<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 25, 1998
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------------------
CENTRAL GARDEN & PET COMPANY
(Exact name of registrant as specified in its charter)
--------------------------
<TABLE>
<S> <C> <C>
DELAWARE 5199 68-0275553
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
3697 MT. DIABLO BOULEVARD, SUITE 310
LAFAYETTE, CA 94549
(510) 283-4573
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
--------------------------
WILLIAM E. BROWN
CENTRAL GARDEN & PET COMPANY
3697 MT. DIABLO BOULEVARD
LAFAYETTE, CALIFORNIA 94549
(510) 283-4573
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
JOHN F. SEEGAL
BRETT E. COOPER
ORRICK HERRINGTON & SUTCLIFFE LLP
OLD FEDERAL RESERVE BANK BUILDING
400 SANSOME STREET
SAN FRANCISCO, CALIFORNIA 94111-3143
(415) 392-1122
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please, check the following
box. [ ]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] __________
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] __________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==================================================================================================================
AMOUNT PROPOSED PROPOSED AMOUNT OF
TITLE OF EACH CLASS OF TO BE MAXIMUM OFFERING MAXIMUM AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PRICE PER SHARE(1) OFFERING PRICE(1) FEE
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 2,132,182 shares $35.813 $76,358,768 $22,526
===================================================================================================================
</TABLE>
(1) Estimated solely for purpose of calculating the registration fee and based
on the average of the high and low prices of the Common Stock on the NASDAQ
National Market System on March 18, 1998.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
================================================================================
<PAGE>
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 a sale of any 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 MARCH 25, 1998
2,132,182 SHARES
[LOGO OF CENTRAL
GARDEN & PET]
COMMON STOCK
All of the 2,132,182 shares of Common Stock being offered hereby (the "Stock")
are being offered for the account of certain shareholders and/or their
respective donees, transferees or successors in interest (the "Selling
Stockholders") of Central Garden & Pet Company (the "Company"). The Company
will not receive any of the proceeds from the sale of the Stock.
The Common Stock is traded on the NASDAQ National Market System under the
symbol "CENT." The closing price of the Common Stock as reported by NASDAQ/NMS
on March 24, 1998 was $37.625.
The Company has been advised by the Selling Stockholders that all or a portion
of the Stock may be disposed of hereunder from time to time through brokers,
acting as agents and charging usual and customary brokerage commissions, on the
Nasdaq National Market, in the over-the-counter market or in private
negotiations, at market prices prevailing at the time of sale or at negotiated
prices. See "Plan of Distribution."
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.
THE DATE OF THIS PROSPECTUS IS , 1998.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy and information statements, and other
information with the Securities and Exchange Commission (the "Commission") at
450 Fifth Street N.W., Washington, D.C. 20549. Reports, proxy statements and
other information filed by the Company with the Commission can be inspected and
copied at the public reference facilities maintained by the Commission at its
principal office in Washington, D.C. and at the Regional Offices of the
Commission at 7 World Trade Center, Suite 1300, New York, New York 10048; and
Northwestern Atrium Center, Suite 1400, 500 West Madison Street, Chicago,
Illinois 60661. Copies of such material can be obtained at prescribed rates
from Public Reference Room of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549. The Commission maintains a World Wide Web site that
contains reports, proxy and information statements, and other information that
are filed through the Commission's Electronic Data Gathering, Analysis and
Retrieval system ("EDGAR"). This Web site can be accessed at
http://www.sec.gov.
