As filed with the Securities and Exchange
Commission on April 14, 2004
REGISTRATION NO. 333-_______
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
VCA ANTECH, INC.
(Exact Name of Registrant as Specified in Charter)
DELAWARE 95-4097995
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
12401 West Olympic Boulevard
Los Angeles, California 90064-1022
(310) 571-6500
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
Copies to:
Robert L. Antin Julie M. Kaufer, Esq.
Chief Executive Officer and President Julie A. Ryan, Esq.
12401 West Olympic Boulevard Akin Gump Strauss Hauer & Feld LLP
Los Angeles, California 90064-1022 2029 Century Park East, Suite 2400
(310) 571-6500 Los Angeles, California 90067
(Name, Address, Including Zip Code, and (310) 229-1000
Telephone Number, Including
Area Code, of Agent for Service)
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Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
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If the only securities being registered on this form are being offered
pursuant to dividend or reinvestment plans, please check the following box. [ ]
If any of the securities being registered in this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
retirement plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If the delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
------------------------ ---------------- ------------------- ------------------- -------------------
Title of Each Class of Proposed Proposed Maximum Proposed Maximum
Securities to be Amount to be Aggregate Price Aggregate Amount of
Registered Registered Per Share Offering Price Registration Fee
------------------------ ---------------- ------------------- ------------------- -------------------
Primary Offering (1):
Common Stock, par
value $0.001 per share
Preferred Stock, par (3) (3)
value $0.001 per share $250,000,000 (4)(5) $31,675
Debt securities (2)
Warrants
------------------------ ---------------- ------------------- ------------------- -------------------
Secondary Offering:
Common Stock, par
value $0.001 per share 6,846,937 shares (6) $36.505 (7) $249,947,436 (7) $31,669
------------------------ ---------------- ------------------- ------------------- -------------------
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(1) Any securities registered hereunder may be sold separately or as units with
other securities registered hereunder. This registration statement also
covers such indeterminate amount of securities as may be issued in exchange
for, or upon conversion or exercise, as the case may be, of securities
registered hereunder that provide for conversion, exercise or exchange. No
separate consideration will be received for any securities registered
hereunder that are issued in exchange for, or upon conversion or exercise,
as the case may be, of securities registered hereunder.
(2) Subject to note 5 below, there is being registered hereunder an
indeterminate principal amount of debt securities. If any debt securities
are issued at an original issue discount, then the offering price may be
increased by an amount such that the gross proceeds to be received by the
registrant shall be equal to the amount registered.
(3) Omitted pursuant to General Instruction II.D to Form S-3 under the
Securities Act of 1933.
(4) The proposed maximum aggregate offering price has been estimated solely for
the purpose of calculating the registration fee pursuant to Rule 457(o)
under the Securities Act. The proposed maximum offering price per share or
unit will be determined from time to time in connection with, and at the
time of, the issuance of the securities registered hereunder.
(5) In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this registration statement exceed
$250,000,000.
(6) In the event of a stock split, stock dividend or similar transaction
involving the registrant's common stock, in order to prevent dilution, the
number of shares of common stock registered shall automatically increase to
cover the additional shares in accordance with Rule 416 under the
Securities Act.
(7) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act based on the average of
the high ($36.78) and low ($36.23) prices of the common stock on The Nasdaq
National Market on April 8, 2004.
-------------------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY
DETERMINE.
--------------------------------------------------------------------------------
SUBJECT TO COMPLETION, DATED APRIL 14, 2004
$250,000,000
PLUS
6,846,937 SHARES OF COMMON STOCK
OFFERED BY THE SELLING STOCKHOLDER
VCA ANTECH, INC.
COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
WARRANTS
The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and is not soliciting an offer to buy these securities
in any state where the offer or sale is not permitted.
We may offer and sell, from time to time, any combination of common stock,
preferred stock, debt securities or warrants at a total offering price not to
exceed $250,000,000, in one or more classes or series, in one or more offerings
and at prices and on terms that we determine at the time of the offering. In
addition, the selling stockholder named in this prospectus may sell up to
6,846,937 shares of our common stock. Our securities covered by this prospectus
may be sold at fixed prices or prices that may be changed, at market prices
prevailing at the time of sale, at prices related to those prevailing market
prices or at negotiated prices. We will not receive any of the proceeds from the
sale of our common stock by the selling stockholder.
We will provide specific terms of the securities to be sold by us and the
methods by which we will sell them in supplements to this prospectus. You should
read this prospectus and any supplements carefully before you invest. We may
offer the securities, and the selling stockholder may offer and sell the common
stock, directly to investors or to or through agents, underwriters, or dealers.
If any agents, underwriters, or dealers are involved in the sale of any of our
securities, their name and any applicable purchase price, fee, commission or
discount arrangement will be set forth in the prospectus supplement.
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Our common stock is quoted on The Nasdaq Stock Market's National Market under
the symbol "WOOF." The last reported sale price of our common stock on April 8,
2004 was $36.32 per share.
INVESTING IN OUR SECURITIES INVOLVES RISKS. YOU SHOULD CAREFULLY CONSIDER THE
RISK FACTORS BEGINNING ON PAGE 3 OF THIS PROSPECTUS BEFORE YOU MAKE AN
INVESTMENT IN THE COMMON STOCK.
----------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
accuracy or adequacy of this prospectus. Any representation to the contrary is a
criminal offense.
____________ Prospectus dated ___________, 2004.____________
TABLE OF CONTENTS
Prospectus Summary.......................................1
Risk Factors............................................ 3
Cautionary Note Regarding Forward-Looking Statements.... 9
Incorporation of Certain Documents by Reference ....... 10
Where You Can Find More Information ................... 10
Use of Proceeds........................................ 11
Selling Stockholder.................................... 11
Plan of Distribution................................... 12
Description of Capital Stock........................... 14
Legal Matters.......................................... 25
Experts................................................ 26
PROSPECTUS SUMMARY
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission using a "shelf" registration process. Under
this shelf registration process, we may offer and sell, from time to time, any
combination of common stock, preferred stock, debt securities or warrants at a
total offering price not to exceed $250,000,000, in one or more classes or
series, in one or more offerings and at prices and on terms that we determine at
the time of the offering. In addition, the selling stockholder named in this
prospectus may sell up to an aggregate of 6,846,937 shares of our common stock.
This prospectus provides you with a general description of the securities we may
offer. Each time we offer any of our securities under this prospectus, we will
provide a prospectus supplement that will contain specific information about the
terms of that offering. The prospectus supplements may add, update or change
information contained in this prospectus. To the extent that any statement we
make in a prospectus supplement is inconsistent with statements made in this
prospectus, the statements made in this prospectus will be deemed modified or
superceded by those made in the prospectus supplement. You should read this
prospectus and any prospectus supplement together with the additional
information described under the heading "Where You Can Find More Information."
Unless the context otherwise requires, the terms "we," "our," "us," "the
company," "the registrant" and "VCA Antech" refer to VCA Antech, Inc. and its
consolidated subsidiaries.
VCA ANTECH, INC.
OUR BUSINESS
We are a leading animal health care services company and operate the
largest networks of veterinary diagnostic laboratories and freestanding,
full-service animal hospitals in the United States. Our network of veterinary
diagnostic laboratories provides sophisticated testing and consulting services
used by veterinarians in the detection, diagnosis, evaluation, monitoring,
treatment and prevention of diseases and other conditions affecting animals. Our
animal hospitals offer a full range of general medical and surgical services for
companion animals. We treat diseases and injuries, offer pharmaceutical products
and perform a variety of pet wellness programs, including routine health
examinations, diagnostic testing, vaccinations, spaying, neutering and dental
care.
DIAGNOSTIC LABORATORIES
We operate the largest full-service, veterinary diagnostic laboratory
network serving all 50 states. At December 31, 2003, we operated 23 diagnostic
laboratories. Our state-of-the-art, automated diagnostic laboratories service a
diverse client base of over 14,000 clients, and non-affiliated clients generated
approximately 94% of our laboratory revenue in 2003. We connect our laboratories
to our customers with what we believe is the industry's largest transportation
network, which picks up an average of 23,000 to 28,000 requisitions daily
through an extensive network of drivers and independent couriers. In 2003, we
derived approximately 69% of our laboratory revenue from major metropolitan
areas, where we offer twice-a-day pick-up service and same-day results. In
addition, in these areas we generally offer to report results within three hours
of pick-up. Outside of these areas, we typically provide test results to
veterinarians before 8:00 a.m. the day following pick-up.
Our diagnostic spectrum includes over 300 different tests in the areas of
chemistry, pathology, endocrinology, serology, hematology and microbiology, as
well as tests specific to particular diseases. In 2003, we performed
approximately 22.5 million tests and handled roughly 8.0 million requisitions.
Although modified to address the particular requirements of the species tested,
the tests performed in our veterinary laboratories are similar to those
performed in human clinical laboratories and utilize similar laboratory
equipment and technologies.
ANIMAL HOSPITALS
At December 31, 2003, we operated 241 animal hospitals in 34 states that
were supported by over 820 veterinarians. In addition to general medical and
surgical services, we offer specialized treatments for companion animals,
including advanced diagnostic services, internal medicine, oncology,
ophthalmology, dermatology and cardiology. We also provide pharmaceutical
products for use in the delivery of treatments by our veterinarians and
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pet owners. Our facilities typically are located in high-traffic, densely
populated areas and have an established reputation in the community with a
stable client base. Part of our growth strategy for our animal hospital business
involves the acquisition of high-quality practices whose value we believe we can
increase by the services and scale we can provide.
Our principal offices are located at 12401 West Olympic Boulevard, Los
Angeles, California 90064. Our telephone number is (310) 571-6500.
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RISK FACTORS
YOU SHOULD CAREFULLY CONSIDER THE RISKS AND UNCERTAINTIES DESCRIBED BELOW
AND OTHER INFORMATION INCLUDED IN THIS PROSPECTUS IN EVALUATING US AND OUR
BUSINESS. IF ANY OF THE EVENTS DESCRIBED BELOW OCCUR, OUR BUSINESS AND FINANCIAL
RESULTS COULD BE ADVERSELY AFFECTED IN A MATERIAL WAY. THIS COULD CAUSE THE
TRADING PRICE OF OUR COMMON STOCK TO DECLINE, PERHAPS SIGNIFICANTLY.
IF WE ARE UNABLE TO EFFECTIVELY EXECUTE OUR GROWTH STRATEGY, WE MAY NOT
ACHIEVE OUR DESIRED ECONOMICS OF SCALE AND OUR MARGINS AND PROFITABILITY MAY
DECLINE.
Our success depends in part on our ability to build on our position as a
leading animal health care services company through a balanced program of
internal growth initiatives and selective acquisitions of established animal
hospitals and laboratories. If we cannot implement or effectively execute these
initiatives and acquisitions, our results of operations will be adversely
affected. Even if we effectively implement our growth strategy, we may not
achieve the economies of scale that we have experienced in the past or that we
anticipate having in the future. Our internal growth rate may decline and could
become negative. Our laboratory internal revenue growth has fluctuated between
11.9% and 14.1% for each fiscal year from 2001 through 2003. Similarly, our
animal hospital same-facility revenue growth rate has fluctuated between 3.6%
and 5.0% over the same fiscal years. Our internal growth may continue to
fluctuate and may be below our historical rates. Any reductions in the rate of
our internal growth may cause our revenues and margins to decrease. Our
historical growth rates and margins are not necessarily indicative of future
results.
