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EXHIBIT 9.5
FOURTH AMENDMENT TO FIRST AMENDED
AND RESTATED INVESTORS' AGREEMENT
This Fourth Amendment to the First Amended and Restated Investors'
Agreement (this "AGREEMENT") dated as of May 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 to date (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 hereby amended as follows:
(a) Section 1.1(a) is amended by adding the following defined terms:
"BYLAWS" means the bylaws of the Company, as amended or
restated from time to time.
"CLASS I DIRECTOR" means any director of the Board then
serving in one of the Board positions specified as a "Class I" position
by the Bylaws of Company.
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"CLASS II DIRECTOR" means any director of the Board then
serving in one of the Board positions specified as a "Class II"
position by the Bylaws of Company.
"CLASS III DIRECTOR" means any director of the Board then
serving in one of the Board positions specified as a "Class III"
position by the Bylaws of Company.
(b) Section 2.1(a) is hereby amended in its entirety to provide as follows:
"(a) The Board shall consist of eight members or such greater number as
is established in accordance with the Bylaws, and the Company shall
take such action as is necessary to cause the following persons to be
nominated, in accordance with the Bylaws, to stand for election to
serve as directors in the positions (i.e., as Class I Directors, Class
II Directors or Class III Directors) specified below:
(i) (A) at any time the Summit-Investors own of record 50% or
more 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), two individuals designated by Summit on
behalf of the Summit-Investors, and, as long as the Board is
classified, of such two individuals, one shall stand for
election as a Class III Director and the second individual
shall stand for election as a Class II Director (each such
person, a "SUMMIT-INVESTOR DESIGNEE") and (B) at any time the
Summit-Investors own of record less than 50% of the number of
shares of Common Stock owned thereby as of August 3, 1998
(disregarding stock splits, recapitalizations, and similar
adjustments in number of shares and stock dividends) and the
Summit-Investors' Percentage Ownership is 5% or more, one
individual designated by Summit on behalf of the
Summit-Investors and, so long as the Board is classified, such
individual shall stand for election as a Class III Director;
(ii) (A) at any time the Xxxxx Xxxx Investors own of record
(or beneficially by reason of the record ownership of IBJ
Whitehall Bank & Trust Company (formerly IBJ Xxxxxxxx Bank &
Trust Company) ("IBJ")) 50% or more 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), one
individual designated by Xxxxx Xxxx L.L.C., which individual
shall stand for election as a Class II Director, and one
individual designated by BRS, which individual shall stand for
election as a Class I Director (such two designees
collectively referred to as the "XXXXX XXXX DESIGNEES" or
individually as a "XXXXX XXXX DESIGNEE") and (B) at any time
the Xxxxx Xxxx Investors own of record (or beneficially by
reason of the record ownership of IBJ less than 50% of the
number of shares of Common Stock owned thereby as of August 3,
1998 (in each case, disregarding stock
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splits, recapitalizations and similar adjustments in number of
shares and stock dividends) and the Xxxxx Xxxx Investors'
Percentage Ownership is 5% or more, the Xxxxx Xxxx
Representative shall be nominated to stand for election and,
so long as the Board is classified, the Xxxxx Xxxx
Representative shall stand for election to serve as a Class II
Director;
(iii) at any time the Chase Percentage Ownership is 5% or
greater, one individual shall be designated by Chase (the
"CHASE DESIGNEE") to stand for election and, so long as the
Board is classified, the Chase Designee shall stand for
election to serve as a Class III Director;
(iv) at any time the DLJMB's Percentage Ownership is 5% or
greater, one individual shall be designated by DLJMB (the
"DLJMB DESIGNEE") to stand for election and, so long as the
Board is classified, the DLJMB Designee shall stand for
election to serve as a Class III Director;
(v) the chief executive officer of the Company shall be
designated to stand for election and, so long as the Board is
classified, the chief executive officer shall stand for
election to serve as a Class II Director; and
(vi) in addition to the individuals contemplated above, one
individual designated jointly by Xxxxxx X. Xxxxx (so long as
Xx. Xxxxx serves as a member of the Board and the Summit
Investors' Percentage Ownership is 5% or more) and by the
DLJMB Designee (so long as DLJMB's Percentage Ownership is 5%
or more); provided, if either Xx. Xxxxx or the DLJMB Designee
is not entitled to designate the individual pursuant to this
clause (vi) because the conditions set forth in either of the
foregoing parentheticals have not been satisfied, the
individual shall be designated pursuant to this clause (vi) by
Xx. Xxxxx (if the Summit Investors' Percentage Ownership is 5%
or greater) or by DLJMB Designee (if the DLJBM's Percentage
Ownership is 5% or greater) (such individual being referred to
as the "JOINT DESIGNEE" even if such individual is designated
by either Xx. Xxxxx or the DLJMB Designee pursuant to the
foregoing proviso).
