Dean
Foods Company
18,700,327 Shares
Common
Stock, par value, $0.01 per share
Underwriting Agreement
February 29, 2008
Lehman
Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Ladies
and Gentlemen:
Dean
Foods Company, a corporation organized under the laws of the State
of Delaware (the “Company”), proposes to sell
18,700,327 shares (the “Stock”) of the Company’s
common stock, par value, $0.01 per share (the “Common
Stock”) to Lehman Brothers Inc. (the
“Underwriter”) pursuant to this agreement. This is to
confirm the agreement concerning the purchase of the Stock from the
Company by the Underwriter. Any reference herein to the
Registration Statement, the Base Prospectus or the Prospectus shall
be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which
were filed under the Exchange Act on or before the Effective Date
of the Registration Statement or the issue date of the Base
Prospectus or the Prospectus, as the case may be; and any reference
herein to the terms “amend,” “amendment” or
“supplement” with respect to the Registration
Statement, the Base Prospectus or the Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange
Act after the Effective Date of the Registration Statement or the
issue date of the Base Prospectus or the Prospectus, as the case
may be, deemed to be incorporated therein by reference. Certain
terms used herein are defined in Section 20 hereof.
1.
Representations and Warranties . The Company represents and
warrants to, and agrees with, the Underwriter as set forth below in
this Section 1.
(a) The Company meets the
requirements for use of Form S-3 under the Act and has
prepared and filed with the Commission an automatic shelf
registration statement (as defined in Rule 405) (File number
333-149439) on Form S-3, including a related Base Prospectus,
for registration under the Act of the offering and sale of the
Stock. No notice of objection of the Commission to the use of the
Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been
received by the Company. No order suspending the effectiveness of
the Registration Statement has been issued by the Commission and no
proceeding for that purpose or pursuant to Section 8A of the
Securities Act against the Company or related to the offering has
been initiated or threatened by the Commission. Such Registration
Statement, including any amendments thereto filed prior to the
Applicable Time, became
effective upon
filing. The Company will file with the Commission the Prospectus
relating to the Stock in accordance with Rule 424(b). As
filed, the Prospectus shall contain all information required by the
Act and the rules thereunder, and, except to the extent the
Underwriter shall agree in writing to a modification, shall be in
all substantive respects in the form furnished to you prior to the
Applicable Time or, to the extent not completed at the Applicable
Time, shall contain only such specific additional information and
other changes (beyond that contained in the Base Prospectus) as the
Company has advised you, prior to the Applicable Time, will be
included or made therein. The Registration Statement, at the
Applicable Time, meets the requirements set forth in
Rule 415(a)(1)(x).
(b) On each Effective Date, the
Registration Statement did, and when the Prospectus is first filed
in accordance with Rule 424(b) and on the Closing Date, the
Prospectus (and any supplement thereto) will, comply in all
material respects with the applicable requirements of the Act, the
Exchange Act and the respective rules thereunder; on each Effective
Date and at the Applicable Time, the Registration Statement did not
and will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading;
and on the date of any filing pursuant to Rule 424(b) and on
the Closing Date, the Prospectus (together with any supplement
thereto) will not include any untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided , however ,
that the Company makes no representations or warranties as
to the information contained in or omitted from the
Registration Statement or the Prospectus (or any supplement
thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf the Underwriter
specifically for inclusion in the Registration Statement or the
Prospectus (or any supplement thereto), it being understood and
agreed that the only such information furnished by or on behalf of
the Underwriter consists of the information described as such in
Section 8 hereof.
(c) The Disclosure Package does not
contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. The preceding sentence does not apply to
statements in or omissions from the Disclosure Package based upon
and in conformity with written information furnished to the Company
by the Underwriter specifically for use therein, it being
understood and agreed that the only such information furnished by
or on behalf of the Underwriter consists of the information
described as such in Section 8 hereof.
(d) The documents incorporated by
reference in the Disclosure Package, the Prospectus and the
Registration Statement, when they became effective or were filed
with the Commission, as the case may be, conformed in all material
respects to the requirements of the Act or the Exchange Act, as
applicable. Any further documents so filed and incorporated by
reference in the Disclosure Package, the Prospectus and the
Registration Statement or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will
conform in all
material respects to the requirements of the Act or the Exchange
Act, as applicable.
(e) (i) At the time of filing
the Registration Statement, (ii) at the time of the most
recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to
Sections 13 or 15(d) of the Exchange Act or form of
prospectus), (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of
Rule 163(c)) made any offer relating to the Stock in reliance
on the exemption in Rule 163, and (iv) at the Applicable
Time (with such date being used as the determination date for
purposes of this clause (iv)), the Company was or is (as the case
may be) a “well-known seasoned issuer” as defined in
Rule 405.
