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NUMBER OF PAGES: 21
PAGE WHERE EXHIBIT INDEX IS LOCATED: 10
As filed with the Securities and Exchange Commission on July 25, 1996
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
_______________
Dean Foods Company
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(Exact name of registrant as specified in its charter)
Delaware 36-0984820
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3600 N. River Road, Franklin Park, Illinois 60131
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(Address of Principal Executive Offices) (Zip Code)
DEAN FOODS COMPANY 1989 STOCK AWARDS PLAN
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(Full title of the Plan)
Eric A. Blanchard
Dean Foods Company
3600 N. River Road
Franklin Park, Illinois 60131
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(Name and address of agent for service)
847/678-1680
Telephone number, including area code, of agent for service
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_______________
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Amount maximum maximum Amount
Securities to be offering aggregate of
to be registered price per offering registration
registered (1) (2) share (3) price (3) fee
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Common Stock,
Par Value $1,400,000 shs. $22.875 $32,025,000 $11,044
$1 Per Share
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(1) This amount represents the number of shares issuable pursuant to the
Plan in addition to the 1,800,000 shares (after giving effect to Plan
antidilution provisions) registered on Registration Statement No. 33-33775
(filing fee of $9,750).
(2) Pursuant to Rule 416(a), this Registration Statement shall be deemed
to cover any additional shares of Common Stock issuable pursuant to the
antidilution provisions of the Plan.
(3) Pursuant to Rule 457(h), estimated solely for the purpose of computing
the registration fee, on the basis of the average of the high and low
prices of Common Stock on July 22, 1996 as set forth in the New York Stock
Exchange--Composite Transactions.
The Section 10(a) Prospectus Under This Registration Statement Is A Combined
Prospectus Which Also Relates To Registration Statement No. 33-33775.
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INCORPORATION BY REFERENCE OF EARLIER FORM S-8 REGISTRATION STATEMENT
Dean Foods Company ("Registrant" or the "Company"), has earlier filed a
registration statement on Form S-8 (Registration No. 33-33775) relating to the
Dean Foods Company 1989 Stock Awards Plan (the "Earlier Registration
Statement"). This Registration Statement registers additional shares for
offering pursuant to such Plan. Subject to the final paragraph of Item 3 of
Part II of this Registration Statement, the contents of the Earlier
Registration Statement are incorporated herein by reference.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified in Part I of Form S-8 is contained in documents
sent or given to award holders as specified by Rule 428(b)(1) under the
Securities Act of 1933. Such documents and the documents incorporated by
reference pursuant to Item 3 of Part II of this Registration Statement, taken
together, constitute the Section 10(a) prospectus.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the Securities and
Exchange Commission are incorporated, as of their respective dates, in this
Registration Statement by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended May 28, 1995.
(b) All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 since May 28,
1995.
(c) The description of the Common Stock contained in the
Registration Statement of the Company on Form 8-A dated November
18, 1981, including any amendment or report filed for the purpose
of updating such description.
In addition, all documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, subsequent to the
date of this Registration Statement and prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all securities
offered have been sold or which deregisters all securities then remaining
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unsold, shall be deemed to be incorporated by reference herein and to be a part
hereof from the date of filing of such documents.
Any statement contained in this Registration Statement or in a document
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in the original Section 10(a) prospectus (as regards any
statement in any previously filed document incorporated by reference herein),
or a statement in any subsequently filed document that is also incorporated by
reference herein or a statement in any subsequent Section 10(a) prospectus,
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors, Officers and Controlling Persons.
Under certain provisions of the Delaware General Corporation Law, the
Company has the power 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,
suit or proceeding, by reason of the fact that he or she is or was a director,
officer, employee or agent of the Company, or is or was serving at the request
of the Company as a director, officer, employee or agent of another corporation
or other enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement reasonably incurred by him or her in
connection with such action, suit or proceeding; except that under such
provisions indemnification relating to a derivative action or suit is limited
to expenses reasonably incurred in connection with the defense or settlement
thereof. To be eligible for indemnification under such provisions as to a
particular action, suit or proceeding (or claim, issue or matter therein), a
director, officer, employee or agent must either be successful in his or her
defense thereof (in which event indemnification against related expenses is
mandatory) or must meet certain statutory standards (generally, that 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 Company, and, with respect to any
criminal action or proceeding, that he or she had no reasonable cause to
believe his or her conduct was unlawful). The indemnification provided by such
provisions does not exclude any other rights to which a person seeking
indemnification may otherwise be entitled.