Director positions for which a nominee is not specified in
accordance with the preceding provisions of this Section 2.2(a) shall
be specified in accordance with the Bylaws.
At the Company's request, 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 or to include at least two individuals who are "NON-EMPLOYEE
DIRECTORS" for purposes of, and as such term is referred to in, Rule
16b-3
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of the Exchange Act. Each Shareholder entitled to vote for the election
of directors to the Board agrees that it will vote its Securities or
execute consents, as the case may be, and take all other reasonable
action (including taking reasonable steps to cause 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, due to the
existence of stockholders entitled to vote for the election of
directors that are not parties to this Agreement, 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) may not be
sufficient to ensure that such individual shall be elected to the
Board."
(c) Section 2.2 is hereby amended in its entirety to provide as follows:
"Removal and Resignation.
(a) Each Shareholder agrees that it will not vote any of its
Securities in favor of the removal of any director who shall
have been designated or nominated pursuant to Section 2.1(a)
unless (i) such removal shall be for Cause (as defined below)
or (ii) the Person(s) entitled to designate or nominate such
director shall have consented to or requested such removal in
writing (and, in the case of any such request, such
Shareholder shall vote its Securities in favor of such
removal). Removal for "Cause" shall mean removal of a director
because of such director's (A) willful and continued failure
substantially to perform his duties with the Company in his
established position, (B) willful conduct which is injurious
to the Company or any of its Subsidiaries, monetarily or
otherwise, (C) conviction for, or guilty plea to, a felony or
a crime involving moral turpitude, (D) abuse of illegal drugs
or other controlled substances or habitual intoxication or (E)
willful breach of this Agreement.
(b) (i) At any time there are two Summit-Investor Designees
serving on the Board when (A) the Summit-Investors own of
record less than 50% of the number of shares of Common Stock
owned thereby as of August 3, 1999 (disregarding stock splits,
recapitalizations and similar adjustments in the number of
shares and stock dividends) and (B) the Summit-Investors'
Percentage Ownership is 5% or greater, upon the request of a
majority of the other directors, the Summit-Investors shall
use their commercial best efforts to cause one of the two
Summit-Investor Designees to resign, and the resigning
Summit-Investor Designee shall be the individual identified by
Xxxxxx X. Xxxxx or, if Xx. Xxxxx fails to identify the
resigning Summit-Investor Designee, the resigning
Summit-Investor Designee shall be the Summit-Investor Designee
that is not Xx. Xxxxx or (ii) at any time there are any
Summit-Investor Designees serving on the Board when the
Summit-Investors' Percentage Ownership is less than 5%, upon
the request of a majority of the other directors of the Board,
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the Summit-Investors shall use their commercial best efforts
to cause each Summit-Investor Designee to resign from the
Board;
(c) (i) At any time there are two Xxxxx Xxxx Designees serving
on the Board when (A) the Xxxxx Xxxx Investors own of record
(or beneficially by reason of the record ownership of IBJ)
less than 50% of the number of shares of Common Stock owned
thereby as of August 3, 1999 (disregarding stock splits,
recapitalizations and similar adjustments in the number of
shares and stock dividends) and (B) the Xxxxx Xxxx Investors'
Percentage Ownership is 5% or greater, upon the request of a
majority of the other directors, the Xxxxx Xxxx Investors
shall use their commercial best efforts to cause one of the
two Xxxxx Xxxx Investor Designees to resign, and the resigning
Xxxxx Xxxx Designee shall be the individual identified by the
Xxxxx Xxxx Representative or, if the Xxxxx Xxxx Representative
fails to identify the resigning Xxxxx Xxxx Designee, the
