e424b3
Filed pursuant to Rule 424(b)(3)
Registration No. 333-130309
PROSPECTUS
DEAN FOODS COMPANY
Debt Securities
We may from time to time offer to sell debt securities. The debt
securities will be our senior unsecured obligations and will
rank equally with all of our other senior unsecured
indebtedness. The debt securities will be fully and
unconditionally guaranteed by the subsidiaries that are
guarantors under our senior credit facility, which are
substantially all of our wholly owned U.S. subsidiaries.
This prospectus contains a general description of the debt
securities that we may offer for sale. We will determine the
terms of each series of debt securities at the time of sale. We
will provide the specific terms of the particular series of debt
securities issued under this prospectus in a supplement to this
prospectus. You should read this prospectus and any applicable
supplements carefully before you invest.
Investing in these debt securities involves risks. You should
carefully review the information contained in this prospectus
under the heading Risk Factors beginning on
page 5.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the accuracy or adequacy of this
prospectus. Any representation to the contrary is a criminal
offense.
We will sell these debt securities directly, through agents,
dealers or underwriters as designated from time to time, or
through a combination of these methods. We reserve the sole
right to accept, and together with our agents, dealers and
underwriters reserve the right to reject, in whole or in part
any proposed purchase of debt securities to be made directly or
through agents, underwriters or dealers. If our agents or any
dealers or underwriters are involved in the sale of the debt
securities, the applicable prospectus supplement will set forth
any applicable commissions or discounts.
The date of this prospectus is May 9, 2006.
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is part of a shelf registration
statement that we have filed with the Securities and Exchange
Commission (the SEC). By using a shelf registration
statement, we may sell, at any time and from time to time, in
one or more offerings, an unlimited amount of the debt
securities described by this prospectus. This prospectus is a
part of the registration statement and does not contain all the
information in the registration statement. Whenever a reference
is made in this prospectus to a contract or other document of
the Company, the reference is only a summary and you should
refer to the exhibits that are a part of the registration
statement for a copy of the contract or other document. The
registration statement and the exhibits can be obtained from the
SEC as indicated under the heading Where You Can Find More
Information.
This prospectus only provides you with a general description of
the debt securities we may offer. Each time we sell debt
securities, we will provide you with a prospectus supplement
and, if applicable, a pricing supplement. The prospectus
supplement and any applicable pricing supplement will describe
the specific amounts, prices and other material terms of the
debt securities being offered. The prospectus supplement and any
applicable pricing supplement may also add, update or change the
information in this prospectus. You should read this prospectus,
the applicable prospectus supplement and any applicable pricing
supplement, together with the information contained in the
documents referred to under the heading Where You Can Find
More Information.
You should rely only on the information contained in this
prospectus and the documents incorporated by reference in this
prospectus or to which we have referred you. We have not, and
the underwriters have not, authorized anyone to provide you with
different information. If anyone provides you with different or
inconsistent information, you should not rely on it. This
prospectus does not constitute an offer to sell, or a
solicitation of an offer to purchase, the debt securities
offered by this prospectus in any jurisdiction to or from any
person to whom or from whom it is unlawful to make such offer or
solicitation of an offer in such jurisdiction. You should not
assume that the information contained in this prospectus or any
document incorporated by reference is accurate as of any date
other than the date on the front cover of the applicable
document. Neither the delivery of this prospectus nor any
distribution of debt securities pursuant to this prospectus
shall, under any circumstances, create any implication that
there has been no change in the information set forth or
incorporated by reference into this prospectus or in our affairs
since the date of this prospectus. Our business, financial
condition, results of operations and prospects may have changed
since that date.
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As used in this prospectus, the terms Dean Foods,
we, us, our and the
Company may, depending upon the context, refer to
Dean Foods Company, to one or more of its consolidated
subsidiaries or to Dean Foods Company and all of its
subsidiaries taken as a whole.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. You may read and copy any
document we file with the SEC at the SECs Public Reference
Room at 100 F Street, N.E., Washington, D.C. 20549.
You may obtain further information on the operation of the
Public Reference Room by calling the SEC at
1-800-SEC-0330. Our SEC
filings are also available to the public over the Internet at
the SECs web site at http://www.sec.gov. Our common stock
is listed on the New York Stock Exchange, and you may inspect
our SEC filings at the offices of the New York Stock Exchange,
20 Broad Street, New York, New York 10005.
The SEC allows us to incorporate by reference into
this prospectus the information we file with the SEC, which
means that we can disclose important information to you by
referring you to previously filed documents. The information
incorporated by reference is considered to be part of this
prospectus, unless we update or supersede that information by
the information contained in this prospectus or a prospectus
supplement or by information that we file subsequently that is
incorporated by reference into this prospectus.
We incorporate by reference into this prospectus the following
documents or information filed with the SEC (other than, in each
case, documents or information deemed to have been furnished and
not filed in accordance with SEC rules):
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Annual Report on
Form 10-K for the
year ended December 31, 2005; |
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Current Reports on
Form 8-K filed
with the SEC on March 8, 2006 and April 28,
2006; and |
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All documents filed by the Company under Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 on or
after the date of this prospectus and before the termination of
this offering. |
This prospectus is part of a registration statement we have
filed with the SEC relating to the debt securities. As permitted
by SEC rules, this prospectus does not contain all of the
information included in the registration statement and the
accompanying exhibits and schedules we file with the SEC. You
may refer to the registration statement, the exhibits and
schedules for more information about us and our debt securities.
The registration statement, exhibits and schedules are also
available at the SECs Public Reference Room or through its
web site. In addition, we post the periodic reports that we file
with the SEC on our website at http://www.deanfoods.com.
You may also obtain a copy of these filings, at no cost, by
writing to or telephoning us at the following address:
Dean Foods Company
2515 McKinney Avenue, Suite 1200
Dallas, Texas 75201
(214) 303-3400
Attention: Investor Relations
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated or deemed to be
incorporated by reference herein contain forward-looking
statements that involve risks and uncertainties, including those
discussed under the caption Risk Factors. We develop
forward-looking statements by combining currently available
information with our beliefs and assumptions. These statements
relate to future events, including our future performance, and
often contain words like may, should,
could, expects, seeks to,
anticipates, plans,
believes, estimates,
intends, predicts, projects,
potential or continue or the negative of
such terms and other comparable terminology. Forward-looking
statements are inherently uncertain, and actual performance or
results may differ materially and adversely from that expressed
in, or implied by, any such statements. Consequently, you should
recognize these statements for what they are and we caution you
not to rely upon them as facts.
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RISK FACTORS
You should carefully consider the risks related to the debt
securities described below and the risks related to our company
under the heading Risk Factors in our most recent
annual report on
Form 10-K, as
updated by our quarterly reports on
Form 10-Q,
incorporated by reference in the registration statement of which
this prospectus is a part, as well as other information included
in this prospectus and the documents incorporated by reference
in the registration statement of which this prospectus is a
part, before buying any debt securities offered by the
applicable prospectus supplement.