The Company has filed with the Commission a registration statement on Form S-3
(herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act. This Prospectus does not
contain all the information set forth in the Registration Statement, certain
parts of which are omitted in accordance with the rules and regulations of the
Commission. For further information, reference is hereby made to the
Registration Statement. Copies of the Registration Statement may be inspected,
without charge, at the principal office of the Commission or at the Regional
Offices referred to above, or obtained upon payment of prescribed rates from the
Public Reference Section of the Commission at its principal office. Electronic
registration statements made through EDGAR are publicly available through the
Commission's Web site.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by the Company with the Commission under the
Securities Exchange Act of 1934 are hereby incorporated by reference in this
Prospectus:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
September 27, 1997;
(2) The Company's Quarterly Report on Form 10-Q for the fiscal quarter ended
December 27, 1997, its current Reports on Form 8-K filed December 8, 1997,
December 29, 1997, December 30, 1997, February 27, 1998 and March 11, 1998,
and its current Report on Form 8-K/A filed January 16, 1998; and
(3) The description of the Company's capital stock in the Company's
Registration Statement on Form 8-A dated March 30, 1993.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 subsequent to the date of filing of
the Company's 1997 Annual Report on Form 10-K referred to above and prior to the
termination of the offering of securities offered hereby shall be deemed to be
incorporated by reference and to be a part of this Prospectus from the date of
filing of such documents. Any statement contained herein or 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 and the Registration
Statement to the extent that a statement contained in any subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a Prospectus is delivered, upon written or oral
request of such person, a copy of any and all of the information that has been
incorporated by reference in this Prospectus (not including exhibits to the
information that is incorporated by reference unless such exhibits are
specifically incorporated by reference into the information that the Prospectus
incorporates.) Written or oral requests should be directed to Chief Financial
Officer, Central Garden & Pet Company, 3697 Mt. Diablo Boulevard, Lafayette, CA
94549.
2
<PAGE>
THE COMPANY
Central Garden & Pet Company is the leading national distributor of lawn and
garden and pet supply products. The Company has grown through both acquisitions
and internal expansion. In fiscal 1997, lawn and garden products accounted for
approximately 71% of the Company's net sales and pet supplies accounted for
approximately 29%.
The Company was incorporated in Delaware in June 1992 and is the successor to
Central Garden Supply, a California corporation which was acquired in 1980 by
William E. Brown, the Company's Chairman and Chief Executive Officer. Unless
the context otherwise requires, references in this Prospectus to the Company
include Central Garden & Pet Company and it subsidiaries and predecessor
companies. The Company's executive offices are located at 3697 Mt. Diablo
Boulevard, Lafayette, California 94549, and its telephone number is (510) 283-
4573.
RECENT DEVELOPMENTS
On February 27, 1998, the Company acquired all of the shares of Pennington
Seed, Inc. ("Pennington Seed"), a manufacturer of proprietary branded grass and
wild bird seed, including such brand names as Pennington Seed(R), Green
Charm(R), Penkoted(R) and Eliminator(R), and a manufacturer and distributor of
lawn and garden products, for an aggregate consideration of $150.0 million,
including $81.6 million of cash and 2,132,182 shares of the Company's Common
Stock. The acquisition has been accounted for under the purchase method. Sonny
Pennington, the President of Pennington Seed, has been appointed to the
Company's Board of Directors. Pennington Seed reported consolidated annual
sales of approximately $300.0 million in 1997.
COMMON STOCK AND DIVIDEND DATA
The Common Stock of the Company has been traded on the Nasdaq National Market
under the symbol CENT since the Company's initial public offering on July 15,
1993. The following table sets forth, for the periods indicated, the highest
and lowest closing sale prices for the Common Stock, as reported by the Nasdaq
National Market.
<TABLE>
<S> <C> <C>
FISCAL 1996 HIGH LOW
------------- ----------
First Quarter................................................................ 9-1/2 5-1/2
Second Quarter............................................................... 10 8-1/8
Third Quarter................................................................ 19 9-1/4
Fourth Quarter............................................................... 26-1/8 16-3/4
FISCAL 1997
First Quarter................................................................ 24-5/8 18-7/8
Second Quarter............................................................... 28-3/4 16-1/8
Third Quarter................................................................ 24-15/16 16-1/4
Fourth Quarter............................................................... 31-1/16 20-1/2
FISCAL 1998
First Quarter................................................................ 32 25-3/4
Second Quarter (through March 24, 1998)...................................... 39-3/8 26
</TABLE>
As of March 24, 1998, there were approximately 135 holders of record of the
Company's Common Stock and approximately 10 holders of record of the Company's
Class B Stock. On March 24, 1998, the last reported sale price of the Common
Stock on the Nasdaq National Market was $37.625.
