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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 of 15 (d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) June 14, 1995
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Dean Foods Company
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(Exact name of registrant as specified in its charter)
Delaware 0-1118 36-0984820
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(State or other jurisdiction (Commission File No.) (IRS Employer
of incorporation) Identification No.)
3600 N. River Road Franklin Park, IL 60131
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (708) 678-1680
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(Former name or former address, if changed since last report)
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Item 5. Other Events.
On June 15, 1995, Dean Foods Company (the "Company"), filed a Prospectus
Supplement dated June 14, 1995 to the Prospectus dated April 13, 1995, with the
Securities and Exchange Commission (the "Commission") relating to the offering
of $100,000,000 aggregate principal amount of its 6 3/4% Senior Notes Due June
15, 2005 (the "Notes"). The exhibits listed below in "Item 7. Financial
Statements and Exhibits" are filed herewith in connection with the Company's
Registration Statement on Form S-3 (Reg. No. 33-57353), as amended, originally
filed with the Commission on January 19, 1995, which relates to the Notes.
Item 7. Financial Statements and Exhibits.
Exhibits
1.3 Underwriting Agreement dated June 14, 1995, between Dean Foods Company
and Morgan Stanley & Co. Incorporated and J.P. Morgan Securities Inc.,
relating to $100,000,000 aggregate principal amount of 6 3/4% Senior
Notes Due June 15, 2005.
4.5 Form of 6 3/4% Senior Notes Due June 15, 2005.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dean Foods Company
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(Registrant)
Date: June 28, 1995 /s/ Dale I. Hecox
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Treasurer - Principal
Accounting and Financial
Officer
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DEAN FOODS COMPANY
$100,000,000
6 3/4% SENIOR NOTES DUE JUNE 15, 2005
UNDERWRITING AGREEMENT
June 14, 1995
Morgan Stanley & Co. Incorporated
J.P. Morgan Securities Inc.
c/o Morgan Stanley & Co. Incorporated
1251 Avenue of the Americas
New York, New York 10020
Dear Sirs:
Dean Foods Company, a Delaware corporation (the "Company"),
proposes to issue and sell to the several Underwriters named in Schedule I
hereto (the "Underwriters") an aggregate of $100,000,000 principal amount of
its 6 3/4% Notes Due June 15, 2005 (the "Notes"). The Notes will be issued
under an Indenture dated as of January 15, 1995 (the "Indenture") between the
Company and Bank of America Illinois, as Trustee (the "Trustee"), and will have
the maturities, interest rates, redemption provisions, if any, and other terms
as set forth in the Prospectus Supplement referred to below.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including a prospectus,
relating to the Notes. Such registration statement, including all documents
incorporated by reference therein and the exhibits thereto and all amendments
filed on or prior to the Closing Date (as hereinafter defined), is hereinafter
referred to as the "Registration Statement." The Company has filed with, or
transmitted for filing to, or shall promptly hereafter file with or transmit
for filing with the Commission, pursuant to Rule 424 under the Securities Act
of 1933, as amended (the "Securities Act"), a prospectus supplement (the
"Prospectus Supplement") to the prospectus included in the Registration
Statement describing the Notes. The prospectus in the form in which it appears
in the Registration Statement is hereinafter referred to as the "Basic
Prospectus." The term "Prospectus" means the Basic Prospectus together with the
Prospectus Supplement. The term "preliminary prospectus" means a preliminary
prospectus supplement specifically relating to the Notes, together with the
Basic Prospectus. As used herein, the terms "Basic Prospectus," "Prospectus"
and "preliminary prospectus" shall include in each case the documents, if any,
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incorporated by reference therein. The terms "supplement," "amendment" and
"amend" as used herein shall include all documents deemed to be incorporated by
reference in the Prospectus that are filed subsequent to the date of the Basic
Prospectus by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and prior to the
completion of the initial offering of the Notes.
