exv10w11



 




Exhibit 10.11





EXECUTION COPY




 





VOTING AGREEMENT




DOANE PET CARE COMPANY




Dated as of October 24, 2005




 





 









 








Table of Contents




	 	 	 	 	 
	 	 	Page	 
	1. Restrictions on Transfers by the Investor Stockholder
	 	 	1	 
	 
	 	 	 	 
	2. Transfer of Class B Common Stock
	 	 	2	 
	2.1 Transfer of Class B Common Stock by Investor Stockholder
	 	 	2	 
	2.2 Forced Transfer of Class B Common Stock
	 	 	2	 
	2.3 Class B Common Stock Purchase Price
	 	 	3	 
	 
	 	 	 	 
	3. Election of Directors
	 	 	3	 
	 
	 	 	 	 
	4. Stock Certificate Legend
	 	 	4	 
	 
	 	 	 	 
	5. Covenants; Representations and Warranties
	 	 	5	 
	5.1 No Other Arrangements or Agreements
	 	 	5	 
	5.2 Additional Representations and Warranties
	 	 	5	 
	 
	 	 	 	 
	6. Reports
	 	 	6	 
	 
	 	 	 	 
	7. Taxes
	 	 	6	 
	 
	 	 	 	 
	8. Amendment and Modification
	 	 	6	 
	 
	 	 	 	 
	9. Parties
	 	 	7	 
	9.1 Assignment by DPCE
	 	 	7	 
	9.2 Assignment Generally
	 	 	7	 
	9.3 Termination
	 	 	7	 
	9.4 Agreements to Be Bound
	 	 	7	 
	 
	 	 	 	 
	10.
Recapitalizations, Exchanges, etc.
	 	 	8	 
	 
	 	 	 	 
	11. No Third Party Beneficiaries
	 	 	8	 
	 
	 	 	 	 
	12. Further Assurances
	 	 	8	 
	 
	 	 	 	 
	13. Governing Law; Jurisdiction
	 	 	8	 
	 
	 	 	 	 
	14. Invalidity of Provision
	 	 	9	 
	 
	 	 	 	 
	15. Waiver
	 	 	9	 
	 
	 	 	 	 
	16. Notices
	 	 	9	 
	 
	 	 	 	 
	17. Headings
	 	 	10	 
	 
	 	 	 	 
	18. Counterparts
	 	 	10	 






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	 	 	Page	 
	19. Injunctive Relief
	 	 	10	 
	 
	 	 	 	 
	20. Trial by Jury
	 	 	11	 
	 
	 	 	 	 
	21. Defined Terms
	 	 	11	 
	 
	 	 	 	 
	Schedule A – Capitalization
	 	 	 	 







ii









 








VOTING AGREEMENT




          VOTING AGREEMENT, dated as of October 24, 2005 (this “Agreement”), by and among Doane
Pet Care Enterprises, Inc., a Delaware corporation (“DPCE”), Doane Pet Care Company, a
Delaware Corporation (the “Company”) and Wilchester Investments Limited, a Jersey limited
company (the “Investor Stockholder” and together with DPCE, the “Stockholders”).
Capitalized terms used herein without definition are defined in Section 21.




          WHEREAS, the Company entered into a certain Agreement and Plan of Merger, dated as of August
28, 2005, by and among DPC Newco Inc. (“Newco”), DPCE and the Company (as the same may be
amended modified, supplemented or restated from time to time, the “Merger Agreement”),
providing for, among other things, the merger of Newco with and into DPCE, with DPCE as the
surviving corporation (the “Merger”);




          WHEREAS, in connection with the Merger, the Company filed an Amended and Restated Certificate
of Incorporation of the Company with the Secretary of State of the State of Delaware authorizing
shares of class A common stock of the Company, par value $0.01 per share (the “Class A Common
Stock”), shares of class B common stock of the Company, par value $0.01 per share (the
“Class B Common Stock”) and shares of preferred stock, par value $0.01 per share (the
“Preferred Stock”);




          WHEREAS, immediately after the Effective Time (as defined in the Merger Agreement), the issued
and outstanding capital stock of the Company will consist of (a) 1,000 shares of Class A
Common Stock, (b) 71.32 shares of Class B Common Stock and (c) 1,200,000 shares of
Preferred Stock;




          WHEREAS, the initial amount of Common Stock held by each of the Stockholders as of the date
hereof is set forth on Schedule A opposite such Stockholder’s name; and




          WHEREAS, concurrently herewith, DPCE, the Investor Stockholder and certain other parties are
entering into the Stockholders Agreement.