In each of August 1996 and 1997, the Company paid cash dividends in the amount
of $45,000 to the holders of its Series A Preferred Stock. Except as mentioned
in the previous sentence, the Company has not paid any cash dividends in the
past. The Company currently intends to retain any earnings for use in its
business and does not anticipate paying any cash dividends on its Common Stock
in the foreseeable future. In addition, the Company's line of credit contains
restrictions on the Company's ability to pay dividends.
3
<PAGE>
SELECTED CONSOLIDATED FINANCIAL AND OPERATING DATA
The following selected income statement and balance sheet data of the Company
as of and for each of the fiscal years in the two-year period ended December 25,
1994, the nine-month period ended September 30, 1995 and the fiscal years ended
September 28, 1996 and September 27, 1997 have been derived from the Company's
audited consolidated financial statements.
<TABLE>
<CAPTION>
FISCAL YEAR FISCAL YEAR NINE-MONTH FISCAL YEAR FISCAL YEAR
ENDED ENDED PERIOD ENDED ENDED ENDED
DECEMBER 26, DECEMBER 25, SEPTEMBER 30, SEPTEMBER 28, SEPTEMBER 27,
1993 1994 1995(1) 1996 1997
------------ ------------ ------------- ------------- -------------
INCOME STATEMENT DATA:
<S> <C> <C> <C> <C> <C>
Net sales (2)........................ $334,682 $421,427 $373,734 $619,622 $841,007
Cost of goods sold and occupancy..... 278,746 354,096 316,832 535,189 694,925
-------- -------- -------- -------- --------
Gross profit......................... 55,936 67,331 56,902 84,433 146,082
Selling, general and administrative
expenses............................. 44,702 58,489 48,075 66,945 109,160
-------- -------- -------- -------- --------
Income from operations............... 11,234 8,842 8,827 17,488 36,922
Interest expense - net............... (3,751) (5,642) (5,891) (4,061) (6,554)
Other income (expense) - net......... (878) (859) (953) 1,038 -
-------- -------- -------- -------- --------
Income before income taxes and
minority interest.................... 6,605 2,341 1,983 14,465 30,368
Income tax expense................... 2,637 936 904 6,017 12,765
-------- -------- -------- -------- --------
Income before minority interest...... 3,968 1,405 1,079 8,448 17,603
Minority interest.................... 26 - - - -
-------- -------- -------- -------- --------
Net income........................... $ 3,994 $ 1,405 $ 1,079 $ 8,448 $ 17,603
======== ======== ======== ======== ========
Net income per common and common
equivalent share (3)
Diluted (4).......................... $0.18 $0.71 $1.07
Basic................................ $0.83 $0.24 $0.19 $0.74 $1.11
Weighted average shares
outstanding (3)
Diluted (4).......................... 5,972 11,802 19,958
Basic................................ 4,789 5,947 5,774 11,430 15,831
<CAPTION>
DECEMBER 26, DECEMBER 25, SEPTEMBER 30, SEPTEMBER 28, SEPTEMBER 27,
1993 1994 1995 1996 1997
------------ ------------ ------------- ------------- -------------
BALANCE SHEET DATA:
Working capital...................... $ 26,719 $ 21,003 $ 25,316 $ 95,670 $253,926
Total assets......................... 143,748 173,953 142,680 283,664 559,043
Short-term borrowings................ 32,162 44,995 39,670 29,508 72
Long-term borrowings................. 8,804 7,019 11,130 7,635 115,200
Shareholders' equity................. 35,359 36,376 38,402 129,559 281,807
</TABLE>
_________________
(1) In 1995, the Company changed its fiscal year end to the last Saturday in
September. Accordingly, the fiscal period ended September 30, 1995 was a
nine-month period.
(2) See Management's Discussion and Analysis in the Company's Annual Report on
Form 10-K for the fiscal year ended September 27, 1997 for a discussion of
sales fluctuations related to internal growth and business acquisitions for
fiscal years 1997, 1996 and 1995.
