<PAGE>
As filed with the Securities and Exchange Commission on June 23, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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DEAN FOODS COMPANY
(Exact name of Registrant as specified in its charter)
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Delaware 36-0984820
(State or other jurisdiction (I.R.S. Employer
of incorporation organization) Identification No.)
3600 North River Road
Franklin Park, Illinois 60131
(847) 678-1680
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
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DALE E. KLEBER
Vice President, Secretary and General Counsel
Dean Foods Company
3600 North River Road
Franklin Park, Illinois 60131
(847) 678-1680
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
H. KURT VON MOLTKE KEVIN F. BLATCHFORD Sidley &
Kirkland & Ellis Austin Bank One Plaza 10 S.
200 East Randolph Drive Dearborn Street Chicago,
Chicago, Illinois 60601 Illinois 60603 (312) 853-7000
(312) 861-2000
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Amount Proposed maximum Amount of
Title of each class of to be aggregate registration
securities to be registered (1) registered (2) offering price (3) fee (4)
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<S> <C> <C> <C>
Debt Securities, Common Stock, par value $0.01
per share, including the associated preferred
stock purchase rights, Preferred Stock,
Debt Warrants and Common Stock Warrants........ $650,000,000 $650,000,000 $171,600
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</TABLE>
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(1) We are registering an indeterminate principal amount of Debt Securities.
We are also registering an indeterminate number of shares of our Common
Stock together with the associated preferred stock purchase rights
attributable thereto, an indeterminate number of shares of Preferred
Stock, an indeterminate number of Debt Warrants and an indeterminate
number of Common Stock Warrants.
(2) Or the equivalent thereof in one or more foreign currencies. If any Debt
Securities are issued at an original issue discount, represents such
greater principal amount of such securities as shall result in net
proceeds to the Registrant of such amount.
(3) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(o).
(4) Of the $171,600 filing fee, $39,600 was previously paid in connection with
a registration statement of an aggregate of $150,000,000 of unsold
securities, so that $132,000 is being paid herewith. Calculated pursuant
to Rule 457(o).
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Pursuant to Rule 429 under the Securities Act of 1933, as amended, the
prospectus included in this Registration Statement is a combined prospectus
that also relates to the securities which were previously registered on Form
S-3 by the Registrant (Registration No. 333-44851) and filed with the
Commission on January 23, 1998. This Registration Statement constitutes Post-
Effective Amendment No. 1 to the Company's Registration Statement on Form S-3
(No. 333-44851).
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933, as amended, or until this
Registration Statement shall become effective on such date as the Commission,
acting pursuant to Section 8(a), may determine.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this prospectus is not complete and may be changed. We may +
+not sell these securities until the registration statement filed with the +
+Securities and Exchange Commission is effective. This prospectus is not an +
+offer to sell these securities and we are not soliciting offers to buy these +
+securities in any state where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED JUNE 23, 2000.
PROSPECTUS
Dean Foods Company
$650,000,000
Debt Securities, Common Stock, Preferred Stock,
Debt Warrants and Common Stock Warrants
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We will use this prospectus to offer and sell securities from time to time.
These may include:
. unsecured senior debt securities
. warrants to purchase common stock
. unsecured subordinated debt securities
. warrants to purchase debt securities
. common stock
. units consisting of any combination of these
. preferred stock securities
We will provide the specific terms and conditions of these securities in
supplements to this prospectus prepared in connection with each offering of
securities. These terms and conditions may include:
In the case of any securities:
In the case of debt securities:
. price
.interest rate
In the case of warrants:
. size of offering
.maturity
. expiration date
. underwriting discounts and commissions
.original issue discount
. exercise price
. redemption or repayment prior to maturity
. conditions to exercisability
.subordination provisions
.additional covenants
.conversion ratios
The securities offered will contain other significant terms and conditions.
Please read this prospectus and the applicable prospectus supplement carefully
before you invest.
-----------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if
this prospectus is truthful or complete. Any representation to the contrary is
a criminal offense.
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The date of this prospectus is , 2000.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
About this Prospectus..................................................... 2
Where You Can Find More Information....................................... 3
Special Note on Forward-Looking Statements................................ 4
Dean Foods Company........................................................ 4
Use of Proceeds........................................................... 4
Ratios of Earnings to Fixed Charges and Earnings to Fixed Charges and
Preferred Stock Dividends................................................ 5
Description of Debt Securities............................................ 6
Description of Common Stock............................................... 15
Description of Preferred Stock............................................ 19
Description of Debt Warrants.............................................. 22
Description of Stock Warrants............................................. 23
Plan of Distribution...................................................... 25
Legal Matters............................................................. 26
Experts................................................................... 26
</TABLE>
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission, which is known as the SEC, using a shelf
registration process. Under this shelf registration process, we may sell:
. unsecured senior debt securities . warrants to purchase common stock
. unsecured subordinated debt securities. warrants to purchase debt
securities
. common stock
. units consisting of any
combination of these securities
. preferred stock
We may sell these securities in one or more offerings up to a total dollar
amount of $650,000,000. This prospectus provides you with a general description
of the securities we may offer. Each time we sell securities, we will provide a
prospectus supplement that will contain specific information about the terms of
that offering. The prospectus supplement may also add, update or change
information contained in this prospectus. You should read carefully both this
prospectus and the applicable prospectus supplement together with the
additional information described below under the heading "Where You Can Find
More Information."
The registration statement of which this prospectus is a part (including the
exhibits) contains additional important information about our company and the
securities offered under this prospectus. Specifically, the legal documents
that control the terms of any securities offered by this prospectus are or will
be filed with the SEC as exhibits to the registration statement. That
registration statement can be read at the internet web site of the SEC or at
the SEC offices mentioned under the heading "Where You Can Find More
Information."
We may sell the securities to or through underwriters or dealers and may
also sell the securities directly to other purchasers or through agents. Please
refer to "Plan of Distribution." The applicable prospectus supplement will
contain the names of any underwriters, dealers or agents involved in the sale
of any securities and any applicable fee, commission or discount arrangements
with them.
This prospectus may not be used to consummate sales of any securities unless
it is accompanied by a prospectus supplement.
2
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file with the
SEC at its public reference facilities at:
. 450 Fifth Street, N.W., Washington, D.C. 20549
. 7 World Trade Center, Suite 1300, New York, New York 10048
. Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511
You can also obtain copies of our filings at prescribed rates by writing to
the Public Reference Section of the SEC at 450 Fifth Street, N.W., Washington,
D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on
the operation of the public reference facilities.
Our SEC filings are also available to the public over the internet on the
web site of the SEC at http://www.sec.gov and at the office of The New York
Stock Exchange at 20 Broad Street, New York, New York 10005. For further
information on obtaining copies of our public filings at the New York Stock
Exchange, you should call (212) 656-5060.
We "incorporate by reference" into this prospectus the information we file
with the SEC, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus. You should also be aware that any
information that we file subsequently with the SEC will automatically update
this prospectus (that is, the information will be incorporated by reference
into this prospectus). We incorporate by reference:
. our Annual Report on Form 10-K for the year ended May 30, 1999;
. our Quarterly Reports on Form 10-Q for the periods ended August 29, 1999,
November 28, 1999 and February 27, 2000;
. our Current Reports on Form 8-K dated February 18, 2000 and May 24, 2000;
. our Registration Statement on Form 8-A filed with the SEC on August 4,
1998 relating to the preferred stock purchase rights associated with our
Common Stock;
. our Proxy Statement for our 1999 annual meeting of stockholders filed
with the SEC on August 20, 1999; and
. any filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934, as amended, until we sell all of
the securities offered by this prospectus.
You may request a copy of these filings (other than exhibits, unless that
exhibit is specifically incorporated by reference into that filing) at no cost,
by writing to or telephoning us at the following address and telephone number:
Dean Foods Company
3600 North River Road
Franklin Park, Illinois 60131
(847) 678-1680
Attention: Corporate Secretary
You should rely only on the information incorporated by reference or set
forth in this prospectus or the applicable prospectus supplement. We have not
authorized anyone else to provide you with different information. We may only
use this prospectus to sell securities if it is accompanied by a prospectus
supplement. We are only offering these securities in states where such offer is
permitted. You should not assume that the information in this prospectus or the
applicable prospectus supplement is accurate as of any date other than the
dates on the front of these documents.
3
<PAGE>
SPECIAL NOTE ON FORWARD-LOOKING STATEMENTS
This prospectus contains or incorporates by reference forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933, as
amended, and Section 21E of the Securities Exchange Act of 1934, as amended. We
intend that these forward-looking statements be subject to the safe harbors
created by those provisions. These forward-looking statements involve risks and
uncertainties and include, but are not limited to, statements regarding future
events and our plans, goals and objectives. These statements are generally
accompanied by words like "intend," "anticipate," "believe," "estimate,"
"expect" or similar statements. Our actual results may differ materially from
these statements. These risks, trends and uncertainties, which in some
instances are beyond our control, include: risks associated with our
acquisition strategy, adverse weather conditions resulting in poor harvest
conditions, raw milk costs, interest rate fluctuations, competitive pricing
pressures, marketing and cost-management programs, changes in government
programs and shifts in market demand. Although we believe that the assumptions
underlying the forward-looking statements are reasonable, any of the
assumptions could prove inaccurate. Therefore, we can give no assurance that
the results contemplated in these forward-looking statements will be realized.
The inclusion of these forward-looking statements should not be regarded as a
representation by our company or any other person that the future events, plans
or expectations contemplated by our company will be achieved. Furthermore, past
performance in operations and share price is not necessarily predictive of
future performance.
DEAN FOODS COMPANY
We are a leading U.S. dairy processor and distributor, producing a full line
of branded and private label products, including fluid milk, cultured products,
ice cream and extended shelf life products which are sold under the Dean's
brand name and other regional brand names. Dean's dips and Marie's refrigerated
salad dressings are the leading brand names in their respective categories. We
are also the leaders in pickles and non-dairy coffee creamers.
Our business segments are:
. Dairy (fluid milk and cultured products, ice cream and extended shelf
life products);
. Pickles (pickles, relishes and specialty items); and
. Specialty (powdered products, and aseptic sauces and puddings,
refrigerated salad dressings, and dips).