Demand for certain products could decline as their product life cycle
matures and the products become available in other channels of distribution such
as retail-oriented locations and through internet service providers. This cycle
could affect the frequency of veterinary visits and may result in a reduction in
revenue. Demand for vaccinations may also be impacted in the future as protocols
for vaccinations change. Vaccinations have been recommended by some in the
profession to be given less frequently. This may result in fewer visits and
potentially less revenue. Vaccine protocols for our company are currently
established by our veterinarians. Some of our veterinarians have changed their
protocols and others may change their protocol in light of recent literature.
DUE TO THE FIXED COST NATURE OF OUR BUSINESS, FLUCTUATIONS IN OUR REVENUE
COULD ADVERSELY AFFECT OUR OPERATING INCOME.
Approximately 56% of our expense for the year ended December 31, 2003,
particularly rent and personnel costs, are fixed costs and are based in part on
expectations of revenue. We may be unable to reduce spending in a timely manner
to compensate for any significant fluctuations in our revenue. Accordingly,
shortfalls in revenue may adversely affect our operating income.
DIFFICULTIES INTEGRATING NEW ACQUISITIONS MAY IMPOSE SUBSTANTIAL COSTS AND
CAUSE OTHER PROBLEMS FOR US.
Our success depends on our ability to timely and cost-effectively acquire,
and integrate into our business, additional animal hospitals and laboratories.
Any difficulties in the integration process may result in increased expense,
loss of customers and a decline in profitability. We expect to acquire 20 to 25
animal hospitals per year with aggregate annual revenues of approximately $25.0
million, however, based on the opportunity, the number could be higher.
Historically we have experienced delays and increased costs in integrating some
hospitals primarily where we acquire a large number of hospitals in a single
region at or about the same time. In these cases, our field management may spend
a predominant amount of time integrating these new hospitals and less time
managing our existing hospitals in those regions. During these periods, there
may be less attention directed to marketing efforts or staffing issues. In these
circumstances, we also have experienced delays in converting the systems of
acquired hospitals into our systems, which results in increased payroll expense
to collect our results and delays in reporting our results, both for a
particular region and on a consolidated basis. These factors have resulted in
decreased revenue, increased costs and lower margins. We continue to face risks
in connection with our acquisitions including:
o negative effects on our operating results;
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o impairments of goodwill and other intangible assets;
o dependence on retention, hiring and training of key personnel,
including specialists; and
o contingent and latent risks associated with the past operations of,
and other unanticipated problems arising in, an acquired business.
The process of integration may require a disproportionate amount of the
time and attention of our management, which may distract management's attention
from its day-to-day responsibilities. In addition, any interruption or
deterioration in service resulting from an acquisition may result in a
customer's decision to stop using us. For these reasons, we may not realize the
anticipated benefits of an acquisition, either at all or in a timely manner. If
that happens and we incur significant costs, it could have a material adverse
impact on our business.
THE CARRYING VALUE OF OUR GOODWILL COULD BE SUBJECT TO IMPAIRMENT
WRITE-DOWN.
At December 31, 2003, our balance sheet reflected $373.2 million of
goodwill, which is a substantial portion of our total assets of $554.8 million
at that date. We expect that the aggregate amount of goodwill on our balance
sheet will increase as a result of future acquisitions. We continually evaluate
whether events or circumstances have occurred that suggest that the fair market
value of each of our reporting units is below their carrying values. If we
determine that the fair market value of one of our reporting units is less than
its carrying value, this may result in an impairment write-down of the goodwill
for that reporting unit. The impairment write-down would be reflected as expense
and could have a material adverse effect on our results of operations during the
period in which we recognize the expense. At December 31, 2003, we concluded
that the fair value of our reporting units exceeded their carrying value and
accordingly, as of that date, our net goodwill was not impaired in our
consolidated financial statements. However, in the future we may incur
impairment charges related to the goodwill already recorded or arising out of
future acquisitions.
We have recorded the write-down of goodwill as the result of several events
occurring during the three years ended December 31, 2003. These events are
described below:
o sold an animal hospital during each of the years ended December 31,
2003 and 2002, which resulted in the write-down of goodwill in the
amount of $50,000 and $74,000, respectively; and
o relocated certain animal hospitals operated by us and determined that
the value of the goodwill for one of our animal hospitals was impaired
during the year ended December 31, 2001, which resulted in the
write-down of goodwill in the amount of $7.3 million.
WE REQUIRE A SIGNIFICANT AMOUNT OF CASH TO SERVICE OUR DEBT AND EXPAND OUR
BUSINESS AS PLANNED.
We have, and will continue to have, a substantial amount of debt. Our
substantial amount of debt requires us to dedicate a significant portion of our
cash flow from operations to pay down our indebtedness and related interest,
thereby reducing the funds available to use for working capital, capital
expenditures, acquisitions and general corporate purposes.
At December 31, 2003, our debt, excluding unamortized discounts, consisted
of:
o $145.7 million in principal amount outstanding under our senior credit
facility;
o $170.0 million in principal amount outstanding under our 9.875% senior
subordinated notes; and
o $1.8 million in principal amount outstanding under our other debt.
The following table sets forth the scheduled principal and interest
payments that are due on our debt for each of the periods indicated (in
thousands):
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TOTAL 2004 2005 2006 2007 2008 THEREAFTER
----- ---- ---- ---- ---- ---- ----------
Long-term debt................. $ 317,207 $ 2,161 $ 1,900 $ 18,918 $ 71,102 $ 53,126 $170,000
Fixed cash interest expense.... 102,069 17,282 17,244 17,122 16,822 16,812 16,787
Variable cash interest expense (1) 33,466 6,895 7,902 9,242 7,303 2,124 -
Capital lease obligations...... 266 244 22 - - - -
Swap agreements (1)............ (497) (266) (231) - - - -
---------- -------- -------- -------- -------- -------- --------
$ 452,511 $26,316 $26,837 $ 45,282 $ 95,227 $ 72,062 $186,787
========== ======== ======== ======== ======== ======== ========
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(1) We have both fixed-rate and variable-rate debt. The interest payments on
our variable-rate debt are based on a variable-rate component plus a fixed
2.5%. Including the fixed 2.5%, we estimate that the total interest rate on
our variable-rate debt will be 4.8%, 5.5%, 6.5%, 7.5%, and 8.0% for years
2004 through 2008, respectively. These estimates are based on interest rate
projections used to price our interest rate swap agreements.
Our ability to make payments on our debt, and to fund acquisitions, will
depend upon our ability to generate cash in the future. Insufficient cash flow
could place us at risk of default under our debt agreements or could prevent us
from expanding our business as planned. Our ability to generate cash is subject
to general economic, financial, competitive, legislative, regulatory and other
factors that are beyond our control. Our business may not generate sufficient
cash flow from operations, our strategy to increase operating efficiencies may
not be realized and future borrowings may not be available to us under our
senior credit facility in an amount sufficient to enable us to service our debt
or to fund our other liquidity needs. In order to meet our debt obligations, we
may need to refinance all or a portion of our debt. We may not be able to
refinance any of our debt on commercially reasonable terms or at all.
OUR DEBT INSTRUMENTS MAY ADVERSELY AFFECT OUR ABILITY TO RUN OUR BUSINESS.
Our substantial amount of debt, as well as the guarantees of our
subsidiaries and the security interests in our assets and those of our
subsidiaries, could impair our ability to operate our business effectively and
may limit our ability to take advantage of business opportunities. For example,
our indenture and senior credit facility:
o limit our funds available to repay the 9.875% senior subordinated
notes;
o limit our ability to borrow additional funds or to obtain other
financing in the future for working capital, capital expenditures,
acquisitions, investments and general corporate purposes;
o limit our ability to dispose of our assets, create liens on our assets
or to extend credit;
o make us more vulnerable to economic downturns and reduce our
flexibility in responding to changing business and economic
conditions;
o limit our flexibility in planning for, or reacting to, changes in our
business or industry;
o place us at a competitive disadvantage to our competitors with less
debt; and
o restrict our ability to pay dividends, repurchase or redeem our
capital stock or debt, or merge or consolidate with another entity.
The terms of our indenture and senior credit facility allow us, under
specified conditions, to incur further indebtedness, which would heighten the
foregoing risks. If compliance with our debt obligations materially hinders our
ability to operate our business and adapt to changing industry conditions, we
may lose market share, our revenue may decline and our operating results may
suffer.
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OUR FAILURE TO SATISFY COVENANTS IN OUR DEBT INSTRUMENTS WILL CAUSE A
DEFAULT UNDER THOSE INSTRUMENTS.
In addition to imposing restrictions on our business and operations, our
debt instruments include a number of covenants relating to financial ratios and
tests. Our ability to comply with these covenants may be affected by events
beyond our control, including prevailing economic, financial and industry
conditions. The breach of any of these covenants would result in a default under
these instruments. An event of default would permit our lenders and other
debtholders to declare all amounts borrowed from them to be due and payable,
together with accrued and unpaid interest. Moreover, these lenders and other
debtholders would have the option to terminate any obligation to make further
extensions of credit under these instruments. If we are unable to repay debt to
our senior lenders, these lenders and other debtholders could proceed against
our assets.
THE SIGNIFICANT COMPETITION IN THE COMPANION ANIMAL HEALTH CARE SERVICES
INDUSTRY COULD CAUSE US TO REDUCE PRICES OR LOSE MARKET SHARE.
The companion animal health care services industry is highly competitive
with few barriers to entry. To compete successfully, we may be required to
reduce prices, increase our operating costs or take other measures that could
have an adverse effect on our financial condition, results of operations,
margins and cash flow. If we are unable to compete successfully, we may lose
market share.
There are many clinical laboratory companies that provide a broad range of
laboratory testing services in the same markets we service. Our largest
competitor for outsourced laboratory testing services is Idexx Laboratories,
Inc., which currently competes or intends to compete in most of the same markets
in which we operate. Also, Idexx and several other national companies provide
on-site diagnostic equipment that allows veterinarians to perform their own
laboratory tests.
Our primary competitors for our animal hospitals in most markets are
individual practitioners or small, regional, multi-clinic practices. Also,
regional pet care companies and some national companies, including operators of
super-stores, are developing multi-regional networks of animal hospitals in
markets in which we operate. Historically, when a competing animal hospital
opens in close proximity to one of our hospitals, we have reduced prices,
expanded our facility, retained additional qualified personnel, increased our
marketing efforts or taken other actions designed to retain and expand our
client base. As a result, our revenue may decline and our costs increase.
WE MAY EXPERIENCE DIFFICULTIES HIRING SKILLED VETERINARIANS DUE TO
SHORTAGES THAT COULD DISRUPT OUR BUSINESS.
As the pet population continues to grow, the need for skilled veterinarians
continues to increase. If we are unable to retain an adequate number of skilled
veterinarians, we may lose customers, our revenue may decline and we may need to
sell or close animal hospitals. As of December 31, 2003, there were 28
veterinary schools in the country accredited by the American Veterinary Medical
Association. These schools graduate approximately 2,100 veterinarians per year.