Article Twelfth of the Company's Certificate of Incorporation provides
that each person who was or is a party or is threatened to be made a party to
or is involved in any action, suit or proceeding, by reason of the fact that he
or she (i) is or was or has agreed to become a director or officer of the
Company or (ii) is or was serving or has agreed to serve (at or during
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such time as he or she is or was a director or officer of the Company) as an
employee, agent or fiduciary of the Company or, at the request of the Company,
as a director, officer, employee, agent or fiduciary of another corporation,
partnership, joint venture, trust or other enterprise or entity, or by reason
of any action alleged to have been taken or omitted by him or her in any such
capacity, shall be indemnified and held harmless by the Company to the fullest
extent permitted by Delaware law, as the same existed on October 19, 1987 or
may thereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Company to provide broader
indemnification rights than said law permitted the Company to provide prior to
such amendment), against all expense (including attorneys' fees and amounts
expended in seeking indemnification granted to him or her under applicable law,
such Article, the Company's By-laws or any agreement with the Company) and, in
each case other than an action by or in the right of the Company, all liability
and loss (including judgments, fines and amounts paid or to be paid in
settlement), actually and reasonably incurred or suffered by him or her in
connection with such action, suit or proceeding and any appeal thereof, if in
each case 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 Company, and,
with respect to any criminal action, suit or proceeding, had no reasonable
cause to believe his or her conduct was unlawful; except that, in the case of
an action or suit by or in the right of the Company, no indemnification shall
be made in respect of any claim, issue or matter as to which he or she shall
have been adjudged to be liable to the Company unless and only to the extent
that the Court of Chancery of Delaware or the court in which such 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, he
or she is fairly and reasonably entitled to indemnification for such expenses
which the Court of Chancery of Delaware or such other court shall deem proper.
Article Twelfth provides that such indemnification shall continue as to any
such person who has ceased to be a director or officer of the Company and
shall inure to the benefit of his or her heirs, executors and administrators.
Any indemnification under Article Twelfth (other than (i) indemnification
for expenses actually and reasonably incurred in connection with the successful
defense of any action, suit or proceeding, appeal thereof or claim, issue or
matter therein, which is mandatory, and (ii) the advance of expenses, which is
mandatory if the Company receives an undertaking to repay such advance if it
shall ultimately be determined that the indemnified person is not entitled to
be indemnified by the Company) shall, unless ordered by a court, be made by the
Company only as authorized in the specific case upon a determination, made as
provided in Article Twelfth, that indemnification is proper in the
circumstances because the indemnified director or officer has met the
applicable standard of conduct.
Article Twelfth provides that the rights conferred thereunder shall not be
exclusive of any other right which the indemnified director or officer may have
had at October 19, 1987 or thereafter acquire under any law, provision of the
Company's Certificate of Incorporation or by-laws, agreement, vote of
stockholders or disinterested directors or otherwise, and further provides that
the Board of Directors is authorized to enter into a contract with any director
or officer of the Company providing for indemnification rights equivalent to
or, if the Board of Directors so determines, greater than those provided for in
Article Twelfth.
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The Company's by-laws include provisions substantially identical to those
of Article Twelfth.
Pursuant to the authorization in Article Twelfth, and as authorized by the
stockholders of the Company, the Company has entered into indemnification
agreements with all of its directors and elected officers. Such agreements
provide for and define more particularly the indemnification contemplated by
Article Twelfth (including mandatory advance of expenses), also provide for
indemnification against all liability or loss actually and reasonably incurred
in connection with actions by or in the right of the Company, and require the
Company to maintain (or to provide indemnification to the full extent of the
coverage which would otherwise have been provided by) directors' and officers'
liability insurance in the amount of $25,000,000; except that the agreements
exclude any obligation to make any indemnity payment or advance of expenses in
connection with any proceeding to the extent that there has been a final
adjudication by a court of competent jurisdiction that the indemnified director
or officer derived an improper personal benefit or otherwise breached his or
her duty of loyalty to the Company or its stockholders or to the extent that
there has been a final adjudication by a court of competent jurisdiction that
he or she committed acts or omissions other than in good faith or which
involved intentional misconduct or knowing violation of law. The agreements
effectively place on the Company the burden of proving that an indemnified
director or officer is not entitled to indemnification, and specify the manner
in which any necessary determinations of entitlement to indemnification are to
be made, including any determinations after any Change in Control (as defined
in the agreements).