Risks related to the debt securities
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Our indebtedness may increase if we issue debt securities
and do not retire existing debt. |
Our total debt and debt service obligations may increase if we
issue debt securities and do not use the proceeds to retire
existing debt. Substantial indebtedness could, among other
things:
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require us to dedicate a substantial portion of our cash flow to
repaying our indebtedness, thus reducing the amount of funds
available for other general corporate purposes; |
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limit our ability to borrow additional funds necessary for
working capital, capital expenditures or other general corporate
purposes; |
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increase our vulnerability to adverse general economic or
industry conditions; and |
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limit our flexibility in planning for, or reacting to changes
in, our business. |
There can be no assurance that we will be able to meet our debt
service obligations, including any of our obligations under the
debt securities.
In addition, we may need to incur substantial additional
indebtedness in the future to fund our operations or certain
strategic objectives. However, we may not be able to incur the
additional financing necessary for these purposes.
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The value of our debt securities may decrease if rating
agencies issue any adverse rating of our securities. |
There can be no assurance that credit rating agencies will rate
any debt securities that we may issue, either at the time that
we issue them or subsequent to their issuance. If the rating
agencies do rate our debt securities, these ratings may be lower
than investors expect. Rating agencies may lower their ratings
at any time in the future, or may place the debt securities
under watch with the possibility of lowering their ratings on
the debt securities in the future. If any of these events occur,
our access to capital markets may be adversely affected, and the
value of the debt securities could decline.
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We conduct all of our operations through our subsidiaries
and may be limited in our ability to access funds from these
subsidiaries to service our debt, including the debt securities.
In addition, the debt securities will not be guaranteed by all
of our subsidiaries. |
We conduct all of our operations through our subsidiaries.
Accordingly, we depend on our subsidiaries earnings and
advances or loans made by them to us (and potentially dividends
or distributions by them to us) to provide funds necessary to
meet our obligations, including the payments of principal,
premium, if any, and interest on the debt securities. If we are
unable to access the cash flows of our subsidiaries, we would be
unable to meet our debt obligations.
Our subsidiaries are separate and distinct legal entities and,
except for the subsidiary guarantors obligations under the
subsidiary guarantees, have no obligation, contingent or
otherwise, to pay any amounts due on the debt securities or to
make funds available to us to do so. None of our foreign
affiliates is an obligor or guarantor in respect of the debt
securities. Substantially all of our wholly owned
U.S. subsidiaries are guarantors of the debt securities,
which subsidiaries are also guarantors of borrowings under our
senior credit facility. As a result, if we default on our
obligations under the debt securities, you
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will not have any direct claims against any of our foreign
affiliates. In the event of a bankruptcy, liquidation or
reorganization of any of our non-guarantor subsidiaries, holders
of their indebtedness and their trade creditors will generally
be entitled to payment of their claims from the assets of those
subsidiaries before any assets are made available for
distribution to us. In addition, the indenture allows us to
create new foreign subsidiaries and invest in our foreign
subsidiaries, all of whose assets you will not have any claim
against.
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The debt securities will be unsecured and, therefore, will
be effectively subordinated to borrowings under our senior
credit facility and any other secured debt, and the subsidiary
guarantees of the debt securities will be unsecured and
effectively subordinated to the secured debt of the subsidiary
guarantors. |
The debt securities and subsidiary guarantees will not be
secured by any of our assets or those of our subsidiaries. As a
result, the debt securities are effectively subordinated to the
indebtedness under our senior credit facility and any other
secured debt we may incur and to the secured debt of any
subsidiary guarantor to the extent of the value of the assets
securing such debt. In any liquidation, dissolution, bankruptcy
or other similar proceeding, the holders of any of our secured
debt (including indebtedness under our senior credit facility)
or the secured debt of any subsidiary guarantor may assert
rights against the secured assets in order to receive full
payment of their debt before the assets may be used to pay the
holders of the debt securities. As of December 31, 2005, we
had approximately $2.26 billion of secured debt outstanding
under our senior credit facility, but none of our
U.S. subsidiaries other than our receivables securitization
subsidiaries had any secured debt.
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If an active trading market does not develop for a series
of debt securities sold pursuant to the prospectus, you may be
unable to sell any such debt securities or to sell any such debt
securities at a price that you deem sufficient. |
Unless otherwise specified in an accompanying prospectus
supplement, any debt securities sold pursuant to this prospectus
will be new securities for which there currently is no
established trading market. We may not list any debt securities
sold pursuant to this prospectus on a national securities
exchange. While the underwriters of a particular offering of
debt securities may advise us that they intend to make a market
in those debt securities, the underwriters will not be obligated
to do so and may stop their market making at any time. No
assurance can be given:
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that a market for any series of debt securities will develop or
continue; |
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as to the liquidity of any market that does develop; or |
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as to your ability to sell any debt securities you may own or
the price at which you may be able to sell your debt securities. |
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The subsidiary guarantees may be limited in
duration. |
Each subsidiary guarantor will guarantee our obligations under
the debt securities only for so long as each subsidiary
guarantor is required to act as a guarantor under our senior
credit facility. If any or all of the subsidiary guarantees are
released or terminated or no longer required under the senior
credit facility or the senior credit facility is terminated,
such subsidiary guarantee(s) will be released under the
indenture. The indenture does not contain any covenants that
materially restrict our ability to sell, transfer or otherwise
dispose of our assets, including the capital stock of our
subsidiaries, or the assets of any of our subsidiaries, except
as described under the caption Description of Debt
Securities Consolidation, Merger, Sale or
Conveyance. In the event that we sell, transfer or
otherwise dispose of some or all of the capital stock of a
subsidiary guarantor, such that it is no longer a subsidiary of
ours, the guarantee of that subsidiary would terminate.
Likewise, in the event a subsidiary guarantor were to sell,
transfer or otherwise dispose of all or substantially all of its
assets (or incur or guarantee indebtedness where such
indebtedness or guarantee is secured by such subsidiarys
assets), the ability of the holders of debt securities to
collect payments against such subsidiary under the guarantee
could be materially and adversely affected.