(f) (i) At the earliest time
after the filing of the Registration Statement that the Company or
another offering participant made a bona fide offer (within
the meaning of Rule 164(h)(2)) of the Stock and (ii) as of the
Applicable Time (with such date being used as the determination
date for purposes of this clause (ii)), the Company was not and is
not an Ineligible Issuer (as defined in Rule 405), without
taking account of any determination by the Commission pursuant to
Rule 405 that it is not necessary that the Company be
considered an Ineligible Issuer.
(g) Each Issuer Free Writing
Prospectus conformed or will conform in all material respects to
the requirements of the Securities Act on the date of first use,
and the Company has complied with any filing requirements
applicable to such Issuer Free Writing Prospectus under the
Securities Act. The Company has not made any offer relating to the
Stock that would constitute an Issuer Free Writing Prospectus
without the prior written consent of the Underwriter. The Company
has retained in accordance with the requirements of the Securities
Act all Issuer Free Writing Prospectuses that were not required to
be filed pursuant to the Securities Act. Each Issuer Free Writing
Prospectus, when considered together with the Pricing Disclosure
Package as of the Applicable Time, did not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
(h) Each of the Company and its
subsidiaries (as defined in Section 20) has been duly
organized and is validly existing as a corporation (or such other
form of legal entity as its name and organizational documents may
indicate) in good standing under the laws of the jurisdiction in
which it is chartered or organized with full corporate (or other)
power and authority to own or lease, as the case may be, and to
operate its properties and conduct its business as described in the
Disclosure Package and the Prospectus, and, except where it would
not have a Material Adverse Effect, is duly qualified to do
business as a foreign corporation (or such other form of legal
entity as its name and organizational documents may indicate) and
is in good standing under the laws of each jurisdiction which
requires such qualification.
(i) All the outstanding shares of
capital stock or other ownership interests of each subsidiary of
the Company have been duly and validly authorized and issued and
are
fully paid and
non-assessable, and, except as otherwise set forth in the
Disclosure Package and the Prospectus, all outstanding shares of
capital stock or other ownership interests of such subsidiaries are
owned by the Company either directly or through wholly-owned
subsidiaries free and clear of any perfected security interest or
any other security interests, claims, liens or encumbrances, except
where such security interests, claims, liens or encumbrances would
not have a Material Adverse Effect.
(j) There is no franchise, contract
or other document of a character required to be described in the
Registration Statement or Prospectus, or to be filed as an exhibit
thereto, which is not described or filed as required.
(k) This Agreement has been duly
authorized, executed and delivered by the Company.
(l) The shares of the Stock to be
issued and sold by the Company to the Underwriter hereunder have
been duly authorized and, upon payment and delivery in accordance
with this Agreement, will be validly issued, fully paid and
non-assessable, will conform to the description thereof contained
in the Base Prospectus, will be issued in compliance with federal
and state securities laws and will be free of statutory and
contractual preemptive rights, rights of first refusal and similar
rights.
(m) The statements set forth in the
Disclosure Package and the Prospectus under the caption
“Description of Capital Stock” are accurate and fair in
all material respects.
(n) Neither the Company nor any
subsidiary is, or, after giving effect to the offering and sale of
the Stock and the application of the proceeds thereof as described
in the Disclosure Package and the Prospectus, will be an
“investment company” as defined in the Investment
Company Act of 1940, as amended.
(o) No consent, approval,
authorization, filing with or order of any court or governmental
agency or body is required in connection with the transactions
contemplated herein, except such as have been obtained under the
Act and the Exchange Act and such as may be required under the blue
sky laws of any jurisdiction in connection with the purchase and
distribution of the Stock by the Underwriter in the manner
contemplated herein and in the Disclosure Package and the
Prospectus.
(p) Neither the offer, issue or sale
of the Stock nor the consummation of any other of the transactions
herein contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach or violation of, or imposition of
any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to (i) the charter
or by-laws or similar organizational documents of the Company or
any of its subsidiaries, (ii) the terms of any material
indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or any of
its subsidiaries is a party or bound or to which its or their
property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or
any
of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its subsidiaries or any of
its or their properties, except, with respect to (ii) and
(iii) above, where such conflict, breach, violation or imposition
would not, individually or in the aggregate, result in a Material
Adverse Effect.
(q) No holder of securities of the
Company has rights to the registration of such securities under the
Registration Statement.
