sv3asr
As filed with the Securities and Exchange Commission on
February 28, 2008
Registration
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
DEAN FOODS COMPANY
(Exact name of Registrant as
specified in its charter)
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Delaware
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75-2559681
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(State or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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2515 McKinney Avenue,
Suite 1200
Dallas, Texas 75201
(214) 303-3400
(Address, including zip code,
and telephone number, including area code, of Registrants
principal executive offices)
Steven J. Kemps
Senior Vice President,
General Counsel and Corporate
Secretary
Dean Foods Company
2515 McKinney Avenue,
Suite 1200
Dallas, Texas 75201
(214) 303-3400
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
Copies to
Meredith B. Cross
Erika L. Robinson
Wilmer Cutler Pickering Hale and
Dorr LLP
1875 Pennsylvania Ave.,
N.W.
Washington, D.C.
20006
(202) 663-6000
Approximate date of commencement of proposed sale to the
public: From time to time after the effective
date of this registration statement as determined by the
Registrant.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box. o
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.
þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
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. o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following box.
þ
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box. o
CALCULATION
OF REGISTRATION FEE
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Proposed Maximum
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Amount of
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Title of Each Class of
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Aggregate Offering
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Registration
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Securities to be Registered(1)
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Price(2)
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Fee(3)
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Common Stock, par value $0.01 per share(4)
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(5)
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(5)
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Preferred Stock, par value $0.01 per share
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(5)
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(5)
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Depositary Shares
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(5)
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(5)
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Warrants
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(5)
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(5)
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Stock Purchase Contracts
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(5)
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(5)
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(1)
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An indeterminate amount of the
securities of each identified class is being registered as may
from time to time be offered, reoffered or resold hereunder at
indeterminate prices, along with an indeterminate number of
securities that may be issued upon exercise, settlement,
exchange or conversion of securities offered or sold hereunder.
Separate consideration may or may not be received for securities
that are issuable upon conversion, exercise or exchange of other
securities or that are represented by depositary shares.
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(2)
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The proposed maximum per unit and
aggregate offering prices per class of security will be
determined from time to time by the registrant in connection
with the issuance by the registrant of the securities registered
under this registration statement.
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(3)
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In accordance with
Rules 456(b) and 457(r) under the Securities Act of 1933,
the registrant is deferring payment of all registration fees.
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(4)
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Each share of common stock includes
a Right to purchase one share of common stock. Prior to the
occurrence of certain events, the Rights will not be exercisable
or evidenced separately from the common stock.
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(5)
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Not required to be included in
accordance with General Instruction II.E. of Form S-3.
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Prospectus
DEAN FOODS COMPANY
Common Stock
Preferred Stock
Depositary Shares
Warrants
Stock Purchase
Contracts
Dean Foods Company may offer and sell the securities listed
above from time to time in one or more classes or series and in
amounts, at prices and on terms that we may determine at the
time of the offering. We will provide the specific terms of the
securities in one or more supplements to this prospectus. The
prospectus supplements may also add to, update or change
information contained in this prospectus. In addition, selling
securityholders may sell these securities, from time to time, on
terms described in the applicable prospectus supplement. You
should read this prospectus and any applicable prospectus
supplement carefully before you invest in the securities.
Our common stock is listed on the New York Stock Exchange under
the symbol DF.
We or the selling securityholders may offer and sell these
securities to or through one or more underwriters, dealers and
agents, or directly to purchasers, on a continuous or delayed
basis.
You should consider carefully the risk factors included in
our periodic reports filed with the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as
amended, before you invest in any of our securities.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the accuracy or adequacy of this
prospectus. Any representation to the contrary is a criminal
offense.
The date of this prospectus is February 28, 2008.
TABLE OF
CONTENTS
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ABOUT
THIS PROSPECTUS
This prospectus is part of a shelf registration
statement that we have filed with the Securities and Exchange
Commission (the SEC). By using a shelf registration
statement, we may offer and sell, at any time and from time to
time, in one or more offerings, any combination of the
securities described by this prospectus. This prospectus is a
part of the registration statement and does not contain all the
information in the registration statement. Whenever a reference
is made in this prospectus to a contract or other document of
the Company, the reference is only a summary and you should
refer to the exhibits that are a part of the registration
statement for a copy of the contract or other document. The
registration statement and the exhibits can be obtained from the
SEC as indicated under the heading Where You Can Find More
Information.
This prospectus only provides you with a general description of
the securities we may offer. Each time we sell or issue
securities, we will provide you with a prospectus supplement
and, if applicable, a pricing supplement. The prospectus
supplement and any applicable pricing supplement will describe
the specific amounts, prices and other material terms of the
securities being offered. The prospectus supplement and any
applicable pricing supplement may also add, update or change the
information in this prospectus. The prospectus supplement and
any applicable pricing supplement may also contain information
about any material U.S. federal income tax considerations
relating to the securities described in the prospectus
supplement. You should read this prospectus, the applicable
prospectus supplement and any applicable pricing supplement,
together with the information contained in the documents
referred to under the heading Where You Can Find More
Information before making an investment decision.
You should rely only on the information contained or
incorporated by reference in this prospectus, any accompanying
prospectus supplement or any free writing prospectus filed by us
with the SEC and terms of securities conveyed by us or our
underwriters or agents. We have not authorized anyone else to
provide you with additional or different information.
These securities are only being offered in jurisdictions
where the offer is permitted. You should not assume that the
information contained in this prospectus, any accompanying
prospectus supplement or any free writing prospectus is accurate
as of any date other than their respective dates.
Unless otherwise mentioned or unless the context requires
otherwise, when used in this prospectus, the terms Dean
Foods, we, us and our
refer to Dean Foods Company and its consolidated subsidiaries.
WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. You may read and copy any
document we file with the SEC at the SECs Public Reference
Room at 100 F Street, N.E., Washington, D.C.
20549. You may obtain further information on the operation of
the Public Reference Room by calling the SEC at
1-800-SEC-0330.
Our SEC filings are also available to the public over the
Internet at the SECs web site at
http://www.sec.gov.
Our common stock is listed on the New York Stock Exchange, and
you may inspect our SEC filings at the offices of the New York
Stock Exchange, 20 Broad Street, New York, New York 10005.
The SEC allows us to 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 previously filed documents. The information
incorporated by reference is considered to be part of this
prospectus, unless we update or supersede that information by
the information contained in this prospectus or a prospectus
supplement or by information that we file subsequently that is
incorporated by reference into this prospectus.
We incorporate by reference into this prospectus the following
documents or information filed with the SEC (other than, in each
case, documents or information deemed to have been furnished and
not filed in accordance with SEC rules):
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Annual Report on
Form 10-K
for the year ended December 31, 2007;
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Current Report on
Form 8-K
filed with the SEC on January 24, 2008;
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the description of our common stock contained in
Form 8-A
filed on February 19, 1997, and any amendment or report
filed under the Exchange Act for the purpose of updating such
description;
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the description of our common stock purchase rights
(Rights) contained in
Form 8-A
filed on March 10, 1998, as amended by
Form 8-A/A
filed on May 27, 2004, and any amendment or report filed
under the Exchange Act for the purpose of updating such
description; and
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all documents filed by the Company under Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 on or
after the date of this prospectus and before the termination of
this offering, other than, in each case, documents or
information deemed to have been furnished and not
filed in accordance with SEC rules.