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The subsidiary guarantees may raise fraudulent transfer
issues, which could impair the enforceability of the subsidiary
guarantees. |
Under U.S. bankruptcy law and comparable provisions of
state fraudulent transfer laws, a guarantee could be voided, or
claims in respect of a guarantee could be subordinated to all
other debts of that guarantor if, among other things, a court
found that the guarantee was incurred with actual intent to
hinder, delay or defraud creditors or the guarantor did not
receive fair consideration or reasonably equivalent value for
the guarantee and the guarantor:
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was insolvent or was rendered insolvent because of the guarantee
and the application of proceeds of the debt securities; |
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was engaged in a business or transaction for which its remaining
assets constituted unreasonably small capital to carry on its
business; |
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intended to incur, or believed that it would incur, debts beyond
its ability to pay such debts as they mature; or |
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was a defendant in an action for money damages, or had a
judgment for money damages docketed against it if, in either
case, after final judgment the judgment is unsatisfied. |
We cannot be sure as to the standard that a court would use to
determine whether the subsidiary guarantors were solvent at the
relevant time, or that the issuance of the guarantees would not
be voided or the guarantees would not be subordinated to the
subsidiary guarantors other debt. A guarantee could also
be subject to the claim that, because the guarantee was incurred
for the benefit of Dean Foods Company, and only indirectly for
the benefit of the subsidiary guarantor, the obligations of the
applicable subsidiary guarantor were incurred for less than fair
consideration. If a court voided a guarantee as a result of
fraudulent conveyance, or held it unenforceable for any other
reason, holders of the debt securities would cease to have a
claim against the subsidiary guarantor and would be solely
creditors of Dean Foods Company and any other subsidiary
guarantors. In addition, any payment by that subsidiary
guarantor pursuant to its guarantee could be voided and required
to be returned to the subsidiary guarantor, or to a fund for the
benefit of the creditors of the subsidiary guarantor.
Since we are a holding company, if all of the subsidiary
guarantees were voided, that would result in the holder of debt
securities having claims that would not be paid prior to
substantially all of the other debt and liabilities of the
consolidated group of entities. In addition, to the extent that
the claims of holders of debt securities against any subsidiary
guarantor were subordinated in favor of other creditors of such
subsidiary, such other creditors would be entitled to be paid in
full before any payment could be made on the debt securities. If
one or more subsidiary guarantees are voided or subordinated,
there may not be sufficient assets remaining to satisfy claims
of holders of the debt securities after providing for all prior
claims.
The measures of insolvency for purposes of these fraudulent
transfer laws will vary depending upon the law applied in any
proceeding to determine whether a fraudulent transfer has
occurred. Generally, however, a guarantor would be considered
insolvent if:
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the sum of its debt, including contingent liabilities, was
greater than the fair saleable value of all of its assets; |
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the present fair saleable value of its assets was less than the
amount that would be required to pay its probable liability on
its existing debts, including contingent liabilities, as they
become absolute and mature; or |
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it could not pay its debts as they become due. |
Each subsidiary guarantee will contain a provision intended to
limit the subsidiary guarantors liability to the maximum
amount that it could incur without causing the incurrence of the
obligations under its guarantee to be a fraudulent transfer.
This provision may not be effective to protect the subsidiary
guarantees from being voided under fraudulent transfer law.
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DEAN FOODS COMPANY
We are a leading food and beverage company. Our Dairy Group is
the largest processor and distributor of milk and various other
dairy products in the United States. The Dairy Group
manufactures and sells its products under a variety of local and
regional brand names and under private labels. Our WhiteWave
Foods Company manufactures, markets and sells a variety of well
known soy, dairy and dairy-related nationally branded products
such as
Silk®
soymilk and cultured soy products, Horizon
Organic®
dairy products, International
Delight®
coffee creamers and LAND O
LAKES®
creamers and fluid dairy products. Our International Group is
one of the largest processors and distributors of fluid milk in
Spain and Portugal.
Dairy Group Our Dairy Group segment is our
largest segment, with approximately 85% of our consolidated
sales in 2005. Our Dairy Group manufactures, markets and
distributes a wide variety of branded and private label dairy
case products, such as milk, cream, ice cream, cultured dairy
products and juices to retailers, distributors, foodservice
outlets, schools and governmental entities across the United
States. Due to the perishable nature of the Dairy Groups
products, our Dairy Group delivers the majority of its products
directly to its customers stores in refrigerated trucks or
trailers that we own or lease. This form of delivery is called a
direct store delivery or DSD system and
we believe we have one of the most extensive refrigerated DSD
systems in the United States.
WhiteWave Foods Company WhiteWave Foods
Company manufactures, develops, markets and sells a variety of
nationally-branded soy, dairy and dairy-related products, such
as Silk soymilk and cultured soy products; Horizon
Organic dairy and other products; International Delight
coffee creamers; and LAND OLAKES creamers and
fluid dairy products. WhiteWave Foods Company also sells The
Organic
Cow®
organic dairy products; White
Wave®
and Tofu
Town®
branded tofu and
Hersheys®
milks and milkshakes. We license the LAND OLAKES
and Hersheys names from third parties.
International Group Our International Group,
which consists of Leche Celta, does not qualify as a reportable
segment. Leche Celta manufactures, markets and sells private
label and branded milk, butter and cream through its internal
sales force to retailers and distributors across Spain and
Portugal.
Our principal executive offices are located at 2515 McKinney
Avenue, Suite 1200, Dallas, Texas 75201. Our telephone
number is (214) 303-3400. We were incorporated in Delaware
in 1994. We maintain a website at
www.deanfoods.com. The information on our website
is a not a part of this prospectus.
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USE OF PROCEEDS
Unless we state otherwise in any applicable prospectus
supplement, we expect to add substantially all of the net
proceeds from the sale of the debt securities to our general
funds to be used for general corporate purposes, including
capital expenditures, working capital, repayment or reduction of
long-term and short-term debt and the financing of acquisitions.
We may invest funds that we do not immediately require in
short-term marketable securities.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed
charges for each of the periods indicated:
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Year Ended December 31, | |
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Ratio of earnings to fixed charges(a)
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3.01 |
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2.84 |
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3.07 |
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2.32 |
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2.76 |
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(a) |
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For purposes of calculating the ratio of earnings to fixed
charges, earnings represents income before income taxes plus
fixed charges. Fixed charges consist of interest on all debt,
amortization of deferred financing costs and the portion of
rental expense that we believe is representative of the interest
component of rent expense. |
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DESCRIPTION OF DEBT SECURITIES
We may issue debt securities in one or more series (each of
which we refer to as a series) under an indenture to
be entered into between us and The Bank of New York Trust
Company, N.A., as trustee. The terms of any series of debt
securities will be those specified in or pursuant to the
indenture and in the certificates evidencing that series of debt
securities and those made part of the indenture by the Trust
Indenture Act of 1939.
The following summary of selected provisions of the indenture
and the debt securities is not complete, and the summary of
selected terms of a particular series of debt securities
included in any applicable prospectus supplement also will not
be complete. You should review the form of indenture and the
form of certificate evidencing the applicable debt securities,
which forms have been or will be filed as exhibits to the
registration statement of which this prospectus is a part or as
exhibits to documents which have been or will be incorporated by
reference in this prospectus. To obtain a copy of the indenture
or the form of certificate for the debt securities, see
Where You Can Find More Information in this
prospectus. The following summary and the summary in any
applicable prospectus supplement are qualified in their entirety
by reference to all of the provisions of the indenture and the
certificates evidencing the debt securities, which provisions,
including defined terms, are incorporated by reference in this
prospectus. Capitalized terms used in this section and not
defined have the meanings assigned to those terms in the
indenture.