(r) The consolidated financial
statements and schedules of the Company and its consolidated
subsidiaries included or incorporated by reference in the Base
Prospectus, the Prospectus and the Registration Statement present
fairly, in all material respects, the consolidated financial
condition, results of operations and cash flows of the Company and
its consolidated subsidiaries as of the dates and for the periods
indicated, comply as to form with the applicable accounting
requirements of the Act and have been prepared in conformity with
generally accepted accounting principles applied on a consistent
basis throughout the periods involved (except as otherwise noted
therein).
(s) Since the date of the most recent
financial statements included or incorporated by reference in the
Prospectus (exclusive of any supplement thereto), there has been no
material adverse change, or any development involving a prospective
material adverse change, in the condition (financial or otherwise),
earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business or otherwise,
except as set forth in or contemplated in the Disclosure Package
and the Prospectus (exclusive of any supplement thereto).
(t) No action, suit or proceeding by
or before any court or governmental agency, authority or body or
any arbitrator involving the Company or its property is pending or,
to the best knowledge of the Company, threatened that
(i) could reasonably be expected to have a material adverse
effect on the performance of this Agreement or the consummation of
any of the transactions contemplated hereby or (ii) could
reasonably be expected to have a Material Adverse Effect, except as
set forth in or contemplated in the Disclosure Package and the
Prospectus (exclusive of any supplement thereto).
(u) Each of the Company and its
subsidiaries owns or leases all such properties as are necessary to
the conduct of its operations as presently conducted.
(v) Neither the Company nor any of
its subsidiaries is in violation or default of (i) any
provision of its charter or bylaws or similar organizational
documents, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which
it is a party or bound or to which its property is subject, or
(iii) any statute, law, rule, regulation, judgment, order or
decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having
jurisdiction over the Company or such subsidiary or any of its
properties, as applicable, except, with respect to
(ii) and
(iii) above, for such violations and defaults that would not,
individually or in the aggregate, result in a Material Adverse
Effect.
(w) Deloitte & Touche LLP, who
have certified certain financial statements of the Company and its
consolidated subsidiaries and delivered their report with respect
to the audited consolidated financial statements and schedules
included or incorporated by reference in the Base Prospectus and
the Prospectus, are independent public accountants with respect to
the Company and its consolidated subsidiaries within the meaning of
the Act and the applicable published rules and regulations
thereunder.
(x) The statistical and
market-related data included under the captions included or
incorporated by reference in the Disclosure Package and the
Prospectus are based on or derived from sources that the Company
believes to be reliable and accurate in all material
respects.
(y) Each of the Company and its
subsidiaries (i) has filed all foreign, federal, state and
local tax returns that are required to be filed or has requested
extensions thereof, except where the failure so to file would not
have a Material Adverse Effect, and (ii) has paid all taxes
required to be paid by it and any other assessment, fine or penalty
levied against it, to the extent they are due and payable, except
where any such tax, assessment, fine or penalty is currently being
contested in good faith or would not have a Material Adverse
Effect, and except as set forth in or contemplated in the
Disclosure Package and the Prospectus (exclusive of any supplement
thereto).
(z) There are no transfer taxes or
other similar fees or charges under Federal law or the laws of any
state, or any political subdivision thereof, required to be paid in
connection with the execution and delivery of this Agreement or the
issuance by the Company or sale by the Company of the Stock.
(aa) No labor problem or dispute with
the employees of the Company or any of its subsidiaries exists or
is threatened or imminent, and neither the Company nor any of its
subsidiaries is aware of any existing or imminent labor disturbance
by the employees of any of its or any of its subsidiaries’
principal suppliers, contractors or customers, that could have a
Material Adverse Effect, except as set forth in or contemplated in
the Disclosure Package and the Prospectus (exclusive of any
supplement thereto).
(bb) The Company is insured by
insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the
businesses in which they are engaged.
(cc) No subsidiary of the Company is
currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on
such subsidiary’s capital stock or other ownership interest,
from repaying to the Company any loans or advances to such
subsidiary from the Company or from transferring any of such
subsidiary’s property or assets to the Company or any other
subsidiary of the Company, except as described in or contemplated
by the Disclosure Package and the Prospectus (exclusive of any
supplement thereto).
(dd) The Company and its subsidiaries
possess all licenses, certificates, permits and other
authorizations issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective
businesses, and neither the Company nor any subsidiary has received
any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a Material Adverse Effect,
except as set forth in or contemplated in the Disclosure Package
and the Prospectus (exclusive of any supplement thereto).
(ee) The Company and its subsidiaries
maintain a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The
Company and its subsidiaries’ internal controls over
financial reporting are effective, and, except as disclosed in the
Disclosure Package and the Prospectus, or in any document
incorporated by reference therein, since the end of the
Company’s most recent audited fiscal year, there has been
(i) no material weakness in the Company’s and its
subsidiaries’ internal controls over financial reporting
(whether or not remediated) and (ii) no change in the
Company’s and its subsidiaries’ internal control over
financial reporting that has materially affected, or is reasonably
likely to materially affect, such internal controls.