          NOW, THEREFORE, in consideration of the mutual agreements contained herein, and further, in
the case of the Investor Stockholder, in consideration of the mutual agreements contained in the
Stockholders Agreement, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:




          1. Restrictions on Transfers by the Investor Stockholder. No shares of Common Stock
now or hereafter owned by the Investor Stockholder, nor any interest therein nor any rights
relating thereto, may be Transferred, except (a) pursuant to Section 2.1 (“Transfer of
Class B Common Stock by Investor Stockholder”), (b) pursuant to




 









 







Section 2.2 (“Forced Transfer of Class B Common Stock”), or (c) with the prior written
consent of DPCE, such consent to be in DPCE’s sole discretion.




          2. Transfer of Class B Common Stock.




          2.1 Transfer of Class B Common Stock by Investor Stockholder. The Investor
Stockholder shall have the right but not the obligation to transfer to DPCE, at any time, all (but
not less than all) of such Investor Stockholder’s shares of Class B Common Stock, and DPCE shall
have the obligation, upon the Investor Stockholder’s exercise of such right, to acquire all of such
Investor Stockholder’s shares of Class B Common Stock at a price per share of Class B Common Stock
equal to the Class B Common Stock Purchase Price (as defined in Section 2.3). If the Investor
Stockholder desires to exercise its right pursuant to this Section 2.1, it shall provide DPCE 90
days’ prior written notice thereof; provided that such notice shall (a) be
irrevocable and unconditional and (b) be given only if the Investor Stockholder
contemporaneously provides a written notice exercising its right pursuant to Section 4.1 of the
Stockholders Agreement. Payment for any shares of Class B Common Stock transferred by the Investor
Stockholder pursuant to this Section 2.1 shall be made no later than on the date that is 90 days
(or the first business day thereafter if such 90th day is not a business day) following
the date of receipt by the Company of the Investor Stockholder’s notice pursuant to this Section
2.1. DPCE shall receive customary representations and warranties from the Investor Stockholder
regarding the shares of Class B Common Stock that are the subject of this Section 2.1, including,
but not limited to, a representation and warranty that the Investor Stockholder has good and
marketable title to such shares to be transferred, free and clear of all liens, claims and other
encumbrances, other than those created pursuant to the Guarantee and Collateral Agreement, dated as
of October 24, 2005, made by DPCE, the Company and the other parties thereto in favor of Lehman
Commercial Paper Inc.(the “Guarantee and Collateral Agreement”).




          2.2 Forced Transfer of Class B Common Stock. DPCE shall have the right but not the
obligation to acquire from the Investor Stockholder, at any time, all (but not less than all) of
such Investor Stockholder’s shares of Class B Common Stock, and the Investor Stockholder shall have
the obligation, upon DPCE’s exercise of such right, to transfer to DPCE, all of such Investor
Stockholder’s shares of Class B Common Stock at a price per share of Class B Common Stock equal to
the Class B Common Stock Purchase Price. If DPCE desires to acquire shares of Class B Common Stock
from the Investor Stockholder pursuant to this Section 2.2, it shall notify the Investor
Stockholder thereof in writing; provided that such notice may be revocable or conditional
or both. Payment for any shares of Class B Common Stock acquired by DPCE pursuant to this Section
2.2 shall be made on the date that is specified in DPCE’s notice with respect to such shares
pursuant to this Section 2.2. DPCE shall receive customary representations and warranties from the
Investor Stockholder regarding the shares of Class B Common Stock that are the subject of this
Section 2.2, including, but not limited to, a




2









 








representation and warranty that such Investor Stockholder has good and marketable title to
such shares to be transferred, free and clear of all liens, claims and other encumbrances, other
than those created pursuant to the Guarantee and Collateral Agreement.