1. REPRESENTATIONS AND WARRANTIES. The Company represents
and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or to the knowledge of
the Company threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act and
the applicable rules and regulations of the Commission thereunder, (ii) each
part of the Registration Statement, when such part became effective, did not
contain, and each such part, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (iii) the Registration Statement and the Prospectus comply,
and, as amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the applicable rules and regulations of
the Commission thereunder and (iv) the Prospectus does not include and, as
amended or supplemented, if applicable, will not include any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that (1) the representations and warranties set
forth in this Section 1(b) do not apply (A) to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter expressly
for use therein or (B) to that part of the Registration Statement that
constitutes the Statement of Eligibility (Form T-1) under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), of the Trustee.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
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qualification, except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(d) Each "significant subsidiary" (as defined in Regulation
S-X promulgated by the Commission) of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable in
accordance with its terms, subject to (i) bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting the enforcement of creditors' rights, (ii) general
principles of equity (regardless of whether enforceability is considered in a
proceeding in equity or at law), (iii) any requirement that a claim with
respect to any Note denominated in other than U.S. dollars (or a judgment
denominated in other than U.S. dollars in respect of such claim) be converted
into U.S. dollars at a rate of exchange prevailing on a date determined in
accordance with applicable law, and (iv) governmental authority to limit, delay
or prohibit the making of payments outside of the United States or in a foreign
currency or currency unit;
(g) The Notes have been duly authorized and, when executed
and authenticated in accordance with the provisions of the Indenture and
delivered to and duly paid for by the Underwriters in accordance with the terms
of this Agreement, will be entitled to the benefits of the Indenture and will
be valid and binding obligations of the Company, enforceable in accordance with
their respective terms, subject to (i) bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting the enforcement of creditors' rights, (ii) general
principles of equity (regardless of whether enforceability is considered in a
proceeding in equity or at law);
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(h) The execution and delivery by the Company of this
Agreement, the Notes and the Indenture, and the performance by the Company of
its obligations under this Agreement, the Notes and the Indenture will not
contravene any provision of applicable law or the certificate of incorporation
or by-laws of the Company or any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
subsidiary which contravention would have a material adverse effect on the
Company and its subsidiaries, taken as a whole, and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Company of its obligations under
this Agreement, the Notes or the Indenture, except such as may be required
under the Securities Act or by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Notes.
(i) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations, contracts or
other documents that are required to be described in the Registration Statement
or the Prospectus or to be filed or incorporated by reference as exhibits to
the Registration Statement that are not described, filed or incorporated as
required.
(j) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the Securities Act, complied as to form
when so filed in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder.
(k) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
(l) The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
2. PURCHASE AND SALE. Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at a purchase price of
98.99% of the principal amount thereof, plus accrued interest, if any, on the
Notes from June 19, 1995, to the Closing Date (as
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defined below), the principal amount of the Notes set forth opposite such
Underwriter's name in Schedule I hereto.
3. DELIVERY AND PAYMENT. Delivery of and payment for the
Notes shall be made at 10:00 A.M., Chicago time, on June 19, 1995, or such
later date (not later than June 26, 1995) as the Underwriters shall designate,
which date and time of delivery and payment for the Notes being herein called
the "Closing Date"). Delivery of the Notes shall be made to the Underwriters
for their respective accounts against payment by the several Underwriters of
the purchase price thereof to or upon the order of the Company by certified or
official bank check or checks drawn on or by a New York Clearing House bank and
payable in same day funds. Delivery of the Notes shall be made at such
location as the Underwriters shall reasonably designate at least one business
day in advance of the Closing Date and payment for the Notes shall be made at
the office of Sidley & Austin, One First National Plaza, Chicago, Illinois on
the Closing Date. Certificates for the Notes shall be registered in such names
and in such denominations as the Underwriters may request not less than two
full business days in advance of the Closing Date.
The Company agrees to have the Notes available for inspection,
checking and packaging by the Underwriters not later than 1:00 p.m. on the
business day prior to the Closing Date.
4. OFFERING BY UNDERWRITERS. It is understood that the
several Underwriters propose to offer the Notes for sale to the public as set
forth in the Prospectus.
5. AGREEMENTS. The Company agrees with each Underwriter that:
(a) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Notes, to furnish to the
Underwriters a copy of each such proposed amendment or supplement and not to
file any such proposed amendment or supplement to which the Underwriters
reasonably object.
(b) If, during such period after the first date of public
offering of the Notes as in the opinion of counsel for the Underwriters the
Prospectus is required by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur or condition exist as a result of
which it is necessary to amend or supplement the Prospectus in order to make
the statements therein, in the light of circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if, in the opinion of counsel for
the Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the Commission and
furnish, at its own expense, to the Underwriters and to the dealers (whose
names and addresses the Underwriters will furnish to the Company) to which
Notes may have been sold by the Underwriters and to any
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other dealers upon request, either amendments or supplements to the Prospectus
so that the statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or supplemented,
will comply with law.
(c) The Company will make generally available to its security
holders and to the Underwriters as soon as practicable financial statements
that satisfy the provisions of Section 11(a) of the Securities Act and the
rules and regulations of the Commission thereunder covering a twelve month
period beginning on the first day of the Company's first full fiscal quarter
after the date of this Agreement. If such fiscal quarter is the last fiscal
quarter of the Company's fiscal year, such earning statement shall be made
available not later than 90 days after the close of the period covered thereby
and in all other cases shall be made available not later than 45 days after the
close of the period covered thereby.