The agreements provide that no proceeding shall be brought and no cause of
action shall be asserted by the Company or any subsidiary or by any stockholder
on behalf of the Company or any subsidiary against the indemnified director or
officer, his or her spouse, heirs, estate, executors or administrators after
the expiration of one year from the act or omission upon which such proceeding
is based (or, in the event that the indemnified director or officer has
fraudulently concealed the facts underlying such cause of action, after the
expiration of one year from the earlier of (i) the date the Company or any
subsidiary of the Company discovers such facts, or (ii) the date the Company or
any subsidiary of the Company could have discovered such facts by the exercise
of reasonable diligence); and that any claim or cause of action of the Company
or any subsidiary of the Company, including claims predicated upon the
negligent act or omission of the indemnified director or officer, shall be
extinguished and deemed released unless asserted by filing of a legal action
within such period; except that such limitation and release shall not apply to
any cause of action which had accrued on the date of an agreement and of which
the indemnified director or officer was aware on such date but as to which the
Company had no actual knowledge apart from his or her knowledge.
The agreements provide that the provisions for indemnification and
advancement of expenses set forth therein shall not be deemed exclusive of any
other rights which the indemnified director or officer may have under any
provision of law, the Company's Certificate of Incorporation or By-laws, the
vote of the Company's stockholders or disinterested directors, other
agreements, or otherwise, both as to action in his or her official capacity and
to action in another capacity while occupying his or her position as an agent
of the Company, and that the
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indemnified director or officer's rights thereunder shall continue after he or
she has ceased acting as an agent of the Company and shall inure to the
benefit of his or her heirs, executors and administrators.
The Company maintains a policy of liability insurance which, subject to
various exclusions and deductibles, covers its directors and officers (and the
Company's indemnification obligations to them), to the extent of $50,000,000
each policy year, for damages, judgments, settlements, costs and other amounts
payable by them for claims made against them for any actual or alleged error or
misstatement or misleading statement or act or omission or neglect or breach of
duty, or any other matter claimed against them solely by reason of being
directors or officers of the Company.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
Company pursuant to the foregoing provisions, the Company has been informed
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is
therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibits filed herewith are specified on the Index to
Exhibits at page 10 hereof.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
(iii) 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;
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Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purposes 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.
(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.
(4) If the registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include any financial
statements required by Rule 3-19 of Regulation S-X at the start of any delayed
offering or throughout a continuous offering.
The undersigned 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 the 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.
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 foregoing provisions, 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
Act 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 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 Act and
will be governed by the final adjudication of such issue.
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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-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Franklin Park, State of Illinois, on July 25, 1996.
DEAN FOODS COMPANY
By: /s/ Howard M. Dean
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Howard M. Dean
Chairman of the Board and
Chief Executive Officer
Each person whose signature appears below hereby authorizes Howard M.
Dean, Thomas L. Rose and Thomas A Ravencroft or any of them, with full power of
substitution, to execute in his or her name and on his or her behalf, and to
file, any amendments (including, without limitation, post-effective amendments)
to this registration statement necessary or advisable in the opinion of any of
them to enable the registrant to comply with the Securities Act of 1933, as
amended, and any rules, regulations and requirements of the Securities and
Exchange Commission thereunder in respect thereof, which amendments may make
such other changes in this registration statement as any of them deems
advisable.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on the 25th day of July, 1996.