A significant portion of our products are sold under private labels. We also
operate a trucking business hauling less-than-truckload freight, concentrating
primarily on refrigerated products. We conduct substantially all of our
business through our subsidiaries.
The predecessor to our company was incorporated in Illinois in 1925. Our
principal office is located at 3600 North River Road, Franklin Park, Illinois
60131, and our telephone number is (847) 678-1680.
USE OF PROCEEDS
Unless we specify otherwise in the applicable prospectus supplement, we will
use the net proceeds from the sale of the offered securities for general
corporate purposes, including working capital, the repayment or refinancing of
our indebtedness, future acquisitions and capital expenditures. A description
of any indebtedness to be refinanced with the proceeds from the sale of the
securities will be set forth in the applicable prospectus supplement. Until we
apply the net proceeds for specific purposes, we may invest the net proceeds in
short-term or marketable securities.
4
<PAGE>
RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS
TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the ratios of earnings to fixed charges and
earnings to fixed charges and preferred stock dividends for the periods
indicated.
<TABLE>
<CAPTION>
Thirty-Nine Weeks Fiscal Year Ended May,
Ended ---------------------------
February 27, 2000 1999 1998 1997 1996(a) 1995
----------------- ---- ---- ---- ------- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed
charges...................... 3.8x 3.2x 5.5x 6.3x 0.4x 6.0x
Ratio of earnings to fixed
charges and preferred stock
dividends.................... 3.8x 3.2x 5.5x 6.3x 0.4x 6.0x
</TABLE>
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(a) The fiscal 1996 ratios of earnings to fixed charges and earnings to fixed
charges and preferred stock dividends include a $102.4 million special
charge ($64.9 million after taxes), resulting in a fixed charge coverage
deficiency of $15.6 million.
For purposes of calculating the ratio of earnings to fixed charges and the
ratio of earnings to fixed charges and preferred stock dividends, earnings are
the sum of:
. pre-tax income from continuing operations; and
. fixed charges.
For purposes of calculating both ratios, fixed charges are the sum of:
. net interest expense;
. amortized discounts and financing costs related to indebtedness; and
. our estimate of the interest component included within rental expense,
which we believe to be approximately one-third of operating rental
expenses.
Additionally, for purposes of calculating the ratio of earnings to fixed
charges and preferred stock dividends, preferred stock dividends are included
in the denominator of the ratio on a pre-tax basis. Currently, we have no
outstanding preferred stock.
5
<PAGE>
DESCRIPTION OF DEBT SECURITIES
We may issue senior debt securities in one or more series (each of which we
refer to as a "series") under an indenture dated as of January 15, 1998, as
supplemented from time to time (the "senior indenture"), between us and The
Bank of New York, as trustee (the "senior trustee"), and subordinated debt
securities in one or more series under an indenture dated as of January 15,
1998, as supplemented from time to time (the "subordinated indenture"), between
us and a trustee to be named prior to an offering of subordinated debt
securities (the "subordinated trustee"). The forms of the senior indenture and
the subordinated indenture (which we refer to collectively as the "indentures"
and individually as an "indenture") are filed as exhibits to the registration
statement. We have summarized selected provisions of the indentures below. The
summary set forth below is not complete. It does not describe some exceptions
and qualifications contained in the indentures or the debt securities. If you
would like more information on the provisions of the indentures you should
review the indentures which we have incorporated by reference as exhibits to
the registration statement relating to the debt securities.
References to article and section numbers of the indentures are included in
the summary so that you can easily locate the provisions being summarized. The
indentures are substantially identical, except for certain covenants of ours in
the senior indenture and provisions relating to subordination and conversion
contained only in the subordinated indenture.
The debt securities will be obligations of Dean Foods exclusively. Because
we conduct substantially all of our business through subsidiaries, our ability
to meet our obligations under the debt securities and other indebtedness will
be dependent on the earnings and cash flow of our subsidiaries and the ability
of our subsidiaries to pay dividends and to advance funds to us. In addition,
our rights and the rights of our creditors and securities holders, including
the holders of the debt securities, to the assets of any subsidiary upon that
subsidiary's liquidation or recapitalization will be subject to prior claims of
that subsidiary's creditors, except to the extent that we may be a creditor
with recognized claims against the subsidiary. Except with respect to the
covenants "Limitations on Liens" and "Limitations on Sale and Lease-Back
Transactions" contained in the senior indenture described below, neither the
senior indenture nor the subordinated indenture restricts or limits the ability
of any subsidiary to incur, create, assume or guarantee indebtedness or
encumber its assets or properties. At May 28, 2000, our subsidiaries had
approximately $27 million of outstanding indebtedness. We have guaranteed
approximately $22 million of this subsidiary indebtedness, which for this
reason would have constituted senior indebtedness.
At May 28, 2000, we had approximately $762 million aggregate principal
amount of senior indebtedness outstanding (including subsidiary debt we have
guaranteed) and no subordinated indebtedness outstanding.
General
The indentures do not limit the amount of debt securities that we can issue
and provide that debt securities of any series may be issued up to the
aggregate principal amount which we may authorize from time to time. The
indentures also do not limit the amount of other indebtedness or securities
which we may issue, other than in the case of the senior indenture limiting
secured indebtedness as described below. All senior debt securities will be
unsecured and will rank pari passu with all of our other unsecured and
unsubordinated indebtedness. All subordinated debt securities will be unsecured
and will be subordinated in right of payment to the prior payment in full of
senior indebtedness (which term includes the senior debt securities) as
described below under "Provisions Applicable Solely to Subordinated
Securities--Subordination." The trustee will authenticate and deliver debt
securities as described in the applicable indenture.
A supplement to this prospectus will describe specific terms relating to the
series of debt securities being offered. These terms will include some or all
of the following:
. the title of the debt securities and classification as senior debt
securities or subordinated debt securities;
. any limit upon the aggregate principal amount of the offered debt
securities;
6
<PAGE>
. the currency or currency units based on or relating to currencies in
which the offered debt securities are denominated and/or in which
principal (and premium, if any) and/or any interest will or may be
payable;
. any index used to determine the amount of payment of principal of, and
any premium and interest on, the offered debt securities;
. if other than 100% of the principal amount, the percentage of their
principal amount at which the offered debt securities will be offered;
. the date or dates (or method to determine them) on which the principal of
the offered debt securities will be payable;
. the rate or rates (or method to determine them) at which the offered debt
securities will bear interest, if any, the date or dates from which any
interest will accrue and on which interest will be payable, and the
record dates for the determination of the holders to whom interest is
payable;
. if other than as set forth in this prospectus, the place or places where
the principal of and interest, if any, on the offered debt securities
will be payable;
. the price or prices at which, the period or periods within which and the
terms and conditions upon which offered debt securities may be redeemed,
in whole or in part, at our option;
. our obligation, if any, to redeem, repurchase or repay offered debt
securities, whether pursuant to any sinking fund or other provisions or
at the option of a holder thereof;
. whether the offered debt securities are convertible into any other
securities and, if so, on what terms and conditions;
. whether the offered debt securities will be represented in whole or in
part by one or more global notes registered in the name of a depository
or its nominee;
. whether the offered debt securities will be issuable in registered form
or bearer form and, if the offered debt securities are issuable in bearer
form, restrictions applicable to the exchange of one form for another and
to the offer, sale and delivery of offered debt securities in bearer
form;
. whether and under what circumstances we will pay additional amounts on
offered debt securities held by a person who is not a U.S. person (as
defined in the prospectus supplement) in respect of any tax, assessment
or governmental charge withheld or deducted, and if so, whether we will
have the option to redeem those debt securities rather than pay the
additional amounts;
. any additional event of default; and
. any other terms or conditions not inconsistent with the provisions of the
applicable indenture upon which the offered debt securities will be
offered. (Section 2.3) "Principal" includes, when appropriate, the
premium, if any, on the offered debt securities.
Each series of debt securities will be a new issue with no established
trading market. Therefore, we can give no assurance that there will be a liquid
trading market for the debt securities. We may purchase debt securities at any
time in the open market or otherwise. Debt securities we purchase may, in our
discretion, be held, resold, canceled or used to satisfy any sinking fund or
redemption requirements.
Debt securities bearing no interest or interest at a rate which, at the time
of issuance, is below the prevailing market rate will be sold at a substantial
discount below their stated principal amount. Special United States federal
income tax considerations applicable to these discounted debt securities (or to
other debt securities issued at par which are treated as having been issued at
a discount for United States federal income tax purposes) will be described in
a prospectus supplement.
7
<PAGE>
The debt securities may be denominated in United States dollars, or in any
other currency or currency unit. If we sell any of the debt securities for any
foreign currency or currency unit or if principal, premium, if any, and
interest on any of the debt securities is payable in any foreign currency or
currency unit, the restrictions, elections, tax consequences, specific terms
and other information with respect to that issue of debt securities and the
foreign currency or currency unit will be set forth in the prospectus
supplement relating to those debt securities.
Form and Exchange of the Debt Securities
We will issue all of the debt securities in either fully registered form
without coupons or in unregistered form with or without coupons. We may also
issue the debt securities in the form of one or more temporary or definitive
global securities. Registered debt securities which are book-entry securities
will be issued as registered global securities. A debt security in global form
will be deposited with, or on behalf of, a depository, which will be named in
the applicable prospectus supplement. A global debt security may not be
transferred, except as a whole among the depository for that debt security and
its nominees or successors. If any debt securities of a series are issuable as
global securities, the applicable prospectus supplement will describe
. any circumstances when beneficial owners of any of those global
securities may exchange their interests for definitive debt securities of
that series with similar terms and principal amount in any authorized
form and denomination,
. the manner of payment of principal and interest on those global debt
securities and
. the specific terms of the depository arrangement with respect to those
global debt securities.
Unless otherwise indicated in a prospectus supplement, principal, premium,
if any, and interest will be payable at the office or agency we maintain for
that purpose. Debt securities may also be registered for transfer or exchange
at that office or agency. At our option, payment of interest on registered debt
securities may be made by check or by wire transfer. (Section 2.7) No service
charge will be made for any exchange or registration of transfer of the debt
securities, but we may require payment of a sum sufficient to cover any tax or
other government charge. (Section 2.8)
Reports to the Trustee
We are required to provide the trustee with an officers' certificate each
fiscal year stating that we reviewed our activities during the preceding fiscal
year and that, after reasonable investigation and inquiry by the certifying
officers, we are in compliance with the requirements of each indenture and that
no default exists or, if we know of a default, we must identify it. (Section
4.08)
We will comply with Section 14(e) under the Exchange Act, and any other
tender offer rules under the Exchange Act which may be applicable, in
connection with any obligation of ours to purchase offered debt securities at
the option of the holders of those securities. Any such applicable obligation
and tender offer rules will be described in the applicable prospectus
supplement.
