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EXHIBIT 9.3
SECOND AMENDMENT TO FIRST AMENDED
AND RESTATED INVESTORS' AGREEMENT
This Second Amendment to the First Amended and Restated Investors'
Agreement (this "Agreement") dated as of February 4, 1999, is entered into by
and among (i) Xxxxx Pet Care Enterprises, Inc., formerly known as DPC
Acquisition Corp. (the "Company"), (ii) Xxxxx Pet Care Company, formerly known
as Xxxxx Products Company ("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, as amended (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) Section 2.1(a) is hereby amended in its entirety to provide as
follows:
"(a) The Board shall consist of eight members (subject to
changes in size as provided below in this Section 2.1(a)), of
whom one shall be designated by DLJ Merchant Banking Partners,
L.P.("DLJMB") (the "DLJMB Designee"), two shall be designated
by Summit on behalf of the Summit-Investors (each such
designee, a "Summit-Investor Designee"), one shall be
designated by BRS on behalf of the Xxxxx Xxxx Investors and
one shall be designated by Xxxxx Xxxx L.L.C. on behalf of the
Xxxxx Xxxx Investors (each of the two foregoing designees, a
"Xxxxx Xxxx
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Designee"), one shall be designated by Chase (the "Chase
Designee"), one shall be the chief executive officer of the
Company and one shall be designated by the mutual agreement of
the DLJ Designee (so long as a DLJ Designee then serves on the
Board) and Xxxxxx X. Xxxxx (so long as Xx. Xxxxx is one of the
two Summit Designees) or, if Xxxxxx X. Xxxxx is not then one
of the two Summit Designees, by either of the Summit
Designees. At any time the number of shares of Common Stock
owned of record by the Summit-Investors is less than 50% of
the number of shares of Common Stock owned thereby as of
August 3, 1998 (in each case, disregarding stock splits,
recapitalizations and similar adjustments in number of shares
and stock dividends), the Summit-Investors shall only have the
right to designate one individual. At any time the number of
shares of Common Stock owned of record by the Xxxxx Xxxx
Investors is less than 50% of the number of shares of Common
Stock owned thereby as of August 3, 1998 (in each case,
disregarding stock splits, recapitalizations and similar
adjustments in number of shares and stock dividends), the
Xxxxx Xxxx Investors shall only have the right to designate
one individual, and such director shall be the Xxxxx Xxxx
Representative at such time. Notwithstanding the foregoing, at
any time any of DLJMB's, Chase's, the Summit-Investors' or the
Xxxxx Xxxx Investors' respective Percentage Ownership is less
than 5%, such person or group shall not have the further right
to designate any individual under this Section 2.1(a). Each
Shareholder entitled to vote for the election of directors to
the Board shall vote its Securities and execute written
consents to increase the Board size and to elect independent
directors to accommodate the requirements for listing the
Securities on any national securities exchange or market
system on which the Board determines that the Securities shall
be listed or included. 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)
in order to ensure that the composition of the Board is as set
forth in this Section 2.1(a). The parties to this Agreement
acknowledge and agree that the right to designate an
individual pursuant to this Section 2.1(a) and the obligations
of the Shareholders to vote for or consent to any individual
designated in accordance with this Section 2.1(a) shall not
ensure that such individual shall be elected to the Board."
(b) The lead-in paragraph to Section 2.4(b) (i.e., the paragraph
immediately preceding clauses (i) through (ix) of Section 2.4(b)) is
hereby amended in its entirety to provide as follows:
"(b) Until the consummation of an Initial Public Offering, no
action by the Company (including but not limited to any action
by the Board or any committee thereof) shall be taken after
August 3, 1998 with respect to any of the following matters
without the affirmative approval of a majority of the members
of the Board, which majority must include (i) for so long as
the DLJ Entities own at least 50% of the number of shares of
Common Stock owned thereby as of August 3, 1998 (treating, for
these purposes, the Warrants on an as if exercised basis and,
in each case, disregarding stock splits, recapitalizations and
similar adjustments in number of shares and stock dividends),
the DLJMB Designee, (ii) for so long as the Summit-Investors
own at least 33 1/3% of the number of shares of Common Stock
owned
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thereby as of August 3, 1998 (in each case, disregarding stock
splits, recapitalizations and similar adjustments in number of
shares and stock dividends), at least one Summit-Investor
Designee, and (iii) for so long as the Xxxxx Xxxx Investors
own at least 50% of the number of shares of Common Stock owned
thereby as of August 3, 1998 (in each case, disregarding stock
splits, recapitalizations and similar adjustments in number of
shares and stock dividends), at least one Xxxxx Xxxx
Designee:"
3. Terminology. The phrases "as of the date of this Agreement" and "the
date hereof," when stated in the text of the Original Agreement, refer to August
3, 1998.