/s/ Howard M. Dean /s/ Edward A. Brennan
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Howard M. Dean, Chairman of the Board Edward A. Brennan, Director
and Chief Executive Officer and Director
/s/ Thomas L. Rose /s/ Lewis M. Collens
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Thomas L. Rose, President and Lewis M. Collens, Director
Chief Operating Officer and Director
/s/ William R. McManaman /s/ Paula Hannaway Crown
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William R. McManaman, Vice President - Paula Hannaway Crown, Director
Finance (Principal Financial Officer)
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/s/ Dale I. Hecox /s/ John P. Frazee, Jr.
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Dale I. Hecox, Treasurer (Principal John P. Frazee, Jr., Director
Accounting Officer)
/s/ Bert A. Getz /s/ Andrew J. McKenna
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Bert A. Getz, Director Andrew J. McKenna, Director
/s/ John S. Llewellyn, Jr. /s/ Thomas A. Ravencroft
- -------------------------- ------------------------
John S. Llewellyn, Jr., Director Thomas A. Ravencroft, Senior Vice
President and Director
/s/ Alexander J. Vogl
- ---------------------------------- ---------------------
Richard P. Mayer, Director Alexander J. Vogl, Director
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INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Pages
- ------ -----
4.4 Dean Foods Company 1989 Stock Awards Plan
as amended July 22, 1994.................................... 11
5 Opinion of Eric A. Blanchard................................ 20
23.1 Consent of Eric A. Blanchard
(included in Exhibit 5)..................................... 20
23.2 Consent of Price Waterhouse................................. 21
24 Powers of Attorney
(included on the Signatures pages hereof)................... 8
10
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Exhibit 4.4
DEAN FOODS COMPANY
1989 STOCK AWARDS PLAN
(As Amended Effective July 22, 1994)
1. Purpose. The purpose of the Dean Foods Company 1989 Amended Stock
Awards Plan (the "Plan") is to promote the long-term financial interests of the
Company and its Affiliates by (a) attracting and retaining personnel, (b)
motivating personnel by means of growth-related incentives, (c) providing
incentive compensation opportunities that are competitive with those of other
major corporations and (d) furthering the identity of interests of participants
with those of the stockholders of the Company.
2. Definitions. The following definitions are applicable to the Plan:
"Affiliate" means (a) any subsidiary and (b) any other entity
in which the Company has a direct or indirect equity interest which
is designated an "Affiliate" by the Committee.
"Board of Directors" means the Board of Directors of the
Company.
"Code" means the Internal Revenue Code of 1986, as amended,
and any successor statute.
"Committee" means the Compensation Committee or, if the Board
of Directors so determines, another committee of three or more
directors of the Company who are "disinterested persons" as such
term is used in Rule 16b-3 and are "outside directors" as such term
is used in Section 162(m) of the Code.
"Common Stock" means Common Stock, $1.00 par value, of the
Company or such other securities as may be substituted therefor
pursuant to paragraph 5(c).
"Company" means Dean Foods Company, a Delaware corporation,
and its successors.
"eligible employee" means any full-time employee of the
Company or an Affiliate.
The "fair market value" of the Common Stock shall be
determined in accordance with procedures established by the
Committee.
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"fiscal year" means the Company's fiscal year.
"participant" means any employee of the Company or an
Affiliate who has been granted an award pursuant to the Plan.
"Rule 16b-3" means such rule adopted under the Securities
Exchange Act of 1934, as amended, or any successor rule.
"subsidiary" means any corporation fifty percent or more of
the voting stock of which is owned, directly or indirectly, by the
Company.
3. Limitation on Aggregate Shares/Individual Five-Year Limitation on
Option, SAR and Performance Shares Awards. Subject to adjustment as provided
in paragraph 5(c), the number of shares of Common Stock which may be issued
upon the exercise or payment of awards granted under the Plan shall not exceed,
in the aggregate, 3,200,000 shares; it being understood that to the extent any
awards expire unexercised or unpaid or are cancelled, terminated or forfeited
in any manner without the issuance of shares of Common Stock thereunder, such
shares shall again be available under the Plan unless such availability would
prevent the Plan from complying with Rule 16b-3. Such 3,200,000 shares of
Common Stock may be either authorized and unissued shares, treasury shares, or
a combination thereof, as the Committee shall determine.