(3) The Company adopted Statement of Financial Accounting Standards ("SFAS") No.
128 in the first quarter of the fiscal year ending September 26, 1998. All
share and per share amounts have been restated in accordance with the
provisions of SFAS No. 128.
(4) For periods not presented diluted amounts were equal to basic as common
stock equivalents were anti-dilutive.
4
<PAGE>
SELLING STOCKHOLDERS
The Stock being offered hereby by the Selling Stockholders was acquired by the
Selling Stockholders in connection with the acquisition by the Company, in
February 1998, of Pennington Seed, Inc., a manufacturer of proprietary branded
grass and wild bird seed.
The Selling Stockholders, the only shareholders of Pennington Seed, Inc.,
received 2,132,182 shares of the Company's Common Stock (the "Registrable
Shares") in the acquisition. Pursuant to the Agreement and Plan of
Reorganization (as amended, the "Agreement") the Company agreed to file a
registration statement on Form S-3 to register for resale the 2,131,182 shares.
The Agreement requires the Company to pay the expenses of such registration and
to use its best efforts to keep the shelf registration effective for one year.
The following table sets forth certain information as of March 24, 1998 with
respect to the Selling Stockholders.
<TABLE>
<CAPTION>
BENEFICIALLY OWNED BENEFICIALLY OWNED
PRIOR TO OFFERING AFTER OFFERING
----------------------------- NUMBER OF ----------------------------
NUMBER OF SHARES BEING NUMBER OF
NAME SHARES PERCENT OFFERED SHARES PERCENT
- ---- ----------- -------------- ------------- -------------- ------------
<S> <C> <C> <C> <C> <C>
Pennington Partners, L.P................. 1,033,044 3.5 1,033,044 - -
Jacquelyn C. Pennington Trust
dated 1/29/98......................... 464,428 1.6 464,428 - -
Brooks Pennington, III (1)............... 130,140 * 130,140 - -
Penny O'Callaghan........................ 130,140 * 130,140 - -
Robert Pennington........................ 125,973 * 125,973 - -
W. Dan Pennington........................ 133,359 * 133,359 - -
Patricia Pennington...................... 6,938 * 6,938 - -
Ben O'Callaghan, Jr...................... 6,938 * 6,938 - -
Christian Pennington..................... 24,115 * 24,115 - -
W. Dan Pennington, Jr.................... 31,053 * 31,053 - -
Brooks Pennington, IV.................... 17,825 * 17,825 - -
Jacquelyn B. O'Callaghan................. 17,825 * 17,825 - -
Ben O'Callaghan.......................... 4,392 * 4,392 - -
Robert Pennington, Jr.................... 4,392 * 4,392 - -
Mary Lucile Pennington................... 1,620 * 1,620 - -
___________
* Less than one percent.
</TABLE>
(1) Brooks Pennington, III is a director of the Company.
PLAN OF DISTRIBUTION
Resales of the shares by the Selling Stockholders may be made on the NASDAQ
National Market, in the over-the-counter market or in private transactions. The
shares will be offered for sale on terms to be determined when the agreement to
sell is made or at the time of sale, as the case may be. The Selling
Stockholders may sell some or all of the shares in transactions involving
broker-dealers who may act solely as agent and or may acquire shares as
principal. Broker-dealers participating in such transactions as agent may
receive commissions from the Selling Stockholders (and, if they act as agent for
the purchaser of such shares, from such purchaser), such commissions computed in
appropriate cases in accordance with the applicable rules of NASDAQ, which
commissions may be at negotiated rates where permissible under such rules.
Participating broker-dealers may agree with the Selling Stockholders to sell a
specific number of shares at a stipulated price per share and, to the extent
such broker-dealer is unable to do so acting as agent, for the Selling
Stockholder to purchase as principal any unsold shares at the price required to
fulfill the broker-dealer's commitment to the Selling Stockholders. Any such
sales may be by block trade.