The following description of debt securities describes the
general terms and provisions of the series of debt securities to
which any prospectus supplement may relate. When we offer to
sell a series of debt securities, we will describe the specific
material terms of the series in a supplement to this prospectus.
If any particular terms of the debt securities described in a
prospectus supplement differ from any of the terms described in
this prospectus, then the terms described in the applicable
prospectus supplement will supersede the terms described in this
prospectus.
General
The debt securities may be issued from time to time in one or
more series of senior debt securities. Any series of debt
securities will be our senior unsecured obligations and will
rank equally with all of our other senior unsecured indebtedness
and will be effectively subordinated to the indebtedness
outstanding under our senior credit facility from time to time
and any other secured debt we may incur. Each series of debt
securities will be fully and unconditionally guaranteed on a
senior basis, jointly and severally, by the subsidiaries that
are guarantors under our senior credit facility, which are
substantially all of our wholly owned U.S. subsidiaries, as
described below. Each guarantee will be effectively subordinated
to any secured obligations of the subsidiary guarantors. These
subsidiary guarantors also guarantee our obligations under the
senior credit facility. We can issue an unlimited amount of debt
securities under the indenture. The indenture provides that debt
securities of any series may be issued up to the aggregate
principal amount which may be authorized from time to time by
us. The indenture also does not limit the amount of other
indebtedness or securities which we may issue, other than
limiting secured indebtedness as described below. The trustee
will authenticate and deliver debt securities as described in
the indenture.
We are a holding company and conduct all of our operations
through our subsidiaries. Consequently, our ability to pay our
obligations, including our obligation to pay interest on the
debt securities and to repay the principal amount of the debt
securities at maturity, upon redemption, acceleration or
otherwise will depend upon our subsidiaries earnings and
advances or loans made by them to us (and potentially dividends
or distributions made by them to us). Our subsidiaries are
separate and distinct legal entities and, except for the
subsidiary guarantors obligations under the subsidiary
guarantees, have no obligation, contingent or otherwise, to pay
any amounts due on the debt securities or to make funds
available to us to do so. Our subsidiaries ability to make
advances or loans to us or to pay dividends or make other
distributions to us will depend upon their operating results and
will be subject to applicable laws and contractual restrictions.
The indenture will not limit our subsidiaries ability to
enter into other agreements that prohibit or restrict dividends
or other payments or advances to us. Except with respect to the
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covenants Limitation Upon Liens and Limitation
on Sale and Leaseback Transactions contained in the
indenture described below, the indenture does not restrict or
limit the ability of any subsidiary to incur, create, assume or
guarantee indebtedness or encumber its assets or properties. At
December 31, 2005, we had approximately $3.4 billion
aggregate principal amount of senior indebtedness outstanding
(including subsidiary debt we have guaranteed) and no
subordinated indebtedness outstanding.
The covenants contained in the indenture would not necessarily
afford the holder of debt securities protection in the event of
a highly leveraged transaction or other transaction involving us
that may adversely affect holders of debt securities.
We will provide the specific terms of the series of debt
securities being offered in a supplement to this prospectus.
These terms will include some or all of the following:
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the title of the series of debt securities; |
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any limit upon the aggregate principal amount of the offered
debt securities; |
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the currency or currency units or composite currencies based on
or relating to currencies in which the offered debt securities
are denominated and/or in which principal (and premium, if any)
and/or any interest will or may be payable; |
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any index used to determine the amount of payment of principal
of, and any premium and interest on, the offered debt securities; |
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if other than 100% of the principal amount, the percentage of
their principal amount at which the offered debt securities will
be offered; |
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the date or dates (or method to determine them) on which the
principal of the offered debt securities will be payable; |
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the rate or rates (or method to determine them) at which the
offered debt securities will bear interest, if any, the date or
dates from which any interest will accrue and on which interest
will be payable, and the record dates for the determination of
the holders to whom interest is payable; |
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if other than as set forth in this prospectus, the place or
places where the principal of and interest, if any, on the
offered debt securities will be payable; |
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the price or prices at which, the period or periods within which
and the terms and conditions upon which offered debt securities
may be redeemed, in whole or in part, at our option; |
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our obligation, if any, to redeem, repurchase or repay offered
debt securities, whether pursuant to any sinking fund or other
provisions or at the option of a holder thereof; |
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whether the offered debt securities will be represented in whole
or in part by one or more global notes registered in the name of
a depository or its nominee; |
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whether the offered debt securities will be issuable in
registered form or bearer form and, if the offered debt
securities are issuable in bearer form, restrictions applicable
to the exchange of one form for another and to the offer, sale
and delivery of offered debt securities in bearer form; |
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whether and under what circumstances we will pay additional
amounts on offered debt securities held by a person who is not a
U.S. person (as defined in the prospectus supplement) in
respect of any tax, assessment or governmental charge withheld
or deducted, and if so, whether we will have the option to
redeem those debt securities rather than pay the additional
amounts; |
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any additional event of default; and |
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any other terms or conditions and any other deletions from,
modifications of, or additions to the Indenture in respect of
such series. |
Principal includes, when appropriate, the premium,
if any, on the offered debt securities.
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Each series of debt securities will be a new issue with no
established trading market. Therefore, we can give no assurance
that there will be a liquid trading market for the debt
securities. We may purchase debt securities at any time in the
open market or otherwise. Debt securities we purchase may, in
our discretion, be held, resold, canceled or used to satisfy any
sinking fund or redemption requirements.
Debt securities bearing no interest or interest at a rate which,
at the time of issuance, is below the prevailing market rate
will be sold at a substantial discount below their stated
principal amount. Material U.S. federal income tax and
other considerations applicable to these discounted debt
securities (or to other debt securities issued at par which are
treated as having been issued at a discount for
U.S. federal income tax purposes) will be described in a
prospectus supplement.
The debt securities may be denominated in U.S. dollars, or
in any other currency, currency unit or composite currency. If
we sell any of the debt securities for any foreign currency,
currency unit or composite currency or if principal, premium, if
any, and interest on any of the debt securities is payable in
any foreign currency, currency unit or composite currency, the
restrictions, elections, tax consequences, specific terms and
other information with respect to that issue of debt securities
and the foreign currency, currency unit or composite currency
will be set forth in the prospectus supplement relating to those
debt securities.
Unless otherwise indicated in a prospectus supplement, principal
and interest will be payable at the office or agency we maintain
for that purpose. Debt securities may also be registered for
transfer or exchange at that office or agency. At our option,
payment of interest on registered debt securities may be made by
check or by wire transfer. No service charge will be made for
any exchange or registration of transfer of the debt securities,
but we may require payment of a sum sufficient to cover any tax
or other government charge.
Subsidiary Guarantees
Our obligations under the indenture and the debt securities,
including the payment of principal of, and premium, if any, and
interest on, the debt securities, will be fully and
unconditionally guaranteed by the subsidiaries that are
guarantors under our senior credit facility, which are
substantially all of our wholly owned U.S. subsidiaries.
