DEAN FOODS COMPANY
$150,000,000
6.90% Senior Notes Due October 15, 2017
UNDERWRITING AGREEMENT
October 1, 1997
Goldman, Sachs & Co.
Merrill, Lynch, Pierce, Fenner
& Smith Incorporated
Prudential Securities Incorporated
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Dear Sirs:
Dean Foods Company, a Delaware corporation (the "Company"), proposes to
issue and sell to the several Underwriters named in Schedule I hereto (the
"Underwriters") an aggregate of $150,000,000 principal amount of its 6.90%
Senior Notes Due October 15, 2017 (the "Notes"). The Notes will be issued under
an Indenture dated as of January 15, 1995 (the "Indenture") between the Company
and First Trust National Association (as successor to Bank of America Illinois),
as Trustee (the "Trustee"), and will have the maturities, interest rates,
redemption provisions, if any, and other terms as set forth in the Prospectus
Supplement referred to below.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Notes. Such registration statement, including all documents incorporated by
reference therein and the exhibits thereto and all amendments filed on or prior
to the Closing Date (as hereinafter defined), is hereinafter referred to as the
"Registration Statement." The Company has filed with, or transmitted for filing
to, or shall promptly hereafter file with or transmit for filing with the
Commission, pursuant to Rule 424 under the Securities Act of 1933, as amended
(the "Securities Act"), a prospectus supplement (the "Prospectus Supplement") to
the prospectus included in the Registration Statement describing the Notes. The
prospectus in the form in which it appears in the Registration Statement is
hereinafter referred to as the "Basic Prospectus." The term "Prospectus" means
the Basic Prospectus together with the Prospectus Supplement. The term
"preliminary prospectus" means a
preliminary prospectus supplement specifically relating to the Notes, together
with the Basic Prospectus. As used herein, the terms "Basic Prospectus,"
"Prospectus" and "preliminary prospectus" shall include in each case the
documents, if any, incorporated by reference therein. The terms "supplement,"
"amendment" and "amend" as used herein shall include all documents deemed to be
incorporated by reference in the Prospectus that are filed subsequent to the
date of the Basic Prospectus by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and prior to
the completion of the initial offering of the Notes.
1. Representations and Warranties. The Company represents and warrants to
and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or to the knowledge of the
Company threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part of
the Registration Statement, when such part became effective, did not contain,
and each such part, as amended or supplemented, if applicable, will not contain
any 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 not
misleading, (iii) the Registration Statement and the Prospectus comply, and, as
amended or supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Prospectus does not include and, as amended
or supplemented, if applicable, 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, except that (1) the representations and warranties set
forth in this Section 1(b) do not apply (A) to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter expressly
for use therein or (B) to that part of the Registration Statement that
constitutes the Statement of Eligibility (Form T-1) under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), of the Trustee.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own
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its property and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(d) Each "significant subsidiary" (as defined in Regulation S-X
promulgated by the Commission) of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(e) This Agreement has been duly authorized, executed and delivered by the
Company.
(f) The Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable in accordance with its
terms, subject to (i) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting the enforcement of creditors' rights, (ii) general principles of
equity (regardless of whether enforceability is considered in a proceeding in
equity or at law), (iii) any requirement that a claim with respect to any Note
denominated in other than U.S. dollars (or a judgment denominated in other than
U.S. dollars in respect of such claim) be converted into U.S. dollars at a rate
of exchange prevailing on a date determined in accordance with applicable law,
and (iv) governmental authority to limit, delay or prohibit the making of
payments outside of the United States or in a foreign currency or currency unit.
(g) The Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and delivered
to and duly paid for by the Underwriters in accordance with the terms of this
Agreement, will be entitled to the benefits of the Indenture and will be valid
and binding obligations of the Company, enforceable in accordance with their
respective terms, subject to (i) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting the enforcement of creditors' rights and (ii) general principles
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of equity (regardless of whether enforceability is considered in a proceeding in
equity or at law).
(h) The execution and delivery by the Company of this Agreement, the Notes
and the Indenture, and the performance by the Company of its obligations under
this Agreement, the Notes and the Indenture will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the Company or
any agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary which contravention
would have a material adverse effect on the Company and its subsidiaries, taken
as a whole, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the Notes or
the Indenture, except such as has been obtained under the Securities Act or may
be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Notes.
