
year ended December 31, 1994 and as of and for the nine months ended September
30, 1995, have been incorporated by reference herein and in the Registration
Statement in reliance upon the report of KPMG Peat Marwick LLP, independent
certified public accountants, incorporated herein by reference and upon the
authority of said firm as experts in accounting and auditing.
32
<PAGE> 35
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 the
Company 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 the Company 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.
TABLE OF CONTENTS
Page
Available Information.................................................... 2
Incorporation of Certain Information
by Reference............................................................. 2
Use of Proceeds.......................................................... 3
Ratios of Earnings to Fixed Charges
and Earnings to Combined Fixed
Charges and Preferred Stock Dividends.................................... 3
The Company.............................................................. 4
Description of Senior Notes.............................................. 5
Plan of Distribution..................................................... 32
Legal Matters............................................................ 32
Experts.................................................................. 32
$160,000,000
DOANE PRODUCTS COMPANY
10 5/8% SENIOR NOTES
DUE 2006
---------------
PROSPECTUS
---------------
<PAGE> 36
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCES AND DISTRIBUTION
The following table sets forth the fees and expenses payable by the Company
in connection with the issuance and distribution of the securities other than
underwriting discounts and commissions. All of such expenses, except the
Securities and Exchange Commission registration fee, are estimated:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee................ $ 51,724
NASD filing fee.................................................... 15,500
Blue Sky fees and expenses......................................... 10,000
Printing expense................................................... 175,000
Accounting fees and expenses....................................... 80,000
Legal fees and expenses............................................ 160,000
Rating agency fees................................................. 30,000
Trustee's fees and expenses........................................ 24,000
Miscellaneous...................................................... 3,776
--------
Total............................................................ $550,000
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Reference is made to Section 102(b)(7) of the Delaware General Corporation
Law (the "DGCL"), which enables a corporation in its original certificate of
incorporation or an amendment thereto to eliminate or limit the personal
liability of a director for violations of the director's fiduciary duty, except
(i) for any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to Section
174 of the DGCL (providing for liability of directors for the unlawful payment
of dividends or unlawful stock purchases or redemptions) or (iv) for any
transaction from which a director derived an improper personal benefit.
Section 145 of the DGCL empowers the Company to indemnify, subject to the
standards set forth therein, any person in connection with any action, suit or
proceeding brought before or threatened by reason of the fact that the person
was a director, officer, employee or agent of such company, or is or was
serving as such with respect to another entity at the request of such company.
The DGCL also provides that the Company may purchase insurance on behalf of any
such director, officer, employee or agent.
The Company's Certificate of Incorporation provides in effect for the
indemnification by the Company of each director and officer of the Company to
the fullest extent permitted by applicable law.
II-1
<PAGE> 37
ITEM 16. EXHIBITS
See Exhibit Index at E-1.
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 percent 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 registrants pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this 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 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 the registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
II-2
<PAGE> 38
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 (and, where applicable, each filing of any
employee benefit plan's annual report pursuant to 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 herein, 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 of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described in Item 15 above
or otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such
issue.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
II-3
<PAGE> 39
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
Doane Products Company 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 the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, as of April 29, 1997.
DOANE PRODUCTS COMPANY
By /s/ BOB L. ROBINSON
------------------------------------
Bob L. Robinson
President, Chief Executive Officer
and Director
Pursuant to the requirements of the Securities Act of 1933, this
post-effective amendment to the Registration Statement has been signed below by
the following persons in the capacities indicated as of April 29, 1997.
By /s/ BOB L. ROBINSON
------------------------------
Bob L. Robinson
President, Chief Executive Officer and Director
By /s/ THOMAS R. HEIDENTHAL
------------------------------
Thomas R. Heidenthal
Senior Vice President and Chief Financial Officer
By /s/ ROY E. HESS
------------------------------
Roy E. Hess
Vice President-Finance
(Principal Accounting Officer)
By GEORGE B. KELLY*
------------------------------
George B. Kelly
Chairman of the Board
By PETER T. GRAUER*
------------------------------
Peter T. Grauer
Director
II-4
<PAGE> 40
By ANDREW H. RUSH*
-----------------------------
Andrew H. Rush
Director
By
-----------------------------
Jeffrey C. Walker
Director
By M. WALID MANSUR*
-----------------------------
M. Walid Mansur
Director
*By ROY E. HESS
-----------------------------
Roy E. Hess
Attorney-in-fact
II-5
<PAGE> 41
EXHIBIT INDEX*
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
1.1 Form of Underwriting Agreement between the Company and DLJSC.
2.1 Agreement and Plan of Merger dated as of August 31,
1995 among Doane Products Company, DPCAC and DPC
Subsidiary Acquisition Corp; list of schedules to
such Merger Agreement; Agreement of Company to
furnish such schedules to the Commission upon its
request.
