Amendment to Annual Report — Form 10-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-K/A Amendment to Annual Report 56± 243K
2: EX-3.1 Articles of Incorporation/Organization or By-Laws 8± 33K
3: EX-3.2 Articles of Incorporation/Organization or By-Laws 8± 34K
4: EX-4.8 Instrument Defining the Rights of Security Holders 53± 222K
5: EX-4.9 Instrument Defining the Rights of Security Holders 20± 88K
6: EX-10.18 Material Contract 8± 41K
7: EX-10.20 Material Contract 6± 29K
8: EX-10.35 Material Contract 16± 65K
9: EX-10.36 Material Contract 62± 291K
10: EX-11.1 Statement re: Computation of Earnings Per Share 2± 14K
11: EX-21.1 Subsidiaries of the Registrant 1 7K
12: EX-23.1 Consent of Experts or Counsel 1 7K
EX-3.1 — Articles of Incorporation/Organization or By-Laws
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Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
DOSKOCIL COMPANIES INCORPORATED
Pursuant to the provisions of Sections 245 and 303 of the
General Corporation Law of the State of Delaware, Doskocil
Companies, Incorporated, a Delaware corporation (the
"Corporation"), hereby certifies as follows:
1. On September 26, 1991, the United States Bankruptcy
Court for the District of Kansas, Topeka Division (the "Bankruptcy
Court"), pursuant to the provisions of Chapter 11 of the United
States Bankruptcy Code, 11 U.S.C. Section 1101 et seq., confirmed the
Third Amended Joint Plan of Reorganization for the Corporation and
Chapter 11 Affiliates, as modified (the "Plan"), In re Doskocil
Companies Incorporated, et al., Reorganization Case Nos. 90-40414-
11 to 90-40432-11.
2. The Corporation was incorporated under the laws of
the State of Delaware in 1964 under the name "American Export
Isbrandsten Company" by filing of its original Certificate of
Incorporation with the Delaware Secretary of State.
3. The Plan provides that the Amended and Restated
Certificate of Incorporation of the Corporation be further amended
and restated in its entirety as of the Effective Date (as defined
in the Plan), so that, as further amended and restated, the
Corporation's Amended and Restated Certificate of Incorporation
shall be duly adopted pursuant to Sections 245 and 303 of the
Delaware General Corporation Law (the "DGCL") and shall read in
full as follows:
ARTICLE FIRST: NAME. The name of the Corporation is
Doskocil Companies Incorporated.
ARTICLE SECOND: REGISTERED OFFICE AND REGISTERED AGENT.
The registered office of the Corporation in the State of Delaware
shall be located at 1209 Orange Street, City of Wilmington, County
of New Castle. The name of the resident agent in charge thereof is
The Corporation Trust Company.
ARTICLE THIRD: PURPOSE. The purpose of the Corporation
is to engage in any lawful act or activity for which corporations
may be organized under the DGCL as presently in effect or as it may
hereafter be amended.
ARTICLE FOURTH: AUTHORIZED CAPITAL STOCK.
Section 4.1 Authorization. The total number of shares
of all classes of stock which the Corporation shall have authority
to issue is Twenty-Four Million (24,000,000) shares, of which
Twenty Million (20,000,000) shares shall be common stock, $.01 par
value per share (the "Common Stock") and Four Million (4,000,000)
shares shall be preferred stock, par value $.01 per share (the
"Preferred Stock"). Authority is hereby expressly vested in the
Board of Directors, subject to the limitations prescribed by law,
to authorize the issuance from time to time of one or more series
of Preferred Stock and with respect to each such series to fix by
resolution or resolutions adopted by the affirmative vote of a
majority of the Board of Directors of the Corporation the number of
shares within such series and the powers, designations,
preferences, and relative, participating, optional or other rights
thereof, if any, or the qualifications, limitations or restrictions
thereof, if any.