          2.3 Class B Common Stock Purchase Price. Unless otherwise agreed to by the Investor
Stockholder and DPCE, the “Class B Common Stock Purchase Price” of any share of Class B
Common Stock purchased pursuant to Section 2.1 or Section 2.2, as the case may be, shall be $0.




          3. Election of Directors.




          (a) Each holder of Class B Common Stock shall vote all of its shares of Class B Common Stock
and shall take all other necessary or desirable actions within such Stockholder’s control (whether
in such Stockholder’s capacity as a stockholder, director, member of a Board committee or officer
of the Company or otherwise, and including, without limitation, attendance at meetings in person or
by proxy for purposes of obtaining a quorum, execution of written consents in lieu of meetings and
approval of amendments and/or restatements of the Company’s certificate of incorporation or
by-laws), and the Company shall take all necessary and desirable actions within its control
(including, without limitation, calling special Board or stockholder meetings and approval of
amendments and/or restatements of the Company’s certificate of incorporation or by-laws), so that:





     (i) the authorized number of directors on the Board shall be as established by DPCE;
provided that such number shall initially be three;




     (ii) the Chief Executive Officer of the Company shall be elected to the Board;




     (iii) the remainder of the directors, which will be designated by DPCE, shall be
elected to the Board;




     (iv) the removal from the Board (with or without cause) of any representative
designated pursuant hereto by DPCE shall be at DPCE’s written request, but only upon such
written request and under no other circumstances.



          (b) In order to secure the obligation of each holder of Class B Common Stock to vote its
shares of Class B Common Stock in accordance with the provisions of Section 3(a) above, the
Investor Stockholder hereby irrevocably appoints DPCE as its true and lawful proxy and
attorney-in-fact, with full power of substitution, to vote all of such holder’s shares of Class B
Common Stock for the election and removal of directors and all such other matters as expressly
provided for in Section 3(a) above. DPCE may exercise the irrevocable proxy granted to it
hereunder at any time any such




3









 







holder fails to comply with the provisions of this Section 3(a). The proxies and powers
granted by each such holder pursuant to this Section 3(b) are coupled with an interest and are
given to secure the performance of the obligations under this Agreement. Such proxies and powers
will be irrevocable until the termination of this Agreement.




          (c) Approval of at least one member of the Board, other than the Chief Executive Officer or
any Independent Director, shall be required in connection with any action of the Board.




          4. Stock Certificate Legend. A copy of this Agreement shall be filed with the
Secretary of the Company and kept with the records of the Company. Each certificate representing
shares of Common Stock owned by the Stockholders shall bear upon its face the following legends, as
appropriate:





	 	(a)	 	“THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “ACT”), AND MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS AND UNTIL REGISTERED
UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR UNLESS, IN THE
OPINION OF COUNSEL TO THE STOCKHOLDER, WHICH COUNSEL MUST BE, AND THE FORM AND
SUBSTANCE OF WHICH OPINION ARE, SATISFACTORY TO DOANE PET CARE COMPANY (THE
“ISSUER”), SUCH OFFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION, TRANSFER OR
OTHER DISPOSITION IS EXEMPT FROM REGISTRATION OR IS OTHERWISE IN COMPLIANCE
WITH THE ACT, SUCH LAWS AND THE VOTING AGREEMENT OF THE ISSUER, DATED AS OF
OCTOBER 24, 2005 (THE “VOTING AGREEMENT”).”
	 
	 	(b)	 	“THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER AND OTHER CONDITIONS AS SPECIFIED IN THE VOTING
AGREEMENT, COPIES OF WHICH ARE ON FILE AT THE OFFICE OF THE ISSUER AND WILL BE
FURNISHED WITHOUT CHARGE TO THE HOLDER OF SUCH SHARES UPON WRITTEN REQUEST.”
	 
	 	(c)	 	“THE ISSUER WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER
WHO SO REQUESTS THE POWERS,




4









 






	 	 	 	DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER
SPECIAL RIGHTS OF EACH CLASS OR SERIES OF SHARES AUTHORIZED TO BE ISSUED
AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES
AND/OR RIGHTS.”