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This prospectus is part of a registration statement we have
filed with the SEC relating to the securities. As permitted by
SEC rules, this prospectus does not contain all of the
information included in the registration statement and the
accompanying exhibits and schedules we file with the SEC. You
may refer to the registration statement, the exhibits and
schedules for more information about us and our securities. The
registration statement, exhibits and schedules are also
available at the SECs Public Reference Room or through its
web site. In addition, we post the periodic reports that we file
with the SEC on our website at
http://www.deanfoods.com.
You may also obtain a copy of these filings, at no cost, by
writing to or telephoning us at the following address:
Dean Foods Company
2515 McKinney Avenue, Suite 1200
Dallas, Texas 75201
(214) 303-3400
Attention: Investor Relations
FORWARD-LOOKING
STATEMENTS
Certain information included or incorporated by reference in
this prospectus, any prospectus supplement or other documents
filed with the SEC may be deemed to be forward-looking
statements within the meaning of the Private Securities
Litigation Reform Act of 1995. All statements other than
statements of historical fact are statements that could be
deemed forward-looking statements, including statements
regarding: projections of revenue, margins, expenses, earnings
from operations, cash flows, synergies or other financial items;
plans, strategies and objectives of management for future
operations, including statements relating to the Companys
potential acquisitions; developments, performance or industry or
market rankings relating to products or services; future
economic conditions or performance; the outcome of outstanding
claims or legal proceedings; assumptions underlying any of the
foregoing; and any other statements that address activities,
events or developments that Dean Foods intends, expects,
projects, believes or anticipates will or may occur in the
future. Forward-looking statements may be characterized by
terminology such as believe, anticipate,
should, would, intend,
plan, will, expects,
estimates, projects,
positioned, strategy, and similar
expressions. These statements are based on assumptions and
assessments made by Dean Foods management in light of its
experience and its perception of historical trends, current
conditions, expected future developments and other factors it
believes to be appropriate. These forward-looking statements are
subject to a number of risks and uncertainties, including but
not limited to the risks and uncertainties described under the
heading Risk Factors in our Annual Report on
Form 10-K
for the year ended December 31, 2007, which are
incorporated into this prospectus by reference, as well as the
following risks and uncertainties:
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We have substantial debt and other financial obligations and we
may incur even more debt.
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Changes in our credit ratings may have a negative impact on our
financing cost or the availability of capital.
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Availability and changes in raw material and other input costs
can adversely affect us.
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We may not realize anticipated benefits from our multi-year
initiatives.
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We must identify changing consumer preferences and develop and
offer innovative products to meet their preferences.
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Our business is subject to various environmental laws, which may
increase our compliance costs.
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The consolidation of retail customers may put pressures on our
operating margins and profitability.
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The loss of one of our largest customers could negatively impact
our sales and profits.
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Our products could attract increased competitive activity, which
could impede our growth rate and cost us sales.
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We may experience liabilities or negative effects on our
reputation as a result of product recalls, product injuries or
other legal claims.
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The loss of rights to any of our licensed brands could adversely
affect our sales and profits.
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Changes in laws, regulations and accounting standards could have
an adverse effect on our financial results.
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Pension costs could increase at a higher than anticipated rate.
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Disruption of our supply chain could adversely affect our
business.
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Any such forward-looking statements are not guarantees of future
performance and actual results, developments and business
decisions may differ materially from those envisaged by such
forward-looking statements. You should not place undue reliance
on forward-looking statements, which speak only as of the date
they are made. We undertake no obligation to update any
forward-looking statement, except as required by law.
DEAN
FOODS COMPANY
We are one of the leading food and beverage companies in the
United States. Our Dairy Group segment is the largest processor
and distributor of milk and other dairy products in the country,
with products sold under more than 50 familiar local and
regional brand names and a wide-array of private labels. Our
WhiteWave segment markets and sells a variety of nationally
branded dairy and dairy-related products.
Dairy Group Our Dairy Group segment is our
largest segment, with approximately 88% of our consolidated net
sales in 2007. Our Dairy Group manufactures, markets and
distributes a wide variety of branded and private label dairy
case products, including milk, creamers, ice cream, cultured
dairy products and juices to retailers, distributors,
foodservice outlets, educational institutions and governmental
entities across the United States. Due to the perishable nature
of the Dairy Groups products, our Dairy Group delivers the
majority of its products directly to its customers stores
in refrigerated trucks or trailers that we own or lease. This
form of delivery is called a direct store delivery
or DSD system. We believe that our Dairy Group has
one of the most extensive refrigerated DSD systems in the United
States. The Dairy Group sells its products primarily on a local
or regional basis through its local and regional sales forces,
although some national customer relationships are coordinated by
the Dairy Groups corporate sales department. Most of the
Dairy Groups customers, including its largest customer,
purchase products from the Dairy Group either by purchase order
or pursuant to contracts that are generally terminable at will
by the customer.
WhiteWave Our WhiteWave segment develops,
manufactures, markets and sells a variety of nationally branded
soy, dairy and dairy-related products, such as
Silk®
soymilk and cultured soy products; Horizon
Organic®
dairy and other products; International
Delight®
coffee creamers; LAND
OLAKES®
creamers and fluid dairy products and Rachels
Organic®
dairy products. WhiteWave also sells The Organic
Cow®
organic dairy products. We license the LAND OLAKES
name from third parties.
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Our principal executive offices are located at 2515 McKinney
Avenue, Suite 1200, Dallas, Texas 75201. Our telephone
number is
(214) 303-3400.
We were incorporated in Delaware in 1994. We maintain a website
at www.deanfoods.com. The information on our
website is a not a part of this prospectus.
USE OF
PROCEEDS
Unless we state otherwise in the applicable prospectus
supplement, we expect that all of the net proceeds from the sale
of the securities will be used to reduce debt under our senior
credit facility and for general corporate purposes, including
potential future investments or strategic acquisitions. Pending
such uses, we may invest the net proceeds in short-term
marketable securities. We will not receive any of the proceeds
from the sale of securities covered by this prospectus that are
sold by selling securityholders.
DESCRIPTION
OF CAPITAL STOCK
The following summary description of our capital stock is based
on the provisions of the Delaware General Corporation Law and
our restated certificate of incorporation (certificate of
incorporation) and amended and restated bylaws
(bylaws). This description does not purport to be
complete and is qualified in its entirety by reference to the
terms of the certificate of incorporation and bylaws, which are
incorporated by reference into the registration statement of
which this prospectus is a part.
Our authorized capital stock consists of 500,000,000 shares
of common stock, par value $0.01 per share and
1,000,000 shares of preferred stock, par value $0.01 per
share. As of February 22, 2008, we had 132,653,146 shares
of our common stock outstanding and no shares of preferred stock
outstanding.
Description
of Common Stock
Holders of our common stock are entitled to one vote per share
held of record on any matter submitted to the holders of our
common stock for a vote. Our certificate of incorporation does
not provide for cumulative voting in the election of directors.