The subsidiary guarantors represent substantially all of our
revenue, income and assets. The subsidiary guarantors
guarantees will be joint and several obligations.
The guarantees will be senior unsecured obligations of each
subsidiary guarantor and will rank equally with all of the other
senior unsecured obligations of the subsidiary guarantor. Each
guarantee will be effectively subordinated to any secured
obligations of the subsidiary guarantors. The obligations of
each subsidiary guarantor under its guarantee will provide that
it be limited as necessary to prevent that guarantee from
constituting a fraudulent conveyance under applicable law.
If a guarantee were rendered voidable, it could be subordinated
by a court to all other liabilities and obligations (including
guarantees and other contingent liabilities) of the applicable
subsidiary guarantor, and, depending on the amount of such
liabilities and obligations, a subsidiary guarantors
liability on its guarantee could be reduced to zero.
The guarantees will not contain any restrictions on the ability
of any subsidiary guarantor to (i) pay dividends or
distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of that subsidiary
guarantors capital stock or (ii) make any payment of
principal, premium, if any, or interest on or repay, repurchase
or redeem any debt securities of that subsidiary guarantor.
A subsidiary guarantor may consolidate with, merge with or into,
or transfer all or substantially all its assets to any other
person to the extent described below under
Consolidation, Merger, Sale or
Conveyance, but, if such other person is not Dean Foods or
another subsidiary guarantor, such subsidiary guarantors
obligations under its subsidiary guarantee must be expressly
assumed by such other person, unless the guarantee is released
as described in the following paragraph.
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The guarantee of a subsidiary guarantor will be released to the
extent such subsidiary guarantor is released as a guarantor
under the senior credit facility or the senior credit facility
is refinanced without such subsidiary guarantor being a
guarantor or the senior credit facility is otherwise terminated.
Reports to the Trustee
We are required to provide the trustee with an officers
certificate each fiscal year stating that we reviewed our
activities during the preceding fiscal year and that, after
reasonable investigation and inquiry by the certifying officers,
we are in compliance with the requirements of each indenture and
that no default exists or, if we know of a default, we must
identify it.
We will comply with Section 14(e) under the Exchange Act,
and any other tender offer rules under the Exchange Act which
may be applicable, in connection with any obligation of ours to
purchase offered debt securities at the option of the holders of
those securities. Any such applicable obligation and tender
offer rules will be described in the applicable prospectus
supplement.
Unless otherwise described in a prospectus supplement relating
to any offered debt securities, there are no covenants or
provisions contained in the indenture which may afford the
holders of offered debt securities protection in the event of a
highly leveraged transaction involving us, except to the limited
extent described below under Limitation Upon Liens,
Limitation on Sale and Leaseback Transactions and
Consolidation, Merger, Sale or Conveyance. These
covenants or provisions are not subject to waiver by our board
of directors without the consent of the holders of not less than
a majority in principal amount of debt securities of each
series. For more information please refer to Modification
of Indenture below.
Limitation Upon Liens
The indenture provides that, so long as any of the senior debt
securities of a series remain outstanding, unless the terms of
the series provide otherwise, we will not and will not permit
any Consolidated Subsidiary to issue, assume or guarantee any
indebtedness for money borrowed (indebtedness) that
is secured by a mortgage, pledge, security interest or other
lien or encumbrance (a lien) upon or with respect to
any Principal Property or on the capital stock of any
Consolidated Subsidiary that owns a Principal Property unless
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we secure the senior debt securities equally and ratably with
(or prior to) any and all other obligations and indebtedness
secured by that lien, or |
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the aggregate amount of all the indebtedness secured by the lien
on us or our Consolidated Subsidiaries then outstanding,
together with all Attributable Debt in respect of sale and
leaseback transactions existing at that time, would not exceed
15% of the Consolidated Net Tangible Assets of Dean Foods, with
the exception of transactions that are not subject to the
limitation described in Limitation on Sale and Leaseback
Transactions below. |
The above limitation will not apply to some types of permitted
liens. Therefore, the indebtedness secured by those permitted
liens is excluded in computing indebtedness for purposes of this
limitation. These permitted liens include:
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liens existing as of the date of the issuance of senior debt
securities of any series; |
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liens on property or assets of, or any shares of stock or
securing indebtedness of, any corporation existing at the time
such corporation becomes a Consolidated Subsidiary; |
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liens on property, assets, shares of stock or securing
indebtedness existing at the time of an acquisition, including
an acquisition through merger or consolidation, and liens to
secure indebtedness incurred prior to, at the time of or within
180 days after the later of the completion of the
acquisition, or the completion of the construction and
commencement of the operation of, any such property, for the
purpose of financing all or any part of the purchase price or
construction cost of that property; |
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liens to secure specified types of development, operation,
construction, alteration, repair or improvement costs; |
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liens in favor of, or which secure indebtedness owing to, us or
a Consolidated Subsidiary; |
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liens in connection with government contracts, including the
assignment of moneys due or to come due on those contracts; |
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certain types of liens in connection with legal proceedings; |
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certain types of liens arising in the ordinary course of
business and not in connection with the borrowing of money such
as mechanics, materialmens, carriers or other
similar liens; |
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liens on property securing obligations issued by a domestic
governmental issuer to finance the cost of an acquisition or
construction of that property; |
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extensions, substitutions, replacements or renewals of the
foregoing if the principal amount of the indebtedness secured
thereby is not increased and is not secured by any additional
assets; and |
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liens securing indebtedness or any other obligation under the
senior credit facility. |
Limitation on Sale and Leaseback Transactions
The indenture provides that, so long as any of the senior debt
securities of a series remain outstanding, unless the terms of
that series provide otherwise, neither we nor any Consolidated
Subsidiary may enter into any arrangement with any person (other
than ourselves) where we or a Consolidated Subsidiary agree to
lease any Principal Property which has been or is to be sold or
transferred more than 120 days after the later of
(i) such Principal Property has been acquired by us or a
Consolidated Subsidiary and (ii) completion of construction
and commencement of full operation thereof, by us or a
Consolidated Subsidiary to that person (a Sale and
Leaseback Transaction). Sale and Leaseback Transactions
with respect to facilities financed with specified tax exempt
securities are excepted from the definition. This covenant does
not apply to leases of a Principal Property for a term of less
than three years.