In addition, certificates representing shares of Class B Common Stock issued to any Person other
than DPCE shall bear upon their face the following legend:





“THE SHARES EVIDENCED BY THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
ASSIGNED, PLEDGED, HYPOTHECATED, TRANSFERRED OR OTHERWISE DISPOSED OF
EXCEPT TO DOANE PET CARE ENTERPRISES, INC. OR WITH DOANE PET CARE
ENTERPRISES, INC.’S CONSENT, AND, IN EACH SUCH CASE, ONLY SUBJECT TO THE
TERMS AND CONDITIONS SPECIFIED IN THE VOTING AGREEMENT. IN ADDITION, THE
SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON
VOTING, AN IRREVOCABLE PROXY AND OTHER CONDITIONS AS SPECIFIED IN THE
VOTING AGREEMENT, COPIES OF WHICH ARE ON FILE AT THE OFFICE OF THE ISSUER
AND WILL BE FURNISHED WITHOUT CHARGE TO THE HOLDER OF SUCH SHARES UPON
WRITTEN REQUEST.”


In addition, certificates representing shares of Common Stock owned by residents of certain states
shall bear any legends required by the laws of such states. All Stockholders shall be bound by the
requirements of such legends.




          5. Covenants; Representations and Warranties.




          5.1 No Other Arrangements or Agreements. Each Stockholder hereby represents and
warrants to the Company and to each other that, except for this Agreement and any Stock
Subscription Agreement, it has not entered into or agreed to be bound by any other arrangements or
agreements of any kind with any other party with respect to the shares of Common Stock, including,
but not limited to, arrangements or agreements with respect to the acquisition or disposition of
shares of Common Stock or any interest therein or the voting of shares of Common Stock (whether or
not such agreements and arrangements are with the Company or any of its Subsidiaries).




          5.2 Additional Representations and Warranties. Each Stockholder represents and
warrants to the Company and each other Stockholder that:




5









 








          (a) such Stockholder has all corporate, limited liability company or limited partnership power
and authority, as the case may be, to execute, deliver and perform this Agreement;




          (b) the execution, delivery and performance of this Agreement by such Stockholder have been
duly and validly authorized and approved by all necessary corporate, limited liability company or
limited partnership action, as the case may be;




          (c) this Agreement has been duly and validly executed and delivered by such Stockholder and
constitutes a valid and legally binding obligation of such Stockholder, enforceable in accordance
with its terms, subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting or relating to creditors’ rights generally and general principles of equity; and




          (d) the execution, delivery and performance of this Agreement by such Stockholder does not and
will not violate the terms of or result in the acceleration of any obligation under (i) any
material contract, commitment or other material instrument to which such Stockholder is a party or
by which such Stockholder is bound or (ii) the certificate of incorporation and the
by-laws, the certificate of formation and the limited liability company agreement, or the
certificate of limited partnership and the limited partnership agreement, as the case may be.




          6. Reports. Except to the extent such financial statements are otherwise publicly
available as a result of filings made with the Securities and Exchange Commission, on or before the
120th day following the end of each fiscal year during the term of the Company, the Company shall
cause each Stockholder to be furnished with a balance sheet, an income statement, and a statement
of changes in shareholder equity for, or as of the end of, that year. These financial statements
must be prepared in accordance with U.S. generally accepted accounting principles consistently
applied (except as therein noted). The Company shall bear the costs of all these reports.




          7. Taxes. The Company shall cause to be prepared and filed all material Tax returns
for the Company and its subsidiaries required to be filed. Upon written request by the Company,
each Stockholder shall furnish to the Company relevant information in its possession that is
necessary or relevant to enable the Tax returns of the Company and its subsidiaries to be prepared
and filed. The Company shall timely furnish, or shall cause to be timely furnished, to each
Stockholder any information that is required to enable Tax returns to be prepared for, or by, such
Stockholder or any of its controlling Affiliates.