In the event of our liquidation, dissolution or winding up,
holders of our common stock are entitled to share equally and
ratably, based on the number of shares held, in the assets, if
any, remaining after payment of all of our debts and liabilities
and the liquidation preference of any outstanding preferred
stock. The shares of our common stock are neither redeemable nor
convertible, and the holders of our common stock have no
preemptive rights to subscribe for or purchase any additional
shares of capital stock issued by us.
Subject to the rights of the holders of any outstanding shares
of preferred stock and any restrictions that may be imposed
under our senior secured credit facility, holders of our common
stock are entitled to receive dividends, if any, as may be
declared by our board of directors out of legally available
funds. Our senior secured credit facility currently contains a
covenant limiting, subject to certain exceptions, the payment of
dividends and distributions (whether in cash, securities or
other property) on our common stock, as well as other restricted
payments, based upon a leverage ratio (consolidated funded
indebtedness to average consolidated EBITDA).
Description
of Preferred Stock
Our board of directors has the authority, without further action
of our stockholders, to issue up to 1,000,000 shares of
preferred stock, par value $0.01 per share, in one or more
series and to fix the powers, preferences, rights and
qualifications, limitations or restrictions thereof, including
dividend rights, conversion rights, voting rights, terms of
redemption, liquidation preferences and the number of shares
constituting any series or the designations of the series. The
issuance of preferred stock could adversely affect the holders
of common stock. The potential issuance of preferred stock may
have the effect of discouraging, delaying or preventing a change
of control of Dean Foods, may discourage bids for the common
stock at a premium over market price of the common stock and may
adversely affect the market price of the common stock.
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Rights
Plan
Under our stockholder rights plan, a Common Stock Purchase Right
(a Right) attaches to each outstanding share of
common stock. The Rights trade with the common stock until the
Rights become exercisable. They are exercisable upon the earlier
to occur of (1) ten business days following a public
announcement that a person or group of affiliated or associated
persons has acquired, or obtained the right to acquire,
beneficial ownership of 15% or more of the outstanding common
stock or (2) ten business days following the commencement
of, or announcement of an intention to make, a tender offer or
exchange offer, the consummation of which would result in the
beneficial ownership by a person or group of 15% or more of such
outstanding common stock (the earlier of such dates being the
Distribution Date).
Each Right entitles the stockholder to buy, for a $145 exercise
price, one share of common stock. In the event that any person
or entity becomes the beneficial owner of 15% or more of the
common stock, all Rights holders except the acquirer may
purchase shares of common stock worth twice the exercise price.
In the event that Dean Foods is acquired in a merger or other
business combination transaction, or 50% or more of its
consolidated assets or earning power are sold, all Rights
holders may purchase the acquirers shares at a similar
discount. We may redeem the Rights for $0.01 per Right at any
time prior to a Distribution Date. The Rights will expire on
March 18, 2008, unless our board of directors extends the
term of, or earlier redeems, the Rights.
Section 203
of the Delaware General Corporation Law
We are subject to Section 203 of the Delaware General
Corporation Law (DGCL), which prohibits a defined
set of transactions between a Delaware corporation, such as us,
and an interested stockholder. An interested stockholder is
defined as a person who, together with any affiliates or
associates of such person, beneficially owns, directly or
indirectly, 15% or more of the outstanding voting shares of a
Delaware corporation. The provision may prohibit business
combinations between an interested stockholder and a corporation
for a period of three years after the date the interested
stockholder becomes an interested stockholder. The term business
combination is broadly defined to include mergers,
consolidations, sales or other dispositions of assets having a
total value in excess of 10% of the consolidated assets of the
corporation, and some other transactions that would increase the
interested stockholders proportionate share ownership in
the corporation.
This prohibition is effective unless:
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the business combination is approved by the corporations
board of directors prior to the time the interested stockholder
becomes an interested stockholder;
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the interested stockholder acquired at least 85% of the voting
stock of the corporation, other than stock held by directors who
are also officers or by qualified employee stock plans, in the
transaction in which it becomes an interested
stockholder; or
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at or subsequent to the time the stockholder became an
interested stockholder, the business combination is approved by
a majority of the board of directors and by the affirmative vote
of two-thirds of the outstanding voting stock that is not owned
by the interested stockholder.
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In general, the prohibitions do not apply to business
combinations with persons who were stockholders before we became
subject to Section 203.
Under certain circumstances, Section 203 makes it more
difficult for a person who would be an interested
stockholder to effect various business combinations with a
corporation for a three-year period. The provisions of
Section 203 may encourage any entity interested in
acquiring Dean Foods to negotiate in advance with our board of
directors because the stockholder approval requirement would be
avoided if our board of directors approves either the business
combination or the transaction that results in such entity
becoming an interested stockholder. These provisions also may
make it more difficult to accomplish transactions involving Dean
Foods that our stockholders may otherwise deem to be in their
best interests.
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Certain
Provisions Relating to Changes in Control
Our certificate of incorporation and bylaws contain several
provisions that could have the effect of delaying, deterring or
preventing the acquisition of control of Dean Foods by means of
tender offer, open market purchases, a proxy contest or
otherwise. Set forth below is a description of those provisions.
Classified
Board of Directors
The certificate of incorporation divides the board of directors
into three classes, with one class elected annually to the board
of directors for a three-year term. Each class is as nearly
equal in number as possible, and the stockholders elect
approximately one-third of the directors each year to a
three-year term. At each annual meeting of stockholders,
directors will be elected to succeed those directors whose terms
have expired, and each newly elected director will serve for a
three-year term. The classified board provision could increase
the likelihood that, in the event of a takeover of Dean Foods,
incumbent directors will retain their positions. In addition,
the classified board provision will help ensure that our board
of directors, if confronted with an unsolicited proposal from a
third party that has acquired a block of the voting stock of
Dean Foods, will have sufficient time to review the proposal and
appropriate alternatives and to seek the best available result
for all stockholders.
Number
of Directors; Removal; Filling Vacancies
The bylaws provide that the exact number of directors shall be
fixed from time to time by our board of directors. With a
classified board, directors may only be removed for
cause and only by the affirmative vote of a majority of
the stockholders entitled to vote. As defined in our bylaws,
for cause means: (1) commission of an act of
fraud or embezzlement against Dean Foods; (2) conviction of
a felony or a crime involving moral turpitude; (3) gross
negligence or willful misconduct in performing the
directors duties to Dean Foods or its stockholders; or
(4) breach of fiduciary duty owed to Dean Foods.
The bylaws also provide that vacant directorships may be filled
by the board of directors.
No
Cumulative Voting
The DGCL provides that stockholders of a Delaware corporation
are not entitled to the right to cumulate votes in the election
of directors unless its certificate of incorporation provides
otherwise. Our certificate of incorporation does not provide for
cumulative voting.
Special
Meeting of Stockholders
Our bylaws provide that special meetings of stockholders may be
called only by the Chief Executive Officer, and shall be called
by the Chief Executive Officer or the Secretary at the written
request of a majority of the board of directors. Special
meetings may not be called by the stockholders.