(i) There are no legal or governmental proceedings pending or threatened
to which the Company or any of its subsidiaries is a party or to which any of
the properties of the Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement or the Prospectus and are
not so described, or any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed or incorporated by reference as exhibits to the
Registration Statement that are not described, filed or incorporated as
required.
(j) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied as to form when so filed
in all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(k) The Company is not an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in the Investment Company
Act of 1940, as amended.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at a purchase price of 98.383% of the
principal amount thereof, plus accrued interest, if any, on the Notes from
October 6, 1997, to the Closing Date
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(as defined below), the principal amount of the Notes set forth opposite such
Underwriter's name in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the Notes shall be
made at 10:00 A.M., Chicago time, on October 6, 1997, or such later date (not
later than October 13, 1997) as the Underwriters shall designate, which date and
time of delivery and payment for the Notes being herein called the "Closing
Date"). Delivery of the Notes shall be made to the Underwriters for their
respective accounts through the facility of The Depository Trust Company ("DTC")
against payment by the several Underwriters of the purchase price thereof to or
upon the order of the Company by certified or official bank check or checks
drawn on or by a New York Clearing House bank and payable in same day funds or
by wire transfer of immediately available Federal funds to an account specified
by the Company. Delivery of the Notes shall be made at such location as the
Underwriters shall reasonably designate at least one business day in advance of
the Closing Date and payment for the Notes shall be made at the office of Sidley
& Austin, One First National Plaza, Chicago, Illinois on the Closing Date. Upon
delivery, the Notes shall be registered in such names and in such denominations
as the Underwriters may request not less than two full business days in advance
of the Closing Date.
The Company agrees to have the Notes available for inspection, checking and
packaging by the Underwriters not later than 1:00 p.m. on the business day prior
to the Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Notes for sale to the public as set forth in
the Prospectus.
5. Agreements. The Company agrees with each Underwriter that:
(a) Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Notes, to furnish to the Underwriters a copy of
each such proposed amendment or supplement and not to file any such proposed
amendment or supplement to which the Underwriters reasonably object.
(b) If, during such period after the first date of public offering of the
Notes as in the opinion of counsel for the Underwriters the Prospectus is
required by law to be delivered in connection with sales by an Underwriter or
dealer, any event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements
therein, in the light of circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to comply
with applicable law, forthwith to prepare, file with the Commission and furnish,
at
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its own expense, to the Underwriters and to the dealers (whose names and
addresses the Underwriters will furnish to the Company) to which Notes may have
been sold by the Underwriters and to any other dealers upon request, either
amendments or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be misleading or
so that the Prospectus, as amended or supplemented, will comply with law.
(c) The Company will make generally available to its security holders and
to the Underwriters as soon as practicable financial statements that satisfy the
provisions of Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder covering a twelve month period beginning on the
first day of the Company's first full fiscal quarter after the date of this
Agreement. If such fiscal quarter is the last fiscal quarter of the Company's
fiscal year, such earning statement shall be made available not later than 90
days after the close of the period covered thereby and in all other cases shall
be made available not later than 45 days after the close of the period covered
thereby.
(d) The Company has furnished to each Underwriter, without charge, a true
and correct copy of the Registration Statement as filed with the Commission,
including exhibits and all amendments thereto, and will furnish as many copies
of the Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto as such Underwriter may reasonably request.
(e) The Company will endeavor to qualify the Notes for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Underwriters
shall reasonably request and to maintain such qualifications for as long as the
Underwriters shall reasonably request; provided that in no event shall the
Company be required to qualify as a foreign corporation or obligated to file any
general consent to service of process in order to make the Notes eligible for
registration or qualification in any jurisdiction.
(f) The Company shall furnish to the Underwriters such relevant documents
and certificates of officers of the Company relating to the business, operations
and affairs of the Company, the Registration Statement, the Basic Prospectus,
any amendments or supplements thereto, the Indenture, the Notes, this Agreement,
and the performance by the Company of its obligations hereunder or thereunder as
the Underwriters may from time to time reasonably request.
(g) The Company shall notify the Underwriters promptly in writing of any
downgrading, or of its receipt of any notice of any intended or potential
downgrading or of any review for
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possible change that does not indicate the direction of the possible change, in
the rating accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act.