4. Ratification. Except as expressly set forth herein, the terms and
provisions of the Original Agreement, as amended prior to the date hereof, are
hereby ratified and confirmed.
5. 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.
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/ X. X. XXXXXXXXXX
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Name: X. X. Xxxxxxxxxx
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Title: Senior Vice President and CFO
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XXXXX PRODUCTS COMPANY
By: /s/ X. X. XXXXXXXXXX
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Name: X. X. Xxxxxxxxxx
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Title: Senior Vice President and CFO
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SUMMIT CAPITAL INC.
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
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Title: Chairman
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CHASE MANHATTAN INVESTMENT
HOLDINGS, INC.
By: /s/ XXXXXXX XXXXXX
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Name: Xxxxxxx Xxxxxx
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Title: CEO
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BASEBALL PARTNERS
By: /s/ XXXXXXX XXXXXX
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Name: Xxxxxxx Xxxxxx
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Title: Managing Partner
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SUMMIT/DPC PARTNERS, L.P.
BY: SUMMIT CAPITAL, INC.,
its General Partner
By: /s/ XXXXXX X. XXXXX
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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/ X. XXXXXX
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Name: X. Xxxxxx
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Title:
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DLJ INTERNATIONAL PARTNERS, C.V.
BY DLJ MERCHANT BANKING, INC.
Advisory General Partner
By: /s/ X. XXXXXX
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Name: X. Xxxxxx
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Title:
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DLJ OFFSHORE PARTNERS, C.V.
BY DLJ MERCHANT BANKING, INC.
Advisory General Partner
By: /s/ X. XXXXXX
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Name: X. Xxxxxx
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Title:
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DLJ FIRST ESC, L.L.C.
By: /s/ X. XXXXXX
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Name: X. Xxxxxx
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Title:
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DLJ MERCHANT BANKING FUNDING, INC.
By: /s/ X. XXXXXX
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Name: X. Xxxxxx
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Title:
------------------------------------
THE XXXXXXXXX 1989 TRUST
By:
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Name:
-------------------------------------
Title:
------------------------------------
By:
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Xxxx X. Xxxxx
By:
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Xxxxx X. Xxxxxxx
By: /s/ XXX X. XXXXXXXX
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Xxx X. Xxxxxxxx
By:
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Xxx X. Xxxx
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By:
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Xxxx X. Xxxxxxxx
By:
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J. Xxxxx Xxxxxx
By: /s/ XXXXX XXXXXXX XXXXXX
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Xxxxx Xxxxxxx Xxxxxx
By:
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Xxxx X. Xxxxxxxxx
By:
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Xxx X. Xxxxxxxxx
By:
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Xxxx X. Xxxxxxxxx
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The following signatories are the "Xxxxx Xxxx Investors:"
DARTFORD PARTNERSHIP, L.L.C.
By: /s/ XXX XXXXX
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Name: Xxx Xxxxx
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Title: EVP
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BRUCKMANN, XXXXXX, XXXXXXXX & CO., L.P.
By: /s/ XXXXXXX XXXXXXXX
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Name: Xxxxxxx Xxxxxxxx
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Title:
------------------------------------
PNC CAPITAL CORP
By:
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Name:
-------------------------------------
Title:
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XXXXX XXXX PET FOOD COMPANY L.L.C.
By: /s/ XXX XXXXX
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Name: Xxx Xxxxx
-------------------------------------
Title: EVP
------------------------------------
/s/ XXXXXX X. XXXX
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Xxxxxx X. Xxxx
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F. Xxxxxx Xxxxx, Xx.
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Xxxxxx X. Xxxx
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Xxxxx X. Xxxx, Xx.
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Xxx X. XxXxxxx
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Xxxxxx X. Xxxxxx
/s/ XXXXXXX XXXXXXXX
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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
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Xxxxxxx X. Xxxxxxxx, Attorney-in-Fact
/s/ XXXXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxxxxx, INDIVIDUALLY
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