Advance
Notice Requirements for Stockholder Proposals and Director
Nominations
Our bylaws establish advance notice procedures with regard to
stockholder proposals and the nomination, other than by or at
the direction of the board of directors or a committee thereof,
of candidates for election as directors. These procedures
provide that the notice of stockholder proposals and stockholder
nominations for the election of directors at an annual meeting
must be in writing and received by the Secretary of Dean Foods
no later than March 1 of any calendar year (or if less than
35 days notice of a meeting of stockholders is given,
stockholder nominations must be delivered to the Secretary of
Dean Foods no later than the close of business on the seventh
day following the day notice was mailed). Stockholder proposals
and nominations for the election of directors at a special
meeting must be in writing and received by the Secretary of Dean
Foods no later than the close of business on the tenth day
following the day on which notice of the meeting was mailed or
public disclosure of the date of the meeting was made, whichever
occurs first. The notice of stockholder nominations must set
forth certain information with respect to each nominee who is
not an incumbent director.
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Limitations
on Liability and Indemnification of Officers and
Directors
Our certificate of incorporation provides, as authorized by
Section 102(b)(7) of the DGCL, that our directors will not
be personally liable to us or our stockholders for monetary
damages for breach of fiduciary duty as a director, except for
liability:
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for any breach of the directors duty of loyalty to us or
our stockholders;
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for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law;
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for unlawful payments of dividends or unlawful stock repurchases
or redemptions as provided in Section 174 of the
DGCL; or
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for any transaction from which the director derived an improper
personal benefit.
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The inclusion of this provision in our certificate of
incorporation may have the effect of reducing the likelihood of
derivative litigation against directors, and may discourage or
deter stockholders or management from bringing a lawsuit against
directors for breach of their duty of care, even though such an
action, if successful, might otherwise have benefited us and our
stockholders.
Board
Authority to Amend Bylaws
Under the bylaws, our board of directors has the authority to
adopt, amend or repeal the bylaws without the approval of our
stockholders. However, the holders of common stock will also
have the right to initiate on their own, with the affirmative
vote of
662/3 percent
of the shares outstanding and without the approval of our board
of directors, proposals to adopt, amend or repeal the bylaws.
Certain
Effect of Authorized but Unissued Stock
Unissued and unreserved shares may be utilized for a variety of
corporate purposes, including future public offerings to raise
additional capital and for facilitating corporate acquisitions.
One of the effects of unissued and unreserved shares of capital
stock may be to enable the board of directors to render more
difficult or discourage an attempt to obtain control of Dean
Foods by means of a merger, tender offer, proxy contest or
otherwise, and thereby to protect the continuity of our
management. If, in the due exercise of its fiduciary
obligations, for example, the board of directors determines that
a takeover proposal was not in our best interests, such shares
could be issued by our board of directors without stockholder
approval in one or more private transactions or other
transactions that might prevent or render more difficult or
costly the completion of the takeover transaction by diluting
the voting or other rights of the proposed acquiror or insurgent
stockholder group, by creating a substantial voting block in
institutional or other hands that might undertake to support the
position of the incumbent board of directors, by effecting an
acquisition that might complicate or preclude the takeover, or
otherwise.
Transfer
Agent and Registrar
The Bank of New York is the transfer agent and registrar for our
common stock.
Stock
Exchange Listing
Our common stock is listed for trading on the New York Stock
Exchange under the symbol DF.
DESCRIPTION
OF DEPOSITARY SHARES
The following is a general description of the terms of the
deposit agreement, depositary shares and depositary receipts
relating to any series of our preferred stock. This description
is subject to the detailed provisions of a deposit agreement to
be entered into between us and a depositary we select at the
time of issue and the description in the prospectus supplement
relating to the applicable series of preferred stock represented
by such depositary shares and the related depositary receipts.
You should refer to the forms of deposit
7
agreement and depositary receipts that we will file with the SEC
in connection with the offering of the specific depositary
shares for more complete information.
General
We may cause the depositary to elect to offer fractional shares
of preferred stock rather than full shares of preferred stock.
In that event, we will issue receipts for depositary shares, and
each of these depositary shares will represent a fraction (to be
set forth in the applicable prospectus supplement) of a share of
a particular series of preferred stock.
The shares of any series of preferred stock underlying the
depositary shares will be deposited under a deposit agreement
between us and a bank or trust company selected by us. The
depositary will have its principal office in the United States
and a combined capital and surplus of at least $50,000,000.
Subject to the terms of the deposit agreement, each owner of a
depositary share will be entitled, in proportion to the
applicable fraction of a share of preferred stock underlying the
depositary share, to all the rights and preferences of the
preferred stock underlying that depositary share. Those rights
may include dividend, voting, redemption, conversion and
liquidation rights.
The depositary shares will be evidenced by depositary receipts
issued under a deposit agreement. Depositary receipts will be
distributed to those persons purchasing the fractional shares of
preferred stock underlying the depositary shares, in accordance
with the terms of the offering.
Pending the preparation of definitive engraved depositary
receipts, the depositary may, upon our written order, issue
temporary depositary receipts substantially identical to the
definitive depositary receipts but not in definitive form. These
temporary depositary receipts entitle their holders to all the
rights of definitive depositary receipts. Temporary depositary
receipts will then be exchangeable for definitive depositary
receipts at our expense.
Dividends
and Other Distributions
The depositary will distribute all cash dividends or other cash
distributions received with respect to the underlying preferred
stock to the record holders of depositary shares in proportion
to the number of depositary shares owned by those holders.
If there is a distribution other than in cash, the depositary
will distribute property received by it to the record holders of
depositary shares that are entitled to receive the distribution,
unless the depositary determines that it is not feasible to make
the distribution. If this occurs, the depositary may, with our
approval, sell the property and distribute the net proceeds from
the sale to the applicable holders.
Withdrawal
of Underlying Preferred Stock
Unless we say otherwise in a prospectus supplement, holders may
surrender depositary receipts at the principal office of the
depositary and, upon payment of any unpaid amount due to the
depositary, be entitled to receive the number of whole shares of
underlying preferred stock and all money and other property
represented by the related depositary shares. We will not issue
any partial shares of preferred stock. If the holder delivers
depositary receipts evidencing a number of depositary shares
that represent more than a whole number of shares of preferred
stock, the depositary will issue a new depositary receipt
evidencing the excess number of depositary shares to that holder.
Redemption
of Depositary Shares
If a series of preferred stock represented by depositary shares
is subject to redemption, the depositary shares will be redeemed
from the proceeds received by the depositary resulting from the
redemption, in whole or in part, of that series of underlying
preferred stock held by the depositary. The redemption price per
depositary share will be equal to the applicable fraction of the
redemption price per share payable with respect to that series
of underlying preferred stock. Whenever we redeem shares of
underlying preferred stock that are
8
held by the depositary, the depositary will redeem, as of the
same redemption date, the number of depositary shares
representing the shares of underlying preferred stock so
redeemed. If fewer than all the depositary shares are to be
redeemed, the depositary shares to be redeemed will be selected
by lot or proportionately or by other equitable method, as may
be determined by the depositary.