(ff) The Company and its subsidiaries
maintain “disclosure controls and procedures” (as such
term is defined in Rule 13a-15(e) under the Exchange Act);
such disclosure controls and procedures are effective at the
reasonable assurance level.
(gg) There is and has been no failure
on the part of the Company or any of its directors or executive
officers in their capacities as such, to comply in all material
respects with any applicable provision of the Sarbanes-Oxley Act of
2002 and the rules and regulations promulgated in connection
therewith (the “Sarbanes-Oxley Act”), including
Section 402 related to loans and Sections 302 and 906
related to certifications.
(hh) Except as set forth in the
Disclosure Package and the Prospectus (exclusive of any supplement
thereto), the Company and each of its subsidiaries are (i) in
compliance in all material respects with any and all applicable
laws and regulations relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (“Environmental Laws”),
(ii) have received and are in compliance with all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses, and
(iii) have not received notice of any actual or potential
liability under any Environmental Law, except where such
non-compliance with Environmental Laws, failure to receive required
permits, licenses or other approvals, or liability would not,
individually or in the aggregate, have a Material Adverse Effect.
Except as set forth in the Disclosure Package
and the
Prospectus (exclusive of any supplement thereto), neither the
Company nor any of its subsidiaries has been named as a
“potentially responsible party” under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended.
(ii) In the ordinary course of its
business, the Company periodically reviews the effect of
Environmental Laws on the business, operations and properties of
the Company and its subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities. On the
basis of such review, the Company and its subsidiaries have
reasonably concluded that such associated costs and liabilities
would not, singly or in the aggregate, have a Material Adverse
Effect, except as set forth in or contemplated in the Disclosure
Package and the Prospectus (exclusive of any supplement
thereto).
(jj) The minimum funding standard
under Section 302 of the Employee Retirement Income Security
Act of 1974, as amended, and the regulations and published
interpretations thereunder (“ERISA”), has been
satisfied by each “pension plan” (as defined in
Section 3(2) of ERISA) which has been established or
maintained by the Company and/or one or more of its subsidiaries,
and the trust forming part of each such plan which is intended to
be qualified under Section 401 of the Code is so qualified;
each of the Company and its subsidiaries has fulfilled its
obligations, if any, under Section 515 of ERISA; neither the
Company nor any of its subsidiaries maintains or is required to
contribute to a “welfare plan” (as defined in
Section 3(1) of ERISA) which provides retiree or other
post-employment welfare benefits or insurance coverage (other than
“continuation coverage” (as defined in Section 602
of ERISA)); each pension plan and welfare plan established or
maintained by the Company and/or one or more of its subsidiaries is
in compliance in all material respects with the currently
applicable provisions of ERISA; and neither the Company nor any of
its subsidiaries has incurred or could reasonably be expected to
incur any withdrawal liability under Section 4201 of ERISA, any
liability under Section 4062, 4063, or 4064 of ERISA, or any
other liability under Title IV of ERISA.
(kk) Neither the Company nor any of
its subsidiaries nor, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or
any of its subsidiaries is aware of or has taken any action,
directly or indirectly, that would result in a violation by such
persons of the FCPA, including, without limitation, making use of
the mails or any means or instrumentality of interstate commerce
corruptly in furtherance of an offer, payment, promise to pay or
authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of
value to any “foreign official” (as such term is
defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in
contravention of the FCPA, and the Company, its subsidiaries and,
to the knowledge of the Company, its affiliates have conducted
their businesses in compliance with the FCPA and have instituted
and maintain policies and procedures designed to ensure, and which
are reasonably expected to continue to ensure, continued compliance
therewith.
(ll) The operations of the Company
and its subsidiaries are and have been conducted at all times in
compliance with applicable financial recordkeeping and
reporting
requirements of the Currency and Foreign Transactions Reporting Act
of 1970, as amended, the money laundering statutes of all
applicable jurisdictions, the rules and regulations thereunder and
any related or similar rules, regulations or guidelines issued,
administered or enforced by any governmental agency (collectively,
the “Money Laundering Laws”) and no action, suit or
proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the Money Laundering Laws is pending
or, to the best knowledge of the Company, threatened.
(mm) Neither the Company nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S.
Treasury Department (“OFAC”); and the Company will not
directly or indirectly use the proceeds of the offering, or lend,
contribute or otherwise make available such proceeds, to any
subsidiary, joint venture partner or
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