(h) The Company will, whether or not any sale of Notes is consummated, pay
all expenses incident to the performance of its obligations under this Agreement
including: (i) the preparation and filing of the Registration Statement and the
Prospectus and all amendments and supplements thereto incurred by the Company,
(ii) the preparation, issuance and delivery of the Notes, (iii) the reasonable
fees and disbursements of the Company's counsel and accountants and of the
Trustee, (iv) the qualification of the Notes under securities or Blue Sky laws
in accordance with the provisions of Section 5(e), including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of any Blue Sky Memorandum, (v)
the printing and delivery to the Underwriters in quantities as hereinabove
stated of copies of the Registration Statement and all amendments thereto and of
the Prospectus and any amendments or supplements thereto, and (vi) any fees
charged by rating agencies for the rating of the Notes.
(i) During the period beginning on the date of this Agreement and
continuing to and including the Closing Date, the Company will not offer, sell,
contract to sell or otherwise issue any debt securities of the Company
substantially similar to the Notes (other than (i) the Notes and (ii)
commercial paper issued in the ordinary course of business), without the prior
written consent of the Underwriters.
6. Conditions of the Obligations of the Underwriters. The several
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obligations of the Underwriters are subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of the Company's officers made in each certificate
furnished pursuant to the provisions hereof and to the performance and
observance by the Company of all covenants and agreements herein contained on
its part to be performed and observed and to the following additional conditions
precedent when and as specified:
(a) After the execution and delivery of the Underwriting Agreement and
prior to the Closing Date:
(i) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the date
of this Agreement) that, in the
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judgment of the Underwriters, is material and adverse and that makes it, in
the reasonable judgment of the Underwriters, impracticable to market the
Notes on the terms and in the manner contemplated by the Prospectus; and
(ii) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's securities by
any "nationally recognized statistical rating organization," as such term
is defined for purposes of Rule 436(g)(2) under the Securities Act.
(b) On the Closing Date the Underwriters shall have received:
(i) The opinion, dated as of such date, of Eric A. Blanchard, General
Counsel of the Company, to the effect that:
(A) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
(B) each "significant subsidiary" (as defined in Regulation S-X
promulgated by the Commission) of the Company has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of its respective jurisdiction of incorporation, has
the corporate power and authority to own its property and to conduct
its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as
a whole;
(C) the execution and delivery by the Company of this Agreement,
the Notes and the Indenture and the performance by the Company of its
obligations under this Agreement, the Notes and the Indenture will not
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contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or, to the best of such
counsel's knowledge, any agreement or other instrument binding upon
the Company or any of its subsidiaries that is material to the Company
and its subsidiaries, taken as a whole, or, to the best of such
counsel's knowledge, any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for
the performance by the Company of its obligations under this
Agreement, the Notes and the Indenture except such as may be required
by the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Notes or as required by the NASD;
(D) the statements (1) in the Registration Statement under Item
15, (2) in "Item 3 - Legal Proceedings" of the Company's most recent
annual report on Form 10-K incorporated by reference in the Prospectus
and (3) in "Item 1 - Legal Proceedings" or Part II of the Company's
quarterly reports on Form 10-Q, if any, filed since such annual
report, in each case insofar as such statements constitute summaries
of the legal matters, documents and proceedings referred to therein,
fairly present, in all material respects, the information called for
with respect to such legal matters, documents and proceedings and
fairly summarize, in all material respects, the matters referred to
therein;
(E) after due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened to which the Company
or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that
are required to be described in the Registration Statement or the
Prospectus and are not so described or of any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to such Registration Statement
that are not described, filed or incorporated as required;
(F) each document filed pursuant to the Exchange Act and
incorporated by reference in the Registration Statement (except for
financial statements and the notes thereto or supporting schedules and
other financial or accounting data derived therefrom contained in the
Registration Statement or incorporated
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therein by reference as to which such counsel need not express any
opinion), complied when so filed as to form in all material respects
with the Exchange Act and the applicable rules and regulations of the
Commission thereunder; and
(G) The Registration Statement has become effective under the
Securities Act; and, to my knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for such purpose has been instituted or overtly threatened
by the Commission.