This limitation also does not apply to any Sale and Lease-Back
Transaction if
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the net proceeds to us or a Consolidated Subsidiary from the
sale or transfer equal or exceed the fair value, as determined
by our board of directors, of the Principal Property so leased, |
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we or the Consolidated Subsidiary could incur indebtedness
secured by a lien on the Principal Property to be leased
pursuant to the terms discussed in Limitation Upon
Liens above in an amount equal to the Attributable Debt
with respect to the Sale and Leaseback Transaction without
equally and ratably securing the senior debt securities, or |
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we, within 120 days after the effective date of the Sale
and Leaseback Transaction, apply an amount equal to the fair
value as determined by our board of directors of the Principal
Property so leased to: |
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the prepayment or retirement of our Funded Debt, which may
include debt securities; or |
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the acquisition of additional real property. |
Certain Definitions
The terms set forth below are defined in the indenture as
follows:
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Attributable Debt, in respect of the Sale and
Leaseback Transactions described above, means as of any
particular time, the present value, calculated using a rate of
interest implicit in such transaction determined in accordance
with generally accepted accounting principles in the United
States, of the obligation of a lessee for rental payments during
the remaining term of any lease, |
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including any period for which that lease has been extended or
may, at the option of the lessor, be extended. |
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Consolidated Net Tangible Assets means the aggregate
amount of assets, reduced by applicable reserves and other
properly deductible items, after deducting |
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all current liabilities, excluding the current portion of any
Funded Debt and any other current liabilities constituting
Funded Debt because it is extendible or renewable, and |
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all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other similar intangibles, |
all as set forth on the books and records of Dean Foods and its
Consolidated Subsidiaries and computed in accordance with
generally accepted accounting principles in the United States.
Consolidated Subsidiary means a subsidiary of Dean
Foods, the accounts of which are consolidated with those of Dean
Foods in accordance with generally accepted accounting
principles in the United States.
Funded Debt means all indebtedness for the repayment
of money borrowed, whether or not evidenced by a bond,
debenture, note or similar instrument or agreement, having a
final maturity of more than 12 months after the date of its
creation or having a final maturity of less than 12 months
after the date of its creation but by its terms being renewable
or extendible beyond 12 months after such date at the
option of the borrower. When determining Funded
Debt, indebtedness will not be included if, on or prior to
the final maturity of that indebtedness, we have deposited the
necessary funds for the payment, redemption or satisfaction of
that indebtedness in trust with the proper depositary.
Principal Property means, as of any date, any
building, structure or other facility, together with the land
upon which it is erected and any fixtures which are a part of
the building, structure or other facility, used primarily for
manufacturing, processing or production, in each case located in
the United States, and owned or leased or to be owned or leased
by Dean Foods or any Consolidated Subsidiary, and in each case
the net book value of which as of that date exceeds 2% of the
Consolidated Net Tangible Assets of Dean Foods as shown on the
consolidated balance sheet contained in our latest filing with
the SEC, other than any such land, building, structure or other
facility or portion thereof which is a pollution control
facility, or which, in the opinion of our board of directors, is
not of material importance to the total business conducted by us
and our Consolidated Subsidiaries, considered as one enterprise.
Events of Default
Event of default means, with respect to any series
of debt securities, any of the following:
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failure to pay interest that continues for a period of
30 days after payment is due; |
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failure to make any principal or premium payment when due; |
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failure to comply with any of our other agreements contained in
the indenture or in the debt securities for 90 days after
either the trustee notifies us of the failure or the holders of
at least 25% in principal amount of the outstanding debt
securities affected by the failure notify us and the trustee of
the failure; |
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failure to make any payment after the maturity of any
indebtedness of the Company with an aggregate principal amount
in excess of $250 million or the acceleration of
indebtedness of the Company with an aggregate principal amount
in excess of $250 million as a result of a default with
respect to such indebtedness, and such indebtedness, in either
case, is not discharged or such acceleration is not cured,
waived, rescinded or annulled within a period of 30 days
after we receive written notice; or |
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other events of bankruptcy, insolvency or reorganization as
specified in the indenture. |
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In general, the trustee is required to give notice of a default
with respect to a series of debt securities to the holders of
that series. The trustee may withhold notice of a default if the
trustee in good faith determines that it is in the best interest
of the holders of that series to do so, other than a default in
the payment of principal of, and premium, if any, or interest on
any debt security or in the making of any sinking fund payment.
An event of default for a particular series of debt securities
does not necessarily constitute an event of default for other
series of debt securities. Additional events of default may be
prescribed for the benefit of holders of any series of debt
securities and will be described in a prospectus supplement.
If there is a continuing event of default with respect to any
series of debt securities, then either the trustee or the
holders of at least 25% in aggregate principal amount of that
series may require us to immediately repay the principal and
accrued interest on the affected series or, if the debt
securities of that series are original issue discount
securities, such portion of the principal amount as may be
specified in the terms of that series. Subject to specified
conditions, the requirement to repay with respect to a series of
debt securities may be annulled, and past defaults waived by the
holders of a majority in principal amount of the debt securities
of that series then outstanding, other than a continuing default
in payment of principal of or premium, if any, or interest on
the debt securities.
The trustee may refuse to enforce the indenture or the debt
securities unless it first receives satisfactory security or
indemnity. Subject to limitations specified in the indenture,
the holders of a majority in principal amount of the then
outstanding debt securities of an affected series will have the
right to direct the time, method and place of conducting any
proceeding for any remedy available to the trustee under the
indenture or exercising any trust or power conferred on the
trustee with respect to the debt securities of that series.
Consolidation, Merger, Sale or Conveyance
The indenture provides that we may consolidate with, or sell,
convey or lease all or substantially all of our assets to, or
merge with or into, any other corporation, if
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either we are the continuing corporation, or the successor
corporation expressly assumes the due and punctual payment of
the principal of and interest on all the debt securities
outstanding under the indenture according to their tenor and the
due and punctual performance and observance of all of the
covenants and conditions of the indenture to be performed or
observed by us; and |
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immediately after the merger or consolidation, or the sale,
conveyance or lease, no event of default, and no event which,
after notice or lapse of time or both, would become an event of
default, shall have occurred and be continuing. |
Modification of the Indenture
The indenture contains provisions permitting us, the subsidiary
guarantors and the trustee to amend or supplement the indenture
or the notes of a series with the consent of the holders of a
majority in principal amount of the notes of that series then
outstanding. However, no amendment or supplement may, among
other things, (a) extend the final maturity of any note, or
reduce the rate or extend the time of payment of any interest on
the note, or reduce the principal amount of any note, premium on
any note, or reduce any amount payable upon any redemption of
any note, or (b) reduce the percentage of principal amount
of the notes that is required to approve an amendment or
supplement to the indenture, without the consent of the holder
of each note so affected.
Satisfaction and Discharge of Indenture; Defeasance
We may terminate our obligations under the debt securities of
any series, except for certain surviving obligations, if either
all of the debt securities of that series have been delivered to
the trustee for cancellation or the debt securities of that
series mature within one year or may be called for redemption
within one year and, among other things, we deposit with the
trustee cash or appropriate government
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obligations sufficient for the payment of principal and interest
on the debt securities of that series to maturity.
The indenture, except for certain specified surviving
obligations, will be discharged and canceled upon the
satisfaction of certain conditions, including the payment of all
of the debt securities or the deposit with the trustee of cash
or appropriate government obligations or a combination thereof
sufficient for the payment or redemption in accordance with the
indenture and the terms of each series of debt securities.