(d) The Company has furnished to each Underwriter, without
charge, a true and correct copy of the Registration Statement as filed with the
Commission, including exhibits and all amendments thereto, and will furnish as
many copies of the Prospectus, any documents incorporated by reference therein
and any supplements and amendments thereto as such Underwriter may reasonably
request.
(e) The Company will endeavor to qualify the Notes for offer
and sale under the securities or Blue Sky laws of such jurisdictions as the
Underwriters shall reasonably request and to maintain such qualifications for
as long as the Underwriters shall reasonably request; provided that in no event
shall the Company be required to qualify as a foreign corporation or obligated
to file any general consent to service of process in order to make the Notes
eligible for registration or qualification in any jurisdiction.
(f) The Company shall furnish to the Underwriters such
relevant documents and certificates of officers of the Company relating to the
business, operations and affairs of the Company, the Registration Statement,
the Basic Prospectus, any amendments or supplements thereto, the Indenture, the
Notes, this Agreement, and the performance by the Company of its obligations
hereunder or thereunder as the Underwriters may from time to time reasonably
request.
(g) The Company shall notify the Underwriters promptly in
writing of any downgrading, or of its receipt of any notice of any intended or
potential downgrading or of any review for possible change that does not
indicate the direction of the possible change, in the rating accorded any of
the Company's securities by any "nationally recognized statistical rating
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organization," as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act.
(h) The Company will, whether or not any sale of Notes is
consummated, pay all expenses incident to the performance of its obligations
under this Agreement including: (i) the preparation and filing of the
Registration Statement and the Prospectus and all amendments and supplements
thereto incurred by the Company, (ii) the preparation, issuance and delivery of
the Notes, (iii) the reasonable fees and disbursements of the Company's counsel
and accountants and of the Trustee, (iv) the qualification of the Notes under
securities or Blue Sky laws in accordance with the provisions of Section 5(e),
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of any Blue Sky Memorandum, (v) the printing and delivery to the Underwriters
in quantities as hereinabove stated of copies of the Registration Statement and
all amendments thereto and of the Prospectus and any amendments or supplements
thereto, and (vi) any fees charged by rating agencies for the rating of the
Notes.
(i) During the period beginning on the date of this Agreement
and continuing to and including the Closing Date, the Company will not offer,
sell, contract to sell or otherwise issue any debt securities of the Company
substantially similar to the Notes (other than (i) the Notes and (iii)
commercial paper issued in the ordinary course of business), without the prior
written consent of the Underwriters.
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The
several obligations of the Underwriters are subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of the Company's officers made in each certificate
furnished pursuant to the provisions hereof and to the performance and
observance by the Company of all covenants and agreements herein contained on
its part to be performed and observed and to the following additional
conditions precedent when and as specified:
(a) Subject to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date:
(i) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement) that, in the
judgment of the Underwriters, is material and adverse and that makes
it, in the reasonable judgment of the
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Underwriters impracticable to market the Notes on the terms and in the
manner contemplated by the Prospectus; and
(ii) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the
Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act.
(b) On the Closing Date the Underwriters shall have received:
(i) The opinion, dated as of such date, of Eric A.
Blanchard, General Counsel of the Company, to the effect that:
(A) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the State of Delaware, has the corporate power and
authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(B) each "significant subsidiary" (as defined in
Regulation S-X promulgated by the Commission) of the Company
has been duly incorporated, is validly existing as a
corporation in good standing under the laws of its respective
jurisdiction of incorporation, has the corporate power and
authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(C) the execution and delivery by the Company of
this Agreement, the Notes and the Indenture and the
performance by the Company of its obligations under this
Agreement, the Notes and the Indenture will not contravene any
provision of applicable law or the certificate of
incorporation or by-laws of the Company
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or, to the best of such counsel's knowledge, any agreement or
other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or, to the best of such
counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
the Company or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any
governmental body or agency is required for the performance by
the Company of its obligations under this Agreement, the Notes
and the Indenture except such as may be required by the
securities or Blue Sky laws of the various states in
connection with the offer and sale of the Notes or as required
by the NASD;
(D) the statements (1) in the Registration
Statement under Item 15, (2) in "Item 3 - Legal Proceedings"
of the Company's most recent annual report on Form 10-K
incorporated by reference in the Prospectus and (3) in "Item 1
- Legal Proceedings" or Part II of the Company's quarterly
reports on Form 10-Q, if any, filed since such annual report,
in each case insofar as such statements constitute summaries
of the legal matters, documents and proceedings referred to
therein, fairly present, in all material respects, the
information called for with respect to such legal matters,
documents and proceedings and fairly summarize, in all
material respects, the matters referred to therein;
(E) after due inquiry, such counsel does not know
of any legal or governmental proceedings pending or threatened
to which the Company or any of its subsidiaries is a party or
to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not so
described or of any statutes, regulations, contracts or other
documents that are required to be described in the
Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to such Registration
Statement that are not described, filed or incorporated as
required; and
(F) each document filed pursuant to the Exchange
Act and incorporated by reference in the Registration
Statement (except for financial statements and the notes
thereto or supporting schedules and other financial or
statistical data derived therefrom contained in the
Registration Statement or incorporated therein by reference as
to which such counsel need not express any opinion), complied
when so filed as to form
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in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder.