There is a shortage of skilled veterinarians in some regional markets in which
we operate animal hospitals. During shortages in these regions, we may be unable
to hire enough qualified veterinarians to adequately staff our animal hospitals,
in which event we may lose market share and our revenues and profitability may
decline.
IF WE FAIL TO COMPLY WITH GOVERNMENTAL REGULATIONS APPLICABLE TO OUR
BUSINESS, VARIOUS GOVERNMENTAL AGENCIES MAY IMPOSE FINES, INSTITUTE LITIGATION
OR PRECLUDE US FROM OPERATING IN CERTAIN STATES.
The laws of many states prohibit business corporations from providing, or
holding themselves out as providers of, veterinary medical care. These laws vary
from state to state and are enforced by the courts and by regulatory authorities
with broad discretion. As of December 31, 2003, we operated 65 animal hospitals
in 11 states with these laws, including 21 in New York. We may experience
difficulty in expanding our operations into other states with similar laws.
Given varying and uncertain interpretations of the veterinary laws of each
state, we may not be in compliance with restrictions on the corporate practice
of veterinary medicine in all states. A determination that we are in violation
of applicable restrictions on the practice of veterinary medicine in any state
in which we
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operate could have a material adverse effect on us, particularly if we were
unable to restructure our operations to comply with the requirements of that
state.
All of the states in which we operate impose various registration
requirements. To fulfill these requirements, we have registered each of our
facilities with appropriate governmental agencies and, where required, have
appointed a licensed veterinarian to act on behalf of each facility. All
veterinarians practicing in our clinics are required to maintain valid state
licenses to practice.
ANY FAILURE IN OUR INFORMATION TECHNOLOGY SYSTEMS OR DISRUPTION IN OUR
TRANSPORTATION NETWORK (INCLUDING DISRUPTION RESULTING FROM TERRORIST
ACTIVITIES) COULD SIGNIFICANTLY INCREASE TESTING TURN-AROUND TIME, REDUCE OUR
PRODUCTION CAPACITY AND OTHERWISE DISRUPT OUR OPERATIONS.
Our laboratory operations depend, in part, on the continued and
uninterrupted performance of our information technology systems and
transportation network. Our growth has necessitated continued expansion and
upgrade of our information technology systems and transportation network.
Sustained system failures or interruption in our transportation network or in
one or more of our laboratory operations could disrupt our ability to process
laboratory requisitions, perform testing, provide test results in a timely
manner and/or bill the appropriate party. We could lose customers and revenue as
a result of a system or transportation network failure.
Our computer systems are vulnerable to damage or interruption from a
variety of sources, including telecommunications failures, electricity brownouts
or blackouts, malicious human acts and natural disasters. Moreover, despite
network security measures, some of our servers are potentially vulnerable to
physical or electrical break-ins, computer viruses and similar disruptive
problems. Despite the precautions we have taken, unanticipated problems
affecting our systems could cause interruptions in our information technology
systems. Our insurance policies may not adequately compensate us for any losses
that may occur due to any failures in our systems.
In addition, over time we have significantly customized the computer
systems in our laboratory business. We rely on a limited number of employees to
upgrade and maintain these systems. If we were to lose the services of some or
all of these employees, it may be time-consuming for new employees to become
familiar with our systems, and we may experience disruptions in service during
these periods.
Any substantial reduction in the number of available flights or delays in
the departure of flights, whether as a result of severe weather conditions, as
we recently experienced in the eastern United States, a terrorist attack or any
other type of disruption, will disrupt our transportation network and our
ability to provide test results in a timely manner. Any change in government
regulation related to transporting samples or specimens could also have an
impact on our business. In addition, our Test Express service, which services
customers outside of major metropolitan areas, is dependent on flight services
in and out of Memphis and the transportation network of Federal Express. Any
sustained interruption in either flight services in Memphis or the
transportation network of Federal Express would result in increased turn-around
time for the reporting of test results to customers serviced by our Test Express
service.
THE LOSS OF MR. ROBERT ANTIN, OUR CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE
OFFICER, COULD MATERIALLY AND ADVERSELY AFFECT OUR BUSINESS.
We are dependent upon the management and leadership of our Chairman,
President and Chief Executive Officer, Robert Antin. We have an employment
contract with Mr. Antin which may be terminated at the option of Mr. Antin. We
do not maintain any key man life insurance coverage for Mr. Antin. The loss of
Mr. Antin could materially adversely affect our business.
CONCENTRATION OF OWNERSHIP AMONG OUR EXISTING EXECUTIVE OFFICERS, DIRECTORS
AND PRINCIPAL STOCKHOLDERS MAY PREVENT NEW INVESTORS FROM INFLUENCING
SIGNIFICANT CORPORATE DECISIONS.
Our executive officers, directors and principal stockholders beneficially
own, in the aggregate, 23.1% of our outstanding common stock. As a result, these
stockholders are able to significantly affect our management, our policies and
all matters requiring stockholder approval. Our largest stockholder is Leonard
Green & Partners, L.P.,
7
which owns 16.8% of our common stock. Three of the partners of Leonard Green &
Partners, L.P. sit on our seven member board of directors. These directors,
along with the two management directors, will be able to significantly affect
decisions relating to our capital structure, including decisions to issue
additional capital stock, implement stock repurchase programs and incur
indebtedness. This concentration of ownership may have the effect of deterring
hostile takeovers, delaying or preventing changes in control or changes in
management, or limiting the ability of our other stockholders to approve
transactions that they may deem to be in their best interests.
8
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
Some of the statements under "Prospectus Summary," "Risk Factors" and
elsewhere in this prospectus are forward-looking statements. We generally
identify forward-looking statements in this prospectus using words like
"believe," "intend," "expect," "estimate," "may," "should," "plan," "project,"
"contemplate," "anticipate," "predict" or similar expressions. These statements
involve known and unknown risks, uncertainties and other factors, including
those described in the "Risk Factors" section, that may cause our or our
industry's actual results, levels of activity, performance or achievements to be
materially different from any future results, levels of activity, performance or
achievements expressed or implied by these forward-looking statements. Except as
required by applicable law, including the securities laws of the United States,
and the rules and regulations of the Securities and Exchange Commission, we do
not plan to publicly update or revise any forward-looking statements after we
distribute this prospectus, whether as a result of any new information, future
events or otherwise.
Some of the information incorporated by reference into this prospectus is
based on market data and industry forecasts and projections, which we have
obtained from market research, publicly available information and industry
publications. These sources generally state that the information they provide
has been obtained from sources believed to be reliable, but that the accuracy
and completeness of this information are not guaranteed. The forecasts and
projections are based on industry surveys and the preparers' experience in the
industry and we cannot assure you that any of the projected amounts will be
achieved. Similarly, we believe that the surveys and market research others have
performed are reliable, but we have not independently verified this information.
-----------------------------------------------
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS OR ANY
SUPPLEMENT AND ANY INFORMATION INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR
ANY SUPPLEMENT. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH ANY
INFORMATION THAT IS DIFFERENT. WE ARE NOT MAKING AN OFFER TO SELL THESE
SECURITIES IN ANY JURISDICTION WHERE THE OFFER OR SALE IS NOT PERMITTED. YOU
SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS OR ANY SUPPLEMENT IS
CURRENT AS OF ANY DATE OTHER THAN THE DATE OF THE DOCUMENT CONTAINING THE
INFORMATION.
9
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
We are incorporating by reference certain documents we file with the
Securities and Exchange Commission, which means that we can disclose important
information to you by referring you to those documents. Any information that we
reference this way is considered part of this prospectus. The information in the
documents incorporated by reference is considered to be part of this prospectus.
Information in documents that we file with the Securities and Exchange
Commission after the date of this prospectus will automatically update and
supersede information in this prospectus. We incorporate by reference the
documents listed below and any future filings we may make with the Securities
and Exchange Commission under Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 after the date of this prospectus:
o Our Annual Report on Form 10-K for the fiscal year ended December 31,
2003, filed with the Securities and Exchange Commission on March 12,
2004;
o Our Current Report on Form 8-K filed with the Securities and Exchange
Commission on February 24, 2004; and
o The description of our common stock contained in our Form 8-A filed
with the Securities and Exchange Commission on November 15, 2001, as
amended by our Form 8-A/A filed with the Securities and Exchange
Commission on November 16, 2001.
Information contained in this prospectus supercedes information
incorporated by reference that we have filed with the SEC prior to the date of
this prospectus, while information that we file with the SEC after the date of
this prospectus that is incorporated by reference will automatically update and
supersede this information.
WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement on Form S-3 with the Securities and
Exchange Commission regarding this offering. The registration statement of which
this prospectus is a part contains additional relevant information about us and
our capital stock and you should refer to the registration statement and its
exhibits to read that information.
You may read and copy the registration statement, the related exhibits and
the other material we file with the SEC at its Public Reference Room at 450
Fifth Street, N.W., Washington D.C. 20549. Please call the Securities and
Exchange Commission at (800) SEC-0330 for further information on the operation
of the public reference rooms. The Securities and Exchange Commission also
maintains an internet site that contains reports, proxy and information
statements and other information regarding issuers that file with the Securities
and Exchange Commission. The site's address is WWW.SEC.GOV.
We also will provide to you a copy of these filings at no cost. You may
request copies of these filings by writing or telephoning us as follows: 12401
West Olympic Boulevard, Los Angeles, California 90064-1022, Attention, Chief
Financial Officer, or 310-571-6500. In addition, you may access these filings at
our website. Our website's address is HTTP://INVESTOR.VCAANTECH.COM. The
foregoing website references are inactive textual references only.
10
USE OF PROCEEDS
Unless we inform you otherwise in a prospectus supplement, we expect to use
the net proceeds from the sale of our securities from time to time:
o to finance acquisitions of other businesses;
o to reduce our indebtedness; or
o for general corporate and other purposes as our board of directors may
determine.
We may temporarily invest net proceeds from the sale of our securities in
short-term securities. We will not receive any proceeds from the sale of shares
of our common stock by the selling stockholder. All proceeds from those sales
will be for the account of the selling stockholder. See "Selling Stockholder"
and "Plan of Distribution."
SELLING STOCKHOLDER
We are registering 6,846,937 shares of common stock covered by this
prospectus for re-offers and resales by the selling stockholder named below. We
are registering these shares to permit the selling stockholder to resell the
shares when it deems appropriate. The selling stockholder may resell all, a
portion or none of its shares at any time. The selling stockholder may also
sell, transfer or otherwise dispose of some or all of its shares of our common
stock in transactions exempt from the registration requirements of the
Securities Act of 1933, as amended. We do not know when or in what amounts the
selling stockholder may offer shares for sale under this prospectus.
The following table sets forth (i) the selling stockholder, (ii) as of
April 8, 2004, the number of shares of common stock that the selling stockholder
beneficially owns and the number of shares being registered for resale by the
selling stockholder, and (iii) the number of shares of our common stock that
will be beneficially owned by the selling stockholder upon completion of this
offering, assuming that all of the shares of common stock offered by the selling
stockholder under this prospectus have been sold. The number of shares of common
stock outstanding as of April 8, 2004 was 40,762,109.