          8. Amendment and Modification. This Agreement may not be amended, modified or
supplemented except by a written instrument signed by the Company and DPCE. Notwithstanding the
foregoing, this Agreement may not be




6









 







amended, modified or supplemented without the prior written consent of the Investor
Stockholder, if such amendment, modification or supplement would reasonably be expected to
adversely affect the Investor Stockholder. The Company shall notify all Stockholders promptly
after any such amendment, modification or supplement shall have taken effect. Except to the extent
any such waiver, amendment, modification or supplement would adversely affect the Investor
Stockholder, the Investor Stockholder hereby agrees to vote all of its shares of Class B Common
Stock as directed by DPCE in connection with any waiver, amendment, modification or supplement to
the Certificate of Incorporation on which shares of Class B Common Stock are entitled to vote.




          9. Parties.




          9.1 Assignment by DPCE. DPCE shall have the right to assign to one or more of its
Affiliates all or any of its rights and obligations to acquire shares of Common Stock pursuant to
Section 2.1 or Section 2.2.




          9.2 Assignment Generally. The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, legal representatives,
successors and assigns; provided that neither the Company nor the Investor Stockholder
shall assign any of its rights or obligations hereunder without the consent of DPCE unless, in the
case of the Investor Stockholder, such assignment is in connection with a Transfer explicitly
permitted by this Agreement and, prior to such assignment, such assignee complies with the
requirements of Section 9.4.




          9.3 Termination. Any Stockholder who ceases to own shares of Common Stock or any
interest therein, shall cease to be a party to, or a Person who is subject to, this Agreement and
thereafter shall have no rights or obligations hereunder; provided, however, that a
Transfer of shares of Common Stock not explicitly permitted under this Agreement shall not relieve
a Stockholder of any of his or her obligations hereunder.




          9.4 Agreements to Be Bound. Notwithstanding anything to the contrary contained in
this Agreement, any Transfer of shares by a Stockholder (the “Transferor”) (other than
pursuant to Section 2.1 (“Transfer of Class B Common Stock by Investor Stockholder”) or pursuant to
Section 2.2 (“Forced Transfer of Class B Common Stock”)) shall be permitted under the terms of this
Agreement only if the transferee of such Transferor (the “Transferee”) shall agree in
writing to be bound by the terms and conditions of this Agreement pursuant to an instrument of
assumption reasonably satisfactory in substance and form to the Company and such Transferee shall
enjoy all of the rights and shall be subject to all of the restrictions and obligations of the
Transferor of such Transferee, including, without limitation, the provisions of Section 2.1
(“Transfer of Class B Common Stock by Investor Stockholder”), Section 2.2 (“Forced




7









 







Transfer of Class B Common Stock”) and Section 3 (“Election of Directors”) (which shall
continue to apply as though such Transferor were still the holder of such shares).




          10. Recapitalizations, Exchanges, etc. Except as otherwise provided herein, the
provisions of this Agreement shall apply to the full extent set forth herein with respect to
(a) the shares of Common Stock and (b) any and all shares of capital stock of the
Company or any successor or assign of the Company which may be issued in respect of, in exchange
for, or in substitution for the shares of Common Stock, by reason of any stock dividend, split,
reverse split, combination, recapitalization, reclassification, merger, consolidation or otherwise.
All share numbers and percentages shall be proportionately adjusted to reflect any stock split,
stock dividend or other subdivision or combination effected after the date hereof.




          11. No Third Party Beneficiaries. Except as otherwise provided herein, this Agreement
is not intended to confer upon any Person, except for the parties hereto, any rights or remedies
hereunder.




          12. Further Assurances. Each party hereto shall do and perform or cause to be done
and performed all such further acts and things and shall execute and deliver all such other
agreements, certificates, instruments and documents as any other party hereto or Person subject
hereto may reasonably request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated hereby.