Section 4.2 Nonvoting Shares. Notwithstanding
anything to the contrary contained in the DGCL, the Corporation
shall not, to the extent required by 11 U.S.C. Section 1123(a)(6),
issue any class or series of capital stock without voting rights
or with less than proportional voting rights.
ARTICLE FIFTH: LIMITATION ON TRANSFER BY FIVE PERCENT OWNERS.
Section 5.1 Certain Transfers Prohibited. Until (i)
the date that is two (2) years after (A) the Effective Date (as
defined in the Plan) or (B) if the Corporation makes an election
under applicable law to treat a date subsequent to the Effective
Date (the "Election Date") as the date of the "ownership change"
under Section 382 of the Internal Revenue Code of 1986, as amended
from time to time ("IRC Section 382"), the Election Date, or (ii)
such earlier date as shall be designated by the Board of Directors
of the Corporation, no individual, partnership, firm, corporation,
association, trust, unincorporated organization or other entity, as
well as any syndicate or group deemed to be a person under
Section 14(d)(2) of the Securities Exchange Act of 1934 (each a
"Person"), who beneficially owns directly or through attribution
(as determined under IRC Section 382) five percent (5%) or more of
the outstanding shares of Common Stock or who, upon the acquisition
of any shares of Common Stock, would beneficially own directly or
through attribution (as determined under IRC Section 382) five
percent (5%) or more of the outstanding shares of Common Stock (a
"Five Percent Holder") shall sell, transfer, dispose, purchase or
acquire or contract to sell, transfer, dispose, purchase or acquire
in any manner whatsoever, whether voluntarily or involuntarily, by
operation of law or otherwise (any such sale, transfer,
disposition, purchase, acquisition or contract being a "Transfer"),
any shares of Common Stock except as authorized pursuant to this
ARTICLE FIFTH. For purposes of this ARTICLE FIFTH, except for
Section 5.4 hereof, "Common Stock" shall include any securities
convertible into of exchangeable for shares of Common Stock, or any
option, warrant or other right to Transfer shares of Common Stock
or any securities convertible into or exchangeable for shares of
Common Stock.
The restrictions contained in this ARTICLE FIFTH are for
the purpose of reducing the risk that any change in stock ownership
may jeopardize the preservation of the Corporation's federal income
tax attributes. In connection therewith, and to provide for the
effective policing of these provisions, any Five Percent Holder who
proposes to Transfer shares of Common Stock shall, prior to the
date of the proposed Transfer, request in writing (a "Request")
that the Board of Directors of the Corporation (or any committee of
the Board of Directors authorized to review and determine whether
to authorize Requests (the "Transfer Review Committee")) or any
officer of the Corporation designated by the Board of Directors to
review and determine whether to authorize Requests (the "Transfer
Review Officer") review the proposed Transfer and authorize the
proposed Transfer pursuant to Section 5.3 of this ARTICLE FIFTH.
A Request shall be mailed or delivered to the Chief Executive
Officer of the Corporation at the Corporation's principal place of
business or telecopied to the Corporation's telecopier number at
its principal place of business. Such Request shall be deemed to
have been delivered when actually received by the Corporation. A
Request shall include (i) the name, address and telephone number of
the Five Percent Holder, (ii) a description of the shares of Common
Stock proposed to be Transferred by or to the Five Percent Holder,
(iii) the date on which the proposed Transfer is expected to take
place, and (iv) the names of the parties to the Transfer or the
method by which the proposed Transfer is to be effected. Within
five (5) business days after receipt by the Chief Executive Officer
of a Request, a meeting of either the Board of Directors or the
Transfer Review Committee shall be held for the purpose of
determining, or the Transfer Review Officer shall determine,
whether to authorize the proposed Transfer described in the Request
under Section 5.3 of this ARTICLE FIFTH. The Board of Directors,
Transfer Review Committee, or the Transfer Review Officer, as the
case may be, shall conclusively determine whether to authorize the
proposed Transfer and shall immediately cause the Five Percent
Holder making the Request to be informed of such determination.