resigning Xxxxx Xxxx Designee shall be the Xxxxx Xxxx Designee
that is not the Xxxxx Xxxx Representative or (ii) at any time
there are any Xxxxx Xxxx Designees serving on the Board when
the Xxxxx Xxxx Investors' Percentage Ownership is less than
5%, upon the request of a majority of the other directors of
the Board, the Xxxxx Xxxx Investors shall use their commercial
best efforts to cause each Xxxxx Xxxx Designee to resign from
the Board;
(d) at any time the Chase Designee is serving on the Board
when Chase's Percentage Ownership is less than 5%, upon the
request of a majority of the other directors of the Board,
Chase shall use its commercial best efforts to cause the Chase
Designee to resign from the Board;
(e) at any time the DLJMB Designee is serving on the Board
when DLJMB's Percentage Ownership is less than 5%, upon the
request of a majority of the other directors of the Board,
DLJMB shall use its commercial best efforts to cause the DLJMB
Designee to resign from the Board; and
(f) at any time the Joint Designee is serving on the Board
when both the Summit Investors' Percentage Ownership is less
than 5% and the DLJMB's Percentage Ownership is less than 5%,
upon the request of the majority other directors of the Board,
Summit and DLJMB shall use their respective commercial best
efforts to cause the Joint Designee to resign from the Board.
(d) Section 2.3 is hereby amended in its entirety to provide as follows:
"2.3 Vacancies . The Shareholders recognize that under the terms of the
certificate of incorporation and the bylaws that any vacancy in the
Board, whether arising through death, resignation, or removal of a
director, or through an increase
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in the number of directors of any class, shall be filled by the
majority vote of the remaining directors, although less than a quorum,
or by a sole remaining director. In the event of such vacancy, each
Shareholder entitled to vote for the election of directors to the Board
agrees that it will use commercial best efforts to cause its Board
nominee, if any and if then serving on the Board, to fill any such
vacancy in the following manner:
(a) any vacancy created by the death, disability, retirement,
resignation or removal of any individual (a "FORMER DIRECTOR")
designated under clauses (i), (ii), (iii) or (v) of Section
2.1(a) shall be filled by the applicable person or persons
that designated the Former Director so long such person or
persons remains entitled to designate an individual under the
applicable clause of Section 2.1(a); and
(b) any vacancy created by an increase in the number of
directors of any class shall be filled in accordance with the
Bylaws."
(e) Section 4.1(a) is amended by replacing the word "Person" for the words
"Third Party" in the first (and only) sentence of Section 4.1(a).
3. Terminology. The phrases "AS OF THE DATE OF THIS AGREEMENT" and "THE DATE
HEREOF," when used 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.
XXXXX PET CARE ENTERPRISES, INC.
By: /s/ XXXXXX X. XXXXXXXXXX
-------------------------------------
Xxxxxx X. Xxxxxxxxxx
Senior Vice President & CFO
XXXXX PET CARE COMPANY
By: /s/ XXXXXX X. XXXXXXXXXX
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Xxxxxx X. Xxxxxxxxxx
Senior Vice President & CFO
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SUMMIT CAPITAL INC.
By: /s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
Chairman
CHASE MANHATTAN INVESTMENT
HOLDINGS, INC.
By: /s/ XXXXXXX X. XXXXXX
----------------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------------
Title: CEO
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BASEBALL PARTNERS
By: /s/ XXXXX XXXXXXX
----------------------------------
Name: Xxxxx Xxxxxxx
--------------------------------
Title: General Partner
-------------------------------
SUMMIT/DPC PARTNERS, L.P.
BY: SUMMIT CAPITAL, INC.,
its General Partner
By: /s/ XXXXXX X. XXXXX
----------------------------------
Xxxxxx X. Xxxxx
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
-------------------------------
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DLJ OFFSHORE PARTNERS, C.V.
BY: DLJ MERCHANT BANKING, INC.