Unless otherwise described in a prospectus supplement relating to any
offered debt securities, there are no covenants or provisions contained in
either indenture which may afford the holders of offered debt securities
protection in the event of a highly leveraged transaction involving us, except
to the limited extent described under "Limitations on Liens" and "Limitation on
Sale and Lease-Back Transactions" in the senior indenture and "Consolidation,
Merger, Sale or Conveyance" in the indentures as described below. These
covenants or provisions are not subject to waiver by our board of directors
without the consent of the holders of not less than a majority in principal
amount of senior debt securities of each series or subordinated debt securities
of each series, as applicable. For more information please refer to
"Modification of Indenture" below.
8
<PAGE>
Provisions Applicable Solely to Senior Debt Securities
Limitations on Liens. The senior indenture provides that, so long as any of
the senior debt securities of a series remain outstanding, unless the terms of
the series provide otherwise, we will not and will not permit any Consolidated
Subsidiary to issue, assume or guarantee any indebtedness for money borrowed
("indebtedness") that is secured by a mortgage, pledge, security interest or
other lien (a "lien") upon or with respect to any Principal Property or on the
capital stock of any Consolidated Subsidiary that owns a Principal Property
unless
. we secure the senior debt securities equally and ratably with (or prior
to) any and all other obligations and indebtedness secured by that lien,
or
. the aggregate amount of all the indebtedness secured by the lien on us
and our Consolidated Subsidiaries then outstanding, together with all
Attributable Debt in respect of sale and lease-back transactions existing
at that time, would not exceed 15% of the Consolidated Net Tangible
Assets of Dean Foods, with the exception of transactions which are not
subject to the limitation described in "Limitation on Sale and Lease-Back
Transactions" below.
The above limitation will not apply to some types of permitted liens.
Therefore, the indebtedness secured by those permitted liens is excluded in
computing indebtedness for purposes of this limitation. These permitted liens
include:
. liens existing as of the date of the issuance of senior debt securities
of any series;
. liens on property or assets of, or any shares of stock or securing
indebtedness of, any corporation existing at the time such corporation
becomes a Consolidated Subsidiary;
. liens on property, assets, shares of stock or securing indebtedness
existing at the time of an acquisition, including an acquisition through
merger or consolidation, and liens to secure indebtedness incurred prior
to, at the time of or within 180 days after the later of the completion
of the acquisition, or the completion of the construction and
commencement of the operation of, any such property, for the purpose of
financing all or any part of the purchase price or construction cost of
that property;
. liens to secure specified types of development, operation, construction,
alteration, repair or improvement costs;
. liens in favor of, or which secure indebtedness owing to, us or a
Consolidated Subsidiary;
. liens in connection with government contracts, including the assignment
of moneys due or to come due on those contracts;
. certain types of liens in connection with legal proceedings to the extent
those proceedings are being contested in good faith;
. certain types of liens arising in the ordinary course of business and not
in connection with the borrowing of money such as mechanics',
materialmans', carriers' or other similar liens;
. liens on property securing obligations issued by a domestic governmental
issuer to finance the cost of an acquisition or construction of that
property; and
. extensions, substitutions, replacements or renewals of the foregoing if
the principal amount of the indebtedness secured thereby is not increased
and is not secured by any additional assets. (Section 3.5 of the senior
indenture).
Limitation on Sale and Lease-Back Transactions. The senior indenture
provides that, so long as any of the senior debt securities of a series remain
outstanding, unless the terms of that series provide otherwise, neither we nor
any Consolidated Subsidiary may enter into any arrangement with any person
(other than ourselves) where we or a Consolidated Subsidiary agree to lease any
Principal Property which has been or is to be sold or transferred more than 120
days after the Principal Property has been owned by us or a Consolidated
Subsidiary and completion of construction and commencement of full operation
thereof, by us or a Consolidated Subsidiary to that person (a "Sale and Lease-
Back Transaction"). This covenant does not apply to leases of a Principal
Property for a term of less than three years. (Sections 3.5 and 3.6 of the
senior indenture)
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This limitation also does not apply to any Sale and Lease-Back Transaction
if
. the net proceeds to us or a Consolidated Subsidiary from the sale or
transfer equal or exceed the fair value, as determined by our board of
directors, of the Principal Property so leased,
. we or the Consolidated Subsidiary could incur indebtedness secured by a
lien on the Principal Property to be leased pursuant to the terms
discussed in "Limitation on Liens" above in an amount equal to the
Attributable Debt with respect to the Sale and Lease-Back Transaction
without equally and ratably securing the senior debt securities, or
. we, within 120 days after the effective date of the Sale and Lease-Back
Transaction, apply an amount equal to the fair value as determined by our
board of directors of the Principal Property so leased to:
. the retirement of our Funded Debt, which may include debt securities;
or
. the acquisition of additional real property. (Section 3.6 of the
senior indenture).
Certain Definitions. The terms set forth below are defined in the indentures
as follows:
"Attributable Debt," in respect of the Sale and Lease-Back Transactions
described above, means as of any particular time, the present value,
discounted at the Composite Rate (as defined in the senior indenture), of
the obligation of a lessee for rental payments during the remaining term of
any lease, including any period for which that lease has been extended or
may, at the option of the lessor, be extended. Sale and Lease-Back
Transactions with respect to facilities financed with specified tax exempt
securities are excepted from the definition. (Section 1.1 of the senior
indenture)
"Consolidated Net Tangible Assets" means the aggregate amount of assets,
reduced by applicable reserves and other properly deductible items, after
deducting
. all current liabilities, excluding any current liabilities
constituting Funded Debt because it is extendible or renewable, and
. all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other similar intangibles,
all as set forth on the books and records of Dean Foods and its
Consolidated Subsidiaries and computed in accordance with generally
accepted accounting principles. (Section 1.1 of the senior indenture)
"Consolidated Subsidiary" means a subsidiary of Dean Foods, the accounts
of which are consolidated with those of Dean Foods in accordance with
generally accepted accounting principles. (Section 1.1 of the senior
indenture)
"Funded Debt" means all indebtedness for the repayment of money
borrowed, whether or not evidenced by a bond, debenture, note or similar
instrument or agreement, having a final maturity of more than 12 months
after the date of its creation or having a final maturity of less than 12
months after the date of its creation but by its terms being renewable or
extendible beyond 12 months after such date at the option of the borrower,
excluding obligations under any capital leases. When determining "Funded
Debt," indebtedness will not be included if, on or prior to the final
maturity of that indebtedness, we have deposited the necessary funds for
the payment, redemption or satisfaction of that indebtedness in trust with
the proper depositary. (Section 1.1 of the senior indenture)
"Principal Property" means, as of any date, any building, structure or
other facility, together with the land upon which it is erected and any
fixtures which are a part of the building, structure or other facility,
used primarily for manufacturing, processing or production, in each case
located in the United States, and owned or leased or to be owned or leased
by Dean Foods or any Consolidated Subsidiary, and in each case the net book
value of which as of that date exceeds 2% of the Consolidated Net Tangible
Assets of Dean Foods as shown on the consolidated balance sheet contained
in our latest filing with the SEC, other than any such land, building,
structure or other facility or portion thereof which is a pollution control
facility, or which, in the opinion of our board of directors, is not of
material importance to the total business conducted by us and our
Consolidated Subsidiaries, considered as one enterprise.
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Provisions Applicable Solely to Subordinated Debt Securities
Subordination. The subordinated debt securities will be subordinate and
junior in right of payment to all senior indebtedness of Dean Foods to the
extent set forth in the subordinated indenture. If we default in the payment of
any principal of or premium or interest on any senior indebtedness when the
same becomes due and payable, whether at maturity or at a date fixed for
prepayment or by declaration of acceleration or otherwise, then, upon written
notice of the default to us by the holders of the senior indebtedness or any
trustee therefor and subject to our rights to dispute the default and subject
to proper notification of the trustee, unless and until the default has been
cured or waived or has ceased to exist, no direct or indirect payment (in cash,
property, securities, by set-off or otherwise) will be made or agreed to be
made for principal of, premium, if any, or interest, if any, on the
subordinated debt securities, or in respect of any redemption, retirement,
purchase or other acquisition of the subordinated debt securities other than
those made in our capital stock (or cash in lieu of fractional shares thereof).
(Sections 13.1, 13.4 and 13.5 of the subordinated indenture)
"Senior indebtedness" means:
. indebtedness or obligations (other than the subordinated debt securities)
of, or guaranteed or assumed by, us for borrowed money which is evidenced
by bonds, debentures, notes, or other similar instruments unless, by the
terms of the indebtedness or obligation it is provided that the
indebtedness or obligation is not senior in right of payment to the
subordinated debt securities; and
. any amendments, renewals, extensions, modifications and refinancings of
this indebtedness or these obligations. (Section 1.1 of the subordinated
indenture).
If:
. without our consent a court enters an order for relief with respect to us
under the United States federal bankruptcy laws or a judgment, order or
decree adjudging us a bankrupt or insolvent, or enters an order for
relief for reorganization, arrangement, adjustment or composition of or
in respect of us under the United States federal or state bankruptcy or
insolvency laws; or
. we institute proceedings for the entry of an order for relief under the
United States federal bankruptcy laws or for an adjudication of
insolvency, or we consent to the institution of bankruptcy or insolvency
proceedings against us, or we file a petition seeking, or seek or consent
to reorganization, arrangement, composition or similar relief under any
applicable law, or consent to the filing of such a petition or to the
appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator or similar official in respect of us or of substantially all
of our property, or we make a general assignment for the benefit of
creditors;
then all senior indebtedness (including any interest accruing after the
commencement of any such proceedings) will first be paid in full before any
payment or distribution, whether in cash, securities or other property, is made
on account of the principal of, premium, if any, or interest, if any, on the
subordinated debt securities. If this occurs, any payment or distribution on
account of the principal of, premium, if any, or interest, if any, on the
subordinated debt securities, whether in cash, securities or other property
(other than our securities or the securities of any other corporation provided
for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in the subordination provisions
with respect to the subordinated debt securities, to the payment of all senior
indebtedness then outstanding and to any securities issued in respect thereof
under any such plan of reorganization or readjustment), which would otherwise,
not taking into account the subordination provisions, be payable or deliverable
in respect of the subordinated debt securities will be paid or delivered
directly to the holders of senior indebtedness in accordance with the
priorities then existing among those holders until all senior indebtedness
(including any interest thereon accruing after the commencement of any such
proceedings) has been paid in full.