Such counsel shall also state that based on his participation in
conferences with representatives of the Underwriters, representatives of the
Company, counsel for the Underwriters, special counsel for the Company and
representatives of the independent accountants for the Company during which the
contents of the Registration Statement and the Prospectus and related matters
were discussed, his review of certain corporate documents, his understanding of
applicable law and the experience he has gained in his practice thereunder,
nothing has come to his attention that caused him to believe that the
Registration Statement (other than the financial statements and the notes
thereto and the supporting schedules and other financial and accounting data
derived therefrom, set forth therein or incorporated by reference, as to which
no advice is given and except for that part of the Registration Statement that
constitutes the Form T-1 referred to herein, as to which no advice is given), as
of its effective date or as of the date of such opinion, contained or contains
an untrue statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus (other than the financial statements and
the notes thereto and the supporting schedules and other financial and
accounting data derived therefrom, set forth therein or incorporated by
reference, as to which no advice is given), as of its date and the date of such
opinion, included or includes an untrue statement of a material fact or omitted
or omits 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.
(ii) The opinion, dated as of such date, of Kirkland & Ellis,
special counsel for the Company, to the effect that:
(A) this Agreement has been duly authorized, executed and
delivered by the Company;
(B) the Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and, assuming the
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due authorization, execution and delivery by the Trustee, the
Indenture constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except
that such counsel need not express any opinion as to (i) the effect of
applicable bankruptcy, insolvency, reorganization, fraudulent transfer
and conveyance, moratorium and other similar laws affecting the rights
of creditors generally, (ii) the effect of rules of law and legal and
equitable principles governing specific performance, injunctive
relief, rights of acceleration and other equitable remedies,
regardless of whether enforceability of any obligation is considered
in a proceeding in equity or at law, (iii) the conflicts of law or
choice of law provisions contained therein to the extent such
provisions may be applied by any courts other than the courts in the
State of New York, (iv) remedies available in respect of violations or
breaches by the Company which are determined by a court to be the
proximate result of action taken by any other party which actions such
other party is not entitled to take, (v) any provision which purports,
by implication or otherwise, to state that the failure to exercise or
a delay in exercising rights or remedies will not operate as a waiver
of any such right or remedy, or (vi) any provision which purports or
would operate to render ineffective any waiver or modification not in
writing;
(C) the Notes have been duly authorized by the Company and when
the terms thereof have been duly established in accordance with the
Indenture, and when duly completed, executed, authenticated and issued
in accordance with the Indenture and delivered against payment of the
agreed upon consideration by the Underwriters in accordance with the
terms of the Underwriting Agreement will constitute valid and legally
binding obligations of the Company entitled to the benefits provided
by the Indenture and are enforceable against the Company in accordance
with their terms, except such counsel need not express any opinion as
to (i) the effect of applicable bankruptcy, insolvency,
reorganization, fraudulent transfer and conveyance, moratorium and
other similar laws affecting the rights of creditors generally, (ii)
the effect of rules of law and legal and equitable principles
governing specific performance, injunctive relief, rights of
acceleration and other equitable remedies, regardless of whether
enforceability of any obligation is considered in a proceeding in
equity or at law, (iii) the conflicts of law or choice of law
provisions contained therein to the extent such provisions may be
applied by any courts other than the courts in the
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State of New York, (iv) remedies available in respect of violations or
breaches by the Company which are determined by a court to be the
proximate result of action taken by any other party which actions such
other party is not entitled to take, (v) any provision which purports,
by implication or otherwise, to state that the failure to exercise or
a delay in exercising rights or remedies will not operate as a waiver
of any such right or remedy, or (vi) any provision which purports or
would operate to render ineffective any waiver or modification not in
writing;
(D) the statements in the Prospectus, as then amended or
supplemented, under the captions "Description of Debt Securities" and
"Description of the Notes" insofar as such statements constitute
summaries of the legal matters or documents referred to therein,
present in all material respects the information called for with
respect to such legal matters and documents and summarize in all
material respects the matters referred to therein; and
(E) assuming that each document incorporated by reference in the
Registration Statement complied as to form to the requirements of the
Exchange Act, the Registration Statement (other than the financial
statements and the notes thereto and the supporting schedules and
other financial and statistical data derived therefrom, set forth
therein or incorporated by reference, as to which such counsel need
not express any opinion and except for that portion of the
Registration Statement that constitutes the Form T-1 referred to
herein, as to which such counsel need not express any opinion),
complies as to form in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder.