Such counsel shall also state that based on his participation
in conferences with representatives of the Underwriters, representatives of the
Company, counsel for the Underwriters, special counsel for the Company and
representatives of the independent accountants for the Company during which the
contents of the Registration Statement and the Prospectus and related matters
were discussed, his review of certain corporate documents, his understanding of
applicable law and the experience he has gained in his practice thereunder,
nothing has come to his attention that caused him to believe that the
Registration Statement (other than the financial statements and the notes
thereto and the supporting schedules and other financial and statistical data
derived therefrom, set forth therein or incorporated by reference, as to which
no advice is given and except for that part of the Registration Statement that
constitutes the Form T-1 referred to herein, as to which no advice is given),
as of its effective date or as of the date of such opinion, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus (other than the financial
statements and the notes thereto and the supporting schedules and other
financial and statistical data derived therefrom, set forth therein or
incorporated by reference, as to which no advice is given), as of the date of
such opinion, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(ii) The opinion, dated as of such date, of
Kirkland & Ellis, special counsel for the Company, to the effect that:
(A) this Agreement has been duly authorized,
executed and delivered by the Company;
(B) the Indenture has been duly qualified under
the Trust Indenture Act and has been duly authorized, executed
and delivered by the Company and, assuming the due
authorization, execution and delivery by the Trustee, the
Indenture constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with
its terms, except that such counsel need not express any
opinion as to (i) the effect of applicable bankruptcy,
insolvency, reorganization, fraudulent transfer and
conveyance, moratorium and other similar laws affecting the
rights of creditors' generally, (ii) the effect of rules of
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law and legal and equitable principles governing specific
performance, injunctive relief, rights of acceleration and
other equitable remedies, regardless of whether enforceability
of any obligation is considered in a proceeding in equity or
at law, (iii) the conflicts of law or choice of law provisions
contained therein to the extent such provisions may be applied
by any courts other than the courts in the State of New York,
(iv) remedies available in respect of violations or breaches
by the Company which are determined by a court to be the
proximate result of action taken by any other party which
actions such other party is not entitled to take, (v) any
provision which purports, by implication or otherwise, to
state that the failure to exercise or a delay in exercising
rights or remedies will not operate as a waiver of any such
right or remedy, or (vi) any provision which purports or would
operate to render ineffective any waiver or modification not
in writing;
(C) the Notes have been duly authorized by the
Company and when the terms thereof have been duly established
in accordance with the Indenture, and when duly completed,
executed, authenticated and issued in accordance with the
Indenture and delivered against payment of the agreed upon
consideration by the Underwriters in accordance with the terms
of the Underwriting Agreement will constitute valid and
legally binding obligations of the Company entitled to the
benefits provided by the Indenture and are enforceable against
the Company in accordance with their terms, except such
counsel need not express any opinion as to (i) the effect of
applicable bankruptcy, insolvency, reorganization, fraudulent
transfer and conveyance, moratorium and other similar laws
affecting the rights of creditors' generally, (ii) the effect
of rules of law and legal and equitable principles governing
specific performance, injunctive relief, rights of
acceleration and other equitable remedies, regardless of
whether enforceability of any obligation is considered in a
proceeding in equity or at law, (iii) the conflicts of law or
choice of law provisions contained therein to the extent such
provisions may be applied by any courts other than the courts
in the State of New York, (iv) remedies available in respect
of violations or breaches by the Company which are determined
by a court to be the proximate result of action taken by any
other party which actions such other party in not entitled to
take, (v) any provision which purports, by implication or
otherwise, to state that the failure to exercise or a delay in
exercising rights or remedies will not operate as a waiver of
any such right or remedy, or (vi) any provision which
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purports or would operate to render ineffective any waiver or
modification not in writing;
(D) the statements in the Prospectus, as then
amended or supplemented, under the captions "Description of
Debt Securities" and "Description of the Notes" insofar as
such statements constitute summaries of the legal matters or
documents referred to therein, fairly present in all material
respects the information called for with respect to such legal
matters and documents and fairly summarize in all material
respects the matters referred to therein; and
(E) assuming that each document incorporated by
reference in the Registration Statement complied as to form to
the requirements of the Exchange Act, the Registration
Statement (other than the financial statements and the notes
thereto and the supporting schedules and other financial and
statistical data derived therefrom, set forth therein or
incorporated by reference, as to which such counsel need not
express any opinion and except for that portion of the
Registration Statement that constitutes the Form T-1 referred
to herein, as to which such counsel need not express any
opinion), complies as to form in all material respects with
the Securities Act and the applicable rules and regulations of
the Commission thereunder.