Voting
Upon receipt of notice of any meeting at which the holders of
the underlying preferred stock are entitled to vote, the
depositary will mail the information contained in the notice to
the record holders of the depositary shares representing
underlying the preferred stock. Each record holder of the
depositary shares on the record date (which will be the same
date as the record date for the underlying preferred stock) will
be entitled to instruct the depositary as to the exercise of the
voting rights pertaining to the amount of the underlying
preferred stock represented by that holders depositary
shares. The depositary will then try, as far as practicable, to
vote the number of shares of preferred stock underlying those
depositary shares in accordance with those instructions, and we
will agree to take all reasonable actions which may be deemed
necessary by the depositary to enable the depositary to do so.
The depositary will not vote the underlying shares to the extent
it does not receive specific instructions with respect to the
depositary shares representing the preferred stock.
Conversion
or Exchange of Preferred Stock
If the deposited preferred stock is convertible into or
exchangeable for other securities, the following will apply. The
depositary shares, as such, will not be convertible into or
exchangeable for such other securities. Rather, any holder of
the depositary shares may surrender the related depositary
receipts, together with any amounts payable by the holder in
connection with the conversion or the exchange, to the
depositary with written instructions to cause conversion or
exchange of the preferred stock represented by the depositary
shares into or for such other securities. If only some of the
depositary shares are to be converted or exchanged, a new
depositary receipt or receipts will be issued for any depositary
shares not to be converted or exchanged.
Amendment
and Termination of the Deposit Agreement
The form of depositary receipt evidencing the depositary shares
and any provision of the deposit agreement may at any time be
amended or supplemented by agreement between us and the
depositary. However, any amendment which materially and
adversely alters the rights of the holders of depositary shares
will not be effective unless the amendment has been approved by
the holders of at least a majority of the depositary shares then
outstanding. The deposit agreement may be terminated by us upon
not less than 60 days notice whereupon the depositary
shall deliver or make available to each holder of depositary
shares, upon surrender of the depositary receipts held by such
holder, the number of whole or fractional shares of preferred
stock represented by such receipts. The deposit agreement will
automatically terminate if (a) all outstanding depositary
shares have been redeemed or converted into or exchanged for any
other securities into or for which the underlying preferred
stock are convertible or exchangeable or (b) there has been
a final distribution of the underlying preferred stock in
connection with our liquidation, dissolution or winding up and
the underlying preferred stock has been distributed to the
holders of depositary receipts.
Charges
of Depositary
We will pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary
arrangements. We will also pay charges of the depositary in
connection with its duties in accordance with the deposit
agreement. Holders of depositary receipts will pay transfer and
other taxes and governmental and other charges, including a fee
for any permitted withdrawal of shares of underlying preferred
stock upon surrender of depositary receipts, as are expressly
provided in the deposit agreement to be for their accounts.
9
Reports
The depositary will forward to holders of depositary receipts
all reports and communications from us that we deliver to the
depositary and that we are required to furnish to the holders of
the underlying preferred stock.
Limitation
on Liability
Neither we nor the depositary will be liable if either of us is
prevented or delayed by law or any circumstance beyond our
control in performing our respective obligations under the
deposit agreement. Our obligations and those of the depositary
will be limited to performance in good faith of our respective
duties under the deposit agreement. Neither we nor the
depositary will be obligated to prosecute or defend any legal
proceeding in respect of any depositary shares or underlying
preferred stock unless satisfactory indemnity is furnished. We
and the depositary may rely upon written advice of counsel or
accountants, or upon information provided by persons presenting
underlying preferred stock for deposit, holders of depositary
receipts or other persons believed to be competent and on
documents believed to be genuine.
In the event the depositary receives conflicting claims,
requests or instructions from any holders of depositary shares,
on the one hand, and us, on the other, the depositary will act
on our claims, requests or instructions.
Resignation
and Removal of Depositary
The depositary may resign at any time by delivering notice to us
of its election to resign. We may remove the depositary at any
time. Any resignation or removal will take effect upon the
appointment of a successor depositary and its acceptance of the
appointment. The successor depositary must be appointed within
60 days after delivery of the notice of resignation or
removal and must be a bank or trust company meeting the
requirements of the depositary agreement.
DESCRIPTION
OF WARRANTS
The following is a general description of the terms of the
warrants we may issue from time to time. This description is
subject to the detailed provisions of a warrant agreement to be
entered into between us and a warrant agent we select at the
time of issue and the description in the prospectus supplement
relating to the applicable series of warrants. You should refer
to the forms of warrant agreement and warrants that we file with
the SEC in connection with the offering of the specific warrants
for more complete information.
General
We may issue warrants to purchase preferred stock, depositary
shares, common stock or any combination thereof. Such warrants
may be issued independently or together with any such securities
and may be attached or separate from such securities. We may
issue each series of warrants under a separate warrant agreement
to be entered into between a warrant agent and us. The warrant
agent will act solely as our agent and will not assume any
obligation or relationship of agency for or with holders or
beneficial owners of warrants.
A prospectus supplement will describe the particular terms of
any series of warrants we may issue, including the following:
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the title of such warrants;
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the aggregate number of such warrants;
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the price or prices at which such warrants will be issued;
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the currency or currencies, including composite currencies, in
which the price of such warrants may be payable;
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the designation and terms of the securities purchasable upon
exercise of such warrants and the number of such securities
issuable upon exercise of such warrants;
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the price at which and the currency or currencies, including
composite currencies, in which the securities purchasable upon
exercise of such warrants may be purchased;
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the date on which the right to exercise such warrants shall
commence and the date on which such right will expire;
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whether such warrants will be issued in registered form or
bearer form;
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if applicable, the minimum or maximum amount of such warrants
which may be exercised at any one time;
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if applicable, the designation and terms of the securities with
which such warrants are issued and the number of such warrants
issued with each such security;
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if applicable, the date on and after which such warrants and the
related securities will be separately transferable;
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information with respect to book-entry procedures, if any;
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if applicable, a discussion of certain U.S. federal income
tax considerations;
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the identity of the warrant agent; and
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any other terms of such warrants, including terms, procedures
and limitations relating to the exchange and exercise of such
warrants.
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Amendments
and Supplements to Warrant Agreement
We and the warrant agent may amend or supplement the warrant
agreement for a series of warrants without the consent of the
holders of the warrants issued thereunder to effect changes that
are not inconsistent with the provisions of the warrants and
that do not materially and adversely affect the interests of the
holders of the warrants.
DESCRIPTION
OF STOCK PURCHASE CONTRACTS
The following is a general description of the terms of the stock
purchase contracts we may issue from time to time.
The applicable prospectus supplement will describe the terms of
any stock purchase contracts and, if applicable, prepaid stock
purchase contracts. The description in the prospectus supplement
will be qualified in its entirety by reference to (1) the
stock purchase contracts, (2) the collateral arrangements
and depositary arrangements, if applicable, relating to such
stock purchase contracts and (3) if applicable, the prepaid
stock purchase contracts and the document pursuant to which such
prepaid stock purchase contracts will be issued.