Section 5.2 Effect of Unauthorized Transfer. Any
Transfer of Common Stock in violation of this ARTICLE FIFTH shall
be null and void. In the event of an attempted or purported
Transfer of Common Stock in violation of this ARTICLE FIFTH, the
Corporation shall be deemed to be the exclusive and irrevocable
agent for the transferor of such Common Stock for the limited
purpose of consummating a sale of such shares to an eligible
transferee, which may include, without limitation, the transferor
or, at the same purchase price paid in the attempted or purported
Transfer, the Corporation. The record ownership of the subject
shares shall remain, to the extent practicable, in the name of the
transferor until the shares have been sold by the Corporation or
its assignee, as agent, to an eligible transferee in accordance
with this ARTICLE FIFTH; provided, that even if an attempted or
purported Transfer is shown in the Corporation's transfer records,
all rights of beneficial ownership in the Common Stock shall remain
in the transferor until such shares are transferred to an eligible
transferree. The Corporation shall be entitled to assign its
agency hereunder to any person or entity including, but not limited
to, the intended transferee of the shares, for the purpose of
effecting a permitted sale of such shares. Neither the
Corporation, as agent, nor any assignee of its agency hereunder,
shall be deemed to be a stockholder of the Corporation nor be
entitled to any rights of a stockholder of the Corporation. The
rights to vote and to receive dividends and liquidating
distributions with respect to such shares shall remain, to the
extent practicable, with the transferor. The intended transferee
shall not be entitled to any rights of stockholders of the
Corporation, including, but not limited to, the rights to vote or
to receive dividends and liquidating distributions with respect to
such shares. In the event of a permitted sale and transfer,
whether by the Corporation or its assignee, as agent, the proceeds
of such sale shall be applied first to reimburse the Corporation or
its assignee for any expenses incurred by the Corporation acting in
its role as the agent for the sale of such shares, second to the
extent of any remaining proceeds, to reimburse the intended
transferee for any payments made to the transferor by such intended
transferee for such shares, and the remainder, if any, to the
extent practicable, to the original transferor.
Section 5.3 Authorization of Transfer of Common Stock
by a Five Percent Holder. The Board of Directors, Transfer Review
Committee, or Transfer Review Officer, as the case may be, shall
authorize a Transfer pursuant to a Request if such Transfer will
not jeopardize the Corporation's preservation of its federal income
tax attributes pursuant to IRC Section 382. A Transfer will be
deemed to jeopardize the Corporation's preservation of its federal
income tax attributes pursuant to IRC Section 382 if the percentage
of Common Stock owned by one or more "5-percent shareholders" (as
such term is used in IRC Section 382(g)) has increased or by such
Transfer would increase by more than fifteen (15) percentage points
over the lowest percentage of stock owned by it or them during the
"testing period" provided in IRC Section 382(i). In deciding
whether to authorize any proposed Transfer, the Board of Directors,
Transfer Review Committee, or Transfer Review Officer, as the case
may be, may seek the advice of counsel with respect to the
Corporation's preservation of its federal income tax attributes
pursuant to IRC Section 382 and may request all relevant
information from the Five Percent Holder with respect to all Common
Stock directly or indirectly owned by such Five Percent Holder.
Any Person who makes a Request of the Board of Directors, Transfer
Review Committee, or Transfer Review Officer pursuant to this
ARTICLE FIFTH to Transfer shares of Common Stock shall reimburse
the Corporation, on demand, for all costs and expenses incurred by
the Corporation with respect to any proposed Transfer of Common
Stock, including, without limitation, the Corporation's costs and
expenses incurred in determining whether to authorize that proposed
Transfer.