Legal Defeasance
We may be discharged from any and all obligations in respect of
the debt securities of any series (except for certain
obligations to register the transfer or exchange of debt
securities, to replace stolen, destroyed, lost or mutilated debt
securities, to maintain paying agencies, to compensate and
indemnify the trustee and to furnish the trustee with the names
and addresses of holders of debt securities), which we refer to
as defeasance, if:
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we irrevocably deposit with the trustee, in trust, cash and/or
securities of the United States government, or securities of
agencies of the United States government backed by the full
faith and credit of the United States government, in an amount
certified by a nationally recognized firm of independent public
accountants to be sufficient to pay the principal of and
interest on the debt securities of that series on the applicable
due dates for those payments in accordance with the terms of the
debt securities; |
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we deliver to the trustee either (i) an opinion of counsel,
based on a ruling of the United States Internal Revenue Service
(unless there has been a change in the applicable United States
federal income tax law), to the effect that the holders of the
debt securities of that series will not recognize income, gain
or loss for United States federal income tax purposes as a
result of such defeasance and will be subject to United States
federal income tax on the same amounts and in the same manner
and at the same times as would have been the case if the
defeasance had not occurred or (ii) a ruling of the United
States Internal Revenue Service directed to the trustee to the
same effect as set forth in clause (i) above; |
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immediately after giving effect to the deposit specified in the
first bullet point, on a pro forma basis, no event of default
with respect to the debt securities of that series shall have
occurred and be continuing on the date of deposit or, with
respect to defaults occurring upon certain events of bankruptcy,
insolvency or reorganization relating to us, at any time during
the period ending on the 91st day after the date of the
deposit; and |
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we deliver to the trustee an officers certificate and an
opinion of counsel each stating that we have complied with all
of the above requirements. |
Defeasance of Certain Obligations
We may omit to comply with certain covenants with respect to the
debt securities of any series, and any such omission will not
constitute an event of default with respect to the debt
securities of that series, which we refer to as covenant
defeasance, if:
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we irrevocably deposit with the trustee, in trust, cash and/or
securities of the United States government, or securities of
agencies of the United States government backed by the full
faith and credit of the United States government, in an amount
certified by a nationally recognized firm of independent public
accountants to be sufficient to pay the principal of and
interest on the debt securities of that series on the applicable
due dates for those payments in accordance with the terms of the
debt securities; |
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we deliver to the trustee an opinion of counsel to the effect
that the holders of the debt securities of that series will not
recognize income, gain or loss for United States federal income
tax purposes as a result of such covenant defeasance and will be
subject to United States federal income tax on the |
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same amounts and in the same manner and at the same times as
would have been the case if the covenant defeasance had not
occurred; |
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immediately after giving effect to the deposit specified in the
first bullet point, on a pro forma basis, no event of default
with respect to the debt securities of that series shall have
occurred and be continuing on the date of the deposit or, with
respect to defaults occurring upon certain events of bankruptcy,
insolvency or reorganization relating to us, at any time during
the period ending on the 91st day after the date of the
deposit; |
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if the debt securities of that series are then listed on a
national securities exchange, we deliver to the trustee an
opinion of counsel to the effect that the debt securities will
not be delisted as a result of such covenant defeasance; and |
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we deliver to the trustee an officers certificate and an
opinion of counsel each stating that we have complied with all
of the above requirements. |
If we exercise our option to effect a defeasance or covenant
defeasance with respect to the debt securities of any series, as
described above, and the trustee or paying agent is unable to
apply any money or securities that we have deposited because of
any legal proceeding or any order or judgment of any court of
governmental authority, in each case our obligations under the
indenture and the debt securities of that series will be revived
and reinstated.
Governing Law
The indenture and the debt securities will be governed by, and
construed in accordance with, the laws of the State of New York.
Concerning the Trustee
The Bank of New York Trust Company, N.A. will be the trustee
under the indenture. We maintain customary banking relationships
in the ordinary course of business with the trustee and its
affiliates.
BOOK-ENTRY ISSUANCE
The debt securities offered by any prospectus supplement may be
issued in whole or in part in book-entry form and represented by
one or more global securities, referred to as global
securities. Global securities will be deposited with or on
behalf of a depositary, referred to as the global security
depositary, identified in the applicable prospectus
supplement relating to the series and will be registered in the
name of the global security depositary or its nominee. Unless
and until it is exchanged for debt securities in definitive
certificated form under the limited circumstances described
below or in any other circumstances that may be described in the
applicable prospectus supplement, a global security may not be
transferred except as a whole by the global security depositary
to a nominee of the global security depositary or by a nominee
of the global security depositary to the global security
depositary or another nominee of the depositary or by the global
security depositary or its nominee to a successor of the global
security depositary or a nominee of the successor.
Unless otherwise specified in the applicable prospectus
supplement, The Depository Trust Company, or DTC,
will act as global security depositary for any global
securities. The descriptions of the operations and procedures of
DTC set forth below are provided solely as a matter of
convenience. These operations and procedures are solely within
the control of DTC and are subject to change by DTC from time to
time. We take no responsibility for these operations or
procedures, and investors are urged to contact DTC directly to
discuss these matters.
DTC has advised us that DTC is:
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a limited-purpose trust company organized under the New York
Banking Law; |
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a banking organization within the meaning of the New
York Banking Law; |
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a member of the Federal Reserve System; |
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a clearing corporation within the meaning of the New
York Uniform Commercial Code, as amended; and |
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a clearing agency registered pursuant to the
provisions of Section 17A of the Securities Exchange Act of
1934, or Exchange Act. |
DTC holds securities for its participants and facilitates
post-trade settlement among its participants of sales and
securities transactions in deposited securities through
electronic computerized book-entry transfers and pledges between
accounts of its participants, thereby eliminating the need for
physical transfer and delivery of securities certificates. DTC
participants include both U.S. and
non-U.S. securities
brokers and dealers, which may include one or more of the
underwriters, agents or dealers involved in the distribution of
the applicable securities, banks and trust companies, clearing
corporations and certain other organizations. DTC is a
wholly-owned subsidiary of The Depository Trust &
Clearing Corporation, or DTCC. DTCC, in turn, is
owned by a number of direct participants of DTC and members of
the National Securities Clearing Corporation Government
Securities Clearing Corporation, MBS Clearing Corporation, and
Emerging Markets Clearing Corporation, also subsidiaries of
DTCC, as well as by the New York Stock Exchange, Inc., the
American Stock Exchange LLC and the National Association of
Securities Dealers, Inc. Access to DTCs system is also
available to other entities such as banks, both U.S. and
non-U.S. brokers,
dealers, trust companies and clearing corporations, which we
collectively refer to as indirect participants, that
clear through or maintain a custodial relationship with a direct
participant, either directly or indirectly. Investors who are
not participants may beneficially own securities held by or on
behalf of DTC only through participants or indirect
participants. The rules applicable to DTC participants are on
file with the SEC.