5
<PAGE>
DESCRIPTION OF CAPITAL STOCK
As of the date of this Prospectus, the authorized capital stock of the Company
consists of 80,000,000 shares of Common Stock ("Common Stock"), 3,000,000 shares
of Class B Stock ("Class B Stock") and 1,000,000 shares of Preferred Stock
("Preferred Stock"). As of March 24, 1998, there were 29,496,246 shares of
Common Stock, 1,662,967 shares of Class B Stock and 100 shares of Series A
Preferred Stock issued and outstanding.
The following description of the Company's capital stock does not purport to
be complete and is subject to and is qualified in its entirety by the
description of the Company's capital stock contained in the Company's
Certificate of Incorporation, a copy of which is filed as an exhibit to the
Registration Statement of which this Prospectus is a part. Reference is made to
such exhibit for a detailed description of the provisions thereof summarized
below.
COMMON STOCK AND CLASS B STOCK
Voting, Dividend and Other Rights. The voting powers, preferences and
relative rights of the Common Stock and the Class B Stock are identical in all
respects, except that (i) the holders of Common Stock are entitled to one vote
per share and the holders of Class B Stock are entitled to the lesser of ten
votes per shares or 49% of the total votes cast, (ii) stock dividends on Common
Stock may be paid only in shares of Common Stock and stock dividends on Class B
Stock may be paid only in shares of Class B Stock and (iii) shares of Class B
Stock have certain conversion rights and are subject to certain restrictions on
ownership and transfer described below under "Conversion Rights and Restrictions
on Transfer of Class B Stock." Except as described above, issuances of
additional shares of Class B Stock and modifications of the terms of the Class B
Stock require the approval of a majority of the holders of the Common Stock and
Class B Stock, voting as separate classes. The Certificate of Incorporation
cannot be modified, revised or amended without the affirmative vote of the
majority of outstanding shares of Common Stock and Class B Stock, voting
separately as a class. Except as described above or as required by law, holders
of Common Stock and Class B Stock vote together on all matters presented to the
stockholders for their vote or approval, including the election of directors.
The stockholders are not entitled to vote cumulatively for the election of
directors.
Each share of Common Stock and Class B Stock is entitled to receive dividends
if, as and when declared by the Board of Directors of the Company out of funds
legally available therefor. The Common Stock and Class B Stock share equally,
on a share-for-share basis, in any cash dividends declared by the Board of
Directors.
Stockholders of the Company have no preemptive or other rights to subscribe
for additional shares. Subject to any rights of holders of any Preferred Stock,
all holders of Common Stock and Class B Stock, regardless of class, are entitled
to share equally on a share-for-share basis in any assets available for
distribution to stockholders on liquidation, dissolution or winding up of the
Company. No Common Stock or Class B Stock is subject to redemption or a sinking
fund. All shares of Common Stock offered hereby will be, when so issued or
sold, validly issued, fully paid and nonassessable.
Conversion Rights and Restrictions on Transfer of Class B Stock. The Common
Stock has no conversion rights. However, at the option of the holder, each
share of Class B Stock is convertible at any time and from time to time into one
share of Common Stock. If at any time the holders of a majority of outstanding
shares of Class B Stock vote to convert the outstanding shares of Class B Stock
to Common Stock, then all outstanding shares of Class B Stock shall be deemed
automatically converted into shares of Common Stock.
The Company's Certificate of Incorporation provides that any holder of shares
of Common B Stock desiring to transfer such shares to a person other than a
Permitted Transferee (as defined below) must present such shares to the Company
for conversion into an equal number of shares of Common Stock upon such
transfer. Thereafter, such shares of Common Stock may be freely transferred to
persons other than Permitted Transferees, subject to applicable securities law.
6
<PAGE>
Shares of Class B Common Stock may not be transferred except generally to
family members, certain trusts, heirs and devisees (collectively, "Permitted
Transferees"). Upon any sale or transfer of ownership or voting rights to a
transferee other than a Permitted Transferee or to the extent an entity no
longer remains a Permitted Transferee, such shares of Class B Stock will
automatically convert into equal number of shares of Common Stock. Accordingly,
no trading market is expected to develop in the Class B Stock and the Class B
Stock will not be listed or traded on any exchange or in any market.