As a result of this subordination, if we are insolvent, holders of senior
indebtedness may receive more, ratably, than holders of the subordinated debt
securities. In addition, other creditors of ours who are not holders of
subordinated debt securities or holders of senior indebtedness may recover
less, ratably, than holders of
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senior indebtedness and may recover more, ratably, than holders of subordinated
debt securities. However, this subordination will not prevent the occurrence of
an event of default or limit the right of acceleration in respect of the
subordinated debt securities.
Conversion. The subordinated indenture may provide for a right of conversion
of subordinated debt securities into common stock (or cash in lieu thereof).
The following provisions will apply to debt securities that are convertible
subordinated debt securities unless otherwise provided in the applicable
prospectus supplement.
The holder of any convertible subordinated debt securities will have the
right exercisable at any time prior to maturity to convert the subordinated
debt securities into shares of common stock at the conversion price or
conversion rate set forth in the applicable prospectus supplement, subject to
adjustment, unless we previously redeem or otherwise purchase those debt
securities. (Sections 12.3 and 14.2 of the subordinated indenture) If a
subordinated debt security is called for redemption, the holder may convert it
until the close of business on the redemption date. The holder of convertible
debt subordinated securities may convert any portion thereof which is $1,000 in
principal amount or any integral multiple thereof. (Section 14.2 of the
subordinated indenture)
In some situations, the conversion price or conversion rate will be subject
to adjustment as set forth in the subordinated indenture. These events include:
. the issuance of shares of our common stock as a dividend or distribution
on the common stock;
. subdivisions, combinations and reclassification of our common stock;
. the issuance of rights or warrants to all holders of common stock
entitling those holders (for a period not exceeding 45 days) to subscribe
for or purchase shares of common stock at a price per share less than the
then current market price per share of common stock (as defined in the
subordinated indenture); and
. the distribution to all holders of common stock of evidences of
indebtedness, equity securities other than common stock or other assets
(excluding cash dividends paid from surplus) or certain subscription
rights or warrants (other than those referred to above). Please refer to
"Description of Capital Stock--Rights Plan." No adjustment of the
conversion price or conversion rate will be required unless an adjustment
would require a cumulative increase or decrease of at least 1% in such
price or rate. (Section 14.4 of the subordinated indenture)
Fractional shares of common stock will not be issued upon conversion.
Instead, we will pay a cash adjustment based on the then current market price
for the common stock (Section 14.3 of the subordinated indenture). Upon
conversion, no adjustments will be made for accrued interest and therefore
convertible subordinated debt securities surrendered for conversion between the
record date for an interest payment and the interest payment date (except
convertible subordinated debt securities called for redemption on a redemption
date during such period) must be accompanied by payment of an amount equal to
the interest thereon which the registered holder is to receive. No interest
will be payable on any convertible subordinated debt securities called for
redemption and converted between a record date and the open of business of the
next succeeding interest payment date. (Sections 14.2 and 14.4 of the
subordinated indenture)
If we consolidate or merge with or into any other person (with certain
exceptions) or sell or transfer all or substantially all of our assets, the
holder of convertible subordinated debt securities will have the right to
convert those convertible subordinated debt securities, after the transaction,
only into the kind and amount of securities, cash and other property which the
holder would have been entitled to receive upon the consolidation, merger, sale
or transfer, if the holder had held the common stock issuable upon conversion
of the convertible subordinated debt securities immediately prior to the
transaction. (Section 14.5 of the subordinated indenture)
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Events of Default
"Event of default" means, with respect to any series of debt securities, any
of the following (Section 6.01):
. failure to pay interest that continues for a period of 30 days after
payment is due;
. failure to make any principal or premium payment when due;
. failure to comply with any of our other agreements contained in the
indentures or in the debt securities for 90 days after either the trustee
notifies us of the failure or the holders of at least 25% of the
outstanding debt securities affected by the failure notify us and the
trustee of the failure; or
. other events of bankruptcy, insolvency or reorganization as specified in
the indentures.
In general, the trustee is required to give notice of a default with respect
to a series of debt securities to the holders of that series. The trustee may
withhold notice of a default if the trustee in good faith determines that it is
in the best interest of the holders of that series to do so, other than a
default in the payment of principal of, and premium, if any, or interest on any
debt security or in the making of any sinking fund payment. (Section 6.5) An
event of default for a particular series of debt securities does not
necessarily constitute an event of default for other series of debt securities.
Additional events of default may be prescribed for the benefit of holders of
any series of debt securities and will be described in a prospectus supplement.
If there is a continuing event of default with respect to any series of debt
securities, then either the trustee or the holders of at least 25% in aggregate
principal amount of that series may require us to immediately repay the
principal and accrued interest on the affected series or, if the debt
securities of that series are original issue discount securities, such portion
of the principal amount as may be specified in the terms of that series.
Subject to specified conditions, the requirement to repay with respect to a
series of debt securities may be annulled, and past defaults waived by the
holders of a majority in principal amount of the debt securities of that series
then outstanding, other than a continuing default in payment of principal of or
premium, if any, or interest on the debt securities). (Section 5.1)
The trustee may refuse to enforce the indenture or the debt securities
unless it first receives satisfactory security or indemnity. (Sections 6.1 and
6.2) Subject to limitations specified in the indenture, the holders of a
majority in principal amount of the then outstanding debt securities of an
affected series will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the trustee under the
indenture or exercising any trust or power conferred on the trustee with
respect to the debt securities of that series. (Section 5.12)
Consolidation, Merger, Sale or Conveyance
Each indenture provides that we may consolidate with, or sell, convey or
lease all or substantially all of our assets to, or merge with or into, any
other corporation, if
. either we are the continuing corporation, or the successor corporation is
a domestic corporation and expressly assumes the due and punctual payment
of the principal of and interest on all the debt securities outstanding
under the indenture according to their tenor and the due and punctual
performance and observance of all of the covenants and conditions of the
indenture to be performed or observed by us; and
. immediately after the merger or consolidation, or the sale, conveyance or
lease, no event of default, and no event which, after notice or lapse of
time or both, would become an event of default, shall have occurred and
be continuing. (Section 9.1)
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Modification of the Indentures
Under the indentures, subject to specified exceptions, our rights and
obligations and the rights of the holders of a series of debt securities may be
changed with the consent of the holders of not less than a majority in
principal amount of each series of debt securities then outstanding. However,
no change to the terms of payment of principal or interest, to the premium, if
any, payable upon redemption, to the currency in which any debt security is
payable, to the amount to be paid upon acceleration of maturity or reducing the
percentage required for changes to the indenture, is effective against any
holder without its consent. (Section 10.02)
The subordinated indenture may not be amended to alter the subordination of
any outstanding subordinated securities without the consent of each holder of
senior indebtedness then outstanding that would be materially adversely
affected thereby. (Section 8.6 of the subordinated indenture)
Satisfaction and Discharge of the Indentures
If provision is made pursuant to the applicable indenture for the defeasance
of a series of debt securities, we, at our option (unless otherwise provided in
a prospectus supplement), with regard to that series of offered debt
securities:
. will be discharged from any and all obligations in respect of the debt
securities of that series (except for certain obligations to register the
transfer or exchange of debt securities of that series, to replace
stolen, lost, destroyed or mutilated debt securities of that series, to
maintain paying agencies and to hold monies for payment in trust); or
. may omit to comply with the provisions of the senior indenture described
above under the captions "Limitations on Liens," and "Limitations on Sale
and Lease-Back Transactions,"
if we deposit with the trustee, in trust, money or government obligations which
will provide sufficient funds to pay the principal of (and premium, if any) and
interest on the debt securities of that series on the dates those payments are
due. To exercise either of the options, we must deliver to the applicable
trustee an opinion of counsel to the effect that holders of the debt securities
of that series will not recognize income, gain or loss for federal income tax
purposes as a result of the deposit, satisfaction and discharge, or defeasance
and will be subject to federal income tax on the same amount and in the same
manner and at the same times, as would have been the case if the deposit,
defeasance and discharge had not occurred. (Sections 10.2(a) and (b))
If we choose to exercise our option not to comply with the provisions of the
senior indenture described above under the captions "Limitations on Liens," and
"Limitations on Sale and Lease-Back Transactions," or any other covenants in
the applicable indenture with respect to any series of debt securities and that
series is declared due and payable because of the occurrence of an event of
default other than a default under these provisions of the indentures, then the
amount of money and government obligations on deposit with the trustee will be
sufficient to pay amounts payable on the series of debt securities on the due
date without acceleration, but may not be sufficient to pay amounts due at the
time of the acceleration resulting from the event of default. However, we would
remain liable for those payments. Moreover, even if we do successfully exercise
the option described in the second bullet point above, our obligations under
the senior indenture and the senior debt securities of that series will
continue, other than the covenants referred to in the second bullet point and
the events of default not related to those covenants. (Section 10.1)
Applicable Law
The debt securities and the indentures will be governed by, and construed in
accordance with, the laws of the State of New York. (Section 11.8)
Concerning the Trustee
The Bank of New York is the trustee under the senior indenture. The trustee
may provide various commercial banking services to us from time to time. The
trustee under the subordinated indenture will be described in the prospectus
supplement.
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DESCRIPTION OF COMMON STOCK
We may issue shares of our common stock and the associated preferred stock
purchase rights separately or together with or upon conversion of or exchange
for other securities, all as set forth in the applicable prospectus supplement.
The following summaries do not purport to be complete and are subject to, and
are qualified in their entirety by reference to, the following documents:
. our restated certificate of incorporation, which we refer to as our
charter;
. our by-laws; and
. our Shareholder Rights Agreement, dated as of May 22, 1998, as may
subsequently be amended, between our company and Harris Trust and Savings
Bank, as rights agent, pursuant to which the rights are issued, which we
refer to as our rights agreement.