Subject to adjustment as provided in Paragraph 5(c), the number of shares
of Common Stock with respect to which options and stock appreciation rights may
be awarded, and the maximum number of shares of Common Stock potentially
issuable under performance shares awards awarded, during the period of five
fiscal years ending in 1999 to any eligible employee may not exceed, in the
aggregate, 250,000 shares.
4. Awards. The Committee may grant to eligible employees, in accordance
with this paragraph 4 and the other provisions of the Plan, stock options,
stock appreciation rights ("SARs"), restricted stock, performance shares awards
and other awards.
(a) Options.
(i) Options granted under the Plan may be incentive stock
options ("ISOs") within the meaning of Section 422A of the Code or
any successor provision, or in such other form, consistent with the
Plan, as the Committee may determine; except that, so long as so
provided in such Section, no ISO may be granted under the Plan
after August 1, 1999 or to any employee of an Affiliate which is
not a subsidiary corporation (as such term is used in subsection
(b) of such Section) of the Company.
(ii) The option price per share of Common Stock shall be fixed
by the Committee at (a) in the case of ISOs, not less than 100% of
the fair market value of a share of Common Stock on the date of
grant and not less than the par value of
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a share of Common Stock and (b) in the case of other options, not
less than 85% of the fair market value of a share of Common
Stock on the date of grant and not less than the par value of
a share of Common Stock.
(iii) Options shall be exercisable at such time or times as
the Committee shall determine at or subsequent to grant.
(iv) An option shall be exercised in whole or in part by
written notice to the Company (to the attention of the Secretary)
at any time prior to its stated expiration and payment in full of
the option price for the shares as to which the option is being
exercised. Payment of the option price may be made, at the
discretion of the optionee, and to the extent permitted by the
Committee, (A) in cash (including check, bank draft, or money
order), (B) in Common Stock already owned by the optionee (valued
at the fair market value thereof on the date of exercise), (C) by a
combination of cash and Common Stock, or (D) with any other
consideration.
(b) SARs.
(i) An SAR shall entitle its holder to receive from the
Company, at the time of exercise of such right, an amount equal to
the excess of the fair market value (at the date of exercise) of a
share of Common Stock over a specified price fixed by the Committee
multiplied by the number of shares as to which the holder is
exercising the SAR. SARs may be in tandem with any previously or
contemporaneously granted option or independent of any option. The
specified price of a tandem SAR shall be the option price of the
related option. The amount payable may be paid by the Company in
Common Stock (valued at its fair market value on the date of
exercise), cash or a combination thereof, as the Committee may
determine, which determination may take into consideration any
preference expressed by the holder.
(ii) An SAR shall be exercised by written notice to the
Company (to the attention of the Secretary) at any time prior to
its stated expiration. To the extent a tandem SAR is exercised,
the related option will be cancelled and, to the extent the related
option is exercised, the tandem SAR will be cancelled.
(c) Restricted Stock.
(i) The Committee may award to any eligible employee shares of
Common Stock, subject to this paragraph 4(c) and such other terms
and conditions as the Committee may prescribe (such shares being
called "restricted stock"). Each certificate for restricted stock
shall be registered in the name of the participant and deposited,
together with a stock power endorsed in blank, with the Company.
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(ii) Restricted Stock may be awarded without any consideration
other than services rendered and/or (to the extent permitted by
applicable corporate law on the date of award) services to be
rendered.
(iii) There shall be established for each restricted stock
award a restriction period (the "restriction period") of such
length as shall be determined by the Committee. Shares of
restricted stock may not be sold, assigned, transferred, pledged or
otherwise encumbered, except as hereinafter provided, during the
restriction period. Except for such restrictions on transfer and
such other restrictions as the Committee may impose, the
participant shall have all the rights of a holder of Common Stock
as to such restricted stock. The Committee, in its sole
discretion, may permit or require the payment of cash dividends to
be deferred and, if the Committee so determines, reinvested in
additional restricted stock or otherwise invested or accruing a
yield. At the expiration of the restriction period, the Company
shall redeliver to the participant (or the participant's legal
representative or designated beneficiary) the certificates
deposited pursuant to this paragraph.
(iv) Except as provided by the Committee at or subsequent to
the time of grant, upon a termination of employment for any reason
during the restriction period all shares still subject to
restriction shall be forfeited by the participant.