Effects of Disproportionate Voting Rights. The Disproportionate voting rights
of the Common Stock and Class B Stock could have an adverse effect on the market
price of the Common Stock. Such disproportionate voting rights may make the
Company a less attractive target for a takeover than it otherwise might be, or
render more difficult or discourage a merger proposal, a tender offer or a proxy
contest, even if such actions were favored by stockholders of the Company other
than the holders of the Class B Stock. Accordingly, such disproportionate
voting rights may deprive holders of Common Stock of an opportunity to sell
their shares at a premium over prevailing market prices, since takeover bids
frequently involve purchases of stock directly from shareholders at such a
premium price.
PREFERRED STOCK
The Board of Directors has the authority to cause the Company to issue up to
1,000,000 shares of Preferred Sock in one or more series and to fix the rights,
preferences, privileges and restrictions thereof, including dividend rights,
conversion rights, voting rights, terms of redemption, liquidation preferences
and the number of shares constituting any series or the designation of such
series, without any further vote or action by the stockholders. The issuance of
Preferred Stock may have the effect of delaying, deferring or preventing a
change in control of the Company without further action by the stockholders.
The issuance of Preferred Stock with voting and conversion rights may adversely
affect the voting power of the holders of the Common Stock.
In July 1995, the Company issued 100 shares of Series A Preferred Sock to
Monsanto Company, of which Solaris is a strategic business unit. The Series A
Preferred Stock is entitled to receive a cumulative 5% annual cash dividend
which must be paid prior to the declaration or payment of any dividends on the
Common Stock. Each share of Series A Preferred Stock is entitled to a
liquidation preference of $9,000 per share, is convertible into 1,000 shares of
Common Stock, votes together with the Common Stock and has a number of votes
equal to the number of shares of Common Stock into which it is convertible.
SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW
The Company is subject to the provisions of Section 203 of the Delaware
General Corporation Law. In general, this statute prohibits under certain
circumstances, a Delaware corporation whose stock is publicly traded or held in
record by more than 2,000 stockholders, from engaging in a "business
combination" with an "interested stockholder" for a period of 3 years after the
date of the transaction which the person became an interested stockholder,
unless (i) the corporation has elected in its certificate of incorporation or
bylaws not to be governed by this Delaware law (the Company has not made such an
election); (ii) prior to the time the stockholder became an interested
stockholder, the board of directors approved either the business combination or
the transaction which resulted in the person becoming an interested stockholder,
(iii) the stockholder owned at least 85% of the outstanding voting stock of the
corporation (excluding shares held by directors who were also officers or held
in certain employee stock plans) upon consummation of the transaction which
resulted in a stockholder becoming an interested stockholder or (iv) the
business combination was approved by the board of directors and by two-thirds of
the outstanding voting stock of the corporation (excluding shares held by the
interested stockholder). "Interested stockholder" is a person who, together
with affiliates and associates, owns (or, if such person is an affiliate or
associate of the corporation, any time within the prior three years did own) 15%
or more of the corporation's outstanding voting stock. The term "business
combination" is defined generally to include mergers, consolidations, stock
sales, asset based transactions, and other transactions resulting in a financial
benefit to the interested stockholder.
7
<PAGE>
TRANSFER AGENT AND REGISTRAR
ChaseMellon Shareholder Services, L.L.C. is the transfer agent and registrar
for the Company's Common Stock.
LEGAL MATTERS
The validity of the issuance of the Common Stock offered hereby will be passed
upon for the Company and the Selling Stockholders by Orrick, Herrington &
Sutcliffe LLP, San Francisco, California.
EXPERTS
The consolidated financial statements and the related financial statement
schedule incorporated in this Prospectus by reference from the Company's Annual
Report on Form 10-K for the year ended September 27, 1997 have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their reports, which
are incorporated herein by reference, and have been so incorporated in reliance
upon the reports of such firm given upon their authority as experts in
accounting and auditing.
