As filed with the Securities and Exchange Commission on January 18, 2002.
Registration No. 333-75820
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 2
TO FORM S-4 ON 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 1989 STOCK AWARDS PLAN
DEAN FOODS COMPANY 1992 DIRECTOR STOCK AWARDS PLAN
DEAN FOODS COMPANY 1996 DIRECTOR STOCK AWARDS PLAN
DEAN FOODS COMPANY INDIVIDUAL NON-QUALIFIED STOCK OPTION AGREEMENTS
(Full Title of the Plans)
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MICHELLE P. GOOLSBY COPY TO:
EXECUTIVE VICE PRESIDENT WILLIAM A. MCCORMACK
DEAN FOODS COMPANY HUGHES & LUCE, L.L.P.
2515 MCKINNEY AVENUE, SUITE 1200 1717 MAIN STREET, SUITE 2800
DALLAS, TEXAS 75201 DALLAS, TEXAS 75201
(214) 303-3400 (214) 939-5500
(Name, Address, and Telephone Number,
including Area Code, of Agent for Service)
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CALCULATION OF REGISTRATION FEE
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 OFFERING PRICE FEE
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Common Stock,
$0.01 par value 3,164,175(2) (3) (3) (3)
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the
"Securities Act"), this registration statement also covers an indeterminate
amount of shares as may be required to cover possible adjustments under the
plans and agreements covered hereby by reason of any stock dividend, stock
split, share combination, exchange of shares, recapitalization, merger,
consolidation, separation, reorganization, liquidation or the like, of or by the
registrant.
(2) This Post-Effective Amendment No. 2 on Form S-8 to Amendment No. 1 to the
Registration Statement on Form S-4 covers 3,164,175 shares of common stock, par
value $0.01 per share (the "Common Stock"), of Dean Foods Company (the
"Registrant") originally registered on Amendment No. 1 to the Registration
Statement on Form S-4.
(3) All filing fees payable in connection with the registration of these
securities were paid in connection with the filing of the Registration Statement
on Form S-4 on July 11, 2001 and Amendment No. 1 to the Registration Statement
on Form S-4 on August 10, 2001 registering 18,509,450 shares of Common Stock of
the Registrant, including the 3,164,175 shares being registered hereunder.
EXPLANATORY STATEMENT
We are filing this Post-Effective Amendment No. 2 to add the individual
non-qualified stock option agreements referenced herein to the list of employee
benefit plans of the former Dean Foods Company, a Delaware corporation ("Old
Dean Foods"), listed in Post-Effective Amendment No. 1 under which shares of our
common stock, $.01 par value per share, may be issued. The shares of common
stock covered hereby were originally registered pursuant to our Registration
Statement on Form S-4 (File No. 333-64936) filed in connection with our
acquisition by merger of Old Dean Foods. We converted the registration of the
shares of common stock issuable under Old Dean Foods' employee benefit plans to
Form S-8 pursuant to Post-Effective Amendment No. 1 to Form S-4, which was filed
with the Securities and Exchange Commission on December 21, 2001
("Post-Effective Amendment No. 1").
Pursuant to an Agreement and Plan of Merger, dated as of April 4, 2001
(the "Merger Agreement"), among us (formerly known as Suiza Foods Corporation),
Blackhawk Acquisition Corp., a Delaware corporation and our wholly-owned
subsidiary ("Blackhawk") and Old Dean Foods, at the effective time of the merger
between Blackhawk and Old Dean Foods, each outstanding stock award originally
issued by Old Dean Foods pursuant to the plans and agreements identified below
and covering shares of Old Dean Foods common stock were converted into an award
of or an option to acquire our common stock:
Dean Foods Company 1989 Stock Awards Plan
Dean Foods Company 1992 Director Stock Awards Plan
Dean Foods Company 1996 Director Stock Awards Plan
Dean Foods Company Individual Non-Qualified Stock Option Agreements
Each outstanding stock award is exercisable for the number of shares of
Old Dean Foods common stock to which the corresponding Old Dean Foods option or
other stock based award was subject multiplied by 0.7521.
We hereby amend our Registration Statement (the "Registration
Statement") on Form S-4 (No. 333-64936), filed with the Securities and Exchange
Commission on July 11, 2001, as amended by Amendment No. 1 to Form S-4 filed on
August 10, 2001, as amended by Post-Effective Amendment No. 1 on Form S-8 filed
on December 21, 2001, by filing this Post-Effective Amendment No. 2 on Form S-8
(the "Post-Effective Amendment") relating to 3,164,175 shares of our common
stock issuable upon the exercise of stock awards issued under the Dean Foods
Company 1989 Stock Awards Plan, the Dean Foods Company 1992 Director Stock
Awards Plan, the Dean Foods Company 1996 Director Stock Awards Plan and the Dean
Foods Company Individual Non-Qualified Stock Option Agreements identified
herein.
PART I
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
* Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this Registration Statement in accordance with Rule 428 under
the Securities Act and the "Note" to Part I of Form S-8.
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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,
2000, which contains the Registrant's audited financial statements for the
Registrant's last completed fiscal year (the "2000 Form 10-K").
(b) Quarterly Reports on Form 10-Q for the periods ended March 31,
2001, June 30, 2001, and September 30, 2001.
(c) Current Reports on Form 8-K filed on April 5, 2001 (amended by Form
8-K/A filed on April 10, 2001), May 3, 2001 and January 7, 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 Securities Exchange Act of 1934, 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 (such documents, and the documents
enumerated above, "Incorporated Documents").
Any statement contained in an Incorporated Document 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
Incorporated Document 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.
A partner with Hughes & Luce, L.L.P. beneficially owns 41,795 shares of
common stock.
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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.
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ITEM 8. EXHIBITS.
4.1+ Restated Certificate of Incorporation of the Registrant dated
December 21, 2001.
4.2 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)).
4.3* Form of Dean Foods Company Individual Non-Qualified Stock
Option Agreements.
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 (for the Registrant).
24.1+ Power of Attorney (contained in signature page).
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+ Previously filed.
* Filed herewith.
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
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.
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(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The 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 Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification 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
Securities and Exchange 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 17, 2002.
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
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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* Chief Executive Officer and Director January 17, 2002
-------------------------------- (Principal Executive Officer)
Gregg L. Engles
/s/ BARRY A. FROMBERG Principal Financial and January 17, 2002
-------------------------------- Accounting Officer
Barry A. Fromberg
* Vice Chairman of the Board January 17, 2002
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Gregg L. Engles
* Director January 17, 2002
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Pete Schenkel
* Director January 17, 2002
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Hector M. Nevares
* Director January 17, 2002
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Alan Bernon
* Director January 17, 2002
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Tom Davis
* Director January 17, 2002
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Stephen L. Green
* Director January 17, 2002
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Joseph S. Hardin, Jr.
* Director January 17, 2002
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John Muse
* Director January 17, 2002
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P. Eugene Pender
* Director January 17, 2002
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Jim Turner
*By: /s/ BARRY A. FROMBERG
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Attorney-In-Fact
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INDEX TO EXHIBITS
The following documents are filed as exhibits to this registration
statement.
EXHIBIT
NUMBER DESCRIPTION
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4.1+ Restated Certificate of Incorporation of the Registrant dated
December 21, 2001.
4.2 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)).
4.3* Form of Dean Foods Company Individual Non-Qualified Stock
Option Agreements.
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 (for the Registrant).
24.1+ Power of Attorney (contained in signature page).
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+ Previously filed.
* Filed herewith.