As used in this prospectus, "selling stockholder" includes the selling
stockholder named in the table below and its transferees, pledges, donees, heirs
or other successors-in-interest selling shares received from the selling
stockholder listed below as a gift, partnership distribution or other
non-sale-related transfer after the date of this prospectus.
Number of
Shares of
Number Our Common Number of Shares of Our
of Shares of Our Common Stock Common Stock
Stock Beneficially Owned Being Beneficially Owned
Selling Stockholder Prior to the Offering Offered After the Offering(1)
------------------- --------------------- ------- ---------------------
Percentage Percentage
Number of of Shares Number of of Shares
Shares Outstanding Shares Outstanding
Green Equity Investors III, 6,846,937 16.8% 6,846,937 -- *
L.P. (2)
* Less than 1%.
-------------------
(1) Assumes the sale of all shares of common stock being offered by the selling
stockholder. No estimate can be given as to the amount of shares that will
be held by the selling stockholder after completion of this offering
because the selling stockholder may offer and sell some, all or none of its
shares.
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(2) The address of Green Equity Investors III, L.P. is 11111 Santa Monica
Blvd., Suite 2000, Los Angeles, CA 90025.
On September 20, 2000, we completed a leveraged recapitalization with an
entity controlled by Leonard Green & Partners, L.P. In connection with that
transaction, we entered into a 10-year management services agreement with
Leonard Green & Partners. The agreement was terminated on November 27, 2001. The
agreement provided that Leonard Green & Partners would provide general
investment-banking services, management, consulting and financial planning
services and transaction-related financial advisory and investment banking
services to us and our subsidiaries. We paid a one-time structuring fee of $7.5
million to Leonard Green & Partners in September 2000 under the agreement. The
management agreement provided that Leonard Green & Partners would receive an
annual fee of $2.5 million as compensation for the general services and normal
and customary fees for transaction-related services. In 2001 and 2000, we paid
management fees in an aggregate amount of $2.3 million and $620,000. In
connection with the termination of this agreement, we paid Leonard Green &
Partners $8.0 million.
John M. Baumer, John G. Danhakl and Peter Nolan each serve on our board of
directors and each is a partner of Leonard Green & Partners, L.P.
PLAN OF DISTRIBUTION
We currently intend to offer and sell pursuant to one or more prospectus
supplements, from time to time, any combination of common stock, preferred
stock, debt securities or warrants at a total offering price not to exceed
$250,000,000, in one or more classes or series, in one or more underwritten or
other public offerings and at prices and on terms that we determine at the time
of the offering. In addition, the selling stockholder currently intends to offer
and sell, from time to time, the common stock in one or more underwritten or
other public offerings. However, we and/or the selling stockholder also may
offer and sell our securities, as applicable:
o through agents;
o through a block trade in which the broker or dealer engaged to handle
the block trade will attempt to sell the securities as agent, but may
position and resell a portion of the block as principal to facilitate
the transaction;
o directly to one or more purchasers (through a specific bidding or
auction process or otherwise); or
o through a combination of any of these methods of sale.
The distribution of our securities may be effected from time to time in one
or more transactions either:
o at a fixed price or prices, which may be changed;
o at market prices prevailing at the time of sale;
o at prices relating to the prevailing market prices; or
o at negotiated prices.
Offers to purchase our securities may be solicited by agents designated by
us and/or the selling stockholder from time to time. Any agent involved in the
offer or sale of our securities will be named, and any commissions payable by us
and/or the selling stockholder to the agent will be described, in the applicable
prospectus supplement. Unless otherwise indicated in the applicable prospectus
supplement, any such agent will be acting on a best efforts basis for the period
of its appointment. Any agent may be deemed to be an underwriter, as such term
is defined in the Securities Act, of the securities so offered and sold.
12
If we and/or the selling stockholder offer and sell our securities through
an underwriter or underwriters, we and/or the selling stockholder will execute
an underwriting agreement with the underwriter or underwriters. The names of the
specific managing underwriter or underwriters, as well as any other
underwriters, and the terms of the transactions, including compensation of the
underwriters and dealers, which may be in the form of discounts, concessions or
commissions, if any, will be described in the applicable prospectus supplement,
which will be used by the underwriters to make resales of our securities. That
prospectus supplement and this prospectus will be used by the underwriters to
make resales of our securities. If underwriters are used in the sale of any of
our securities in connection with this prospectus, those securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at fixed
public offering prices or at varying prices determined by the underwriters and
us and/or the selling stockholder at the time of sale. Our securities may be
offered to the public either through underwriting syndicates represented by
managing underwriters or directly by one or more underwriters. If any
underwriter or underwriters are used in the sale of our securities, unless
otherwise indicated in a related prospectus supplement, the underwriting
agreement will provide that the obligations of the underwriters are subject to
some conditions precedent and that with respect to a sale of our securities the
underwriters will be obligated to purchase all such securities if any are
purchased.
If any underwriters are involved in the offer and sale, they will be
permitted to engage in transactions that maintain or otherwise affect the price
of the common stock or other securities of ours. These transactions may include
over-allotment transactions, purchases to cover short positions created by the
underwriter in connection with the offering and the imposition of penalty bids.
If an underwriter creates a short position in the common stock in connection
with the offering, i.e., if it sells more shares of common stock than set forth
on the cover page of the applicable prospectus supplement, the underwriter may
reduce that short position by purchasing common stock in the open market. In
general, purchases of common stock to reduce a short position could cause the
price of the common stock to be higher than it might be in the absence of such
purchases. As noted above, underwriters may also choose to impose penalty bids
on other underwriters and/or selling group members. This means that if
underwriters purchase common stock on the open market to reduce their short
position or to stabilize the price of the common stock, they may reclaim the
amount of the selling concession from those underwriters and/or selling group
members who sold such common stock as part of the offering.
If we and/or the selling stockholder offer and sell our securities through
a dealer, we, the selling stockholder or an underwriter will sell our securities
to the dealer, as principal. The dealer may then resell our securities to the
public at varying prices to be determined by the dealer at the time of resale.
Any such dealer may be deemed to be an underwriter, as such term is defined in
the Securities Act, of our securities so offered and sold. The name of the
dealer and the terms of the transactions will be set forth in the applicable
prospectus supplement.
We and/or the selling stockholder may solicit offers to purchase our
securities directly and we and/or the selling stockholder may sell our
securities directly to institutional or other investors, who may be deemed to be
an underwriter within the meaning of the Securities Act with respect to any
resales of those securities. The terms of these sales, including the terms of
any bidding or auction process, if utilized, will be described in the applicable
prospectus supplement.
We and/or the selling stockholder may enter into agreements with agents,
underwriters and dealers under which we and/or the selling stockholder may agree
to indemnify the agents, underwriters and dealers against certain liabilities,
including liabilities under the Securities Act, or to contribute to payments
they may be required to make with respect to these liabilities. The terms and
conditions of this indemnification or contribution will be described in the
applicable prospectus supplement. Some of the agents, underwriters or dealers,
or their affiliates may be customers of, engage in transactions with or perform
services for us and/or the selling stockholder in the ordinary course of
business.
We and/or the selling stockholder may authorize our respective agents or
underwriters to solicit offers to purchase our securities at the public offering
price under delayed delivery contracts. The terms of these delayed delivery
contracts, including when payment for and delivery of our securities sold will
be made under the contracts and any conditions to each party's performance set
forth in the contracts, will be described in the applicable prospectus
supplement. The compensation received by underwriters or agents soliciting
purchases of our securities under delayed delivery contracts will also be
described in the applicable prospectus supplement.
13
From time to time, the selling stockholder may pledge or grant a security
interest in some or all of our shares of common stock owned by it. If the
selling stockholder defaults in the performance of its secured obligations, the
pledgees or secured parties may offer and sell such common stock from time to
time by this prospectus. The selling stockholder also may transfer and donate
our common stock owned by it in other circumstances. The number of shares of our
common stock beneficially owned by selling stockholder will decrease as and when
the selling stockholder transfers or donates its shares of our common stock or
defaults in performing obligations secured by its shares of our common stock.
The plan of distribution for the securities offered and sold under this
prospectus will otherwise remain unchanged, except that the transferees, donees,
pledgees, other secured parties or other successors in interest will be the
selling stockholder for purposes of this prospectus.
Unless we specify otherwise in the related prospectus supplement, each
series of securities offered by us will be a new issue with no established
trading market, other than our common shares which are listed on the Nasdaq
National Market. If we sell any common shares pursuant to a prospectus
supplement, the shares will be listed on the Nasdaq National Market subject to
official notice of issuance. We may elect to list any series of securities on
any exchange, but will not be obligated to do so and may discontinue any market
making at any time without notice. Therefore there may not be a liquid market
for the securities.
DESCRIPTION OF CAPITAL STOCK
This prospectus contains a summary of the material terms of our capital
stock, including our common stock, preferred stock, debt securities and
warrants. The following description of our capital stock is subject to, and
qualified in its entirety by, our certificate of incorporation and bylaws, which
are included as exhibits to the registration statement of which this prospectus
forms a part, and by the provisions of applicable Delaware law.
Our authorized capital stock consists of 75,000,000 shares of common stock,
par value $0.001 per share, and 11,000,000 shares of preferred stock, par value
$0.001 per share. As of April 8, 2004, 40,762,109 shares of our common stock are
outstanding and held of record by approximately 70 holders of record and no
shares of our preferred stock are outstanding. We do not have outstanding
warrants. A discussion of our outstanding debt arrangements is included in our
Annual Report on Form 10-K for the fiscal year ended December 31, 2003, filed
with the Securities and Exchange Commission on March 12, 2004, which has been
incorporated herein by reference.
COMMON STOCK
VOTING RIGHTS. The holders of common stock are entitled to one vote per
share on all matters submitted to a vote of our stockholders. The common stock
does not have cumulative voting rights.
DIVIDENDS. Subject to preferences that may be applicable to any preferred
stock outstanding at the time, the holders of outstanding shares of common stock
are entitled to receive ratably any dividends out of assets legally available
therefor as our board of directors may from time to time determine.
Our senior credit facility and the indenture governing our outstanding
senior subordinated notes place limitations on our ability to pay dividends or
make other distributions in respect of our common stock. Any future
determination as to the payment of dividends on our common stock will be
restricted by these limitations, will be at the discretion of our board of
directors and will depend on our results of operations, financial condition,
capital requirements and other factors deemed relevant by the board of
directors, including the General Corporation Law of the State of Delaware, which
provides that dividends are only payable out of surplus or current net profits.
LIQUIDATION AND DISSOLUTION. Upon our liquidation, dissolution or winding
up, holders of our common stock are entitled to share ratably in all assets
remaining after payment of all liabilities and the liquidation preference of any
then outstanding shares of preferred stock.
NO PREEMPTIVE OR SIMILAR RIGHTS. Holders of our common stock have no
preemptive or conversion rights or other subscription rights. There are no
redemption or sinking fund provisions applicable to the common stock.
14
Holders of shares of the common stock are not required to make additional
capital contributions. All outstanding shares of common stock are fully paid and
nonassessable.