4.1. Form of Trust Indenture between the Company and U.S. Trust Company of
Texas, N.A.
4.2 Revolving Credit and Term Loan Agreement dated as of October 5, 1995
among the Company, Mercantile Bank of St. Louis National Association, as
agent for the Banks named therein, and the Banks named therein.
4.3 Amended and Restated Revolving Credit and Term Loan Agreement dated as
of February 28, 1996 among the Company, Mercantile Bank of St. Louis
National Association, as agent for the Banks named therein, and the Banks
named therein.
4.4 First Amendment to Amended and Restated Revolving Credit and Term Loan
Agreement dated as of June 28, 1996 among the Company, Mercantile Bank
of St. Louis National Association, as agent for the Banks named therein, and
the Banks named therein.
5.1 Opinion of Vinson & Elkins, L.L.P.
12.1** Statement regarding Computation of Ratios.
23.1 Consent of Vinson & Elkins L.L.P. (included in Exhibit 5.1).
23.2** Consent of KPMG Peat Marwick LLP.
24.1 Power of Attorney
25.1 Statement of eligibility of Trustee on Form T-1.
</TABLE>
- ---------------
* Except as otherwise noted herein, all of the Exhibits hereto are incorporated
by reference from the corresponding Exhibit number in either the Registration
Statement on Form S-1, Registration No. 33-98110, or the Company's annual
report on Form 10-K for the fiscal year ended December 31, 1996.
** Filed herewith.
E-1
<PAGE> 1
EXHIBIT 12.1
STATEMENT REGARDING COMPUTATION OF RATIOS
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Predecessor Predecessor Successor Successor
----------- ----------- --------- ---------
Nine Three
Months Months Year
Ended Ended Ended
Year Ended December 31, September 30, December 31, December 31,
1992 1993 1994 1995 1995 1996
---------------------------------------------------------------------------
(dollars in thousands)
<S> <C> <C> <C> <C> <C> <C>
EARNINGS BEFORE INCOME TAXES 23,581 28,804 31,356 16,963 7,778 (2,373)
FIXED CHARGES 1,101 1,773 2,597 3,707 5,926 27,627
---------------------------------------------------------------------------
24,682 30,577 33,953 20,670 7,704 25,254
DIVIDED BY:
FIXED CHARGES 1,101 1,773 2,597 3,707 5,926 27,627
22.4x 17.2x 13.1x 5.6x 1.3x .9x
===========================================================================
</TABLE>
RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
<TABLE>
<CAPTION>
Predecessor Predecessor Successor Successor
----------- ----------- --------- ---------
Nine Three
Months Months Year
Ended Ended Ended
Year Ended December 31, September 30, December 31, December 31,
1992 1993 1994 1995 1995 1996
---------------------------------------------------------------------------
(dollars in thousands)
<S> <C> <C> <C> <C> <C> <C>
EARNINGS BEFORE INCOME TAXES 23,581 28,804 31,356 16,963 1,778 (2,373)
FIXED CHARGES 1,101 1,773 2,597 3,707 5,926 27,627
---------------------------------------------------------------------------
24,682 30,577 33,953 20,670 7,704 25,254
DIVIDED BY:
FIXED CHARGES 1,101 1,773 2,597 3,707 5,926 27,627
PLUS PREFERRED STOCK DIVIDEND 0 0 0 0 1,069 4,669
---------------------------------------------------------------------------
1,101 1,773 2,597 3,707 6,995 32,296
22.4x 17.2x 13.1x 5.6x 1.1x 0.8x
===========================================================================
</TABLE>
<PAGE> 1
EXHIBIT 23.2
The Board of Directors
Doane Products Company:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Houston, Texas
April 29, 1997