Advisory General Partner
By: /s/ XXXXX XXXXXX
----------------------------------
Name: Xxxxx Xxxxxx
--------------------------------
Title: Managing Director
-------------------------------
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:
-------------------------------------
Xxxx X. Xxxxx
By:
-------------------------------------
Xxxxx X. Xxxxxxx
By: /s/ XXX X. XXXXXXXX
-------------------------------------
Xxx X. Xxxxxxxx
XXXXXXXX MANAGEMENT L.P.
By: /s/ XXX X. XXXXXXXX
----------------------------------
Name: Xxx X. Xxxxxxxx
--------------------------------
Title: Managing Partner
-------------------------------
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XXX X. XXXXXXXX GRANTOR RETAINED
ANNUITY TRUST
By: /s/ XXX X. XXXXXXXX
----------------------------------
Name: Xxx X. Xxxxxxxx
--------------------------------
Title: Trustee
-------------------------------
XXXXXXX X. XXXXXXXX GRANTOR RETAINED
ANNUITY TRUST
By: /s/ XXXXXXX X. XXXXXXXX
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
--------------------------------
Title: Trustee
-------------------------------
By:
-------------------------------------
Xxx X. Xxxx
By:
-------------------------------------
Xxxx X. Xxxxxxxx
By:
-------------------------------------
J. Xxxxx Xxxxxx
By: /s/ XXXXX XXXXXXX XXXXXX
-------------------------------------
Xxxxx Xxxxxxx Xxxxxx
By: /s/ XXXXX XXXXXX
-------------------------------------
Xxxxx Xxxxxx
THE KAREEM XXXXXX XXXXXX TRUST
By: /s/ XXXXX XXXXXX, TRUSTEE
-------------------------------------
Xxxxx Xxxxxx, Trustee
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THE XXXX XXXXX XXXXXX TRUST
By: /s/ XXXXX XXXXXX
-------------------------------------
Xxxxx Xxxxxx, Trustee
THE XXXXX XXXXXX XXXXXX TRUST
By: /s/ XXXXX XXXXXX
-------------------------------------
Xxxxx Xxxxxx, Trustee
By:
-------------------------------------
Xxxx X. Xxxxxxxxx
By:
-------------------------------------
Xxx X. Xxxxxxxxx
By:
-------------------------------------
Xxxx X. Xxxxxxxxx
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The following signatories are the "XXXXX XXXX INVESTORS." Each of the
Xxxxx Xxxx Investors and IBJ Whitehall Bank & Trust Company ("IBJ") are parties
to an escrow and pledge agreement dated August 3, 1998 pursuant to which IBJ, as
escrow and collateral agent, is the record holder of all shares of Common Stock
beneficially owned by the Xxxxx Xxxx Investors. Each of the undersigned Xxxxx
Xxxx Investors, as evidenced by its signature below, hereby directs IBJ to enter
into this Agreement.
DARTFORD PARTNERSHIP, L.L.C.
By: /s/ XXX XXXXX
----------------------------------
Name: Xxx Xxxxx
--------------------------------
Title: Executive Vice President
-------------------------------
BRUCKMANN, XXXXXX, XXXXXXXX &
CO., L.P.
By: /s/ XXXXXXX XXXXXXXX
----------------------------------
Name: Xxxxxxx 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
-------------------------------
/s/ XXXXXX X. XXXX
-------------------------------------
Xxxxxx X. Xxxx
/s/ F. XXXXXX XXXXX, XX.
-------------------------------------
F. Xxxxxx Xxxxx, Xx.
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Xxxxxx X. Xxxx
-------------------------------------
Xxxxx X. Xxxx, Xx.
-------------------------------------
Xxx X. XxXxxxx
-------------------------------------
Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxxxx Xxxxxxxx
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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IBJ WHITEHALL BANK & TRUST COMPANY, as
escrow and collateral agent and record
holder for the shares of Common Stock
beneficially owned by the Xxxxx Xxxx
Investors set forth above.
By: /s/ XXXXXXX XxXXXXXX
-------------------------------------
Name: Xxxxxxx XxXxxxxx
-----------------------------------
Title: Vice President
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