REGISTRATION RIGHTS. Certain holders of shares of our common stock are
entitled to certain rights with respect to registration of those shares under
the Securities Act of 1933. If we propose to register any of our securities
under the Securities Act of 1933, either for our own account or for the account
of others, the holders of these shares are entitled to notice of the
registration and are entitled to include, at our expense, their shares of common
stock in the registration and any related underwriting, provided, among other
conditions, that the underwriters, if any, may limit the number of shares to be
included in the registration. In addition, the holders of these shares may
require us, at our expense and subject to certain limitations, to file a
registration statement under the Securities Act of 1933 with respect to their
shares of common stock, and we will be required to use our best efforts to
effect the registration.
PREFERRED STOCK
The following description of our preferred stock, together with the
additional information we include in any prospectus supplements, summarizes the
material terms and provisions of the preferred stock that we may offer under
this prospectus. For the complete terms of our preferred stock, please refer to
our certificate of incorporation and bylaws that are filed as exhibits to our
reports incorporated by reference into the registration statement that includes
this prospectus. The General Corporation Law of Delaware, as amended, also may
affect the terms of our common stock.
We are authorized to issue 11,000,000 shares of preferred stock, par value
$0.001 per shares. Our board of directors has the authority, without any further
vote or action by the stockholders, to issue the preferred stock in one or more
series and to fix the number of shares, designations, relative rights (including
voting rights), preferences and limitations of such series to the full extent
now or hereafter permitted by applicable Delaware law.
The rights, preferences, privileges and restrictions of the preferred
stock may include:
o dividend rights;
o conversion rights;
o voting rights;
o redemption rights and terms of redemption; and
o liquidation preferences.
Our board of directors may fix the number of shares constituting any series
and the designations of these series.
The rights, preferences, privileges and restrictions of the preferred stock
of each series will be fixed by a certificate of designations relating to each
series. The prospectus supplement relating to each series will specify the terms
of the preferred stock, including:
o the maximum number of shares in the series and the distinctive
designation;
o the terms on which dividends will be paid, if any;
o the terms on which the shares may be redeemed, if at all;
o the liquidation preference, if any;
o the terms of any retirement or sinking fund for the purchase or
redemption of the shares of the series;
15
o the terms and conditions, if any, on which the shares of the series
will be convertible into, or exchangeable for, shares of any other
class or classes of capital stock;
o the voting rights, if any, on the shares of the series; and
o any or all other preferences and relative, participating, operational
or other special rights or qualifications, limitations or restrictions
of the shares.
We will describe the specific terms of a particular series of preferred
stock in the prospectus supplement relating to that series. The description of
preferred stock above and the description of the terms of a particular series of
preferred stock in the prospectus supplement are not complete. You should refer
to the applicable certificate of designations for complete information. The
prospectus supplement also will contain a description of U.S. federal income tax
consequences relating to the preferred stock, if material.
VOTING RIGHTS. The General Corporation Law of Delaware provides that the
holders of preferred stock will have the right to vote separately as a class on
any proposal involving fundamental changes in the rights of holders of that
preferred stock. This right is in addition to any voting rights that may be
provided for in the applicable certificate of designations.
OTHER. Our issuance of preferred stock may have the effect of delaying or
preventing a change in control. Our issuance of preferred stock could decrease
the amount of earnings and assets available for distribution to the holders of
common stock or other preferred stock or could adversely affect the rights and
powers, including voting rights, of the holders of common stock or other
preferred stock. The issuance of preferred stock could have the effect of
decreasing the market price of our common stock.
TRANSFER AGENT AND REGISTRAR. The transfer agent and registrar for the
preferred stock will be set forth in the applicable prospectus supplement.
DEBT SECURITIES
We may offer any combination of senior debt securities or subordinated debt
securities, subject to the terms of our existing debt arrangements. We may issue
the senior debt securities and the subordinated debt securities under separate
indentures between us, as issuer, and the trustee or trustees identified in a
prospectus supplement. Further information regarding the trustee may be provided
in the prospectus supplement. The form for each type of indenture will be filed
as an exhibit to the registration statement of which this prospectus is a part.
Our currently outstanding debt arrangements, a description of which has
previously been incorporated herein by reference, require us to maintain certain
financial ratios and contain certain restrictions on our ability to incur
additional debt. We may be restricted from issuing debt securities without
waiver of these restrictions by our lenders. If we offer debt securities under
this prospectus, the applicable prospectus supplement will update the
information in this paragraph regarding our other outstanding indebtedness.
The prospectus supplement will describe the particular terms of any debt
securities we may offer and may supplement and/or supercede the terms summarized
below. The following summaries of the debt securities and the indentures are not
complete. We urge you to read the indentures to be filed as exhibits to the
registration statement and the description of the additional terms of the debt
securities included in the prospectus supplement.
GENERAL
Within the total dollar amount of this shelf registration statement and
subject to the terms of our existing debt arrangements, we may issue debt
securities in separate series. We may specify a maximum aggregate principal
amount for the debt securities of any series. The debt securities will have
terms that are consistent with the indentures. Senior debt securities will be
unsecured and unsubordinated obligations and will rank equal with all our other
unsecured and unsubordinated debt. Subordinated debt securities will be paid
only if all payments due under our senior indebtedness, including any
outstanding senior debt securities, have been made.
16
The prospectus supplement will describe the debt securities and the price
or prices at which we will offer the debt securities. The description will
include:
o the title and form of the debt securities;
o any limit on the aggregate principal amount of the debt securities or
the series of which they are a part;
o the person to whom any interest on a debt security of the series will
be paid;
o the date or dates on which we must repay the principal;
o the rate or rates at which the debt securities will bear interest;
o if any, the date or dates from which interest will accrue, and the
dates on which we must pay interest;
o the place or places where we must pay the principal and any premium or
interest on the debt securities;
o the terms and conditions on which we may redeem any debt security, if
at all;
o any obligation to redeem or purchase any debt securities, and the
terms and conditions on which we must do so;
o the denominations in which we may issue the debt securities;
o the manner in which we will determine the amount of principal of or
any premium or interest on the debt securities;
o the currency in which we will pay the principal of and any premium or
interest on the debt securities;
o the principal amount of the debt securities that we will pay upon
declaration of acceleration of their maturity;
o the amount that will be deemed to be the principal amount for any
purpose, including the principal amount that will be due and payable
upon any maturity or that will be deemed to be outstanding as of any
date;
o if applicable, that the debt securities are defeasible and the terms
of such defeasance;
o if applicable, the terms of any right to convert debt securities into,
or exchange debt securities for, shares of common stock or other
securities or property;
o whether we will issue the debt securities in the form of one or more
global securities and, if so, the respective depositaries for the
global securities and the terms of the global securities;
o the subordination provisions that will apply to any subordinated debt
securities;
o the events of default applicable to the debt securities and the right
of the trustee or the holders to declare the principal amount of any
of the debt securities due and payable;
o the affirmative and negative covenants contained in the indentures;
and
17
o any other terms of the debt securities not inconsistent with the
applicable indentures.
We may sell the debt securities at a substantial discount below their
stated principal amount. We will describe U.S. federal income tax
considerations, if any, applicable to debt securities sold at an original issue
discount in the prospectus supplement. An "original issue discount security" is
any debt security sold for less than its face value, and which provides that the
holder cannot receive the full face value if maturity is accelerated. The
prospectus supplement relating to any original issue discount securities will
describe the particular provisions relating to acceleration of the maturity upon
the occurrence of an event of default. In addition, we will describe U.S.
federal income tax or other considerations applicable to any debt securities
that are denominated in a currency or unit other than U.S. dollars in the
prospectus supplement.
CONVERSION AND EXCHANGE RIGHTS
The prospectus supplement will describe, if applicable, the terms on which
you may convert debt securities into or exchange them for common stock or other
securities or property. The conversion or exchange may be mandatory or may be at
your option. The prospectus supplement will describe how the number of shares of
common stock or other securities or property to be received upon conversion or
exchange would be calculated.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
The indebtedness underlying the subordinated debt securities will be
payable only if all payments due under our senior indebtedness, including any
outstanding senior debt securities, have been made. If we distribute our assets
to creditors upon any dissolution, winding-up, liquidation or reorganization or
in bankruptcy, insolvency, receivership or similar proceedings, we must first
pay all amounts due or to become due on all senior indebtedness before we pay
the principal of, or any premium or interest on, the subordinated debt
securities. In the event the subordinated debt securities are accelerated
because of an event of default, we may not make any payment on the subordinated
debt securities until we have paid all senior indebtedness or the acceleration
is rescinded.
If we experience a bankruptcy, dissolution or reorganization, holders of
senior indebtedness may receive more, ratably, and holders of subordinated debt
securities may receive less, ratably, than our other creditors. The indenture
for subordinated debt securities may not limit our ability to incur additional
senior indebtedness.
FORM, EXCHANGE AND TRANSFER
We will issue debt securities only in fully registered form, without
coupons, and only in specified denominations and integral multiples thereof. The
holder of a debt security may elect, subject to the terms of the indentures and
the limitations applicable to global securities, to exchange them for other debt
securities of the same series of any authorized denomination and of similar
terms and aggregate principal amount.
Holders of debt securities may present them for exchange as provided above
or for registration of transfer, duly endorsed or with the form of transfer duly
executed, at the office of the transfer agent we designate for that purpose. We
will not impose a service charge for any registration of transfer or exchange of
debt securities, but we may require a payment sufficient to cover any tax or
other governmental charge payable in connection with the transfer or exchange.
We will name the transfer agent in the prospectus supplement. We may designate
additional transfer agents or rescind the designation of any transfer agent or
approve a change in the office through which any transfer agent acts, but we
must maintain a transfer agent in each place where we will make payment on debt
securities.
If we redeem the debt securities, we will not be required to issue,
register the transfer of or exchange any debt security during a specified period
prior to mailing a notice of redemption. We are not required to register the
transfer of or exchange of any debt security selected for redemption, except the
unredeemed portion of the debt security being redeemed.
GLOBAL SECURITIES
The debt securities may be represented, in whole or in part, by one or more
global securities that will have an aggregate principal amount equal to that of
all debt securities of that series. Each global security will be
18
registered in the name of a depositary identified in the prospectus supplement.
We will deposit the global security with the depositary or a custodian, and the
global security will bear a legend regarding the restrictions on exchanges and
registration of transfer.
No global security may be exchanged in whole or in part for debt securities
registered, and no transfer of a global security in whole or in part may be
registered, in the name of any person other than the depositary or any nominee
or successor of the depositary unless:
o the depositary is unwilling or unable to continue as depositary; or
o the depositary is no longer in good standing under the Exchange Act or
other applicable statute or regulation.
The depositary will determine how all securities issued in exchange for a
global security will be registered.
As long as the depositary or its nominee is the registered holder of a
global security, we will consider the depositary or the nominee to be the sole
owner and holder of the global security and the underlying debt securities.
Except as stated above, owners of beneficial interests in a global security will
not be entitled to have the global security or any debt security registered in
their names, will not receive physical delivery of certificated debt securities
and will not be considered to be the owners or holders of the global security or
underlying debt securities. We will make all payments of principal, premium and
interest on a global security to the depositary or its nominee. The laws of some
jurisdictions require that some purchasers of securities take physical delivery
of such securities in definitive form. These laws may prevent you from
transferring your beneficial interests in a global security.