A copy of each of our charter, by-laws and rights agreement are incorporated by
reference as exhibits. Please refer to "Where You Can Find More Information."
Authorized and Outstanding Stock
The total amount of the authorized capital stock of Dean Foods consists of
150,000,000 shares, $1.00 par value per share, of common stock and 10,000,000
shares of series preferred stock, par value $1.00 per share. As of May 28,
2000, 35,512,421 shares of common stock and no shares of preferred stock were
issued and outstanding. Our board of directors is authorized to create and
issue one or more series of preferred stock and to determine the rights and
preferences of each series, to the extent permitted by our charter. The issued
and outstanding shares of common stock are, and any shares of common stock to
be issued on conversion of any series of subordinated debt securities will be,
fully paid and non-assessable. The holders of outstanding shares of the common
stock are entitled to receive dividends, subject to the prior rights of any
outstanding series preferred stock, out of assets legally available therefor at
such times and in such amounts as our board of directors may from time to time
determine. The shares of common stock are neither redeemable nor convertible.
The holders of common stock have no preemptive or subscription rights to
purchase any of our securities.
Each outstanding share of common stock is entitled to one vote on all
matters submitted to a vote of stockholders. There is no cumulative voting. The
board of directors is expressly authorized to adopt, amend or repeal our by-
laws in any manner not inconsistent with the laws of the State of Delaware or
our charter. The board of directors authority with respect to the by-laws is
subject to the power of the stockholders to adopt, amend or repeal the by-laws.
Stockholder action to adopt, amend or repeal the by-laws requires the action of
holders of at least 80% of the shares of common stock entitled to vote
generally in the election of directors, which we refer to as "voting stock." We
may in our by-laws confer powers and authorities upon our board of directors in
addition to those conferred upon it by statute.
Upon any liquidation, dissolution or winding up, whether voluntary or
involuntary, our remaining net assets will be distributed pro rata to the
holders of the common stock.
Certain Provisions of the Restated Certificate of Incorporation and By-laws
The following summary of certain provisions of our charter and by-laws does
not purport to be complete and is subject to and qualified in its entirety by
reference to our charter and by-laws, which we have filed as exhibits to the
registration statement and which we have incorporated by reference.
Our charter provides that we are required to indemnify each of our officers
and directors to the fullest extent permitted by applicable law. Our charter
also provides that, to the fullest extent permitted by the Delaware General
Corporation Law, a director of Dean Foods shall not be liable to us or our
stockholders for monetary damages for breach of fiduciary duty as a director.
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Our charter and by-laws contain provisions that are intended to enhance the
likelihood of continuity and stability in the composition of our board of
directors and which may have the effect of delaying, deferring or preventing a
future takeover or change in control of Dean Foods unless the takeover or
change in control is approved by our board of directors. These provisions may
also render the removal of our current board of directors and management more
difficult.
Pursuant to our charter, our board of directors is divided into three
classes serving staggered three-year terms. Directors can be removed from
office only for cause as provided under the Delaware General Corporation Law
and only by the affirmative vote of the holders of a majority of the shares of
common stock voting at a duly convened meeting. Vacancies on our board of
directors may be filled by the remaining directors.
Our charter also provides that in the case of specified mergers, sales of
assets, issuances of securities, liquidations or dissolutions, or
reclassifications or recapitalizations involving holders of stock representing
5% or more of the voting power (a "related entity") of the then outstanding
voting stock, the transactions must be approved by at least 80% of the combined
voting power of the then outstanding voting stock, unless
. the transaction would not otherwise require a vote of stockholders,
. our board of directors shall have approved, by resolution, a memorandum
of understanding substantially consistent with the transaction prior to
the time any party to the transaction became a related entity or an
affiliate of a related entity, or
. each party to the transaction other than us is a corporation of which the
majority of the outstanding voting shares of common stock are owned by
us.
Our charter provides that the affirmative vote of the holders of at least
80% of the total votes eligible to be cast in the election of directors is
required to amend, alter, change or repeal these provisions.
The requirement of a supermajority vote to approve specified corporate
transactions and specified amendments to our charter could enable a minority of
our stockholders to exercise veto powers over those transactions and
amendments.
Special meetings of stockholders may be called only by the chairman of our
board of directors or our president, and must be called by our secretary at the
request in writing of either a majority of the board of directors or the
holders of at least 80% of the outstanding voting stock. Our charter provides
that stockholders may act only at an annual or special meeting and stockholders
may not act by written consent unless such consent is signed by the holders of
at least 80% of the outstanding voting stock.
Certain Anti-Takeover Provisions of Delaware Law
We are a Delaware corporation and are therefore subject to Section 203 of
the Delaware General Corporation Law. In general, Section 203 prevents an
"interested stockholder" (defined generally as a person owning 15% or more of
our outstanding voting stock) from engaging in a "business combination" (as
defined in Section 203) with us (or our majority-owned subsidiaries) for three
years following the time that person became an interested stockholder unless:
. before the person became an interested stockholder, our board of
directors approved the transaction in which the interested stockholder
became an interested stockholder or approved the business combination;
. upon consummation of the transaction that resulted in the interested
stockholder becoming an interested stockholder, the interested
stockholder owns at least 85% of our voting stock outstanding at the time
the transaction commenced (excluding stock held by directors who are also
our officers and by employee stock plans that do not provide employees
with the rights to determine confidentially whether shares held subject
to the plan will be tendered in a tender or exchange offer); or
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. at or following the transaction in which the person became an interested
stockholder, the business combination is approved by our board of
directors and approved at a meeting of stockholders by the affirmative
vote of the holders of at least two-thirds of our outstanding voting
stock not owned by the interested stockholder.
Under Section 203, the restrictions described above also do not apply to
certain business combinations proposed by an interested stockholder following
the earlier of the announcement or notification of one of certain extraordinary
transactions involving us and a person who had not been an interested
stockholder during the previous three years or who became an interested
stockholder with the approval of a majority of our directors, if the
extraordinary transaction is approved or not opposed by a majority of the
directors who were directors prior to any person becoming an interested
stockholder during the previous three years or were recommended for election or
elected to succeed these directors by a majority of those directors.
Rights Plan
On May 22, 1998, our board of directors declared a dividend of one preferred
share purchase right for each outstanding share of common stock. The dividend
was payable on August 10, 1998 to the stockholders of record on that date. Each
right entitles the registered holder to purchase from us one one-thousandth of
a share of Junior Participating Preferred Stock, Series A, par value $1.00 per
share, at a price of $200.00 per one one-thousandth of a preferred share,
subject to adjustment. The description and terms of the rights are set forth in
a rights agreement dated as of May 22, 1998, between us and Harris Trust and
Savings Bank, as Rights Agent.
Initially, the rights attached to the outstanding shares of common stock
without a separate distribution of rights certificates. The rights will detach
from the outstanding shares of common stock and separate rights certificates
will be issued when there is a distribution date. A "distribution date" will
occur on
. the tenth day after the date it is publicly announced that an acquiring
person, together with persons affiliated or associated with the acquiring
person, other than those that are exempt persons, has acquired, or has
obtained the right to acquire, beneficial ownership of 15% or more of the
outstanding common stock (which we refer to as a "triggering event"), or
. if earlier, the tenth business day after the commencement or public
disclosure of an intention to commence a tender offer or exchange offer
(other than a "permitted offer" as described below) by a person other
than an exempt person if, upon consummation of the offer, such person
could acquire beneficial ownership of 15% or more of the outstanding
common stock.
An "acquiring person" is a person or group that beneficially owns or has
obtained the right to beneficially own, 15% or more of our outstanding common
stock.
Until the distribution date or the earlier redemption, exchange or
expiration of the rights, the rights will only be transferred with the common
stock, and the surrender for transfer of any certificate for common stock will
also constitute the transfer of the rights associated with such common stock.
As soon as practicable following the distribution date, separate certificates
evidencing the rights will be mailed to holders of record of the common stock
as of the close of business on the distribution date, and the separate right
certificates alone will evidence the rights.
The rights will first become exercisable after the distribution date unless
sooner redeemed or exchanged. Until a right is exercised, the holder of a right
will have no rights as a stockholder, including, without limitation, the right
to vote or to receive dividends. The rights will expire at the close of
business on August 10, 2008, unless earlier redeemed or exchanged by us as
described below.
In the event that a person becomes an acquiring person, each right other
than rights that are or were beneficially owned by the acquiring person and
related persons and transferees, which will thereafter be void, shall
thereafter be exercisable not for preferred shares, but for a number of shares
of common stock or, in
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certain cases, common equivalent shares, having a market value of two times the
exercise price of the right. In the event that, at or after the time a person
becomes an acquiring person, we are involved in a merger or other business
combination in which
. we are not the surviving corporation,
. common stock is changed or exchanged, or
. 50% of more of our consolidated assets or earning power are sold,
then each right, other than rights that are or were owned by the acquiring
person and certain related persons or transferees, which will thereafter be
void, shall thereafter be exercisable for the number of shares of common stock
of the acquiring company which at the time of the transaction have a market
value of two times the exercise price of the right.
In addition, at any time after a person becomes an acquiring person and
before a person has acquired beneficial ownership of 50% or more of the
outstanding common shares, we may elect to exchange all or part of the rights
for common shares or, in certain cases, common equivalent shares, on a one-for-
one basis, excluding void rights held by an acquiring person and certain
related persons and transferees. We also have the ability, following any person
becoming an acquiring person, to permit a cashless exercise of the rights by
reducing both the purchase price and the number of common shares or common
equivalent shares deliverable upon exercise of the rights.
The purchase price payable, and the number and kind of securities, cash or
other property issuable, upon exercise of the rights are subject to adjustment
from time to time to prevent dilution
. in the event of a stock dividend or distribution on, or a subdivision or
combination of, the common shares,
. upon the grant to holders of the common shares of rights, options or
warrants to subscribe for common shares or securities convertible into
common shares at less than the current market price,
. upon the distribution to holders of the common shares of securities,
cash, evidence of indebtedness or assets, other than regular periodic
cash dividends out of earnings or retained earnings, and
. in connection with recapitalizations of Dean Foods or reclassifications
of the common shares.