Such counsel shall also state that based on their participation in
conferences with representatives of the Underwriters, representatives of the
Company, counsel for the Underwriters, counsel for the Company and
representatives of the independent accountants for the Company during which the
contents of the Registration Statement and the Prospectus and related matters
were discussed (the documents incorporated by reference having been prepared
without their involvement), their review of certain corporate documents
furnished to them by the Company, their understanding of applicable law and the
experience they have gained in their practice thereunder, they advise you that
nothing has come to their attention that caused them to believe that the
Registration Statement (other than the financial statements and the notes
thereto and the supporting schedules and other financial and accounting data
derived therefrom, set forth
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therein or incorporated by reference, as to which no advice is given and except
for that part of the Registration Statement that constitutes the Form T-1
referred to herein, as to which no advise is given), as of its effective date or
as of the date of such opinion, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus (other than financial statements and the notes thereto and the
supporting schedules and other financial and accounting data derived therefrom,
set forth therein or incorporated by reference, as to which no advice is given),
as of its date and the date of such opinion, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statement therein, in the light of the
circumstances under which they were made, not misleading.
(iii) The opinion, dated as of such date, of Sidley & Austin, counsel
for the Underwriters, covering the matters in subparagraphs (A), (B), (C)
and (D) (with respect to statements in the Prospectus under the captions
"Description of Debt Securities" and "Description of the Notes") of
paragraph (ii), and the last paragraph of paragraph (b)(ii) above.
For the purpose of expressing the opinions contained in paragraph
(ii)(C) and (iii)(C) above, Kirkland & Ellis and Sidley & Austin, respectively,
may assume that neither the issuance, sale and delivery of any Note, nor any of
the terms of such Note, nor compliance by the Company with the terms of such
Note, will violate the charter or by-laws of the Company or any applicable law,
any agreement or instrument then binding upon the Company or any restriction
imposed by any court or government body having jurisdiction over the Company.
With respect to the last paragraph of paragraphs (b)(i) and (b)(ii) above, Eric
A. Blanchard and Kirkland & Ellis, respectively, may each state that their
opinion and belief are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements thereto
and documents incorporated therein by reference and review and discussion of the
contents thereof, but are without independent check or verification, except as
specified. With respect to the last paragraph of paragraph (b)(ii) above, Sidley
& Austin may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto (but not including documents
incorporated therein by reference) and review and discussion of the contents
thereof (including documents incorporated therein by reference), but are without
independent check or verification, except as specified.
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The opinion of Sidley & Austin described in paragraph (b)(iii) above
shall be rendered to you at the request of the Company and shall so state
therein.
(c) The Underwriters shall have received a certificate on behalf of
the Company, dated the Closing Date and signed by an officer of the Company, to
the effect set forth in subparagraph (a)(ii) above and to the effect that the
representations and warranties of the Company contained herein are true and
correct as of such date and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be performed or
satisfied on or before the Closing Date. The officer signing and delivering such
certificate may rely upon the best of his knowledge.
(d) On the Closing Date, the Company's independent accountants shall
have furnished to the Underwriters a letter, in form and substance satisfactory
to the Underwriters, containing statements and information of the type
ordinarily included in accountant's "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in or incorporated by reference into the Prospectus.
(e) The Company shall furnish to the Underwriters such appropriate
further information, certificates and documents as they may reasonably request.
7. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by any Underwriter or any such
controlling person in connection with investigating or defending any such action
or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof
or the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information furnished to the Company in writing by such Underwriter expressly
for use therein; provided, however, that the foregoing indemnity agreement with
respect to any Prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, claims, damages or liabilities
purchased Notes, or any person controlling such Underwriter, if it is
established that a copy of the Prospectus (as then amended or supplemented if
the Company shall have furnished any amendments or supplements
-14-
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Notes to such person, and if the Prospectus (as
so amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
such Underwriter, but only with reference to information furnished to the
Company in writing by such Underwriter expressly for use in the Registration
Statement or the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) above, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to an actual or potential
conflict of interest between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by you or, if you are not an indemnified party and are not
reasonably likely to become an indemnified party, by Goldman, Sachs & Co., in
the case of parties indemnified pursuant to paragraph (a) above, and by the
Company, in the case of parties indemnified pursuant to paragraph (b) above.
