2 3 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
1
EXHIBIT 9.2
FIRST AMENDMENT TO FIRST AMENDED
AND RESTATED INVESTORS' AGREEMENT
This First Amendment to the First Amended and Restated Investors'
Agreement (this "Agreement") dated as of October 14, 1998 is entered into by
and among (i) DPC Acquisition Corp. (the "Company"), (ii) Xxxxx Products
Company (formerly known as DPC Transition Corp.) ("Xxxxx"), (iii) Summit
Capital Inc. ("Summit"), (iv) Summit/DPC Partners, L.P. ("Summit/DPC"), (v)
Chase Manhattan Investment Holdings, Inc. ("Chase"), (vi) 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., (each of the
foregoing in this clause (vi), a "DLJ Entity," and collectively, the "DLJ
Entities") (vii) Dartford Partnership, L.L.C. ("Dartford"), (viii) Bruckmann,
Xxxxxx, Xxxxxxxx & Co., L.P. ("BRS"), (ix) PNC Capital Corp ("PNC"), (x) Xxxxx
Xxxx Pet Food Company, L.L.C. ("Xxxxx Xxxx L.L.C."), (xi) Baseball Partners and
(xii) the other Persons listed on the signature pages hereto.
W I T N E S S E T H :
WHEREAS, certain stockholders and warrantholders of the Company are
parties to or bound by that certain First Amended and Restated Investors'
Agreement dated as of August 3, 1998 (the "Original Agreement"); and
WHEREAS, the undersigned, constituting the holders of more than 75% of
the shares of Common Stock of the Company (including the Warrants on an "as-if
exercised" basis) desire to amend the Original Agreement on the terms of this
Agreement and, except as amended by this Agreement, ratify the terms of the
Original Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in exchange for the mutual
covenants herein, the parties hereto agree as follows:
AGREEMENTS
1. Defined Terms. Capitalized terms used in this Agreement that are not
defined herein shall have the meanings given to them in the Original Agreement.
2. Amendments. The Original Agreement is amended as follows:
(a) Clause (ix) of the definition of "Permitted Transferee" is
hereby amended in its entirety to provide as follows:
"(ix) in the case of any other Shareholder, (A) the Issuer,
(B) a Person to whom Shares are transferred from such other
Shareholder (1) by will or the laws of descent and
distribution or (2) by gift without consideration of any kind;
provided that in the case of clause (2) preceding such
transferee is the
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spouse or the lineal descendant, sibling or parent of such
Shareholder, (C) a trust that is for the exclusive benefit of
such other Shareholder, its Permitted Transferees under (B)
above or any institution described in clause (D) following,
(D) any institution qualified as tax-exempt under Section
501(c)(3) of the Internal Revenue Code of 1986, as amended, or
(E) a partnership, limited liability company, corporation or
other business organization that is "controlled by" (as
defined in the definition of the term "Affiliate"), and a
majority of capital stock or interests entitled to a majority
of all distributions (including liquidating distributions) are
owned beneficially by, such other Shareholder and any one or
more of the persons described in clauses (B) through (D)
preceding."
(b) Section 2.1 is hereby amended by adding the following thereto:
"(c) At any time and for so long as the Bridge Parties (as
defined in that certain Bridge Financing Agreement dated
October 15, 1998 among Xxxxx Xxxx, the Company, Pet Food
Funding, Inc. and The Chase Manhattan Bank (the "Bridge
Agreement")) are entitled to appoint an individual to serve on
the Board pursuant to the terms of the Bridge Agreement, each
Shareholder entitled to vote for the election of directors to
the Board agrees that it will vote its shares of Common Stock
or execute consents, as the case may be, and take all other
necessary action (including causing the Company to call a
special meeting of shareholders) to elect any designee of the
Bridge Parties to the Board.
(c) Section 4.5 is hereby amended by adding a clause (g) at the
end of the first sentence of such section, which clause shall provide as
follows:
"(g) any warrants issued pursuant to the Bridge Agreement and
any shares of Common Stock issuable upon exercise of such
warrants."
(d) The Original Agreement (including the relevant provisions of
Article 5 and Section 6.4) is hereby amended to the extent necessary to allow
the Company to honor fully the piggyback and demand registration rights
(including the priorities of such rights) and obligations as well as the
obligation to file a shelf registration statement, in each case, pursuant to
the Bridge Agreement and related documents.
3. Ratification. Except as expressly set forth herein, the terms and
provisions of the Original Agreement are hereby ratified and confirmed.
4. Miscellaneous. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
DPC ACQUISITION CORP.