Section 5.4 Legend on Certificates. All certificates
evidencing shares of Common Stock issued by the Corporation shall
conspicuously bear the following legend:
The Corporation's Certificate of Incorporation
contains restrictions prohibiting the sale, transfer,
disposition, purchase or acquisition of any Common Stock
of the Corporation without the authorization of the
Corporation's Board of Directors or designated officer by
or to any holder (a) who beneficially owns directly or
through attribution (as determined under Section 382 of
the Internal Revenue Code of 1986, as amended from time
to time (the "IRC")) 5% or more of any class of the then
issued and outstanding shares of Common Stock of the
Corporation or (b) who, upon the sale, transfer,
disposition, purchase or acquisition of any shares of
Common Stock of the Corporation, would beneficially own
directly or through attribution (as determined under
Section 382 of the IRC) 5% or more of any class of the
then issued and outstanding shares of Common Stock of the
Corporation. The Corporation will furnish a copy of its
Certificate of Incorporation to the holder of record of
this certificate without charge upon written request to
the Corporation at its principal place of business.
ARTICLE SIXTH: CLASSIFICATION OF THE BOARD OF DIRECTORS.
Directors of the Corporation will be divided into three classes, as
nearly equal in number as possible, with the initial term of office
of the first class of Directors to expire at the 1992 Annual
Meeting of Stockholders of the Corporation, the initial term of
office of the second class of Directors to expire at the 1993
Annual Meeting of Stockholders of the Corporation, and the initial
term of office of the third class of Directors to expire at the
1994 Annual Meeting of Stockholders of the Corporation. At each
Annual Meeting of Stockholders of the Corporation, Directors
elected to succeed those Directors whose terms have thereupon
expired shall be elected for a term of office to expire at the
third succeeding Annual Meeting of Stockholders after their
election. If the number of Directors is changed, any increase or
decrease shall be apportioned among the classes so as to maintain
or attain, as nearly as possible, the equality of the number of
Directors in each class, and when the number of Directors is
increased and newly created directorships are filled by the Board
of Directors, the terms of the additional Directors shall expire at
the next election of the class for which such Directors have been
chosen. In no case will a decrease in the number of Directors
shorten the term of any incumbent Director.
ARTICLE SEVENTH: STOCKHOLDERS.
Section 7.1 Annual Meeting. The Annual Meeting of the
Stockholders of the Corporation shall be held as provided in the
Corporation's Bylaws, as such Bylaws may be amended from time to
time.
Section 7.2 Special Meetings. Special Meetings of the
Stockholders of the Corporation may be called by the Corporation
upon the written request of the holders of record of outstanding
shares representing at least 25% of the voting power of all the
shares of the Corporation then entitled to vote on the issue or
issues to be presented, by the Chief Executive Officer of the
Corporation, or by the Board of Directors pursuant to a resolution
adopted by the affirmative vote of a majority of the entire Board
of Directors.
Section 7.3 First Annual Meeting. The first Annual
Meeting of the Stockholders of the Corporation following the
Effective Date shall take place on a date designated by the Board
of Directors of the Corporation which shall in no event be more
than twelve (12) months after the Effective Date.
ARTICLE EIGHTH: IMPLEMENTATION OF THE PLAN. Pursuant to
the provisions of the Plan, on the Effective Date, the Corporation
shall issue and deliver to the Disbursing Agent (as defined in the
Plan) Six Million (6,000,000) shares of Common Stock to be
available for distribution as described in the Plan.
By virtue of the Plan and without any action on the part
of the holder thereof, on the Effective Date each and every share
of the Existing Common Stock of Doskocil (as defined in the Plan)
shall no longer be outstanding, shall be cancelled and retired, and
shall cease to exist, and each holder of a certificate representing
any shares of Existing Common Stock of Doskocil shall thereafter
cease to have any rights with respect to such Existing Common Stock
of Doskocil, except the right to participate in the distribution of
Common Stock as provided in the Plan in accordance with this
ARTICLE EIGHTH. All options, warrants, or other rights to acquire
any Existing Common Stock of Doskocil which have not been exercised
by the Effective Date shall, by virtue of the Plan, be cancelled
and retired and cease to exist.