Such counsel shall also state that based on their
participation in conferences with representatives of the Underwriters,
representatives of the Company, counsel for the Underwriters, counsel for the
Company and representatives of the independent accountants for the Company
during which the contents of the Registration Statement and the Prospectus and
related matters were discussed (the documents incorporated by reference having
been prepared without their involvement), their review of certain corporate
documents furnished to them by the Company, their understanding of applicable
law and the experience they have gained in their practice thereunder, they
advise you that nothing has come to their attention that caused them to believe
that the Registration Statement (other than the financial statements and the
notes thereto and the supporting schedules and other financial and statistical
data derived therefrom, set forth therein or incorporated by reference, as to
which no advice is given and except for that part of the Registration Statement
that constitutes the Form T-1 referred to herein, as to which no advise is
given), as of its effective date or as of the date of such opinion, contained
or contains an untrue statement of a material fact or omitted or omits to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus (other than financial
statements and the notes thereto and the supporting
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schedules and other financial and statistical data derived therefrom, set forth
therein or incorporated by reference, as to which no advice is given), as of
the date of such opinion, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order
to make the statement therein, in the light of the circumstances under which
they were made, not misleading.
(iii) The opinion, dated as of such date, of Sidley & Austin,
counsel for the Underwriters, covering the matters in subparagraphs
(A), (B), (C) and (D) (with respect to statements in the Prospectus
under the captions "Description of Debt Securities" and "Description
of the Notes") of paragraph (ii), and the last paragraph of paragraph
(b)(ii) above.
For the purpose of expressing the opinions contained in
paragraph (ii)(C) and (iii)(C) above, Kirkland & Ellis and Sidley & Austin,
respectively, may assume that neither the issuance, sale and delivery of any
Note, nor any of the terms of such Note, nor compliance by the Company with the
terms of such Note, will violate the charter or by-laws of the Company or any
applicable law, any agreement or instrument then binding upon the Company or
any restriction imposed by any court or government body having jurisdiction
over the Company. With respect to the last paragraph of paragraphs (b)(i) and
(b)(ii) above, Eric A. Blanchard and Kirkland & Ellis, respectively, may each
state that their opinion and belief are based upon their participation in the
preparation of the Registration Statement and Prospectus and any amendments or
supplements thereto and documents incorporated therein by reference and review
and discussion of the contents thereof, but are without independent check or
verification, except as specified. With respect to the last paragraph of
paragraph (b)(ii) above, Sidley & Austin may state that their opinion and
belief are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements thereto
(but not including documents incorporated therein by reference) and review and
discussion of the contents thereof (including documents incorporated therein by
reference), but are without independent check or verification, except as
specified.
The opinion of Sidley & Austin described in paragraph (b)(iii)
above shall be rendered to you at the request of the Company and shall so state
therein.
(c) The Underwriters shall have received a certificate on
behalf of the Company, dated the Closing Date and signed by an officer of the
Company to the effect set forth in subparagraph (a)(ii) above and to the effect
that the representations and warranties of the Company contained herein are
true and correct as of such date and that the Company has complied with all of
the agreements and satisfied all of the conditions on its part to be
-13-
<PAGE> 17
performed or satisfied on or before the Closing Date. The officer signing and
delivering such certificate may rely upon the best of his knowledge.
(d) On the Closing Date, the Company's independent
accountants shall have furnished to the Underwriters a letter, in form and
substance satisfactory to the Underwriters, containing statements and
information of the type ordinarily included in accountant's "comfort letters"
to underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Prospectus.
(e) The Company shall furnish to the Underwriters such
appropriate further information, certificates and documents as they may
reasonably request.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees
to indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by any Underwriter or any such
controlling person in connection with investigating or defending any such
action or claim) caused by any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or any amendment
thereof or the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information furnished to the Company in writing by such Underwriter expressly
for use therein; provided, however, that the foregoing indemnity agreement with
respect to any Prospectus shall not inure to the benefit of any Underwriter
from whom the person asserting any such losses, claims, damages or liabilities
purchased Notes, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not sent or given by or on behalf of
such Underwriter to such person, if required by law so to have been delivered,
at or prior to the written confirmation of the sale of the Notes to such
person, and if the Prospectus (as so amended or supplemented) would have cured
the defect giving rise to such losses, claims, damages or liabilities.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning
-14-
<PAGE> 18
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such
Underwriter, but only with reference to information furnished to the Company in
writing by such Underwriter expressly for use in the Registration Statement or
the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to an actual or potential conflict of interest between them.