No fractional preferred shares will be issued, other than fractions which
are integral multiples of one one-thousandth of a preferred share, which may,
at our election, be evidenced by depositary receipts. Instead, an adjustment in
cash will be made based on the market price of the preferred shares on the last
trading date prior to the date of exercise.
At any time prior to the earlier of (1) the occurrence of a triggering event
and (2) the expiration date, our board of directors may redeem the rights in
whole, but not in part, at a price of $.01 per right. The redemption price will
be payable in cash, shares, including fractional shares, of common stock or any
other form of consideration deemed appropriate by the board of directors.
Immediately upon action of the board of directors ordering redemption of the
rights, the ability of holders to exercise the rights will terminate and the
holders will only have the right to receive the redemption price.
At any time prior to the occurrence of a triggering event, our board of
directors may amend or supplement the rights agreement or the terms of the
rights without the approval of the rights agent or any holder of the rights.
After the occurrence of a triggering event, our board of directors may not
change the rights agreement or the terms of the rights in any manner which
would adversely affect the interests of the holders of the rights, other than
an acquiring person or an affiliate or associate of that acquiring person.
The preferred shares purchasable upon exercise of the rights will not be
redeemable. Each preferred share will be entitled to a minimum preferential
quarterly dividend payment equal to the greater of $20 per share and 1,000
times the dividend declared per common share. In the event of liquidation, the
holders of the preferred
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shares will be entitled to a minimum preferential liquidation payment equal to
the greater of $100 per share and 1,000 times the payment made per common
share. Each preferred share will have 1,000 votes per share, voting together
with the common shares. In the event of any merger, consolidation or other
transaction in which common shares are exchanged, each preferred share will be
entitled to receive 1,000 times the amount received per common share.
The rights have certain anti-takeover effects. The rights may cause
substantial dilution to a person or group that attempts to acquire us on terms
not approved by our board of directors, except pursuant to an offer conditioned
on a substantial number of rights being acquired. However, the rights should
not interfere with any merger or other business combination approved by the
board of directors prior to the occurrence of a triggering event, because until
that time the rights may generally be redeemed by us at a price of $.01 per
right.
Until a right is exercised, the holder will have no rights as a stockholder
of Dean Foods, including, without limitation, the right to vote or to receive
dividends.
A copy of the rights agreement has been filed with the SEC as an exhibit to
the Registration Statement on Form 8-A dated August 4, 1998. A copy of the
rights agreement is available free of charge from us. This summary description
of the rights does not purport to be complete and is qualified in its entirety
by reference to the rights agreement, which is filed as an exhibit to the
registration statement and is incorporated by reference.
DESCRIPTION OF PREFERRED STOCK
Our board of directors has authorized the issuance in series of shares of
preferred stock and has authorized a committee of the board of directors to
establish and designate series and to fix the number of shares and the relative
rights, preferences and limitations of the respective series of the preferred
stock offered by this prospectus and the applicable prospectus supplement. The
shares of offered preferred stock, when issued and sold, will be fully paid and
nonassessable.
Terms. We describe below some general terms and provisions of the offered
preferred stock. The number of shares and all of the relative rights,
preferences and limitations of a series of offered preferred stock established
by the board of directors or a duly authorized committee of the board will be
described in the applicable prospectus supplement. The terms of particular
series of offered preferred stock may differ, among other things, in:
. designation;
. number of shares that constitute the series;
. dividend rate, or the method of calculating the dividend rate;
. dividend periods, or the method of calculating the dividend periods;
. redemption provisions, including whether or not, on what terms and at
what prices the shares will be subject to redemption at our option;
. voting rights;
. preferences and rights upon liquidation or winding up;
. whether or not and on what terms the shares will be convertible into or
exchangeable for shares of any other class, series or security of Dean
Foods or any other corporation or any other property;
. whether depositary shares representing the offered preferred stock will
be offered and, if so, the fraction or multiple of a preferred share that
each depositary share will represent; and
. the other rights and privileges and any qualifications, limitations or
restrictions of those rights or privileges.
We have summarized below the material provisions of a certificate of
designation authorizing the issuance of any series of offered preferred stock.
This summary is not complete. A copy of the applicable certificate of
designation will be filed in an amendment to the registration statement of
which this prospectus is a part or
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filed in a Current Report on Form 8-K and incorporated by reference into the
registration statement of which this prospectus is a part. For further
information about the terms of the offered preferred stock, you should read the
form of certificate of designation. The board of directors or a duly authorized
committee of the board of directors will adopt the resolutions to be included
in the certificate of designation prior to the issuance of a series of offered
preferred stock, and the certificate of designation will be filed with the
Secretary of State of the State of Delaware as soon thereafter as reasonably
practicable.
Rank. Each series of offered preferred stock will rank, with respect to
voting powers, preferences or relative, participating, optional and other
special rights, including with respect to the payment of dividends and the
distribution of assets, whether upon liquidation or otherwise:
. junior to any series of capital stock of Dean Foods expressly stated to
be senior to that series of offered preferred stock;
. senior to the common stock of Dean Foods and any class of capital stock
of Dean Foods expressly stated to be junior to that series of offered
preferred stock; and
. on a parity with each other series of outstanding preferred stock and all
other classes of capital stock of Dean Foods.
Dividends. If described in the applicable prospectus supplement, we will pay
cumulative cash dividends to the holders of offered preferred stock, when and
as declared by the board of directors or the committee out of funds legally
available for payment. The prospectus supplement will detail the annual rate of
dividends or the method or formula for determining or calculating them, and the
payment dates and payment periods for dividends. The board of directors or the
committee will fix a record date for the payment of dividends not more than 60
nor less than 10 days preceding the dividend payment date. We will pay
dividends on the offered preferred stock to the holders of record on that
record date. Unless otherwise specified, dividends will be cumulative from the
date of original issue of the series. A series of offered preferred stock will
be junior as to payment of dividends to any series of preferred stock that may
be issued in the future that is expressly stated to be senior as to payment of
dividends to that series. If at any time we have failed to pay accrued
dividends on any of those senior shares when payable, we may not pay any
dividend on a junior series of offered preferred stock or redeem or otherwise
repurchase any shares of a junior series until we have paid or set aside for
payment the full amount of the accumulated but unpaid dividends on the senior
shares.
We will not declare, pay or set aside for payment any dividends on any
preferred stock ranking on a parity as to payment of dividends with the offered
preferred stock unless we declare, pay or set aside for payment, dividends on
all the outstanding shares of offered preferred stock for all dividend payment
periods ending on or before the dividend payment date for any parity stock. We
must declare, pay or set aside for payment any amounts on the offered preferred
stock ratably in proportion to the respective amounts of dividends (1)
accumulated and unpaid or payable on that parity stock, on the one hand, and
(2) accumulated and unpaid or payable through the dividend payment period or
periods of the offered preferred stock next preceding the dividend payment
date, on the other hand.
Except as described above, unless we have paid the full cumulative dividends
on the outstanding shares of offered preferred stock, we may not take any of
the following actions with respect to our common stock or any other preferred
stock of Dean Foods ranking junior or on parity with the offered preferred
stock as to dividend payments:
. declare, pay or set aside for payment any dividends, other than dividends
payable in our common stock;
. make other distributions;
. redeem, purchase or otherwise acquire our common stock or any junior
preferred stock for any consideration; or
. make any payment to or available for a sinking fund for the redemption of
our common stock or any junior preferred stock.
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The provisions of the immediately preceding paragraph will not apply to any
monies we deposit in any sinking fund with respect to any preferred stock in
compliance with the provisions of the sinking fund. We may apply monies so
deposited to the purchase or redemption of the preferred stock in accordance
with the terms of the sinking fund, regardless of whether at the time of
application we have paid or declared and set aside for payment full cumulative
dividends upon shares of the offered preferred stock outstanding on the last
dividend payment date for any series of offered preferred stock. The provisions
of the immediately preceding paragraph also do not restrict the ability of a
holder of any junior or parity preferred stock or common stock to convert those
securities into or exchange those securities for Dean Foods capital stock
ranking junior to the offered preferred stock as to dividend payments.
We will compute the amount of dividends payable for the initial dividend
period or any period shorter than a full dividend period on the basis of a 360-
day year of twelve 30-day months, unless otherwise indicated in the prospectus
supplement. Accrued but unpaid dividends will not bear interest.
Redemption. The prospectus supplement will indicate whether, and on what
terms, shares of any series of offered preferred stock will be subject to
mandatory redemption or sinking fund provision. The prospectus supplement will
also indicate whether, and on what terms, we may redeem shares of the offered
preferred stock, including the date on or after which redemption may occur. We
will effect any optional redemption upon not less than 30 days' notice at a
redemption price of not less than the stated value per share of the applicable
series of offered preferred stock plus accrued and accumulated but unpaid
dividends up to but excluding the date fixed for redemption. If we have not
paid full cumulative dividends on all outstanding shares of offered preferred
stock we may not partially redeem any shares of offered preferred stock and we
may not purchase or acquire any shares of offered preferred stock, other than
by a purchase or exchange offer made on the same terms to all holders of the
offered preferred stock. If fewer than all the outstanding shares of a series
of offered preferred stock are to be redeemed, we will select those to be
redeemed by lot or by a substantially equivalent method.
Liquidation Rights. In the event of any liquidation, dissolution or winding
up of Dean Foods, the holders of shares of offered preferred stock will be
entitled to receive, out of the assets of Dean Foods available for distribution
to stockholders, liquidating distributions in an amount equal to the stated
value per share of offered preferred stock, as described in the applicable
prospectus supplement, plus accrued and accumulated but unpaid dividends to the
date of final distribution, before any distribution is made to holders of
. any other shares of preferred stock ranking junior to the offered
preferred stock as to rights upon liquidation, dissolution or winding up
or
. our common stock.
However, holders of the shares of offered preferred stock will not be
entitled to receive the liquidation price of their shares until we have paid or
set aside an amount sufficient to pay in full the liquidation preference of any
other shares of Dean Foods' capital stock ranking senior as to rights upon
liquidation, dissolution or winding up. Neither a consolidation or merger of
Dean Foods with or into another corporation nor a merger of another corporation
with or into Dean Foods nor a sale or transfer of all or part of Dean Foods'
assets for cash or securities will be considered a liquidation, dissolution or
winding up of Dean Foods.
