As filed with the Securities and Exchange Commission on February 14, 2003.
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
DEAN FOODS COMPANY
(Exact Name of Registrant as Specified in Its Charter)
Delaware 75-2559681
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
2515 MCKINNEY AVENUE, SUITE 1200
DALLAS, TEXAS 75201
(Address of Principal Executive Offices)
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DEAN FOODS COMPANY FIFTH AMENDED AND RESTATED 1997 STOCK OPTION AND
RESTRICTED STOCK PLAN
DEAN FOODS COMPANY AMENDED AND RESTATED 1989 STOCK AWARDS PLAN
(Full Title of the Plans)
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MICHELLE P. GOOLSBY COPY TO:
EXECUTIVE VICE PRESIDENT, CHIEF WILLIAM A. MCCORMACK
ADMINISTRATIVE OFFICER, HUGHES & LUCE, L.L.P.
GENERAL COUNSEL AND CORPORATE SECRETARY 1717 MAIN STREET, SUITE 2800
DEAN FOODS COMPANY DALLAS, TEXAS 75201
2515 MCKINNEY AVENUE, SUITE 1200 (214) 939-5500
DALLAS, TEXAS 75201
(214) 303-3400
(Name, Address, and Telephone Number,
including Area Code, of Agent for Service)
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CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE FEE
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Common Stock, $0.01 par
value 13,789,728 $37.80 $521,251,718.40 $47,955.16
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(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, this
Registration Statement also covers an indeterminate amount of shares to be
offered or sold pursuant to the antidilution provisions of the Dean Foods
Company Fifth Amended and Restated 1997 Stock Option and Restricted Stock Plan
and the Dean Foods Company Amended and Restated 1989 Stock Awards Plan.
(2) Estimated solely for the purpose of determining the Registration Fee
pursuant to 457(h). The proposed maximum aggregate offering price per share is
based upon the average of the high and low sale prices for Dean Foods Company
common stock on the New York Stock Exchange on February 10, 2003.
EXPLANATORY STATEMENT
This Registration Statement on Form S-8 registers an additional
10,000,000 shares of our common stock available for issuance under our Fifth
Amended and Restated 1997 Stock Option and Restricted Stock Plan, and an
additional 3,789,728 shares of our common stock available for issuance under our
Amended and Restated 1989 Stock Awards Plan.
PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
The information specified in Part I of Form S-8 is contained in
documents sent or given to option holders in accordance with Rule 428 under the
Securities Act. Such documents and the documents incorporated by reference
pursuant to Item 3 of Part II of this Registration Statement, taken together,
constitute the Section 10(a) prospectus.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents heretofore filed with the Securities and
Exchange Commission (the "Commission") by Dean Foods Company (the "Registrant")
are incorporated by reference in this Registration Statement:
(a) Annual Report on Form 10-K for the fiscal year ended December 31,
2001, which contains the Registrant's audited financial statements for the
Registrant's last completed fiscal year.
(b) Quarterly Reports on Form 10-Q for the periods ended March 31,
2002, June 30, 2002, and September 30, 2002.
(c) Current Reports on Form 8-K filed on January 7, 2002 (amended by
Form 8-K/A filed on March 6, 2002), April 17, 2002 and August 9, 2002.
(d) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A, dated February 19, 1997, (File
Number 001-127-55), including any amendment or report filed for the purpose of
updating such description.
(e) The description of the Registrant's Common Stock purchase rights
contained in the Registrant's Registration Statement on Form 8-A, dated March
10, 1998, (File Number 001-127-55), including any amendment or report filed for
the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment to
this Registration Statement which indicates that all of the shares of Common
Stock offered have been sold or which deregisters all of such shares then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
Any statement contained in this Registration Statement or in a document
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document that is also
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Certificate of Incorporation provides that no director
of the Registrant will be personally liable to the Registrant or any of its
stockholders for monetary damages arising from the director's breach of
fiduciary duty as a director, with certain limited exceptions.