It is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by you or, if you
are not an indemnified party and are not reasonably likely to become an
indemnified party, by J.P. Morgan Securities Inc., in the case of parties
indemnified pursuant to paragraph (a) above, and by the Company, in the case of
parties indemnified pursuant to paragraph (b) above. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior written
consent of the indemnified party (which consent shall not be unreasonably
withheld), effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified
-15-
<PAGE> 19
party from all liability on claims that are the subject matter of such
proceeding.
(d) To the extent that the indemnified party has notified the
indemnifying party of a proceeding as provided under subsection (c) above and
the indemnification provided for in paragraph (a) or (b) of this Section 7 is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein in connection with any
offering of Notes, then each indemnifying party under such paragraph, in lieu
of indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and each
Underwriter on the other hand from the offering of such Notes or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and each Underwriter on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and each Underwriter on the other hand
in connection with the offering of such Notes shall be deemed to be in the same
respective proportions which the total net proceeds from the offering of such
Notes (before deducting expenses) received by the Company bear to the total
discounts and commissions received by each Underwriter in respect thereof. The
relative fault of the Company on the one hand and of each Underwriter on the
other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or by such Underwriter and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. Each Underwriter's obligation to contribute pursuant to this Section
7 shall be several in proportion to the respective principal amounts of the
Notes they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account
of the equitable considerations referred to in paragraph (d) above. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or
-16-
<PAGE> 20
defending any such action or claim. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Notes underwritten by and
distributed to the public were offered and sold to the public through such
Underwriter exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 7 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
8. TERMINATION. This Agreement shall be subject to
termination by notice given by the Underwriters to the Company, if (a) after
the execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by, as
the case may be, any of the New York Stock Exchange, the American Stock
Exchange, or the National Association of Securities Dealers, Inc., (ii) trading
of any securities of the Company shall have been suspended on any exchange or
in any over-the-counter market, (iii) a general moratorium on commercial
banking activities in New York shall have been declared by either Federal or
New York State authorities or (iv) there shall have occurred any outbreak or
escalation of hostilities or any change in financial markets or any calamity or
crisis that, in the judgment of the Underwriters, is material and adverse and
(b) in the case of any of the events specified in clauses (a)(i) through (iv),
such event, singly or together with any other such event, makes it, in the
judgment of the Underwriters, impracticable to market the Notes on the terms
and in the manner contemplated in the Prospectus.
9. DEFAULTING UNDERWRITERS. If, on the Closing Date, any
Underwriter shall fail or refuse to purchase Notes and the aggregate amount of
Notes with respect to which such default occurs is more than one-tenth of the
aggregate amount of Notes to be purchased on such date, and arrangements
satisfactory to you and the Company for the purchase of such Notes are not made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case, either you or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus
or in any other documents or arrangements may be effected. Any action taken
under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
-17-
<PAGE> 21
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and disbursements
of their counsel) reasonably incurred by such Underwriters in connection with
this Agreement or the offering contemplated hereunder.
10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The
respective indemnity and contribution agreements, representations, warranties
and other statements of the Company, its officers and the Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any termination of this Agreement, any investigation made
by or on behalf of an Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 7 and delivery of and
payment for the Notes.
11. NOTICES. All communications hereunder will be in writing
and effective only on receipt, and, if sent to you, will be mailed, delivered
or telefaxed and confirmed to Morgan Stanley & Co Incorporated at 1221 Avenue
of the Americas, New York, New York 10020, Attention: Managing Director, Debt
Syndicate (telefax number: 212-764-7490) and to J.P. Morgan Securities Inc. at
60 Wall Street, New York, New York 10260-0060, Attention: Medium-Term Note Desk
(telefax number: 212-648-5907), or, if sent to the Company, will be mailed,
delivered or telefaxed and confirmed to the Company at 3600 N. River Road,
Franklin Park, Illinois 60131, Attention: General Counsel (telefax number:
708-671-8744).
12. SUCCESSORS. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 7 and the
purchasers of Notes (to the extent expressly provided in Section 4), and no
other person will have any right or obligation hereunder.
13. AMENDMENTS. This Agreement may be amended or
supplemented if, but only if, such amendment or supplement is in writing and is
signed by the Company and each Underwriter.
14. COUNTERPARTS. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
-18-
<PAGE> 22
15. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
16. HEADINGS. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and you.
Very truly yours,
DEAN FOODS COMPANY
By: /s/ Dale I. Hecox
------------------------------
Title: Treasurer
The foregoing Agreement
is hereby confirmed
and accepted as of the
date first above written.
MORGAN STANLEY & CO. INCORPORATED
J.P. MORGAN SECURITIES INC.