We may issue stock purchase contracts, including contracts
obligating holders to purchase from us, and obligating us to
sell to holders, a fixed or varying number of common stock,
preferred stock or depositary shares at a future date or dates.
The consideration per share of common stock, preferred stock or
depositary shares may be fixed at the time that the stock
purchase contracts are issued or may be determined by reference
to a specific formula set forth in the stock purchase contracts.
Any stock purchase contract may include anti-dilution provisions
to adjust the number of shares issuable pursuant to such stock
purchase contract upon the occurrence of certain events.
The stock purchase contracts may require us to make periodic
payments to the holders thereof or vice versa, and such payments
may be unsecured or prefunded and may be paid on a current or on
a deferred basis. The stock purchase contracts may require
holders to secure their obligations thereunder in a specified
manner and in certain circumstances we may deliver newly issued
prepaid stock purchase contracts upon release to a holder of any
collateral securing such holders obligations under the
original stock purchase contract. Any one
11
or more of the above securities or the stock purchase contracts
or other collateral may be pledged as security for the
holders obligations to purchase or sell, as the case may
be, the common stock, preferred stock or depositary shares under
the stock purchase contracts. The stock purchase contracts may
also allow the holders, under certain circumstances, to obtain
the release of the security for their obligations under such
contracts by depositing with the collateral agent as substitute
collateral U.S. Treasury securities with a principal amount
at maturity equal to the collateral so released or the maximum
number of shares deliverable by such holders under stock
purchase contracts requiring the holders to sell common stock,
preferred stock or depositary shares to us.
PLAN OF
DISTRIBUTION
Any of the securities being offered by this prospectus and any
accompanying prospectus supplement may be sold in any one or
more of the following ways from time to time.
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directly to purchasers;
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through agents;
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to or through underwriters;
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through dealers;
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directly to our stockholders; or
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through a combination of any such methods of sale.
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We may also issue the securities as a dividend or distribution
to our stockholders.
In addition, we may enter into derivative transactions with
third parties, or sell securities not covered by this prospectus
to third parties in privately negotiated transactions. If the
applicable prospectus supplement indicates, in connection with
such a transaction, the third parties may, pursuant to this
prospectus and the applicable prospectus supplement, sell
securities covered by this prospectus and the applicable
prospectus supplement. If so, the third party may use securities
borrowed from us or others to settle such sales and may use
securities received from us to close out any related short
positions. We may also loan or pledge securities covered by this
prospectus and the applicable prospectus supplement to third
parties, who may sell the loaned securities or, in an event of
default in the case of a pledge, sell the pledged securities
pursuant to this prospectus and the applicable prospectus
supplement.
The distribution of the securities may be effected from time to
time in one or more transactions at a fixed price or prices,
which may be changed, at market prices prevailing at the time of
sale, at prices related to such prevailing market prices or at
negotiated prices.
We may solicit offers to purchase directly. Offers to purchase
securities also may be solicited by agents designated by us from
time to time. Any such agent involved in the offer or sale of
the securities in respect of which this prospectus is delivered
will be named, and any commissions payable by us to such agent
will be set forth, in the applicable prospectus supplement.
Unless otherwise indicated in such prospectus supplement, any
such agent will be acting on a reasonable best efforts basis for
the period of its appointment. Any such agent may be deemed to
be an underwriter, as that term is defined in the Securities Act
of 1933, as amended (the Securities Act), of the
securities so offered and sold.
If securities are sold by means of an underwritten offering, we
will execute an underwriting agreement with an underwriter or
underwriters at the time an agreement for such sale is reached,
and the names of the specific managing underwriter or
underwriters, as well as any other underwriters, the respective
amounts underwritten and the terms of the transaction, including
commissions, discounts and any other compensation of the
underwriters and dealers, if any, will be set forth in the
applicable prospectus supplement which will be used by the
underwriters to make resales of the securities in respect of
which this prospectus is being delivered to the public. If
underwriters are utilized in the sale of any securities in
respect of which this prospectus is being delivered, such
securities will be acquired by the underwriters for their own
account and may be resold
12
from time to time in one or more transactions, including
negotiated transactions, at fixed public offering prices or at
varying prices determined by the underwriters at the time of
sale. Securities may be offered to the public either through
underwriting syndicates represented by managing underwriters or
directly by one or more underwriters. If any underwriter or
underwriters are utilized in the sale of securities, unless
otherwise indicated in the applicable prospectus supplement, the
underwriting agreement will provide that the obligations of the
underwriters are subject to certain conditions precedent and
that the underwriters with respect to a sale of such securities
will be obligated to purchase all such securities if any are
purchased.
We may grant to the underwriters options to purchase additional
securities, to cover over-allotments, if any, at the initial
public offering price (with additional underwriting commissions
or discounts), as may be set forth in the prospectus supplement
relating thereto. If we grant any over-allotment option, the
terms of such over-allotment option will be set forth in the
prospectus supplement for such securities.
If a dealer is used in the sale of the securities in respect of
which this prospectus is delivered, we will sell such securities
to the dealer, as principal. The dealer may then resell such
securities to the public at varying prices to be determined by
such dealer at the time of resale. Any such dealer may be deemed
to be an underwriter, as such term is defined in the Securities
Act, of the securities so offered and sold. The name of the
dealer and their terms of the transaction will be set forth in
the prospectus supplement relating thereto.
Offers to purchase securities may be solicited directly by us
and the sale thereof may be made by us directly to institutional
investors or others, who may be deemed to be underwriters within
the meaning of the Securities Act with respect to any resale
thereof. We may also offer securities through agents in
connection with a distribution to our stockholders of rights to
purchase such securities. The terms of any such sales will be
described in the prospectus supplement relating thereto.
We may offer our equity securities into an existing trading
market on the terms described in the applicable prospectus
supplement. Underwriters and dealers who may participate in any
at-the-market offerings will be described in the prospectus
supplement relating thereto.
Pursuant to any standby underwriting agreement entered into in
connection with a subscription rights offering to our
stockholders, persons acting as standby underwriters may receive
a commitment fee for all securities underlying the subscription
rights that the underwriter commits to purchase on a standby
basis. Additionally, prior to the expiration date with respect
to any subscription rights, any standby underwriters in a
subscription rights offering to our stockholders may offer such
securities on a when-issued basis, including securities to be
acquired through the purchase and exercise of subscription
rights, at prices set from time to time by the standby
underwriters. After the expiration date with respect to such
subscription rights, the underwriters may offer securities of
the type underlying the subscription rights, whether acquired
pursuant to a standby underwriting agreement, the exercise of
the subscription rights or the purchase of such securities in
the market, to the public at a price or prices to be determined
by the underwriters. The standby underwriters may thus realize
profits or losses independent of the underwriting discounts or
commissions paid by us. If we do not enter into a standby
underwriting arrangement in connection with a subscription
rights offering to our stockholders, we may elect to retain a
dealer-manager to manage such a subscription rights offering for
us. Any such dealer-manager may offer securities of the type
underlying the subscription rights acquired or to be acquired
pursuant to the purchase and exercise of subscription rights and
may thus realize profits or losses independent of any
dealer-manager fee paid by us.