(d) Performance Shares Awards.
(i) A performance shares award shall entitle its holder to
receive from the Company, following the expiration of a period of
at least one fiscal year specified by the Committee (the
"performance measurement period"), cash or Common Stock or a
combination thereof as determined by the Committee (either at the
time of grant or thereafter) in an aggregate amount based on the
level of achievement during the performance measurement period of
one or more Company financial performance criteria. The aggregate
amount received by a participant shall be determined by a formula
for such participant established by the Committee not later than
the ninetieth day of the performance measurement period. The
formula shall establish a range between a minimum level of
achievement before any amount will be received and a level of
achievement at or above which the maximum potential amount will be
received. Initially, the financial performance criterion shall be
earnings per share, but the Committee may subsequently use, either
in substitution therefor or in addition thereto, total shareholder
return (i.e., appreciation in the market value of a share of Common
Stock plus dividends paid), return on stockholders' equity and/or
return on invested capital.
(ii) Performance shares awards may be awarded without any
consideration other than services rendered and/or (to the extent
permitted by applicable corporate law on the date of award)
services to be rendered.
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(iii) The Committee may impose restrictions on the transfer of
shares of Common Stock issued as a result of achieving formula
levels of performance. Except for such restrictions on transfer,
the recipient shall have all the rights of a holder of Common Stock
as to such shares.
(iv) Except as provided by the Committee at or subsequent to
the time of grant, upon the termination of employment for any
reason during the performance measurement period the performance
shares award shall be forfeited by the participant.
(e) Other Awards.
(i) Other awards may be granted under the Plan, including,
without limitation, convertible debentures, other convertible
securities and other forms of award measured in whole or in part by
the value of shares of Common Stock, the performance of the
participant, or the performance of the Company, any Affiliate or
any operating unit thereof. Such awards may be payable in Common
Stock, cash or a combination thereof, and shall be subject to such
restrictions and conditions, as the Committee shall determine. At
the time of such an award, the Committee shall, if applicable,
determine a performance period and performance goals to be achieved
during the performance period, subject to such later revisions as
the Committee shall deem appropriate to reflect significant
unforeseen events such as changes in laws, regulations or
accounting practices, unusual or nonrecurring items or occurrences.
Following the conclusion of each performance period, the Committee
shall determine the extent to which performance goals have been
attained or a degree of achievement between maximum and minimum
levels during the performance period in order to evaluate the level
of payment to be made, if any.
(ii) The purchase price per share of Common Stock under other
awards involving the right to purchase Common Stock (including for
this purpose the right to acquire Common Stock upon the conversion
of convertible securities) shall be fixed by the Committee at not
less than 85% of the fair market value of a share of Common Stock
on the date of award and not less than the par value of a share of
Common Stock. Other awards not involving the right to purchase
Common Stock may be awarded without any consideration other than
services rendered and/or (to the extent permitted by applicable
corporate law on the date of award) services to be rendered.
(iii) A participant may elect to defer all or a portion of any
such award in accordance with procedures established by the
Committee. Deferred amounts will be subject to such terms and
conditions and shall accrue such yield thereon (which may be
measured by the fair market value of the Common Stock and dividends
thereon) as the Committee may determine. Payment of deferred
amounts may be
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in cash, Common Stock or a combination thereof, as the Committee
may determine. Deferred amounts shall be considered an award under
the Plan. The Committee may establish a trust or trusts to hold
deferred amounts or any portion thereof for the benefit of
participants.
(f) Cash Payments. SARs and options which are not ISOs may, in the
Committee's discretion, provide that in connection with exercises
thereof the holders will receive cash payments based on formulas
designed to reimburse holders for their income tax liability
resulting from such exercise and the payment made pursuant to this
paragraph 4(f).
(g) Surrender. If so provided by the Committee at or subsequent to
the time of grant, an award may be surrendered to the Company on
such terms and conditions, and for such consideration, as the
Committee shall determine.