By: Morgan Stanley & Co. Incorporated
By: /s/ May Busch
------------------------------
Title: Principal
-19-
<PAGE> 23
SCHEDULE I
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT
OF NOTES TO
UNDERWRITER BE PURCHASED
- ----------- ----------------
<S> <C>
Morgan Stanley & Co. Incorporated $ 50,000,000
J.P. Morgan Securities Inc. $ 50,000,000
------------
Total $100,000,000
</TABLE>
<PAGE> 24
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE REGISTERED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY. UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
DEAN FOODS COMPANY
6 3/4% NOTES DUE JUNE 15, 2005
NO. 1 $100,000,000
CUSIP 242361AA1
Dean Foods Company, a Delaware corporation (herein called the
"Issuer", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
Co. or its registered assigns, the principal sum of One Hundred Million United
States Dollars on June 15, 2005, and to pay interest, semiannually on June 15
and December 15 of each year, commencing December 15, 1995, on said principal
sum, at the rate per annum specified in the title of this Note, on a semiannual
bond equivalent basis using a 360-day year composed of twelve 30-day months
from the June 15 or the December 15, as the case may be, next preceding the
date of this Note to which interest has been paid, unless the date hereof is a
date to which interest has been paid, in which case from the date of this Note,
or unless no interest has been paid on this Note, in which case from June 19,
1995, until payment of said principal sum has been made or duly provided for.
Payments of such principal and interest shall be made at the office or agency
of the Issuer in The City of New York, State of New York, which, subject to the
right of the Issuer to vary or terminate the appointment of such agency, shall
initially be at the principal office of Mellon Securities Transfer Services,
Inc., 120 Broadway, 33rd Floor, New York, NY 10271; provided, that payment of
interest may be made at the option of the Issuer by
<PAGE> 25
check mailed to the address of the person entitled thereto as such address
shall appear on the Security Register. The interest so payable on any June 15
or December 15, will, subject to certain exceptions provided in the Indenture
referred to on the reverse hereof, be paid to the person in whose name this
Note is registered at the close of business on the June 1 or December 1, as the
case may be, next preceding such June 15 or December 15.
Reference is made to the further provisions of this Note set
forth on the reverse hereof. Such further provisions shall for all purposes
have the same effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been manually
signed by the Trustee or Authentication Agent under the Indenture referred to
on the reverse hereof.
IN WITNESS WHEREOF, DEAN FOODS COMPANY has caused this
instrument to be signed by facsimile by its duly authorized officers and has
caused a facsimile of its corporate seal to be affixed hereunto or imprinted
hereon.
DEAN FOODS COMPANY
By:
------------------------------
Chairman of the Board and
Chief Executive Officer
ATTEST:
- -----------------------------
Title:
This is one of the Securities of the Series designated herein
referred to in the within-mentioned Indenture.
Dated: June 19, 1995 BANK OF AMERICA ILLINOIS,
as Trustee
By:
------------------------------
Authorized Signatory
ATTEST:
- -------------------------------
Title:
-2-
<PAGE> 26
[FORM OF REVERSE OF NOTE]
DEAN FOODS COMPANY
6 3/4% NOTE DUE JUNE 15, 2005
This Note is one of a duly authorized issue of debt securities
of the Company (herein called the "Securities"), issuable in one or more
Series, unlimited in aggregate principal amount except as may be otherwise
provided in respect of the Securities of a particular Series, issued and to be
issued under and pursuant to an Indenture dated as of January 15, 1995 (herein
called the "Indenture"), duly executed and delivered by the Company to Bank of
America Illinois, as Trustee (the "Trustee"), and is one of a Series designated
as the 6 3/4% Notes due June 15, 2005 limited in aggregate principal amount to
$100,000,000. Reference is hereby made to the Indenture for a description of
the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the Holders of Securities (including
Holders of the Securities of this Series) and of the terms upon which the
Securities are, and are to be, authenticated and delivered. The Securities may
be issued in one or more Series, which different Series may be issued in
various aggregate principal amounts, may bear interest at different rates,
which may be fixed or variable, may be subject to different redemption
provisions (if any), may be subject to different sinking, purchase or analogous
funds (if any) and may otherwise vary as provided in the Indenture.
The Securities are general, direct, unconditional and
unsecured obligations of the Company and will rank pari passu with all other
unsecured and unsubordinated indebtedness of the Company.