If shares of Common Stock are to be issued to a person
other than the registered holder of the certificate surrendered, it
shall be a condition of such issuance that the certificate so
surrendered shall be properly endorsed or otherwise in proper form
for transfer and that the person requesting such issuance shall pay
any transfer taxes or other taxes required by reason of such
issuance to a person other than the registered holder of the
certificate surrendered. If a holder of any certificate
representing any shares of Existing Common Stock of Doskocil is
unable to surrender such certificate because it is destroyed, lost
or stolen, such holder may be issued Common Stock in respect of
Existing Common Stock of Doskocil evidenced by such certificate
upon presenting to the Disbursing Agent, in a form acceptable to
the Disbursing Agent: (i) proof of such holder's title to such
Existing Common Stock of Doskocil; (ii) proof of the destruction or
theft of such certificate or an affidavit to the effect that the
same has been lost and after diligent search cannot be located; and
(iii) such indemnification as may be required by the Disbursing
Agent and all other persons deemed appropriate by the Disbursing
Agent from any loss, action, suit or any claim whatsoever which may
be made as a result of such holder's receipt of Common Stock.
ARTICLE NINTH: BYLAWS. In furtherance and not in
limitation of the powers conferred by the laws of the State of
Delaware, the Board of Directors of the Corporation is authorized
and empowered to make, alter, amend and repeal the Bylaws of the
Corporation in any manner not inconsistent with the laws of the
State of Delaware.
ARTICLE TENTH: INDEMNIFICATION. The Corporation shall,
to the fullest extent permitted by Section 145 of the DGCL, as
presently in effect or as it may hereafter be amended, indemnify
all persons whom it may indemnify pursuant thereto and advance
expenses of litigation to Directors and Officers when so requested.
ARTICLE ELEVENTH: EXCULPATION. To the fullest extent
permitted by the DGCL, as presently in effect or as it may
hereafter be amended, a Director of this Corporation shall not be
liable to the Corporation or its Stockholders for monetary damages
for breach of fiduciary duty as a Director.
ARTICLE TWELVETH: COMPROMISE OR ARRANGEMENT OF CLAIMS.
Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between
this Corporation and its Stockholders or any class of them, any
court of equitable jurisdiction within the State of Delaware may,
on the application in a summary way of this Corporation or of any
creditor or stockholder thereof or on the application of any
receiver or receivers appointed for this Corporation under the
provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or
receivers appointed for this Corporation under the provisions of
Section 279 of Title 8 of the Delaware Code, order a meeting of the
creditors or class of creditors, and/or of the Stockholders or
class of Stockholders of this Corporation, as the case may be, to
be summoned in such manner as the said court directs. If a
majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the Stockholders or
class of Stockholders of this Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of
this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or class
of creditors, and/or on all the Stockholders or class of
Stockholders, of this Corporation, as the case may be, and also on
this Corporation.
ARTICLE THIRTEENTH: AMENDMENT. The Corporation reserves
the right to amend, alter, change or repeal any provision contained
in this Amended and Restated Certificate of Incorporation, in the
manner now or hereinafter provided by statute, and all rights
conferred upon Stockholders herein are granted subject to this
reservation; provided, however, that the affirmative vote of
Seventy-Five Percent (75%) of the shares of Common Stock entitled
to vote thereon shall be required to delete, modify, or amend any
provision of ARTICLE FIFTH, ARTICLE SIXTH, or this ARTICLE
THIRTEENTH of this Amended and Restated Certificate of
Incorporation.
IN WITNESS WHEREOF, the Corporation has caused this
Amended and Restated Certificate of Incorporation to be executed by
Bryant P. Bynum, its Vice President, and attested by its Secretary
this 18th day of March, 1994.
DOSKOCIL COMPANIES INCORPORATED
By:(Bryant P. Bynum)
Bryant P. Bynum
Vice President
ATTEST:
(Darian B. Andersen)
Darian B. Andersen
Secretary
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