          13. Governing Law; Jurisdiction. This Agreement and the rights and obligations of the
parties hereunder and the Persons subject hereto shall be governed by, and construed and
interpreted in accordance with, the laws of the State of Delaware, without giving effect to the
choice of law principles thereof. By execution and delivery of this Agreement, each party hereto
irrevocably submits to the exclusive jurisdiction of (a) the Supreme Court of the State of
New York, New York County and (b) the United States District Court for the Southern
District of New York, for purposes of any claim, action or proceeding arising out of this Agreement
or any other transaction contemplated hereby. Each party hereto agrees to commence any such claim,
action or proceeding only in the United States District Court for the Southern District of New York
or, if such claim, action or proceeding cannot be brought in such court for jurisdictional reasons,
in the Supreme Court of the State of New York, New York County. Each of the parties hereby waives,
and agrees not to assert in any such dispute, to the fullest extent permitted by applicable law,
any claim that (a) such party is not personally subject to the jurisdiction of such courts,
(b) such party and such party’s property is immune from any legal process issued by such
courts or (c) any claim, action or proceeding commenced in such courts is brought in an
inconvenient forum. Each party hereto further agrees that service of any process, summons, notice
or document by U.S. registered mail to such party’s address set forth in Section 16 shall be
effective service of process for any claim,




8









 







action or proceeding with respect to any matters to which it has submitted to jurisdiction in
this Section 13 or otherwise.




          14. Invalidity of Provision. The invalidity or unenforceability of any provision of
this Agreement in any jurisdiction shall not affect the validity or enforceability of the remainder
of this Agreement in that jurisdiction or the validity or enforceability of this Agreement,
including that provision, in any other jurisdiction.




          15. Waiver. The waiver by any party hereto of a breach or default of any provision of
this Agreement shall not operate or be construed as a further or continuing waiver of such breach
or default or as a waiver of any other or subsequent breach or default, except as otherwise
explicitly provided for in such waiver. Except as otherwise expressly provided herein, no failure
on the part of any party to exercise, and no delay in exercising, any right, power or remedy
hereunder, or otherwise available in respect hereof at law or in equity, shall operate as a waiver
thereof, nor shall any single or partial exercise of such right, power or remedy by such party
preclude any other or further exercise thereof or the exercise of any other right, power or remedy.




          16. Notices. All notices, requests, claims, demands, letters, waivers and other
communications permitted or required under this Agreement shall be in writing and shall be deemed
to be duly given if hand delivered to the persons set forth below or if sent by documented
overnight delivery service or registered or certified mail, postage prepaid, return receipt
requested, or by telegram, telex or telecopy, receipt acknowledged, addressed as set forth below or
to such other person or persons and/or at such other address or addresses as shall be furnished in
writing by any party hereto to the other parties hereto. Any such notice or communication shall be
deemed to have been given as of the date received, in the case of personal delivery, or on the date
shown on the receipt or confirmation therefor in all other cases:




	 	 	 
	(i)

	 	If to the Company or DPCE, to it at:
	 
	 	 
	 

	 	210 Westwood Place South, Suite 400
	 

	 	Brentwood, Tennessee 37027
	 

	 	Attention: Chief Executive Officer
	 

	 	Telephone: (615) 373-7774
	 

	 	Facsimile: (615) 309-1196
	 
	 	 
	 

	 	with copies (which shall not constitute notice) to:
	 
	 	 
	 

	 	Teachers’ Private Capital
	 

	 	Ontario Teachers’ Pension Plan Board
	 

	 	5650 Yonge Street
	 

	 	Toronto, Ontario M2M 4H5 Canada






9









 






	 	 	 
	 

	 	Attention: Dean Metcalf
	 

	 	                  Michael Padfield, Esq.
	 

	 	Telephone: (416) 730-6166
	 

	 	Facsimile: (416) 730-5083
	 
	 	 
	 

	 	and to:
	 
	 	 
	 

	 	Debevoise & Plimpton LLP
	 

	 	919 Third Avenue
	 

	 	New York, New York 10022
	 

	 	Attention: Margaret A. Davenport, Esq.
	 

	 	Telephone: (212) 909-6000
	 

	 	Facsimile: (212) 909-6836
	 
	 	 
	(ii)

	 	If to the Investor Stockholder, to it at:
	 
	 	 
	 

	 	P.O. Box 150, First Island House
	 

	 	Peter Street
	 

	 	St. Helier, Jersey
	 

	 	Channel Islands, JE4 5NW
	 

	 	Attention: John Honey
	 

	 	Telephone: (44) 1534 888050
	 

	 	Facsimile: (44) 1534 504891
	 
	 	 
	 

	 	with a copy (which shall not constitute notice) to:
	 
	 	 
	 

	 	Sidley Austin Brown & Wood LLP
	 

	 	787 Seventh Avenue
	 

	 	New York, New York 10019
	 

	 	Attention: Joseph W. Armbrust, Jr., Esq.
	 