If upon any liquidation, dissolution or winding up of Dean Foods, we have
not paid the amounts payable with respect to the offered preferred stock and
any other preferred stock ranking on parity with the offered preferred stock as
to rights upon liquidation, dissolution or winding up, the holders of the
offered preferred stock and of that other preferred stock will share ratably in
any distribution in proportion to the full respective preferential amounts to
which they are entitled. After we have paid the full amount of the liquidating
distribution to which they are entitled, the holders of the offered preferred
stock will not be entitled to any further participation in any distribution of
assets by Dean Foods.
Voting Rights. Unless otherwise determined by our board of directors and
indicated in the prospectus supplement, holders of the offered preferred stock
will not have any voting rights except as described below or as otherwise
required by law. Whenever dividends on any shares of offered preferred stock or
any other class
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or series of stock ranking on a parity with the offered preferred stock with
respect to the payment of dividends are in arrears for dividend periods,
whether or not consecutive, containing in the aggregate a number of days
equivalent to six calendar quarters, the holders of shares of offered preferred
stock, voting separately as a class with all other series of preferred stock
having similar voting rights that are exercisable, will be entitled to vote for
the election of two of the authorized number of directors of Dean Foods at the
next annual meeting of stockholders and at each subsequent meeting until we
have paid or set apart for payment all dividends accumulated on the offered
preferred stock. The term of office of all directors elected by the holders of
preferred stock will terminate immediately upon the termination of the right of
the holders of preferred stock to vote for directors. Each holder of shares of
the offered preferred stock will have one vote for each share of offered
preferred stock held.
So long as any shares of the offered preferred stock remain outstanding, we
will not, without the consent of the holders of at least two-thirds of the
shares of each series of offered preferred stock outstanding at the time
. issue or increase the authorized amount of any class or series of stock
ranking senior to the outstanding offered stock as to dividends or upon
liquidation, or
. amend, alter or repeal the provisions of our charter or of the
resolutions contained in the certificate of designation, whether by
merger, consolidation or otherwise, so as to materially and adversely
affect any power, preference or special right of the outstanding offered
preferred stock or their holders.
Holders of the offered preferred stock will vote separately as a class with all
other series of preferred stock having similar voting rights. For purposes of
the preceding sentence, any increase in the amount of the authorized common
stock or authorized preferred stock or the creation and issuance of other
series of common stock or preferred stock ranking on a parity with or junior to
the offered preferred stock as to dividends and upon liquidation will not be
considered to materially and adversely affect those powers, preferences or
special rights.
Agents and Registrar for Offered Preferred Stock. The transfer agent,
dividend disbursing agent and registrar for each series of offered preferred
stock will be set forth in the applicable prospectus supplement.
Depositary Shares
We may, at our option, elect to offer fractional shares or some multiple of
shares of offered preferred stock, rather than individual shares of offered
preferred stock. If we choose to do so, we will issue depositary receipts for
depositary shares, each of which will represent a fraction or a multiple of a
share of a particular series of offered preferred stock.
DESCRIPTION OF DEBT WARRANTS
We may issue warrants for the purchase of debt securities together with
other securities or separately. We will issue debt warrants under debt warrant
agreements to be entered into between us and a bank or trust company, as debt
warrant agent, all as set forth in the applicable prospectus supplement. The
debt warrant agent will act solely as our agent in connection with any series
of debt warrants and will not assume any obligations or relationship of agency
or trust for or with any holders or beneficial owners of the debt warrants. A
copy of any debt warrant agreement, including the form of warrant certificates
representing the debt warrants, will be filed in an amendment to the
registration statement of which this prospectus is a part or filed in a Current
Report on Form 8-K and incorporated by reference in the registration statement
of which this prospectus is a part. Because the following is only a summary of
the debt warrant agreements and the debt warrant certificates, it does not
contain all of the information that you may find useful. For further
information about the debt warrant agreements and the debt warrant
certificates, you should read the debt warrant agreements and the debt warrant
certificates.
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General
You should look in the accompanying prospectus supplement for the following
terms of any offered debt warrants:
. the designation, aggregate principal amount and terms of the debt
securities purchasable upon exercise of the debt warrants and the
procedures and conditions relating to the exercise of the debt warrants;
. the specific designation and terms of any related debt securities with
which the debt warrants are issued and the number of debt warrants issued
with each related debt security;
. the date, if any, on and after which the debt warrants and the related
debt securities will be separately transferable;
. the principal amount of debt securities purchasable upon exercise of each
debt warrant and the price at which the principal amount of debt
securities may be purchased upon exercise of each debt warrant;
. the date on which the right to exercise the debt warrants commences and
the date on which the right expires;
. if the debt securities purchasable upon exercise of the debt warrants are
original issue discount debt securities, a discussion of the applicable
federal income tax considerations; and
. whether the debt warrants represented by the debt warrant certificates
will be issued in registered or bearer form, and, if registered, where
they may be transferred and registered.
Debt warrant certificates will be exchangeable for new debt warrant
certificates of different denominations and debt warrants may be exercised at
the corporate trust office of the debt warrant agent or any other office
indicated in the applicable prospectus supplement. Prior to the exercise of
their debt warrants, holders of debt warrants will not have any of the rights
of holders of the debt securities purchasable upon exercise of the debt
warrant, including the right to receive any payments on the debt securities.
Exercise of Debt Warrants
Each debt warrant will entitle the holder to purchase for cash the principal
amount of debt securities at the exercise price as shall in each case be set
forth in, or to be determinable as set forth in, the applicable prospectus
supplement. Debt warrants may be exercised at any time up to the close of
business on the expiration date set forth in the applicable prospectus
supplement. After the close of business on the expiration date, unexercised
debt warrants will become void.
Debt warrants may be exercised as set forth in the applicable prospectus
supplement. Upon receipt of payment and the debt warrant certificate properly
completed and duly executed at the corporate trust office of the debt warrant
agent or any other office indicated in the applicable prospectus supplement, we
will, as soon as practicable, forward the purchased debt securities to the
holder. If less than all of the debt warrants represented by the debt warrant
certificate are exercised, a new debt warrant certificate will be issued for
the remaining amount of the debt warrants.
DESCRIPTION OF STOCK WARRANTS
We may issue, together with other securities or separately, stock warrants
for the purchase of our common stock. We will issue stock warrants under stock
warrant agreements to be entered into between us and a bank or trust company,
as stock warrant agent, all as set forth in the applicable prospectus
supplement. The stock warrant agent will act solely as our agent in connection
with any series of stock warrants and will not assume any obligations or
relationship of agency or trust for or with any holders or beneficial owners of
stock warrants. A copy of any stock warrant agreements, including the form of
warrant certificate representing the stock warrants, will be filed in an
amendment to the registration statement of which this prospectus is a part or
filed in a Current Report on Form 8-K and incorporated by reference in the
registration statement of which this
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prospectus is a part. Because the following is only a summary of the stock
warrant agreements and stock warrant certificates it does not contain all of
the information that you may find useful. For further information about the
stock warrant agreements and the stock warrant certificates, you should read
the stock warrant agreements and the stock warrant certificates.
General
If we offer warrants for the purchase of common stock, the applicable
prospectus supplement will describe their terms, which may include the
following:
. the offering price of the stock warrants, if any;
. the procedures and conditions relating to the exercise of the stock
warrants;
. the number of shares of common stock purchasable upon exercise of each
stock warrant and the initial price at which the common shares may be
purchased upon exercise;
. the date on which the right to exercise the stock warrants shall commence
and the date on which the right shall expire;
. a discussion of Federal income tax considerations applicable to the
exercise of stock warrants;
. call provisions of the stock warrants, if any; and
. any other terms of the stock warrants.
The shares of common stock issuable upon the exercise of the stock warrants
will, when issued in accordance with the stock warrant agreement, be validly
issued, fully paid and nonassessable.
Prior to the exercise of their stock warrants, holders of stock warrants
will not have any of the rights of holders of the common stock, including any
dividend payments on the common stock.
Exercise of Stock Warrants
Each stock warrant will entitle the holder to purchase for cash the number
of shares of common stock at the exercise price as described in the applicable
prospectus supplement. Unless otherwise specified in the applicable prospectus
supplement, stock warrants may be exercised at any time up to the close of
business on the expiration date set forth in the applicable prospectus
supplement. After the close of business on the expiration date, unexercised
stock warrants will become void.
Stock warrants may be exercised as set forth in the applicable prospectus
supplement. Upon receipt of payment and the stock warrant certificates properly
completed and duly executed at the corporate trust office of the stock warrant
agent or any other office indicated in the applicable prospectus supplement, we
will, as soon as practicable, forward a certificate representing the number of
shares of common stock to the holder. If less than all of the stock warrants
represented by such stock warrant certificate are exercised, a new stock
warrant certificate will be issued for the remaining amount of stock warrants.
Anti-Dilution Provisions
Unless otherwise specified in the applicable prospectus supplement, the
exercise price payable and the number of common shares purchasable upon the
exercise of each stock warrant will be subject to adjustment in certain events,
including:
. the issuance of a stock dividend to holders of common stock or a
combination, subdivision or reclassification of common stock;
. the issuance of rights, warrants or options to all holders of common
stock entitling the holders thereof to purchase common stock for an
aggregate consideration per share less than the current market price per
share of the common stock; or
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. any distribution by us to the holders of our common stock of evidences of
our indebtedness or of assets (excluding cash dividends or distributions
payable out of capital surplus and dividends and distributions referred
to in the first bullet point above).
No fractional shares will be issued upon exercise of stock warrants, but we
will pay the cash value of any fractional shares otherwise issuable.
PLAN OF DISTRIBUTION
We may sell the securities in any of four ways:
. directly to purchasers;
. through agents;
. through dealers; or
. through one or more underwriters or a syndicate of underwriters in an
underwritten offering.
With respect to each series of securities, the terms of any offering,
including the name or names of any underwriters, dealers or agents, the
purchase price of those securities and the proceeds to us from that sale, any
underwriting discounts, selling commissions and other items constituting
underwriters', dealers', or agents' compensation, any initial public offering
price and any discounts or concessions allowed or reallowed or paid to dealers
or agents, and any securities exchanges on which the securities of that series
may be listed, will be set forth in, or may be calculated from the information
set forth in, the related prospectus supplement. Underwriters named in the
prospectus supplement are deemed to be underwriters only in connection with the
securities offered by that prospectus supplement.