Securities may also be offered and sold, if so indicated in the
applicable prospectus supplement, in connection with a
remarketing upon their purchase, in accordance with a redemption
or repayment pursuant to their terms, or otherwise, by one or
more firms (remarketing firms) acting as principals
for their own accounts or as agents for us. Any remarketing firm
will be identified and the terms of its agreement, if any, with
us and its compensation will be described in the applicable
prospectus supplement. Remarketing firms may be deemed to be
underwriters, as that term is defined in the Securities Act, in
connection with the securities remarketed thereby.
If so indicated in the applicable prospectus supplement, we may
authorize agents, dealers or underwriters to solicit offers by
certain institutions to purchase securities from us at the
public offering price set forth in the
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applicable prospectus supplement pursuant to delayed delivery
contracts providing for payment and delivery on the date or
dates stated in the applicable prospectus supplement. Such
delayed delivery contracts will be subject to only those
conditions set forth in the applicable prospectus supplement. A
commission indicated in the applicable prospectus supplement
will be paid to underwriters and agents soliciting purchases of
securities pursuant to delayed delivery contracts accepted by us.
Agents, underwriters, dealers and remarketing firms may be
entitled under relevant agreements with us to indemnification by
us against certain liabilities, including liabilities under the
Securities Act, or to contribution with respect to payments
which such agents, underwriters, dealers and remarketing firms
may be required to make in respect thereof.
Any underwriter may engage in stabilizing and syndicate covering
transactions in accordance with Rule 104 under
Regulation M. Rule 104 permits stabilizing bids to
purchase the underlying security so long as the stabilizing bids
do not exceed a specified maximum. The underwriters may
over-allot shares of the securities in connection with an
offering of securities, thereby creating a short position in the
underwriters account. Syndicate covering transactions
involve purchases of the securities in the open market after the
distribution has been completed in order to cover syndicate
short positions. Stabilizing and syndicate covering transactions
may cause the price of the securities to be higher than it would
otherwise be in the absence of such transactions. These
transactions, if commenced, may be discontinued at any time.
Unless otherwise specified in the applicable prospectus
supplement, each series of securities, other than our common
stock that is listed on the New York Stock Exchange, will be a
new issue and will have no established trading market. We may
elect to list any series of securities on an exchange but,
unless otherwise specified in the applicable prospectus
supplement, we shall not be obligated to do so. In addition,
underwriters will not be obligated to make a market in any
securities. No assurance can be given as to the liquidity of, or
activity in, the trading market for any of the securities.
Agents, underwriters, dealers and remarketing firms may be
customers of, engage in transactions with, or perform services
for, us, our subsidiaries
and/or the
selling securityholders in the ordinary course of business.
The anticipated date of delivery of securities will be set forth
in the applicable prospectus supplement relating to each offer.
Sales by
Selling Securityholders
Selling securityholders may use this prospectus in connection
with resales of the securities. The applicable prospectus
supplement will identify the selling securityholders and the
terms of the securities. Selling securityholders may be deemed
to be underwriters in connection with the securities they resell
and any profits on the sales may be deemed to be underwriting
discounts and commissions under the Securities Act. The selling
securityholders will receive all the proceeds from the sale of
the securities. We will not receive any proceeds from sales by
selling securityholders.
LEGAL
MATTERS
Unless otherwise indicated in the applicable prospectus
supplement, legal matters relating to the securities will be
passed upon for us by Wilmer Cutler Pickering Hale and Dorr LLP,
Washington, D.C.
EXPERTS
The financial statements and the related financial statement
schedule, incorporated in this Prospectus by reference from the
Companys Annual Report on
Form 10-K,
and the effectiveness of Dean Foods Companys internal
control over financial reporting have been audited by
Deloitte & Touche LLP, an independent registered
public accounting firm, as stated in their reports, which are
incorporated herein by reference. Such financial statements and
financial statement schedule have been so incorporated in
reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing.
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PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other
Expenses of Issuance and Distributions.
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The following table sets forth the expenses, other than
discounts and commissions to underwriters, agents or dealers,
payable by us in connection with the sale of the securities
being registered hereby. All amounts are estimates.
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Accounting fees and expenses
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50,000
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Printing, distribution, and engraving fees
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10,000
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Legal fees and expenses
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100,000
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Miscellaneous
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25,000
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Total
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$
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185,000
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Item 15.
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Indemnification
of Directors and Officers.
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Section 145 of the Delaware General Corporation Law
(DGCL) empowers a Delaware corporation to indemnify
any persons who were or are, or are threatened to be made,
parties to any threatened, pending or completed legal action,
suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
corporation), by reason of the fact that such person is or 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 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, that, such officer
or director acted in good faith and in a manner he reasonably
believed to be in or not opposed to the corporations best
interests, and, for criminal proceedings, had no reasonable
cause to believe his conduct was illegal. A Delaware corporation
may indemnify officers and directors in an action by or in the
right of the corporation under the same conditions, except that
no indemnification is permitted without judicial approval if the
officer or director is adjudged to be liable to the corporation
in the performance of his duty. Where an officer or director is
successful on the merits or otherwise in the defense of any
action referred to above, the corporation must indemnify him
against the expenses which such officer or director actually and
reasonably incurred.
Our restated certificate of incorporation provides that we shall
indemnify our directors and officers to the fullest extent
authorized by the DGCL as it exists or as it may be amended to
provide broader indemnification rights than previously
permitted. However, we will indemnify a director or officer in
connection with a proceeding initiated by the director or
officer only if the proceeding was authorized by our board of
directors. We will indemnify the director or officer for
expenses incurred in defending any proceeding in advance of
final disposition of the proceeding, which we refer to as
advancement of expenses, provided that, if required
by the DGCL, we will advance these expenses only if the director
or officer delivers an undertaking to repay the amounts advanced
if it is ultimately determined by non-appealable judicial
decision that the director or officer is not entitled to be
indemnified for such expenses. These rights to indemnification
and advancement of expenses are non-exclusive.
As permitted by the DGCL, our restated certificate of
incorporation provides that directors will not be personally
liable to Dean Foods or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability:
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for any breach of the directors duty of loyalty to Dean
Foods or its stockholders,
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for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law,
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II-1
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under Section 174 of the DGCL (providing for liability of
directors for unlawful payment of dividends or unlawful stock
purchases or redemptions), or
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for any transaction from which the director derived any improper
personal benefit.
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We also maintain insurance coverage relating to certain
liabilities of directors and officers.
We have entered into indemnification agreements with our
officers and directors pursuant to which we have agreed to
indemnify such persons to the fullest extent permitted by
Delaware law, as the same may be amended from time to time.
We expect that any underwriting agreement or distribution
agreement relating to the securities will provide for
indemnification of our directors and officers by the
underwriters or agents, as the case may be, against certain
liabilities.
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Exhibit
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Number
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Description of Exhibit
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1
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.1*
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Form of Underwriting Agreement.
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4
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.1
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Amended and Restated Certificate of Incorporation (incorporated
by reference from our Annual Report on
Form 10-K
for the year ended December 31, 2001, filed April 1,
2002 (File
No. 1-12755)).