(h) Foreign Alternatives. Without amending and notwithstanding the
other provisions of the Plan, in the case of any award to be held
by any participant who is employed outside the United States or who
is a foreign national, the Committee may specify that such award
shall be made on such terms and conditions different from those
specified in the Plan as may, in the judgment of the Committee, be
necessary or desirable to further the purposes of the Plan.
5. Miscellaneous Provisions.
(a) Administration. The Plan shall be administered by the
Committee. Subject to the limitations of the Plan, the Committee
shall have the sole and complete authority: (i) to select
participants, (ii) to make awards in such forms and amounts as it
shall determine, (iii) to impose such limitations, restrictions and
conditions upon such awards as it shall deem appropriate, (iv) to
interpret the Plan and to adopt, amend and rescind administrative
guidelines and other rules and regulations relating to the Plan,
(v) to correct any defect or omission or to reconcile any
inconsistency in the Plan or in any award granted hereunder and
(vi) to make all other determinations and to take all other actions
necessary or advisable for the implementation and administration of
the Plan. The Committee's determinations on matters within its
authority shall be conclusive and binding upon the Company and all
other persons. All expenses associated with the Plan shall be
borne by the Company, subject to such allocation to its Affiliates
and operating units as it deems appropriate. The Committee may, to
the extent that any such action will not prevent the Plan from
complying with Rule 16b-3 or Section 162(m) of the Code, delegate
any of its authority hereunder to such persons as it deems
appropriate.
(b) Non-Transferability. Subject to the provisions of paragraph
5(f), no award under the Plan, and no interest therein, shall be
transferable by a participant otherwise than by will or the laws of
descent and distribution. All awards shall be
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<PAGE> 7
exercisable or received during a participant's lifetime only by the
participant or the participant's legal representative. Any
purported transfer contrary to this provision will nullify the
award.
(c) Adjustments Upon Certain Changes. In the event of any
reorganization, recapitalization, reclassification, merger,
consolidation, or sale of all or substantially all of the Company's
assets followed by liquidation, which is effected in such a way
that holders of Common Stock are entitled to receive securities or
other assets with respect to or in exchange for Common Stock (an
"Organic Change"), the Committee shall make appropriate changes to
insure that each outstanding award involving the right to acquire
Common Stock thereafter represents the right to acquire, in lieu of
or in addition to the shares of Common Stock immediately
theretofore acquirable upon exercise or payment, such securities or
assets as may be issued or payable with respect to or in exchange
for an equivalent number of shares of Common Stock, and appropriate
changes in other outstanding awards; and in the event of any stock
dividend, stock split or combination of shares, the Board of
Directors shall make appropriate changes in the number of shares
authorized by the Plan to be delivered thereafter and in the
maximum number of shares with respect to which options, SARs and
performance shares awards may be awarded to any eligible employee
during the period of five fiscal years ending in 1999, and the
Committee shall make appropriate changes in the numbers of shares
covered by, or with respect to which payments are measured under,
outstanding awards and the exercise prices and reference prices
specified therein (and in the event of a spinoff, the Committee may
make similar changes), in order to prevent the dilution or
enlargement of award rights. However, no right to purchase or
receive a fraction of a share shall be created; and if, as a result
of any such change, a fractional share would result or the right to
purchase or receive the same would result, the number of shares in
question shall be decreased to the next lower whole number of
shares. The Committee may provide in the agreement evidencing any
award for adjustments to such award in order to prevent the
dilution or enlargement of rights thereunder or for acceleration of
benefits thereunder and/or cash payments in lieu of benefits
thereunder in the event of a change in control (or tender offer or
accumulation of Common Stock), merger, consolidation,
reorganization, recapitalization, sale or exchange of all or
substantially all of the assets or dissolution of the Company.
(d) Tax Withholding. The Committee shall have the power to
withhold, or require a participant to remit to the Company, an
amount sufficient to satisfy any withholding or other tax due with
respect to any amount payable and/or shares issuable under the
Plan, and the Committee may defer such payment or issuance unless
indemnified to its satisfaction. Subject to the consent of the
Committee, a participant may make an irrevocable election to have
shares of Common Stock otherwise issuable under an award withheld,
tender back to the Company shares of Common Stock received pursuant
to an award or deliver to the Company shares of Common Stock
already owned by the participant having a fair market
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<PAGE> 8
value sufficient to satisfy all or part of the participant's
estimated tax obligations associated with the transaction. Such
election must be made by a participant prior to the date on which
the relevant tax obligation arises. The Committee may disapprove
of any election and may limit, suspend or terminate the right to
make such elections.