Only institutions that have accounts with the depositary or its nominee and
persons that hold beneficial interests through the depositary or its nominee may
own beneficial interests in a global security. The depositary will credit, on
its book-entry registration and transfer system, the respective principal
amounts of debt securities represented by the global security to the accounts of
its participants. Ownership of beneficial interests in a global security will be
shown only on, and the transfer of those ownership interests will be effected
only through, records maintained by the depositary or any such participant.
The policies and procedures of the depositary may govern payments,
transfers, exchanges and others matters relating to beneficial interests in a
global security. We and the trustee will assume no responsibility or liability
for any aspect of the depositary's or any participant's records relating to, or
for payments made on account of, beneficial interests in a global security.
PAYMENT AND PAYING AGENTS
We will pay principal and any premium or interest on a debt security to the
person in whose name the debt security is registered at the close of business on
the regular record date for such interest.
We will pay principal and any premium or interest on the debt securities at
the office of our designated paying agent. Unless the prospectus supplement
indicates otherwise, the corporate trust office of the trustee will be the
paying agent for the debt securities.
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Any other paying agents we designate for the debt securities of a
particular series will be named in the prospectus supplement. We may designate
additional paying agents, rescind the designation of any paying agent or approve
a change in the office through which any paying agent acts, but we must maintain
a paying agent in each place of payment for the debt securities.
The paying agent will return to us all money we pay to it for the payment
of the principal, premium or interest on any debt security that remains
unclaimed for a specified period. Thereafter, the holder may look only to us for
payment, as an unsecured general creditor.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Unless we indicate otherwise in a prospectus supplement, each indenture
will provide that, so long as any securities remain outstanding, we may not
consolidate or enter into a share exchange with or merge into any other person,
in a transaction in which we are not the surviving corporation, or sell, convey,
transfer or lease our properties and assets substantially as an entirety to any
person, unless:
o the successor assumes our obligations under the debt securities and
the indenture; and
o we meet the other conditions described in the indenture.
EVENTS OF DEFAULT
Unless we indicate otherwise in a prospectus supplement, events of default
under each indenture will include the following:
o failure to pay the principal of or any premium on any debt security
when due;
o failure to pay any interest on any debt security when due, for more
than a specified number of days past the due date;
o failure to deposit any sinking fund payment when due;
o failure to perform any covenant or agreement in the indenture that
continues for a specified number of days after written notice has been
given by the trustee or the holders of a specified percentage in
aggregate principal amount of the debt securities of that series;
o events of bankruptcy, insolvency or reorganization; and
o any other event of default specified in the prospectus supplement.
If an event of default occurs and continues, both the trustee and holders
of a specified percentage in aggregate principal amount of the outstanding
securities of that series may declare the principal amount of the debt
securities of that series to be immediately due and payable. The holders of a
specified percentage in aggregate principal amount of the outstanding securities
of that series may rescind and annul the acceleration if all events of default,
other than the nonpayment of accelerated principal, have been cured or waived.
Except for its duties in case of an event of default, the trustee will not
be obligated to exercise any of its rights or powers at the request or direction
of any of the holders, unless the holders have offered the trustee reasonable
indemnity. If they provide this indemnification, the holders of specified
percentage in aggregate principal amount of the outstanding securities of any
series may direct the time, method and place of conducting any proceeding for
any remedy available to the trustee or exercising any trust or power conferred
on the trustee with respect to the debt securities of that series.
No holder of a debt security of any series may institute any proceeding
with respect to the indentures, or for the appointment of a receiver or a
trustee, or for any other remedy, unless:
o the holder has previously given the trustee written notice of a
continuing event of default;
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o the holders of a specified percentage in aggregate principal amount of
the outstanding securities of that series have made a written request
upon the trustee, and have offered reasonable indemnity to the
trustee, to institute the proceeding;
o the trustee has failed to institute the proceeding for a specified
period of time after its receipt of the notification; and
o the trustee has not received a direction inconsistent with the request
within a specified number of days from the holders of a specified
percentage in aggregate principal amount of the outstanding securities
of that series.
MODIFICATION AND WAIVER
We and the trustee may change an indenture without the consent of any
holders with respect to specific matters, including:
o to fix any ambiguity, defect or inconsistency in the indenture; and
o to change anything that does not materially adversely affect the
interests of any holder of debt securities of any series.
In addition, under the indentures, the rights of holders of a series of
notes may be changed by us and the trustee with the written consent of the
holders of at least a specified percentage in aggregate principal amount of the
outstanding debt securities of each series that is affected. These changes may
include:
o extending the fixed maturity of the series of notes;
o reducing the principal amount, reducing the rate of or extending the
time of payment of interest, or any premium payable upon the
redemption, of any debt securities; or
o reducing the percentage of debt securities the holders of which are
required to consent to any amendment.
The holders of a specified percentage in principal amount of the
outstanding debt securities of any series may waive any past default under the
indenture with respect to debt securities of that series, except a default in
the payment of principal, premium or interest on any debt security of that
series or in respect of a covenant or provision of the indenture that cannot be
amended without each holder's consent.
Except in limited circumstances, we may set any day as a record date for
the purpose of determining the holders of outstanding debt securities of any
series entitled to give or take any direction, notice, consent, waiver or other
action under the indentures. In limited circumstances, the trustee may set a
record date. To be effective, the action must be taken by holders of the
requisite principal amount of such debt securities within a specified period
following the record date.
DEFEASANCE
To the extent stated in the prospectus supplement, we may elect to apply
the provisions in the indentures relating to defeasance and discharge of
indebtedness, or to defeasance of restrictive covenants, to the debt securities
of any series. The indentures may provide that, upon satisfaction of the
requirements described below, we may terminate all of our obligations under the
debt securities of any series and the applicable indenture, known as legal
defeasance, other than our obligation:
o to maintain a registrar and paying agents and hold monies for payment
in trust;
o to register the transfer or exchange of the notes; and
21
o to replace mutilated, destroyed, lost or stolen notes.
In addition, we may terminate our obligation to comply with any restrictive
covenants under the debt securities of any series or the applicable indenture,
known as covenant defeasance.
We may exercise our legal defeasance option even if we have previously
exercised our covenant defeasance option. If we exercise either defeasance
option, payment of the notes may not be accelerated because of the occurrence of
events of default.
To exercise either defeasance option as to debt securities of any series,
we must irrevocably deposit in trust with the trustee money and/or obligations
backed by the full faith and credit of the United States that will provide money
in an amount sufficient in the written opinion of a nationally recognized firm
of independent public accountants to pay the principal of, premium, if any, and
each installment of interest on the debt securities. We may only establish this
trust if, among other things:
o no event of default shall have occurred or be continuing;
o in the case of legal defeasance, we have delivered to the trustee an
opinion of counsel to the effect that we have received from, or there
has been published by, the Internal Revenue Service a ruling or there
has been a change in law, which in the opinion of our counsel,
provides that holders of the debt securities will not recognize gain
or loss for federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to federal income tax on
the same amount, in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge had not
occurred;
o in the case of covenant defeasance, we have delivered to the trustee
an opinion of counsel to the effect that the holders of the debt
securities will not recognize gain or loss for federal income tax
purposes as a result of such deposit, defeasance and discharge and
will be subject to federal income tax on the same amount, in the same
manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred; and
o we satisfy other customary conditions precedent described in the
applicable indenture.
NOTICES
We will mail notices to holders of debt securities as indicated in the
prospectus supplement.
TITLE
We may treat the person in whose name a debt security is registered as the
absolute owner for the purpose of making payment and for all other purposes.
GOVERNING LAW
The indentures and the debt securities will be governed by and construed in
accordance with the laws of the state of New York.
WARRANTS
The following description, together with the additional information we may
include in any applicable prospectus supplements, summarizes the material terms
and provisions of the warrants that we may offer under this prospectus and the
related warrant agreements and warrant certificates. While the terms summarized
below will
22
apply generally to any warrants we may offer, we will describe the particular
terms of any series of warrants in more detail in the applicable prospectus
supplement.
We may issue, together with other securities or separately, warrants to
purchase our securities. We may issue the warrants under warrant agreements to
be entered into between us and a bank or trust company, as warrant agent, all as
shall be set forth in the applicable prospectus supplement. The warrant agent
will act solely as our agent in connection with the warrants of the series being
offered and will not assume any obligation or relationship of agency or trust
for or with any holders or beneficial owners of warrants.
The applicable prospectus supplement will describe the following terms,
where applicable, of warrants in respect of which this prospectus is being
delivered:
o the title of the warrants;
o the designation, amount and terms of the securities for which the
warrants are exercisable and the procedures and conditions relating to
the exercise of such warrants;
o the designation and terms of the other securities, if any, with which
the warrants are to be issued and the number of warrants issued with
each such security;
o the price or prices at which the warrants will be issued;
o the aggregate number of warrants;
o any provisions for adjustment of the number or amount of securities
receivable upon exercise of the warrants or the exercise price of the
warrants;
o the price or prices at which the securities purchasable upon exercise
of the warrants may be purchased;
o if applicable, the date on and after which the warrants and the
securities purchasable upon exercise of the warrants will be
separately transferable;
o if applicable, a discussion of the material U.S. federal income tax
considerations applicable to the exercise of the warrants;
o any other terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the warrants;
o the date on which the right to exercise the warrants shall commence,
and the date on which the right shall expire;
o the maximum or minimum number of warrants which may be exercised at
any time; and
o information with respect to book-entry procedures, if any.
23
Before exercising their warrants, holders of warrants will not have any of
the rights of holders of the securities purchasable upon such exercise,
including the right to receive dividends, if any, or payments upon our
liquidation, dissolution or winding up or to exercise voting rights, if any.
EXERCISE OF WARRANTS
Each warrant will entitle the holder thereof to purchase for cash the
amount of securities at the exercise price as shall in each case be set forth
in, or be determinable as set forth in, the applicable prospectus supplement.
Warrants may be exercised at any time up to the close of business on the
expiration date set forth in the applicable prospectus supplement. After the
close of business on the expiration date, unexercised warrants will become void.
Warrants may be exercised as set forth in the applicable prospectus
supplement relating to the warrants offered thereby. Upon receipt of payment and
the warrant certificate properly completed and duly executed at the corporate
trust office of the warrant agent or any other office indicated in the
applicable prospectus supplement, we will, as soon as practicable, forward the
purchased securities. If less than all of the warrants represented by the
warrant certificate are exercised, a new warrant certificate will be issued for
the remaining warrants.
ENFORCEABILITY OF RIGHTS OF HOLDERS OF WARRANTS
Each warrant agent will act solely as our agent under the applicable
warrant agreement and will not assume any obligation or relationship of agency
or trust with any holder of any warrant. A single bank or trust company may act
as a warrant agent for more than one issue of warrants. A warrant agent will
have no duty or responsibility in case of any default by us under the applicable
warrant agreement or warrant, including any duty or responsibility to initiate
any proceedings at law or otherwise, or to make any demand upon us. Any holder
of a warrant may, without the consent of the related warrant agent or the holder
of any other warrant, enforce by appropriate legal action its right to exercise,
and receive the securities purchasable upon exercise of, that holder's warrants.
ANTI-TAKEOVER PROVISIONS OF DELAWARE LAW
We are subject to Section 203 of the Delaware General Corporation Law.