	 	Telephone: (212) 839-5300
	 

	 	Facsimile: (212) 839-5599






          17. Headings. The headings to Sections in this Agreement are for the convenience of
the parties only and shall not control or affect the meaning or construction of any provision
hereof.




          18. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original but all of which together shall constitute one and the same
instrument.




          19. Injunctive Relief. Each of the parties hereto agrees that the shares of Common
Stock cannot readily be purchased or sold in the open market, and for that




10









 







reason, among others, the Company and the Stockholders will be irreparably damaged in the
event this Agreement is not specifically enforced. Each of the parties hereto therefore further
agrees that, in the event of a breach of any provision of this Agreement, the aggrieved party may
elect to institute and prosecute proceedings in any court of competent jurisdiction to enforce
specific performance or to enjoin the continuing breach of this Agreement. Such remedies shall,
however, be cumulative and not exclusive, and shall be in addition to any other remedy which the
Company or any Stockholder may have.




          20. Trial by Jury. EACH STOCKHOLDER HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING BASED UPON, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, OR THE
BREACH, TERMINATION OR VALIDITY OF THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.




          21. Defined Terms. As used in this Agreement, the following terms shall have the
meanings ascribed to them below:





     Affiliate: a Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with, the Person
specified.




     Board: the board of directors of the Company.




     Certificate of Incorporation: the Company’s Amended and Restated Certificate
of Incorporation, as the same may be amended from time to time.




     Common Stock: the Class A Common Stock and the Class B Common Stock.




     Governmental Entity: any supranational, national, federal, state, municipal
or local governmental or quasi-governmental or regulatory authority (including a national
securities exchange or other self-regulatory body), agency, court, commission or other
similar entity, domestic or foreign.




     Independent Director: any director that may from time to time serve on the
Board who is unaffiliated with any Stockholder that has Board designation rights hereunder.




     Person: an individual, corporation, partnership, limited liability company,
joint venture, association, trust or other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.



11









 






     Stockholders Agreement: the Stockholders Agreement, dated of even date
herewith, among DPCE, Ontario Teachers’ Pension Plan Board, the Investor Stockholder and
the other parties thereto.




     Stock Subscription Agreements: the Subscription Agreements, dated of even
date herewith, between Newco, the Company and the other parties thereto.




     Subsidiary: any entity a majority of whose outstanding voting securities is
owned, directly or indirectly, by the Company.




     Tax: any tax, duty, assessment, charge, or other levy separately or jointly
due or payable to, or levied or imposed by any Governmental Entity, including income, gross
receipts, license, wages, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental, customs duty, capital, franchise, profits,
withholding, social security, unemployment, disability, real property, personal property,
sales, use, transfer, transaction, registration, value added, alternative/add-on minimum,
estimated or other tax, duty, charge or other levy of any kind whatsoever, including any
interest, penalty or addition thereto, and any interest with respect to such addition or
penalty.




     Transfer: any direct or indirect sale, assignment, mortgage, transfer,
pledge, hypothecation or other disposal.



12









 





          IN WITNESS WHEREOF, this Agreement has been signed by each of the parties hereto, and shall be
effective as of the date first above written.




	 	 	 	 	 
	 	 	DOANE PET CARE ENTERPRISES, INC.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 	 	 	 
	 	 	DOANE PET CARE COMPANY
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 	 	 	 
	 	 	WILCHESTER INVESTMENTS LIMITED
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:






 









 






Schedule A




	 	 	 	 	 
	 	 	Initial Amount of Common	 	 
	Stockholder	 	Stock Held	 	 
	 
	 	Class A Common Stock	 	Class B Common Stock
	DPCE
	 	1,000	 	21.32
	Investor Stockholder
	 	0	 	50