(e) Listing and Legal Compliance. The Committee may suspend the
exercise or payment of any award if it determines that securities
exchange listing or registration or qualification under any
securities laws is required in connection therewith and has not
been completed on terms acceptable to the Committee.
(f) Beneficiary Designation. To the extent permitted by the
Committee, participants may name, from time to time, beneficiaries
(who may be named contingently or successively) to whom benefits
under the Plan are to be paid in the event of their death before
they receive any or all of such benefits. Each designation will
revoke all prior designations by the same participant, shall be in
a form prescribed by the Committee, and will be effective only when
filed by the participant in writing with the Committee during the
participant's lifetime. In the absence of any such designation,
benefits remaining unpaid at a participant's death shall be paid to
the participant's estate.
(g) Rights of Participants. Nothing in the Plan shall interfere
with or limit in any way the right of the Company or any Affiliate
to terminate any participant's employment at any time, nor confer
upon any participant any right to continue in the employ of the
Company or any Affiliate for any period of time or to continue his
or her present or any other rate of compensation. No employee
shall have a right to be selected as a participant, or, having been
so selected, to be selected again as a participant.
(h) Amendment, Suspension and Termination of Plan. The Board of
Directors or the Committee may suspend or terminate the Plan or any
portion thereof at any time and may amend it from time to time in
such respects as the Board of Directors or the Committee may deem
advisable; provided, however, that no such amendment shall be made
without stockholder approval to the extent such approval is
required by law, agreement or the rules of any exchange upon which
the Common Stock is listed. No such amendment, suspension or
termination shall impair the rights of participants under
outstanding awards without the consent of the participants affected
thereby or make any change that would disqualify the Plan, or any
other plan of the Company intended to be so qualified, from the
exemption provided by Rule 16b-3.
The Committee may amend or modify any award in any manner to
the extent that the Committee would have had the authority under
the Plan to initially grant the award as so amended or modified.
No such amendment or modification
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<PAGE> 9
shall impair the rights of the participant under such award
without the consent of such participant.
6. Effective Date. The effective date of the Plan shall be August 2,
1989, the date of its adoption by the Board of Directors; provided, however,
that no award shall be granted under the Plan unless the holders of at least a
majority of the outstanding shares of Common Stock voting at the Company's 1989
Annual Meeting of Stockholders approve and ratify the Plan.
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Exhibit 5
DEAN FOODS COMPANY
July 25, 1996
Dean Foods Company
3600 N. River Road
Franklin Park, Illinois 60131
Re: Dean Foods Company
Registration Statement on Form S-8
Gentlemen:
I am General Counsel of Dean Foods Company, a Delaware corporation (the
"Company").
Reference is made to the registration by the Company under the Securities
Act of 1933 on the Form S-8 Registration Statement to which this opinion is
Exhibit 5 (the "Registration Statement") of additional shares of the Company's
Common Stock, Par Value $1 Per Share (the "Common Stock"), issuable by the
Company pursuant to the Dean Foods Company 1989 Stock Awards Plan, as amended
to date (the "Plan").
It is my opinion that each additional share of Common Stock registered by
means of the Registration Statement, when issued pursuant to the Plan, will be
legally issued and, provided the consideration received by the Company for such
share equals or exceeds its par value, fully paid and non-assessable.
I hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ Eric A. Blanchard
---------------------
Eric A. Blanchard
EAB:koc
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Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated June 26, 1995, which appears on page
34 of the 1995 Annual Report to Stockholders of Dean Foods Company, which is
incorporated by reference in Dean Foods Company's Annual Report on Form 10-K
for the year ended May 28, 1995. We also consent to the incorporation by
reference of our report on the Financial Statement Schedules, which appears on
page 16 of such Annual Report on Form 10-K.
/s/ PRICE WATERHOUSE LLP
- ------------------------
PRICE WATERHOUSE LLP
Chicago, Illinois
July 25, 1996
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