8
<PAGE>
<TABLE>
<S> <C>
=============================================================== ======================================================
2,132,182 SHARES
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN
AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE [LOGO OF CENTRAL GARDEN & PET]
ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED
IN THE PROSPECTUS IN CONNECTION WITH THE OFFER COMMON STOCK
MADE BY THIS PROSPECTUS AND, IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY _____________
THE COMPANY OR BY ANY SELLING STOCKHOLDER. PROSPECTUS
NEITHER THE DELIVERY OF THIS PROSPECTUS NOR _____________
ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE
HAS BEEN NO CHANGE IN THE AFFAIRS OF THE
COMPANY SINCE THE DATE HEREOF. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR
SOLICITATION BY ANYONE IN ANY STATE IN WHICH
SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED
OR IN WHICH THE PERSON MAKING SUCH OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO TO
ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH , 1998
OFFER OR SOLICITATION.
________________
TABLE OF CONTENTS
Available Information....................................... 2
Incorporation of Certain Information by
Reference.................................................. 2
The Company................................................. 3
Recent Developments......................................... 3
Common Stock and Dividend Data.............................. 3
Selected Consolidated Financial and Operating Data.......... 4
Selling Stockholders........................................ 5
Plan of Distribution........................................ 5
Description of Capital Stock................................ 6
Legal Matters............................................... 8
Experts..................................................... 8
=============================================================== ======================================================
</TABLE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses payable by the
registrant in connection with the distribution of the Common Stock being
registered. All amounts are estimated, except the SEC registration fee, the
NASD filing fee and the Nasdaq National Market application fee:
<TABLE>
<S> <C>
SEC registration fee........................ $22,526
Accounting fees............................. 5,000
Legal fees and expenses..................... 20,000
Miscellaneous............................... 2,474
-------
Total...................................... $50,000
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article SIXTH, Section 2 of the Registrant's Certificate of Incorporation
provides that directors of the Registrant shall not be personally liable to the
Registrant or its stockholders for monetary damages for breach of fiduciary duty
as a director, to the fullest extent permitted by the General Corporation Law of
the State of Delaware. Article V of the Registrant's Bylaws provides for
indemnification of officers and directors to the full extent and in the manner
permitted by Delaware law. Section 145 of the Delaware General Corporation Law
makes provision for such indemnification in terms sufficiently broad to cover
officers and directors under certain circumstances for liabilities arising under
the Securities Act of 1933.
The Registrant has entered into indemnification agreements with each director
which provide indemnification under certain circumstances for acts and omissions
which may not be covered by any directors' and officers' liability insurance.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
- ----------- -------
<C> <S>
3.1 Third Amended and Restated Certificate of Incorporation (Incorporated by reference from
Exhibit 3.1 to Registration Statement No. 33-98544).
3.2 Certificate of Amendment of Third Amended and Restated Certificate of Incorporation
(Incorporated by reference from Exhibit 3.1.1 to Registration Statement No. 333-46437).
3.3 Copy of Registrant's Bylaws (Incorporated by reference from Exhibit 3.2 to Registration
Statement No. 33-48070).
4.1 Specimen Common Stock Certificate (Incorporated by reference from Exhibit 4.1 to
Registration Statement No. 33-48070).
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP as to legality of Common Stock, including
consent.
23.1 Independent Auditors' Consent.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP (See Exhibit 5.1).
24.1 Powers of Attorney (see Page II-4).
</TABLE>
II-1
<PAGE>
ITEM 17. UNDERTAKINGS
A. Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors,
officers, and controlling persons of the registrant pursuant to the
provisions described in Item 14 above, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed
in the Securities Act 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
of whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of
such issue.
B. 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 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 paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment to those
paragraphs is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
C. The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report pursuant to section 13(a)
or section 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the Registration Statement shall be deemed to be a new Registration
II-2
<PAGE>
Statement relating to the securities offering therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(2) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(3) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Lafayette, State of California, on this 25th day of
March, 1998.