By: /s/ XX XXXXXXXXXX
-----------------------------
Name: XX Xxxxxxxxxx
---------------------------
Title: Senior VP & CFO
--------------------------
XXXXX PRODUCTS COMPANY
By: /s/ XX XXXXXXXXXX
-----------------------------
Name: XX Xxxxxxxxxx
---------------------------
Title: Senior VP & CFO
--------------------------
SUMMIT CAPITAL INC.
By: /s/ XXXXXX X. XXXXX
-----------------------------
Name: Xxxxxx X. Xxxxx
---------------------------
Title: Chairman
--------------------------
CHASE MANHATTAN INVESTMENT
HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------
Title: CEO
--------------------------
BASEBALL PARTNERS
By: /s/ Xxxxx Xxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxx
---------------------------
Title: GP
--------------------------
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SUMMIT/DPC PARTNERS, L.P.
BY: SUMMIT CAPITAL, INC.,
its General Partner
By: /s/ XXXXXX X. XXXXX
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman
DLJ MERCHANT BANKING PARTNERS, L.P.,
a Delaware Limited Partnership
BY DLJ MERCHANT BANKING, INC.
Managing General Partner
By: /s/ XXXXX XXXXXX
-----------------------------
Name: Xxxxx Xxxxxx
---------------------------
Title: Managing Director
--------------------------
DLJ INTERNATIONAL PARTNERS, C.V.
BY DLJ MERCHANT BANKING, INC.
Advisory General Partner
By: /s/ XXXXX XXXXXX
-----------------------------
Name: Xxxxx Xxxxxx
---------------------------
Title: Managing Director
--------------------------
DLJ OFFSHORE PARTNERS, C.V.
BY DLJ MERCHANT BANKING, INC.
Advisory General Partner
By: /s/ XXXXX XXXXXX
-----------------------------
Name: Xxxxx Xxxxxx
---------------------------
Title: Managing Director
--------------------------
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DLJ FIRST ESC, L.L.C.
By: /s/ XXXXX XXXXXX
-----------------------------
Name: Xxxxx Xxxxxx
---------------------------
Title: Managing Director
--------------------------
DLJ MERCHANT BANKING FUNDING, INC.
By: /s/ XXXXX XXXXXX
-----------------------------
Name: Xxxxx Xxxxxx
---------------------------
Title: Managing Director
--------------------------
THE XXXXXXXXX 1989 TRUST
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
By: /s/ XXXX X. XXXXX
--------------------------------------
Xxxx X. Xxxxx
By: /s/ XXXXX X. XXXXXXX
--------------------------------------
Xxxxx X. Xxxxxxx
By: /s/ XXX X. XXXXXXXX
--------------------------------------
Xxx X. Xxxxxxxx
By:
--------------------------------------
Xxx X. Xxxx
By: /s/ XXXX X. XXXXXXXX
--------------------------------------
Xxxx X. Xxxxxxxx
By:
--------------------------------------
J. Xxxxx Xxxxxx
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By: /s/ XXXXX XXXXXXX XXXXXX
--------------------------------------
Xxxxx Xxxxxxx Xxxxxx
By:
--------------------------------------
Xxxx X. Xxxxxxxxx
By:
--------------------------------------
Xxx X. Xxxxxxxxx
By:
--------------------------------------
Xxxx X. Xxxxxxxxx
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The following signatories are the "Xxxxx Xxxx Investors:"
DARTFORD PARTNERSHIP, L.L.C.
By: /s/ Xxx Xxxxx
--------------------------
Name: Xxx Xxxxx
---------------------------
Title: Partner
--------------------------
BRUCKMANN, XXXXXX, XXXXXXXX & CO., L.P.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxx
---------------------------
Title: Managing Director
--------------------------
PNC CAPITAL CORP
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
XXXXX XXXX PET FOOD COMPANY L.L.C.
By: /s/ Xxx Xxxxx
-----------------------------
Name: Xxx Xxxxx
---------------------------
Title: Executive Vice President
---------------------------
-----------------------------
Xxxxxx X. Xxxx
----------------------------
F. Xxxxxx Xxxxx, Xx.
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--------------------------------
Xxxxxx X. Xxxx
--------------------------------
Xxxxx X. Xxxx, Xx.
--------------------------------
Xxx X. XxXxxxx
--------------------------------
Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxxx Xxxxxxxx
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BCB PARTNERSHIP, XXXXX X.
XXXXXXXXX, XXXXXX X.
XXXXXXXXX, XXXX X. XXXXXXXX, NAZ
PARTNERSHIP, XXXXXX X. XXXXXX, H.
XXXXXX XXXXXXXX, XXXXXXX X.
XXXXXXXX, XXXXX X. XXXXX,
XXXXXXXXX XXXXXXX, XXXXXXX
PLACE, BY THE FOLLOWING PERSONS:
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxxx, Attorney-in-Fact
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxx, INDIVIDUALLY
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