Pursuant to the provisions of Section 145 of the Delaware General
Corporation Law, every Delaware corporation has the power to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding (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 any corporation,
partnership, joint venture, trust or other enterprise, against any and all
expenses, judgments, fines and amounts paid in settlement and reasonably
incurred in connection with such action, suit or proceeding. The power to
indemnify applies only if such person acted in good faith and in a manner such
person reasonably believed to be in the best interests, or not opposed to the
best interests, of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
The power to indemnify applies to actions brought by or in the right of
the corporation as well, but only to the extent of defense and settlement
expenses and not to any satisfaction of a judgment or settlement of the claim
itself, and with the further limitation that in such actions no indemnification
shall be made in the event of any adjudication of negligence or misconduct
unless the court, in its discretion, believes that in light of all the
circumstances indemnification should apply.
The Registrant's Certificate of Incorporation contains provisions
requiring it to indemnify its officers and directors to the fullest extent
permitted by the Delaware General Corporation Law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits accompanying this Registration Statement are listed on the
accompanying Exhibit Index.
ITEM 9. UNDERTAKINGS.
(a) The 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, as amended (the
"Securities Act");
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(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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 this
Registration Statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The Registrant hereby undertakes that for purposes of determining
any liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification by the Registrant for liabilities
arising under the Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions described in
Item 6, or otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification by the Registrant 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
Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Dallas, State of Texas, on January 31, 2003.
DEAN FOODS COMPANY
By: /s/ Barry A. Fromberg
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Barry A. Fromberg
Executive Vice President and Chief
Financial Officer
(Principal Financial and Accounting Officer)
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POWER OF ATTORNEY
We, the undersigned officers and directors of Dean Foods
Company, hereby severally constitute and appoint Gregg L. Engles, Barry A.
Fromberg and Michelle P. Goolsby, and each of them singly, our true and lawful
attorneys with full power to them, and each of them singly, to sign for us and
in our names in the capacities indicated below, the Registration Statement on
Form S-8 filed herewith, any other Registration Statement related to the same
offering, and any and all amendments (including post-effective amendments) to
the Registration Statement, and generally to do all things in our name and
behalf in the capacities indicated below to enable Dean Foods Company to comply
with the provisions of the Securities Act of 1933, as amended, and all
requirements to the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by our attorneys, or any of
them, to said Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Title Date
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/s/ Gregg L. Engles Chief Executive Officer and Director January 31, 2003
-------------------------------- (Principal Executive Officer) and
Gregg L. Engles Chairman of the Board
/s/ Barry A. Fromberg Principal Financial and Accounting January 31, 2003
-------------------------------- Officer
Barry A. Fromberg
/s/ Alan Bernon Director January 31, 2003
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Alan Bernon
/s/ Lewis M. Collens Director January 31, 2003
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Lewis M. Collens
/s/ Tom Davis Director January 31, 2003
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Tom Davis
/s/ Stephen L. Green Director January 31, 2003
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Stephen L. Green
/s/ Joseph S. Hardin, Jr. Director January 31, 2003
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Joseph S. Hardin, Jr.
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/s/ Janet Hill Director January 31, 2003
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Janet Hill
/s/ John S. Llewellyn, Jr. Director January 31, 2003
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John S. Llewellyn, Jr.
/s/ John Muse Director January 31, 2003
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John Muse
/s/ Hector M. Nevares Director January 31, 2003
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Hector M. Nevares
/s/ Eugene Pender Director January 31, 2003
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P. Eugene Pender
/s/ Pete Schenkel Director January 31, 2003
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Pete Schenkel
/s/ Jim Turner Director January 31, 2003
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Jim Turner
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INDEX TO EXHIBITS
Exhibit
Number Description
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4.1 Rights Agreement dated March 6, 1998 among the Registrant 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)).
5.1* Opinion of Hughes & Luce, L.L.P.
23.1* Consent of Hughes & Luce, L.L.P. (contained in Exhibit 5.1).
23.2* Consent of Deloitte & Touche LLP.
23.3* Consent of PricewaterhouseCoopers LLP.
24.1* Power of Attorney (contained in signature page).
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*Filed herewith.