CENTRAL GARDEN & PET COMPANY
By: /s/ William E. Brown
--------------------
William E. Brown
(Chairman of the Board of Directors,
Chief Executive Officer and President)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints William E. Brown and Glenn W. Novotny, or either
of them, each with the power of substitution, his attorney-in-fact, to sign any
amendments to this Registration Statement (including post-effective amendments),
and to file same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that each of said attorneys-in-fact, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<S> <C> <C>
/s/ William E. Brown Chairman of the Board of Directors and Chief March 25, 1998
- --------------------------------------- Executive Officer
William E. Brown (Principal Executive Officer)
/s/ Robert B. Jones Vice President and Chief Financial Officer March 25, 1998
- --------------------------------------- (Principal Financial Officer and Principal
Robert B. Jones Accounting Officer)
/s/ Glenn W. Novotny Director and President March 25, 1998
- ---------------------------------------
Glenn W. Novotny
/s/ Daniel P. Hogan, Jr. Director March 25, 1998
- ---------------------------------------
Daniel P. Hogan, Jr.
/s/ Lee D. Hines, Jr. Director March 25, 1998
- ---------------------------------------
Lee D. Hines, Jr.
/s/ Brooks Pennington, III Director March 25, 1998
- ---------------------------------------
Brooks Pennington, III
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT PAGE
- ------- ------- ----
<C> <S> <C>
3.1 Third Amended and Restated Certificate of Incorporation
(Incorporated by reference from Exhibit 3.1 to Registration
Statement No. 33-98544).
3.2 Certificate of Amendment of Third Amended and Restated
Certificate of Incorporation (Incorporated by reference from
Exhibit 3.1.1 to Registration Statement No. 333-46437).
3.3 Copy of Registrant's Bylaws (Incorporated by reference from
Exhibit 3.2 to Registration Statement No. 33-48070).
4.1 Specimen Common Stock Certificate (Incorporated by reference
from Exhibit 4.1 to Registration Statement No. 33-48070).
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP as to legality of
Common Stock, including consent.
23.1 Independent Auditors' Consent.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP (See Exhibit
5.1).
24.1 Powers of Attorney (see Page II-4).
</TABLE>
<PAGE>
[ORRICK, HERRINGTON & SUTCLIFFE LLP LETTERHEAD]
EXHIBIT 5.1
March 25, 1998
Central Garden & Pet Company
3697 Mt. Diablo Boulevard
Lafayette, CA 94549
Re: Central Garden & Pet Company
Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
At your request, we are rendering this opinion in connection with a
proposed sale by certain stockholders ("Selling Stockholders") of Central Garden
& Pet Company, a Delaware corporation (the "Company") of up to 2,132,182 shares
(the "Shares") of common stock, $0.01 par value (the "Common Stock") pursuant to
a Registration Statement on Form S-3.
We have examined instruments, documents, and records which we deemed
relevant and necessary for the basis of our opinion hereinafter expressed. In
such examination, we have assumed the following: (a) the authenticity of
original documents and the genuineness of all signatures; (b) the conformity to
the originals of all documents submitted to us as copies; and (c) the truth,
accuracy, and completeness of the information, representations, and warranties
contained in the records, documents, instruments, and certificates we have
reviewed.
Based on such examination, we are of the opinion that the currently
issued and outstanding Shares covered by the Registration Statement are legally
issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
above-referenced Registration Statement and to the use of our name wherever it
appears in said Registration Statement, including the Prospectus constituting a
part thereof, as originally filed or as subsequently amended or supplemented.
In giving such consent, we do not consider that we are "experts" within the
meaning of such term as used in the Securities Act of 1933, as amended, or the
rules and regulations of the Securities and Exchange Commission issued
thereunder, with respect to any part of the Registration Statement, including
this opinion as an exhibit or otherwise.
Very truly yours,
/s/ Orrick, Herrington & Sutcliffe LLP
ORRICK, HERRINGTON & SUTCLIFFE LLP
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-3 of Central Garden & Pet Company of our reports dated November 4, 1997,
appearing in the Annual Report on Form 10-K of Central Garden & Pet Company for
the year ended September 27, 1997 and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
San Francisco, California
March 25, 1998