Section 203 provides that specified persons who, together with affiliates and
associates, own, or within three years did own, 15% or more of the outstanding
voting stock of a corporation cannot engage in specified business combinations
with the corporation for a period of three years after the date on which the
person became an interested stockholder, unless:
o prior to the date, our board of directors approved either the business
combination or the transaction that resulted in the stockholder
becoming an interested stockholder;
o upon consummation of the transaction that resulted in the stockholder
becoming an interested stockholder, the interested stockholder owned
at least 85% of our voting stock of the corporation outstanding at the
time the transaction commenced, excluding those shares owned by
persons who are directors and also officers, and employee stock plans
in which employee participants do not have the right to determine
confidentially whether shares held subject to the plan will be
tendered in a tender or exchange offer; or
o on or subsequent to the date, the business combination is approved by
the board of directors and authorized at an annual or special meeting
of stockholders, and not by written consent, by the affirmative vote
of at least two-thirds of the outstanding voting stock that is not
owned by the interested stockholder.
Section 203 defines "business combination" to include:
o any merger or consolidation involving the corporation and the
interested stockholder;
o any sale, transfer, pledge or other disposition involving the
interested stockholder of 10% or more of the assets of the
corporation;
24
o subject to exceptions, any transaction that results in the issuance or
transfer by the corporation of any stock of the corporation to the
interested stockholder; or
o the receipt by the interested stockholder of the benefit of any loans,
advances, guarantees, pledges or other financial benefits provided by
or through the corporation.
ANTI-TAKEOVER PROVISIONS OF OUR CHARTER
Our bylaws provide that candidates for director may be nominated only by
the board of directors or by a stockholder who gives written notice to us no
later than 90 days prior nor earlier than 120 days prior to the first
anniversary of the last annual meeting of stockholders. The board of directors
may consist of one or more members to be determined from time to time by the
board of directors. The board of directors currently consists of seven members
divided into three different classes. As a result, only one class of directors
will be elected at each annual meeting of our stockholders, with the other
classes continuing for the remainder of their respective terms. Between
stockholder meetings, the board of directors may appoint new directors to fill
vacancies or newly created directorships.
Our certificate of incorporation requires that any action required or
permitted to be taken by our stockholders must be effected at a duly called
annual or special meeting of stockholders and may not be effected by a consent
in writing. Our certificate of incorporation also provides that the authorized
number of directors may be changed only by resolution of the board of directors.
Delaware law and these charter provisions may have the effect of deterring
hostile takeovers or delaying changes in control of our management, which could
depress the market price of our common stock.
INDEMNIFICATION OF DIRECTORS AND OFFICERS AND LIMITATION OF LIABILITY
Our certificate of incorporation and bylaws allow us to eliminate the
personal liability of our directors and to indemnify directors and officers to
the fullest extent permitted by the Delaware General Corporation law.
We also entered into indemnity agreements with each of our directors and
officers, which provide for mandatory indemnity of an officer or director made
party to a "proceeding" by reason of the fact that he or she is or was a
director of ours, if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to our best interests. These
agreements also obligate us to advance expenses to a director provided that he
or she will repay advanced expenses in the event he or she is not entitled to
indemnification. Directors are also entitled to partial indemnification, and
indemnification for expenses incurred as a result of acting at our request as a
director, officer or agent of an employee benefit plan or other partnership,
corporation, joint venture, trust or other enterprise owned or controlled by us.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to our directors, officers and controlling persons pursuant to
the above statutory provisions or otherwise, we have been advised that in the
opinion of the Securities and Exchange Commission that indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for our common stock is U.S. Stock
Transfer Corporation.
LISTING
Our common stock is quoted on The Nasdaq Stock Market's National Market
under the symbol "WOOF."
LEGAL MATTERS
The validity of our securities will be passed upon for us by our legal
counsel, Akin Gump Strauss Hauer & Feld LLP, Los Angeles, California.
25
EXPERTS
The consolidated financial statements and schedules of VCA Antech, Inc. as
of December 31, 2003 and 2002, and for each of the years in the three-year
period ended December 31, 2003, have been incorporated by reference herein and
in the registration statement in reliance upon the report of KPMG LLP,
independent accountants, also incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing. The audit report
covering the December 31, 2003 consolidated financial statements refers to the
adoption of Statement of Financial Accounting Standards No. 142, "Goodwill and
Other Intangible Assets," on January 1, 2002, and Financial Accounting Standards
Board Interpretation No. 46R, "Consolidation of Variable Interest Entities," as
of December 31, 2003.
26
$250,000,000
PLUS
6,846,937 SHARES OF COMMON STOCK
OFFERED BY THE SELLING STOCKHOLDER
VCA ANTECH, INC.
COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
WARRANTS
--------------------
PROSPECTUS
---------------------
_________ __, 2004
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses, other than
underwriting discounts and commissions, in connection with the issuance and
distribution of the securities being registered, all of which will be paid for
by the registrant. All the amounts shown are estimates except the Securities and
Exchange Commission registration fee. The selling stockholder will not bear any
of these expenses.
Registration fee - Securities and Exchange Commission..................... $ 63,344
Nasdaq listing fee........................................................ $ 45,000
Blue Sky fees and expenses................................................ $ 10,000
Accounting fees and expenses.............................................. $ 5,000
Printing.................................................................. $ 5,000
Transfer agent and registrar fees......................................... $ 2,100
Legal fees and expenses................................................... $ 20,000
Miscellaneous............................................................. $ 5,000
-----------
Total..................................................................... $ 155,444
===========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (a) of Section 145 of the General Corporation Law of the State
of Delaware, empowers a corporation to indemnify any person who by reason of the
fact that he or she is or was a director, officer, employee or agent of the
corporation, or is or was serving at or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys' fees)
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him or her in connection with such action, suit or proceeding if he or she
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he or
she acted in any of the capacities set forth above, against expenses (including
attorneys' fees) actually and reasonably incurred by him or her in connection
with the defense or settlement of such action or suit if he or she acted under
similar standards, except that no indemnification may be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
Section 145 further provides that to the extent that a director or officer
of a corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b) of Section
145, or in the defense of any claim, issue or matter therein, he or she shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him or her in connection therewith; that indemnification provided
by, or granted pursuant to, Section 145 shall not be deemed exclusive of any
other rights to which those seeking indemnification may be entitled; and
empowers the corporation to purchase and maintain insurance on behalf of any
person who is or was a director or officer of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
against another corporation, partnership, joint venture,
1
trust or other enterprise, against any liability asserted against him or her and
incurred by him or her in any such capacity, or arising out of his or her status
as such whether or not the corporation would have the power to indemnify him or
her against such liabilities under Section 145.
As permitted by Delaware law, our amended and restated certificate of
incorporation provides that no director of ours will be personally liable to us
or our stockholders for monetary damages for breach of fiduciary duty as a
director, except for the following:
o for liability for any breach of duty of loyalty to us or to our
stockholders;
o for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
o for unlawful payment of dividends or unlawful stock repurchases or
redemptions under Section 174 of the Delaware General Corporation Law;
or
o for any transaction from which the director derived an improper
personal benefit.
Our amended and restated certificate of incorporation further provides that
we must indemnify our directors and executive officers and may indemnify our
other officers and employees and agents to the fullest extent permitted by
Delaware law. We believe that indemnification under our certificate of
incorporation covers negligence and gross negligence on the part of indemnified
parties. Our amended and restated bylaws provide us with the authority to
indemnify our directors, officers and agents to the full extent allowed by
Delaware law.
We have entered into indemnification agreements, the form of which is
incorporated by reference to Exhibit 10.13 to our registration statement on Form
S-1 filed August 9, 2001, with each of our directors and officers. These
agreements will require us to indemnify each director and officer for certain
expenses, including attorneys' fees, judgments, fines and settlement amounts
incurred by any such person in any action or proceeding, including any action by
or in our right, arising out of the person's services as our director or
officer, any subsidiary of ours or any other company or enterprise to which the
person provides services at our request.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
A. EXHIBITS
NUMBER EXHIBIT DESCRIPTION
1.1 Form of Underwriting Agreement.*
4.1 Stockholders Agreement, dated as of September 20, 2000, by and among
Registrant, Green Equity Investors III, L.P., Co-Investment Funds and
Stockholders. Incorporated by reference to Exhibit 4.1 to the Registrant's
registration statement on Form S-1 filed August 9, 2001.
4.2 Amendment No. 1 to Stockholders Agreement, dated as of November 27, 2001,
by and among Registrant, Green Equity Investors III, L.P., GS Mezzanine
Partners II, L.P. and Robert Antin. Incorporated by reference to Exhibit
4.2 to Amendment No. 2 to the Registrant's registration statement on Form
S-1 filed October 31, 2001.
4.3 Amendment No. 2 to Stockholders Agreement, dated as of January 9, 2003, by
and among Registrant, Green Equity Investors III, L.P., GS Mezzanine
Partners II, L.P., Robert L. Antin, Arthur J. Antin and Tomas W. Fuller.
Incorporated by reference to Exhibit 4.3 to Amendment No. 1 to the
Registrant's registration statement on Form S-3 filed January 17, 2003.
4.4 Indenture, dated as of November 27, 2001, by and between Vicar Operating,
Inc., the Guarantors (as defined therein), and Chase Manhattan Bank and
Trust Company, National Association. Incorporated by
2
reference to Exhibit 4.1 to the Registrant's registration statement on Form
S-4 filed February 1, 2002.
4.5 Credit and Guaranty Agreement, dated as of September 20, 2000, by and among
Registrant, Vicar Operating, Inc., certain subsidiaries of Registrant as
Guarantors, Goldman Sachs Credit Partners L.P., and Wells Fargo Bank,
National Association as Administrative and Collateral Agent. Incorporated
by reference to Exhibit 4.5 to the Registrant's registration statement on
Form S-1 filed August 9, 2001.
4.6 First Amendment to Credit and Guaranty Agreement, dated as of October 23,
2000, by and among Registrant, Vicar Operating, Inc., certain subsidiaries
of Registrant as Guarantors, Goldman Sachs Credit Partners L.P., and Wells
Fargo Bank, National Association as Administrative and Collateral Agent.
Incorporated by reference to Exhibit 4.10 to the Registrant's annual report
on Form 10-K filed March 29, 2002.
4.7 Second Amendment to Credit and Guaranty Agreement, dated as of November 16,
2001, by and among Registrant, Vicar Operating, Inc., certain subsidiaries
of Registrant as Guarantors, Goldman Sachs Credit Partners L.P., and Wells
Fargo Bank, National Association as Administrative and Collateral Agent.
Incorporated by reference to Exhibit 4.11 to the Registrant's annual report
on Form 10-K filed March 29, 2002.
4.8 Third Amendment to Credit and Guaranty Agreement, dated as of March 20,
2002, by and among Registrant, Vicar Operating, Inc., certain subsidiaries
of Registrant as Guarantors, Goldman Sachs Credit Partners L.P., and Wells
Fargo Bank, National Association as Administrative and Collateral Agent.
Incorporated by reference to Exhibit 4.12 to the Registrant's registration
statement on Form S-3 filed January 10, 2003.
