<PAGE>
PAGE WHERE EXHIBIT INDEX IS LOCATED: 10
As filed with the Securities and Exchange Commission on May 26, 2000
Registration No. 333-
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_______________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
_______________
Dean Foods Company
------------------
(Exact name of registrant as specified in its charter)
Delaware 36-0984820
-------- ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3600 N. River Road, Franklin Park, Illinois 60131
-------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
DEAN FOODS COMPANY 1989 STOCK AWARDS PLAN
-----------------------------------------
(Full title of the Plan)
Dale E. Kleber
Dean Foods Company
3600 N. River Road
Franklin Park, Illinois 60131
---------------------------------------
(Name and address of agent for service)
847/678-1680
Telephone number, including area code, of agent for service
-----------------------------------------------------------
_______________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================================
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
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, Par Value 3,900,000 shs. $30.00 $117,000,000 $30,888
$1 Per Share (4)
=======================================================================================================================
</TABLE>
(1) This amount represents the number of shares issuable pursuant to the Plan
in addition to the 3,200,000 shares (after giving effect to Plan
antidilution provisions) registered on Registration Statements No. 33-33775
and 333-08817 (filing fees of $20,794).
(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 May 19, 2000 as set forth in the New York Stock
Exchange--Composite Transactions.
(4) Includes associated Preferred Stock Purchase Rights.
The Section 10(a) Prospectus Under This Registration Statement Is
A Combined Prospectus Which Also Relates To Registration Statement No. 33-
33775 and Registration Statement No. 333-08817.
1
<PAGE>
INCORPORATION BY REFERENCE OF EARLIER FORM S-8 REGISTRATION STATEMENT
Dean Foods Company ("Registrant" or the "Company"), has earlier filed
registration statements on Form S-8 (Registration Nos. 33-33775 and 333-08817)
relating to the Dean Foods Company 1989 Stock Awards Plan (the "Earlier
Registration Statements"). 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 Statements 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 30, 1999.
(b) The Company's Quarterly Reports on Form 10-Q for the periods
ended August 29, 1999, November 28, 1999 and February 27, 2000.
(c) The Company's Current Report on Form 8-K dated February 18,
2000.
(d) All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 since May 30,
1999.
(e) 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.
2
<PAGE>
(f) The description of the Preferred Stock Purchase Rights
contained in the Registration Statement of the Company on Form 8-A
dated August 4, 1998, 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
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.
The Company is incorporated under the laws of the State of Delaware.
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)
3
<PAGE>
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 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
4
<PAGE>
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.
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
5
<PAGE>
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 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
$100,000,000, 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:
6
<PAGE>
(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;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if 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.
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
7
<PAGE>
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.
8
<PAGE>
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 May 26, 2000.
DEAN FOODS COMPANY
By: /s/ Howard M. Dean
------------------------
Howard M. Dean
Chairman of the Board and
Chief Executive Officer
Each person whose signature appears below hereby authorizes Howard M.
Dean, Richard E. Bailey 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 26th day of May, 2000.
/s/ Howard M. Dean /s/ Edward A. Brennan
- -------------------------------------- -------------------------------
Howard M. Dean, Chairman of the Edward A. Brennan, Director
Board and Chief Executive Officer and
Director
/s/ Richard E. Bailey /s/ Lewis M. Collens
- -------------------------------------- -------------------------------
Richard E. Bailey, President and Lewis M. Collens, Director
Chief Operating Officer and Director
/s/ William M. Luegers /s/ Paula Hannaway Crown
- -------------------------------------- -------------------------------
William M. Luegers, Vice President and Paula Hannaway Crown, Director
Treasurer (Principal Financial and
Accounting Officer)
9
<PAGE>
/s/ Janet Hill /s/ John P. Frazee, Jr.
- -------------------------------------- -------------------------------
Janet Hill, Director John P. Frazee, Jr., Director
/s/ Bert A. Getz /s/ J. Christopher Reyes
- -------------------------------------- -------------------------------
Bert A. Getz, Director J. Christopher Reyes, Director
/s/ John S. Llewellyn, Jr. /s/ Thomas A. Ravencroft
- -------------------------------------- -------------------------------
John S. Llewellyn, Jr., Director Thomas A. Ravencroft, Senior Vice
President and Director
/s/ Richard P. Mayer
- --------------------------------------
Richard P. Mayer, Director
10
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Pages
- ------ ------
<S> <C>
4.1 Dean Foods Company 1989 Stock Awards Plan
as amended September 28, 1999................................................. 12
4.2 Rights Agreement dated May 22, 1999 (filed as Exhibit 4(a) to the
Registrant's Form 10-K Annual Report for fiscal year ending May 30, 1999 and
incorporated herein by reference)............................................. *
5 Opinion of Dale E. Kleber..................................................... 21
23.1 Consent of Dale E. Kleber
(included in Exhibit 5)....................................................... 21
23.2 Consent of PricewaterhouseCoopers LLP......................................... 22
24 Powers of Attorney
(included on the Signature pages hereof)...................................... 9
</TABLE>
11
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Exhibit 4.1
DEAN FOODS COMPANY
1989 STOCK AWARDS PLAN
AS AMENDED SEPTEMBER 28, 1999
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 two or more directors of
the Company who are "non-employee directors" 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.
"fiscal year" means the Company's fiscal year.
12
<PAGE>
"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 Ten-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, 7,100,000 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. Such 7,100,000 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 ten fiscal years ending in 2007 to any eligible employee may not exceed, in
the aggregate, 500,000 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 July 24, 2007
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 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.
13
<PAGE>
(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.
(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.
14
<PAGE>
(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.
(iii) The Committee may impose restrictions on the transfer of
shares of Common Stock issued as a result of achieving formula levels
of performance.
15
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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 in cash,
Common Stock or a combination thereof, as the Committee may determine.
Deferred amounts shall be considered an award under the Plan. The
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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 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 exercisable or received
during a participant's lifetime only by the participant or the
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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 ten fiscal years ending in
2007, 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 payable by the Company 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 value sufficient to
satisfy all or part of the Company's withholding or
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other 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.
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 shall impair the rights of the participant
under such award without the consent of such participant.
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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
May 26, 2000
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/ Dale E. Kleber
------------------------
Dale E. Kleber
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DEK/bz
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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 28, 1999 relating to the
financial statements, which appears on page 38 of the 1999 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 30, 1999. We
also consent to the incorporation by reference of our report dated June 28, 1999
relating to the financial statement schedules, which appears on page 17 of such
Annual Report on Form 10-K.
/s/ PRICEWATERHOUSECOOPERS LLP
- ------------------------------
PRICEWATERHOUSECOOPERS LLP
Chicago, Illinois
May 26, 2000
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