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4
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.2
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Amended and Restated Bylaws (incorporated by reference from our
Quarterly Report on
Form 10-Q
for the quarter ended June 30, 1999 (File
No. 1-12755)).
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4
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.3
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Specimen of Common Stock Certificate (incorporated by reference
from our Annual Report on
Form 10-K
for the year ended December 31, 2001, filed April 1,
2002 (File
No. 1-12755)).
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4
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.4
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Rights Agreement dated March 6, 1998 among us and Harris
Trust & Savings Bank, as rights agent, which includes
as Exhibit A the Form of Rights Certificate (incorporated
by reference from the Registration Statement on
Form 8-A
filed on March 10, 1998 (File
No. 1-12755)).
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4
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.5
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Amendment No. 1 to Rights Agreement dated May 26, 2004
by and between us and The Bank of New York, as rights agent
(incorporated by reference from our Current Report on
Form 8-K
dated May 27, 2004 (File
No. 1-12755)).
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4
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.6*
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Certificate of Designation of Preferred Stock.
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4
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.7*
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Form of Depositary Agreement with respect to Depositary Shares
(including form of depositary receipt).
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4
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.8*
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Form of Warrant Agreement (including form of warrant
certificate).
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4
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.9*
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Form of Stock Purchase Contract (including form of stock
purchase certificate) and, if applicable, Pledge Agreement.
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5
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.1
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Opinion of Wilmer Cutler Pickering Hale and Dorr LLP.
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23
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.1
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Consent of Deloitte & Touche LLP.
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23
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.2
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Consent of Wilmer Cutler Pickering Hale and Dorr LLP (included
in Exhibit 5.1).
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24
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.1
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Powers of Attorney (contained in the signature pages to this
registration statement).
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* |
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To be filed or incorporated by reference as an exhibit to a
document incorporated or deemed to be incorporated by reference
in this registration statement. |
(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-2
(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 percent change in the
maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the
effective registration statement; and
(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 the undertakings set forth in
paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if
the information required to be included in a post-effective
amendment by those paragraphs is contained in 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, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of 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.
(4) That for purposes of determining liability under the
Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the Registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5) or (b)(7) as part of a registration statement
in reliance on Rule 430B relating to an offering made
pursuant to Rule 415(a)(1)(i), (vii) or (x) for
the purpose of providing the information required by
Section 10(a) of the Securities Act of 1933 shall be deemed
to be part of and included in the registration statement as of
the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration
statement to which the prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided,
however, that no statement made in a registration
statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as
to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date.
(b) That, for the purpose of determining liability of the
Registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities, the undersigned
Registrant undertakes that in a primary offering of securities
of the undersigned Registrant pursuant to this registration
statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered
or sold to
II-3
such purchaser by means of any of the following communications,
the undersigned Registrant will be a seller to the purchaser and
will be considered to offer or sell such securities to such
purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned Registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned Registrant or used
or referred to by the undersigned Registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned Registrant or its securities provided by or on
behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned Registrant to the purchaser.
(c) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrants 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 plans 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.
(d) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Dallas, State of Texas, on February 28, 2008.
DEAN FOODS COMPANY
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By:
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/s/ Ronald
L. McCrummen
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Ronald L. McCrummen
Senior Vice President and
Chief Accounting Officer
KNOW ALL BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Gregg L. Engles and
Michelle P. Goolsby, and each of them, his or her true and
lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, 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 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 or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and
agents, or their substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities indicated as of February 28, 2008.
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Signature
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Title
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/s/ Gregg
L. Engles
Gregg
L. Engles
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Chief Executive Officer and Chairman of the Board
(Principal Executive Officer)
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/s/ Jack
F. Callahan, Jr.
Jack
F. Callahan, Jr.
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Executive Vice President and Chief Financial Officer
(Principal Financial Officer)
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/s/ Ronald
L. McCrummen
Ronald
L. McCrummen
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Senior Vice President and Chief Accounting Officer
(Principal Accounting Officer)
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/s/ Alan
J. Bernon
Alan
J. Bernon
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Director
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/s/ Lewis
M. Collens
Lewis
M. Collens
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Director
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/s/ Tom
Davis
Tom
Davis
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Director
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/s/ Stephen
L. Green
Stephen
L. Green
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Director
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II-5
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Signature
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Title
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/s/ Joseph
S. Hardin, Jr.
Joseph
S. Hardin, Jr.
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Director
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/s/ Janet
Hill
Janet
Hill
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Director
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/s/ Ronald
Kirk
Ronald
Kirk
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Director
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/s/ John
R. Muse
John
R. Muse
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Director
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/s/ Hector
M. Nevares
Hector
M. Nevares
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Director
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/s/ Pete
Schenkel
Pete
Schenkel
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Director
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/s/ Jim
L. Turner
Jim
L. Turner
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Director
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II-6
EXHIBIT INDEX
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Exhibit
|
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Number
|
|
Description of Exhibit
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|
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1
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.1*
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Form of Underwriting Agreement.
|
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4
|
.1
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|
Amended and Restated Certificate of Incorporation (incorporated
by reference from our Annual Report on
Form 10-K
for the year ended December 31, 2001, filed April 1,
2002 (File
No. 1-12755)).
|
|
4
|
.2
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|
Amended and Restated Bylaws (incorporated by reference from our
Quarterly Report on
Form 10-Q
for the quarter ended June 30, 1999 (File
No. 1-12755)).
|
|
4
|
.3
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|
Specimen of Common Stock Certificate (incorporated by reference
from our Annual Report on
Form 10-K
for the year ended December 31, 2001, filed April 1,
2002 (File
No. 1-12755)).
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4
|
.4
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Rights Agreement dated March 6, 1998 among us and Harris
Trust & Savings Bank, as rights agent, which includes
as Exhibit A the Form of Rights Certificate (incorporated
by reference from the Registration Statement on
Form 8-A
filed on March 10, 1998 (File
No. 1-12755)).
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4
|
.5
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Amendment No. 1 to Rights Agreement dated May 26, 2004
by and between us and The Bank of New York, as rights agent
(incorporated by reference from our Current Report on
Form 8-K
dated May 27, 2004 (File
No. 1-12755)).
|
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4
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.6*
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Certificate of Designation of Preferred Stock.
|
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4
|
.7*
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Form of Depositary Agreement with respect to Depositary Shares
(including form of depositary receipt).
|
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4
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.8*
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Form of Warrant Agreement (including form of warrant
certificate).
|
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4
|
.9*
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Form of Stock Purchase Contract (including form of stock
purchase certificate) and, if applicable, Pledge Agreement.
|
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5
|
.1
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Opinion of Wilmer Cutler Pickering Hale and Dorr LLP.
|
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23
|
.1
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Consent of Deloitte & Touche LLP.
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23
|
.2
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Consent of Wilmer Cutler Pickering Hale and Dorr LLP (included
in Exhibit 5.1).
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24
|
.1
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Powers of Attorney (contained in the signature pages to this
registration statement).
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* |
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To be filed or incorporated by reference as an exhibit to a
document incorporated or deemed to be incorporated by reference
in this registration statement. |