4.9 Fourth Amendment to Credit and Guaranty Agreement, dated as of August 29,
2002, by and among Registrant, Vicar Operating, Inc., certain subsidiaries
of Registrant as Guarantors, Goldman Sachs Credit Partners L.P., and Wells
Fargo Bank, National Association as Administrative and Collateral Agent.
Incorporated by reference to Exhibit 99.2 to the Registrant's current
report on Form 8-K filed September 3, 2002.
4.10 Fifth Amendment to Credit and Guaranty Agreement, dated as of October 24,
2002, by and among Registrant, Vicar Operating, Inc., certain subsidiaries
of Registrant as Guarantors, Goldman Sachs Credit Partners L.P., and Wells
Fargo Bank, National Association as Administrative and Collateral Agent.
Incorporated by reference to Exhibit 10.1 to the Registrant's current
report on Form 8-K filed October 25, 2002.
4.11 Sixth Amendment to Credit and Guaranty Agreement, dated as of December 20,
2002, by and among Registrant, Vicar Operating, Inc., certain subsidiaries
of Registrant as Guarantors, Goldman Sachs Credit Partners L.P., and Wells
Fargo Bank, National Association as Administrative and Collateral Agent.
Incorporated by reference to Exhibit 4.15 to the Registrant's registration
statement on Form S-3 filed January 10, 2003.
4.12 Seventh Amendment to Credit and Guaranty Agreement, dated as of January 29,
2003, by and among Registrant, Vicar Operating, Inc., certain subsidiaries
of Registrant as Guarantors, Goldman Sachs Credit Partners L.P., and Wells
Fargo Bank, National Association as Administrative and Collateral Agent.
Incorporated by reference to Exhibit 4.17 to the Registrant's registration
statement on Form S-3 filed January 17, 2003.
4.13 Eighth Amendment to Credit and Guaranty Agreement, dated as of August 19,
2003, by and among Registrant, Vicar Operating, Inc., certain subsidiaries
of Registrant as Guarantors, Goldman Sachs Credit Partners L.P., and Wells
Fargo Bank, National Association as Administrative and Collateral Agent.
Incorporated by reference to Exhibit 4.1 to the Registrant's current report
on Form 8-K filed August 21, 2003.
3
4.14 Specimen Certificate for shares of common stock of Registrant. Incorporated
by reference to Exhibit 4.9 to Amendment No. 3 to the Registrant's
registration statement on Form S-1 filed November 16, 2001.
4.15 Form of Indenture.*
4.16 Form of Certificate of Designations of Preferred Stock.*
4.17 Form of Preferred Stock Certificate.*
4.18 Form of Warrant.*
4.19 Form of Warrant Agreement.*
5.1 Opinion of Akin Gump Strauss Hauer & Feld LLP, regarding the validity of
the shares.**
23.1 Independent Auditors' Consent.**
23.2 Consent of Akin Gump Strauss Hauer & Feld LLP (set forth in Exhibit 5.1).**
24.1 Power of Attorney (included in signature page).**
25.1 Statement of Eligibility of Trustee on Form T-1.*
* To be filed, if necessary, by amendment or as an exhibit to a report
pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act.
** Filed herewith.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sale are being made, a
post-effective amendment to this registration statement to include any material
information with respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such information in the
registration statement;
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof; and
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange
Act of 1934) that is incorporated by reference in this registration
statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial BONA FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the indemnification provisions described herein,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection
4
with the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed in
the Securities Act of 1933 and will be governed by the final adjudication
of such issue.
5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Los Angeles, State of California, on April 14, 2004.
VCA ANTECH, INC.
/s/ Robert L. Antin
-----------------------------------------
By: Robert L. Antin
Its:Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Robert
L. Antin and Tomas W. Fuller, and each of them, as his true and lawful
attorneys-in-fact and agents with full power of substitution and
re-substitution, for him and his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to this registration statement and a new registration statement filed pursuant
to Rule 462(b) of the Securities Act of 1933 and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
foregoing, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or either of them, or their substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ Robert L. Antin
---------------------------- April 14, 2004
Robert L. Antin Chairman of the Board, President and
Chief Executive Officer
/s/ Arthur J. Antin
---------------------------- April 14, 2004
Arthur J. Antin Director, Chief Operating Officer,
Senior Vice President and Secretary
/s/ Tomas W. Fuller
---------------------------- April 14, 2004
Tomas W. Fuller Chief Financial Officer,
Vice President and Assistant Secretary
/s/ Dawn R. Olsen
---------------------------- April 14, 2004
Dawn R. Olsen Principal Accounting Officer and
Vice President
/s/ John M. Baumer
---------------------------- April 14, 2004
John. M. Baumer Director
/s/ John G. Danhakl
---------------------------- April 14, 2004
John G. Danhakl Director
/s/ John Heil
---------------------------- April 14, 2004
John Heil Director
/s/ Peter J. Nolan
---------------------------- April 14, 2004
Peter J. Nolan Director
/s/ Frank Reddick
---------------------------- April 14, 2004
Frank Reddick Director
LIST OF EXHIBITS
NUMBER EXHIBIT DESCRIPTION
1.1 Form of Underwriting Agreement.*
4.1 Stockholders Agreement, dated as of September 20, 2000, by and among
Registrant, Green Equity Investors III, L.P., Co-Investment Funds and
Stockholders. Incorporated by reference to Exhibit 4.1 to the Registrant's
registration statement on Form S-1 filed August 9, 2001.
4.2 Amendment No. 1 to Stockholders Agreement, dated as of November 27, 2001,
by and among Registrant, Green Equity Investors III, L.P., GS Mezzanine
Partners II, L.P. and Robert Antin. Incorporated by reference to Exhibit
4.2 to Amendment No. 2 to the Registrant's registration statement on Form
S-1 filed October 31, 2001.
4.3 Amendment No. 2 to Stockholders Agreement, dated as of January 9, 2003, by
and among Registrant, Green Equity Investors III, L.P., GS Mezzanine
Partners II, L.P., Robert L. Antin, Arthur J. Antin and Tomas W. Fuller.
Incorporated by reference to Exhibit 4.3 to Amendment No. 1 to the
Registrant's registration statement on Form S-3 filed January 17, 2003.
4.4 Indenture, dated as of November 27, 2001, by and between Vicar Operating,
Inc., the Guarantors (as defined therein), and Chase Manhattan Bank and
Trust Company, National Association. Incorporated by reference to Exhibit
4.1 to the Registrant's registration statement on Form S-4 filed February
1, 2002.
4.5 Credit and Guaranty Agreement, dated as of September 20, 2000, by and among
Registrant, Vicar Operating, Inc., certain subsidiaries of Registrant as
Guarantors, Goldman Sachs Credit Partners L.P., and Wells Fargo Bank,
National Association as Administrative and Collateral Agent. Incorporated
by reference to Exhibit 4.5 to the Registrant's registration statement on
Form S-1 filed August 9, 2001.
4.6 First Amendment to Credit and Guaranty Agreement, dated as of October 23,
2000, by and among Registrant, Vicar Operating, Inc., certain subsidiaries
of Registrant as Guarantors, Goldman Sachs Credit Partners L.P., and Wells
Fargo Bank, National Association as Administrative and Collateral Agent.
Incorporated by reference to Exhibit 4.10 to the Registrant's annual report
on Form 10-K filed March 29, 2002.
4.7 Second Amendment to Credit and Guaranty Agreement, dated as of November 16,
2001, by and among Registrant, Vicar Operating, Inc., certain subsidiaries
of Registrant as Guarantors, Goldman Sachs Credit Partners L.P., and Wells
Fargo Bank, National Association as Administrative and Collateral Agent.
Incorporated by reference to Exhibit 4.11 to the Registrant's annual report
on Form 10-K filed March 29, 2002.
4.8 Third Amendment to Credit and Guaranty Agreement, dated as of March 20,
2002, by and among Registrant, Vicar Operating, Inc., certain subsidiaries
of Registrant as Guarantors, Goldman Sachs Credit Partners L.P., and Wells
Fargo Bank, National Association as Administrative and Collateral Agent.
Incorporated by reference to Exhibit 4.12 to the Registrant's registration
statement on Form S-3 filed January 10, 2003.
4.9 Fourth Amendment to Credit and Guaranty Agreement, dated as of August 29,
2002, by and among Registrant, Vicar Operating, Inc., certain subsidiaries
of Registrant as Guarantors, Goldman Sachs Credit Partners L.P., and Wells
Fargo Bank, National Association as Administrative and Collateral Agent.
Incorporated by reference to Exhibit 99.2 to the Registrant's current
report on Form 8-K filed September 3, 2002.
4.10 Fifth Amendment to Credit and Guaranty Agreement, dated as of October 24,
2002, by and among Registrant, Vicar Operating, Inc., certain subsidiaries
of Registrant as Guarantors, Goldman Sachs Credit Partners L.P., and Wells
Fargo Bank, National Association as Administrative and Collateral Agent.
Incorporated by reference to Exhibit 10.1 to the Registrant's current
report on Form 8-K filed October 25, 2002.
4.11 Sixth Amendment to Credit and Guaranty Agreement, dated as of December 20,
2002, by and among Registrant, Vicar Operating, Inc., certain subsidiaries
of Registrant as Guarantors, Goldman Sachs Credit Partners L.P., and Wells
Fargo Bank, National Association as Administrative and Collateral Agent.
Incorporated by reference to Exhibit 4.15 to the Registrant's registration
statement on Form S-3 filed January 10, 2003.
4.12 Seventh Amendment to Credit and Guaranty Agreement, dated as of January 29,
2003, by and among Registrant, Vicar Operating, Inc., certain subsidiaries
of Registrant as Guarantors, Goldman Sachs Credit Partners L.P., and Wells
Fargo Bank, National Association as Administrative and Collateral Agent.
Incorporated by reference to Exhibit 4.17 to the Registrant's registration
statement on Form S-3 filed January 17, 2003.
4.13 Eighth Amendment to Credit and Guaranty Agreement, dated as of August 19,
2003, by and among Registrant, Vicar Operating, Inc., certain subsidiaries
of Registrant as Guarantors, Goldman Sachs Credit Partners L.P., and Wells
Fargo Bank, National Association as Administrative and Collateral Agent.
Incorporated by reference to Exhibit 4.1 to the Registrant's current report
on Form 8-K filed August 21, 2003.
4.14 Specimen Certificate for shares of common stock of Registrant. Incorporated
by reference to Exhibit 4.9 to Amendment No. 3 to the Registrant's
registration statement on Form S-1 filed November 16, 2001.
4.15 Form of Indenture.*
4.16 Form of Certificate of Designations of Preferred Stock.*
4.17 Form of Preferred Stock Certificate.*
4.18 Form of Warrant.*
4.19 Form of Warrant Agreement.*
5.1 Opinion of Akin Gump Strauss Hauer & Feld LLP, regarding the validity of
securities.**
23.1 Independent Auditors' Consent.**
23.2 Consent of Akin Gump Strauss Hauer & Feld LLP (set forth in Exhibit 5.1).**
24.1 Power of Attorney (included in signature page).**
25.1 Statement of Eligibility of Trustee on Form T-1.*
* To be filed, if necessary, by amendment or as an exhibit to a report
pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act.
** Filed herewith.