If an Event of Default shall have occurred and be continuing
with respect to the Notes, unless the principal of all of the Notes shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Notes then Outstanding, may
declare the entire principal of, and premium, if any, on all of the Notes then
Outstanding and the interest accrued thereon to be due and payable immediately
in the manner and with the effect provided in the Indenture. Prior to a
declaration of acceleration of the Maturity of any Notes, the Holders of not
less than a majority in aggregate principal amount of the Notes then
Outstanding with respect to which a default or breach or an Event of Default
shall have occurred and be continuing may on behalf of the Holders of all of
the Notes waive any past default or breach or Event of Default and its
consequences, except a default or breach or Event of Default in the payment of
principal of, or premium, if any, or interest on any Notes. Upon any such
waiver, such default or breach shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured with the effect provided
in the Indenture but no such waiver shall extend to any subsequent or other
default or
-3-
<PAGE> 27
breach or Event of Default or impair any right consequent on such subsequent
default or breach or Event of Default.
The Indenture permits the amendment thereof and the
modification of the rights and obligations of the Issuer and the rights of the
Holders under the Indenture at any time by the Issuer and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the
Securities then Outstanding of all Series which are affected by such amendment
or modification, except that certain amendments which do not adversely affect
the rights of any Holder of the Securities may be made without the approval of
Holders of the Securities and no amendment or modification may, among other
things, extend the Stated Maturity of any Security, reduce the principal amount
thereof, reduce the rate or extend the time of payment of any interest thereon
without the consent of the Holder of each Security so affected or reduce the
aforesaid majority in aggregate principal amount of Securities of any Series,
the consent of the Holders of which is required for any such amendment or
modification, without the consent of the Holders of all Securities of each
affected Series.
Notwithstanding any provision in the Indenture or any
provision of this Note, the Holder of this Note shall have the right, which is
absolute and unconditional, to receive payment of the principal of, and
premium, if any, and interest on this Note at the times, place and rate, and in
the coin or currency herein prescribed.
As provided in the Indenture and subject to certain
limitations set forth therein, transfer of this Note is registrable on the
Security Register, upon due presentment for registration of transfer of this
Note at the office or agency of the Issuer in The City of New York, State of
New York, or such other offices or agencies as the Issuer may designate, and
thereupon the Issuer shall execute and the Trustee shall authenticate and
deliver in the name of the transferee or transferees a new Security or
Securities of Authorized Denomination, of the same series and of like aggregate
principal amount at Stated Maturity. "Authorized Denominations" means $1,000
or any amount in excess thereof which is an integral multiple of $1,000.
The Notes are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple of $1,000. As provided in
the Indenture, and subject to certain limitations set forth therein, Notes in
registered form are exchangeable for one or more new Securities of this Series
and of like tenor, for the same aggregate principal amount and of Authorized
Denominations, as requested by the Holder surrendering the same at the agency
of the Issuer in The City of New York, State of New York. No service charge
shall be made for any such exchange, but the Issuer may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
-4-
<PAGE> 28
The Issuer, the Trustee and any agent of the Issuer or the
Trustee may deem and treat the registered Holder hereof as the absolute owner
of this Note (whether or not this Note shall be overdue and notwithstanding any
notation of ownership or other writing hereon), for the purpose of receiving
payment of, or on account of, the principal hereof and premium, if any, and
interest hereon, and for all other purposes, and neither the Issuer nor the
Trustee nor any authorized agent of the Issuer or the Trustee shall be affected
by any notice to the contrary.
No recourse under or upon any obligation, covenant or
agreement of the Issuer in the Indenture or any indenture supplemental thereto
or in this Notes, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, officer or
director, as such, of the Issuer or of any successor corporation, either
directly or through the Issuer or any successor corporation, under any rule of
law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance hereof and as
part of the consideration for the issue hereof.
The Indenture with respect to any Series will be discharged
and cancelled except for certain Sections thereof, subject to the terms of the
Indenture, upon the payment of all the Securities of such Series or upon the
irrevocable deposit with the Trustee of cash or Government Obligations (or a
combination thereof) sufficient for such payment in accordance with Article Ten
of the Indenture.
The Indenture and this Note shall be deemed to be contracts
made under the laws of the State of New York, and for all purposes shall be
governed by and construed in accordance with the laws of such State.
Terms used herein which are defined in the Indenture shall
have the respective meanings assigned thereto in the Indenture.
-5-
<PAGE> 29
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and
not as tenants in common
UNIF GIFT MIN
ACT - Custodian
-------------- ---------------
(Custodian) (minor)
Under Uniform Gifts to Minor Act ( )
---------------
(State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT FORM
================================================================================
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
----------------------------
[ ]
----------------------------
Insert assignee's soc. sec. or tax I.D. no.
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
and irrevocably appoint
-------------------------------------------------------
- --------------------------------------------------------------------------------
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
- --------------------------------------------------------------------------------
Dated:
-------------------------- -----------------------------------
-----------------------------------
NOTICE: The signature to this assignment must correspond with the name
as it appears on the first page of the within Note in every particular, without
alteration or enlargement or any change whatever and must be guaranteed by a
member of a recognized Medallion Program approved by the Securities Transfer
Association Inc.
-6-