If we sell securities through underwriters, the underwriters will acquire
the securities for their own account. The securities may be resold from time to
time in one or more transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time of sale. The
securities may be offered to the public either through underwriting syndicates
represented by managing underwriters or by underwriters without a syndicate.
Unless otherwise set forth in the applicable prospectus supplement, the
obligations of the underwriters to purchase securities will be subject to
certain conditions precedent and the underwriters will be obligated to purchase
all the securities offered by the prospectus supplement if any of those
securities are purchased. Any initial public offering price and any discounts
or concessions allowed or reallowed or paid to dealers may be changed from time
to time.
We may also sell the securities directly or through agents (which may also
act as principals) which we may designate from time to time. Any agent involved
in the offer or sale of the securities with regard to which this prospectus is
delivered will be named, and any commissions we may pay to that agent will be
set forth in, or may be calculated from the information set forth in, the
applicable prospectus supplement. Unless otherwise indicated in the applicable
prospectus supplement, any such agent will be acting on a best efforts basis
for the period of its appointment. In the case of sales we may directly make,
no commission will be payable.
If so indicated in a prospectus supplement, we will authorize agents,
underwriters or dealers to solicit offers by certain specified institutions to
purchase securities from us at the public offering price set forth in that
prospectus supplement pursuant to delayed delivery contracts providing for
payment and delivery on a future date specified in the prospectus supplement.
Those contracts will be subject to the conditions set forth in the prospectus
supplement, and the prospectus supplement will set forth the commissions
payable for solicitation of those contracts.
Agents and underwriters may be entitled under agreements entered into with
us to indemnification by us against certain civil liabilities, including
liabilities under the Securities Act, or to contribution with respect to
payments which the agents or underwriters may be required to make with respect
to those liabilities. Agents and underwriters may be customers of, engage in
transactions with, or perform services for us or our affiliates in the ordinary
course of business.
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In the event that the securities of any series are not listed on a national
securities exchange, certain broker-dealers may make a market in the securities
of that series, but will not be obligated to do so and may discontinue any
market making at any time without notice. We can give no assurance that any
broker-dealer will make a market in the securities or as to the liquidity of
the trading market for the securities. The prospectus supplement with respect
to the securities of any series will state, if known, whether or not any
broker-dealer intends to make a market in those securities. If no such
determination has been made, the prospectus supplement will so state.
LEGAL MATTERS
The validity of the issuance of the securities offered hereby will be passed
upon for us by Kirkland & Ellis, Chicago, Illinois, special counsel to us.
Certain legal matters in connection with the securities offered hereby will be
passed upon for the underwriters, if any, by Sidley & Austin, Chicago,
Illinois.
EXPERTS
The financial statements incorporated in this prospectus by reference to the
Annual Report on Form 10-K of Dean Foods Company for the year ended May 30,
1999, have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following is an estimate, subject to future contingencies, of the
expenses to be incurred by us in connection with the issuance and distribution
of the securities being registered:
<TABLE>
<S> <C>
Registration Fee*............................................... $171,600
Rating Agency Fees.............................................. 133,000
Legal Fees and Expenses......................................... 50,000
Trustee Fees and Expenses....................................... 10,000
Accounting Fees and Expenses.................................... 2,000
Blue Sky Fees and Expenses...................................... 10,000
Printing Fees................................................... 30,000
Miscellaneous................................................... 8,400
--------
Total....................................................... $415,000
========
</TABLE>
--------
* Actual. All other amounts are estimated pursuant to instruction to Item 511
of Regulation S-K.
Item 15. Indemnification of Directors and Officers
We are incorporated under the laws of the State of Delaware. Section 145 of
the Delaware General Corporation Law provides that a Delaware corporation may
indemnify any persons who were, are or are threatened to be made, parties to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of such corporation), by reason of the fact that such person is or was an
officer, director, employee or agent of such corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding, provided such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the corporation's best interests
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe that his conduct was illegal. A Delaware corporation may indemnify
any persons who are, were or are threatened to be made, a party to any
threatened, pending or completed action or suit by or in the right of the
corporation by reason of the fact that such person was a director, officer,
employee or agent of such corporation, or is or was serving at the request of
such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including
attorney's fees) actually and reasonably incurred by such person in connection
with the defense or settlement of such action or suit, provided such person
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the corporation's best interests, provided that no indemnification
is permitted without judicial approval if the officer, director, employee or
agent is adjudged to be liable to the corporation. Where an officer, director,
employee or agent is successful on the merits or otherwise in the defense of
any action referred to above, the corporation must indemnify him against the
expenses that such officer or director has actually and reasonably incurred.
Article XIII of our by-laws provides for the indemnification of officers,
directors and others against losses as a result of acting on our behalf.
We also maintain directors and officers liability and corporate
reimbursement insurance which provides for coverage against loss arising from
claims made against directors and officers in their capacity as such. The
general scope of coverage is any breach of duty, neglect, error, misstatement,
misleading statement or omission. Such policy does not exclude liabilities
under the Securities Act of 1933.
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The form of underwriting agreement to be included as an exhibit to this
registration statement will provide for indemnification of our directors and
officers against certain liabilities.
Item 16. Exhibits
See Exhibit Index.
Item 17. Undertakings
(a) 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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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 (a)(1)(i) and (a)(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 with or furnished
to the Commission 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 purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The 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 section 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the 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
II-2
<PAGE>
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.
(d) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Securities and Exchange Commission
under Section 305(b)(2) of the Trust Indenture Act.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement, or amendment thereto, to be signed on its behalf by the
undersigned, duly authorized, in the Village of Franklin Park, State of
Illinois, on June 23, 2000.
Dean Foods Company
/s/ Howard M. Dean
By: _________________________________
Howard M. Dean
Chairman of the Board and
Chief Executive Officer
Each person whose signature appears below hereby constitutes and appoints
Howard M. Dean and Barbara A. Klein, and each of them (with full power to each
of them to act alone), his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any or all amendments (including
post-effective amendments) to this registration statement, and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed on June 23, 2000 by the following
persons in the capacities indicated:
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Howard M. Dean Chairman of the Board, Chief Executive
___________________________________________ Officer and Director
Howard M. Dean
/s/ Barbara A. Klein Vice President, Finance and Chief Financial
___________________________________________ Officer (Principal Financial and
Barbara A. Klein Accounting Officer)
/s/ Richard E. Bailey President, Chief Operating Officer and
___________________________________________ Director
Richard E. Bailey
/s/ Edward A. Brennan Director
___________________________________________
Edward A. Brennan
/s/ Lewis M. Collens Director
___________________________________________
Lewis M. Collens
/s/ Paula H. Crown Director
___________________________________________
Paula H. Crown
/s/ John P. Frazee, Jr. Director
___________________________________________
John P. Frazee, Jr.
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Bert A. Getz Director
___________________________________________
Bert A. Getz
/s/ Janet Hill Director
___________________________________________
Janet Hill
/s/ John S. Llewellyn, Jr. Director
___________________________________________
John S. Llewellyn, Jr.
/s/ Richard P. Mayer Director
___________________________________________
Richard P. Mayer
/s/ Thomas A. Ravencroft Director
___________________________________________
Thomas A. Ravencroft
/s/ J. Christopher Reyes Director
___________________________________________
J. Christopher Reyes
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
------- ----------------------
<C> <S> <C>
1.1* Form of Senior Debt Securities Underwriting Agreement
1.2* Form of Subordinated Debt Securities Underwriting Agreement
1.3* Form of Common Stock Underwriting Agreement
1.4* Form of Preferred Stock Underwriting Agreement
3.1 Dean Foods Company Restated Certificate of Incorporation dated
February 8, 1988 (filed as Exhibit 3(a) to Registrant's Form
10-K Annual Report for Fiscal Year Ended May 29, 1988 and
incorporated herein by reference)
3.2 By-Laws of Registrant, as amended January 26, 1996 (filed as
Exhibit 3(b) to the Registrant's Form 10-K Annual Report for
Fiscal Year Ended May 26, 1996 and incorporated herein by
reference)
4.1 Form of senior indenture dated as of January 15, 1998, between
Registrant and The Bank of New York, as Trustee (filed as
Exhibit 4.1 to the Registrant's Registration Statement on Form
S-3 (File No. 333-44851) filed on January 23, 1998, and
incorporated herein by reference)
4.2 Form of Senior debt securities (filed as Exhibit 4.2 to the
Registrant's Registration Statement on Form S-3 (File No. 333-
44851) filed on January 23, 1998, and incorporated herein by
reference)
4.3 Form of Subordinated Indenture (filed as Exhibit 4.3 to the
Registrant's Registration Statement on Form S-3 (File No. 333-
44851) filed on January 23, 1998, and incorporated herein by
reference)
4.4 Form of Subordinated debt securities (filed as Exhibit 4.4 to
the Registrant's Registration Statement on Form S-3 (File No.
333-44851) filed on January 23, 1998, and incorporated herein
by reference)
4.5* Form of Debt Warrant Agreement, including Form of Debt Warrant
4.6* Form of Stock Warrant Agreement, including Form of Stock
Warrant
4.7* Form of Certificate of Designation of Preferred Stock
4.8 Rights Agreement dated May 22, 1999 (filed as Exhibit 4(a) to
the Registrant's Form 10-K Annual Report for Fiscal Year Ended
May 30, 1999 and incorporated herein by reference)
5 Opinion of Kirkland & Ellis as to validity of issuance
12.1 Computation of Ratio of Earnings to Fixed Charges
12.2 Computation of Ratio of Earnings to Fixed Charges and
Preferred Stock Dividends
23.1 Consent of PricewaterhouseCoopers LLP
23.2 The consent of Kirkland & Ellis (included in their opinion
filed as Exhibit 5 to this Registration Statement)
24 Power of Attorney (contained on page II-4)
25.1 Form T-1, Statement of Eligibility under the Trust Indenture
Act of 1939 of The Bank of New York (senior securities)
25.2* Form T-1, Statement of Eligibility under the Trust Indenture
Act of 1939 (subordinated securities)
</TABLE>
--------
* To be filed either by amendment or as an exhibit to an Exchange Act Report
and incorporated herein by reference.