The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such
-15-
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party
shall, without the prior written consent of the indemnified party (which consent
shall not be unreasonably withheld), effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(d) To the extent that the indemnified party has notified the
indemnifying party of a proceeding as provided under subsection (c) above and
the indemnification provided for in paragraph (a) or (b) of this Section 7 is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein in connection with any
offering of Notes, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and each Underwriter
on the other hand from the offering of such Notes or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and each
Underwriter on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and each Underwriter on the other hand in connection
with the offering of such Notes shall be deemed to be in the same respective
proportions which the total net proceeds from the offering of such Notes (before
deducting expenses) received by the Company bear to the total discounts and
commissions received by each Underwriter in respect thereof. The relative fault
of the Company on the one hand and of each Underwriter on the other hand shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by such
Underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. Each
Underwriter's obligation to contribute pursuant to this Section 7 shall be
several in proportion to the respective principal amounts of the Notes they have
purchased hereunder, and not joint.
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(e) The Company and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Notes underwritten by and
distributed to the public were offered and sold to the public through such
Underwriter exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 7 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
8. Termination. This Agreement shall be subject to termination by
notice given by the Underwriters to the Company, if (a) after the execution and
delivery of this Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, or the National
Association of Securities Dealers, Inc., (ii) trading of any securities of the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities or (iv)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the judgment of
the Underwriters, is material and adverse and (b) in the case of any of the
events specified in clauses (a)(i) through (iv), such event, singly or together
with any other such event, makes it, in the judgment of the Underwriters,
impracticable to market the Notes on the terms and in the manner contemplated in
the Prospectus.
9. Defaulting Underwriters. If, on the Closing Date, any Underwriter
shall fail or refuse to purchase Notes and the aggregate amount of Notes with
respect to which such default occurs is more than one-tenth of the aggregate
amount of Notes to be purchased on such date, and arrangements satisfactory to
you
-17-
and the Company for the purchase of such Notes are not made within 36 hours
after such default, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter or the Company. In any such case, either you
or the Company shall have the right to postpone the Closing Date, but in no
event for longer than seven days, in order that the required changes, if any, in
the Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
10. Representations and Indemnities to Survive. The respective
------------------------------------------
indemnity and contribution agreements, representation, warranties and
other statements of the Company, its officers and the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any termination of this Agreement, any investigation made by or on
behalf of an Underwriter or the Company or any of the officers, directors or
controlling persons referred to in Section 7 and delivery of and payment for the
Notes.
11. Notices. All communications hereunder will be in writing and
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effective only on receipt, and, if sent to you, will be mailed, delivered or
telecopied and confirmed to Goldman, Sachs & Co., 85 Broad Street, New York, New
York, 10004, Attention: Registration Department (telecopy number: (212) 357-
0926), or, if sent to the Company, will be mailed, delivered or telecopied and
confirmed to the Company at 3600 N. River Road, Franklin Park, Illinois 60131,
Attention: General Counsel (telecopy number: (847) 233-5501).
12. Successors. This Agreement will inure to the benefit of and be
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binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 7 and the
purchasers of Notes (to the extent expressly provided in Section 4), and no
other person will have any right or obligation hereunder.
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13. Amendments. This Agreement may be amended or supplemented if,
----------
but only if, such amendment or supplement is in writing and is signed by the
Company and each Underwriter.
14. Counterparts. This Agreement may be signed in any number of
------------
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
15. Applicable Law. This Agreement shall be governed by and
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construed in accordance with the internal laws of the State of New York.
16. Headings. The headings of the sections of this Agreement have
--------
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
-19-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
DEAN FOODS COMPANY
By:______________________________
Name:
Title:
The foregoing Agreement
is hereby confirmed
and accepted as of the
date first above written.
GOLDMAN, SACHS & CO.
MERRILL, LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
By: Goldman, Sachs & Co.
By:_____________________________________
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
-20-
SCHEDULE I
Principal Amount
of Notes to
Underwriter be Purchased
- ----------- ----------------
Goldman, Sachs & Co. $ 50,000,000
Merrill, Lynch, Pierce, Fenner
& Smith Incorporated 50,000,000
Prudential Securities Incorporated 50,000,000
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Total $150,000,000