Purchases of securities within the DTC system must be made by or
through direct participants, which will receive a credit for
those securities on DTCs records. The ownership interest
of the actual purchaser of a security, which we sometimes refer
to as a beneficial owner, is in turn recorded on the
direct and indirect participants records. Beneficial
owners of securities will not receive written confirmation from
DTC of their purchases. However, beneficial owners are expected
to receive written confirmations providing details of their
transactions, as well as periodic statements of their holdings,
from the direct or indirect participants through which they
purchased securities. Transfers of ownership interests in global
securities are to be accomplished by entries made on the books
of participants acting on behalf of beneficial owners.
To facilitate subsequent transfers, all global securities
deposited with DTC will be registered in the name of DTCs
partnership nominee, Cede & Co. or such other nominee
as may be requested by an authorized representative of DTC. The
deposit of securities with DTC and their registration in the
name of Cede & Co. or such other nominee will not
change the beneficial ownership of the securities. DTC has no
knowledge of the actual beneficial owners of the securities.
DTCs records reflect only the identity of the direct
participants to whose accounts the securities are credited,
which may or may not be the beneficial owners. DTCs
participants are responsible for keeping account of their
holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to direct
participants, by direct participants to indirect participants
and by direct participants and indirect participants to
beneficial owners will be governed by arrangements among them,
subject to any statutory or regulatory requirements as may be in
effect from time to time.
Redemption notices will be sent to DTC or its nominee. If less
than all of the applicable securities are being redeemed, DTC
will determine the amount of the interest of each direct
participant in the applicable securities to be redeemed in
accordance with DTCs procedures.
In any case where a vote may be required with respect to the
applicable securities, neither DTC nor Cede & Co. will
give consents for or vote those securities unless authorized by
a direct participant in accordance with DTCs procedures.
Under its usual procedures, DTC will mail an omnibus proxy to us
as
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soon as possible after the record date. The omnibus proxy
assigns the consent or voting rights of Cede & Co. or
such other nominee as has been designated by DTC to those direct
participants to whose accounts the applicable securities are
credited on the record date identified in a listing attached to
the omnibus proxy.
Payments on global securities will be made to Cede &
Co., as nominee of DTC, or such other nominee as has been
designated by DTC. DTCs practice is to credit direct
participants accounts upon DTCs receipt of funds and
corresponding detail information from us or the trustee or
transfer agent, as the case may be, on the relevant payment date
in accordance with their respective holdings shown on DTCs
records. Payments by direct and indirect participants to
beneficial owners will be governed by standing instructions and
customary practices, as is the case with securities held for the
account of customers in bearer form or registered in
street name. Those payments will be the
responsibility of participants and not of DTC, its nominee or
us, subject to any statutory or regulatory requirements as may
be in effect from time to time. Payment to Cede & Co.
or such other nominee as has been designated by DTC is our
responsibility, disbursement of payments to direct participants
is the responsibility of DTC, and disbursement of payments to
the beneficial owners is the responsibility of direct and
indirect participants.
Except under the limited circumstances described below or under
such other circumstances as may be described in the applicable
prospectus supplement, purchasers of debt securities will not be
entitled to have those debt securities registered in their names
and will not receive physical delivery of those debt securities.
Accordingly, each beneficial owner must rely on the procedures
of DTC and its participants to exercise any rights under those
debt securities and the applicable indenture or other instrument
or agreement pursuant to which those debt securities were issued.
The laws of some jurisdictions may require that some purchasers
of securities take physical delivery of securities in definitive
form. These laws may impair the ability to transfer or pledge
beneficial interests in global securities.
DTC is under no obligation to provide its services as depositary
for any debt securities and may discontinue providing its
service at any time by giving notice to us. Neither we nor the
trustee or any agent, as the case may be, for the applicable
debt securities will have any responsibility for the performance
by DTC or its direct or indirect participants under the rules
and procedures governing DTC.
Beneficial owners of debt securities registered in book-entry
form will not receive certificates representing their ownership
interests in those debt securities. However, if:
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the depositary for a global security notifies us that it is
unwilling or unable to continue as depositary for that global
security or the depositary for that global security ceases to be
a clearing agency registered as such under the Exchange Act, if
so required by applicable law or regulation, and we do not
appoint a successor depositary within 90 days after we
receive that notice or become aware of the depositary ceasing to
be so registered, as the case may be, |
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we, in our sole discretion, determine that the applicable debt
securities will no longer be represented by global
securities, or |
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an event of default (if any) with respect to the applicable debt
securities has occurred and is continuing, |
we will issue and deliver definitive certificated debt
securities in exchange for interests in the applicable global
security. We anticipate that those definitive certificated debt
securities will be registered in the name or names as the
depositary instructs the trustee or transfer agent, as the case
may be, for those debt securities and that those instructions
will be based upon directions received by the depositary from
its participants with respect to ownership of beneficial
interests in the applicable global securities.
We obtained the information in this section and elsewhere in
this prospectus concerning DTC and DTCs book-entry system
from sources that we believe to be reliable, but we take no
responsibility for the accuracy of this information.
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PLAN OF DISTRIBUTION
We may sell the debt securities in any of four ways:
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directly to purchasers; |
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through agents; |
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through dealers; or |
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through one or more underwriters or a syndicate of underwriters
in an underwritten offering. |
With respect to each offering of a series of debt securities,
the following information will be set forth in, or may be
calculated from the information set forth in, the related
prospectus supplement:
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the terms of any offering, including the name or names of any
underwriters, dealers or agents, the purchase price of such
series of debt securities and the proceeds to us from such sale; |
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any underwriting discounts, selling commissions and other items
constituting underwriters, dealers or agents
compensation; |
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any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers or
agents; and |
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any securities exchanges on which the debt securities of the
series may be listed. |
Only underwriters named in the prospectus supplement are deemed
to be underwriters in connection with the debt securities
offered by the prospectus supplement.
If we sell debt securities through underwriters, the
underwriters will acquire the debt securities for their own
account. Debt securities may be resold from time to time in one
or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at
the time of sale. Debt securities may be offered to the public
either through underwriting syndicates represented by managing
underwriters or by underwriters without a syndicate. Unless
otherwise set forth in the applicable prospectus supplement, the
obligations of the underwriters to purchase debt securities will
be subject to the approval of legal matters by counsel and other
conditions and the underwriters will be obligated to purchase
all the debt securities offered by the prospectus supplement if
any of the debt securities are purchased. Any initial public
offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
We may also sell the debt securities directly or through agents,
which may also act as principals, which we may designate from
time to time. Any agent involved in the offer or sale of debt
securities with regard to which this prospectus is delivered
will be named, and any commissions we may pay to the agent will
be set forth in, or may be calculated from the information set
forth in, the applicable prospectus supplement. Unless otherwise
indicated in the applicable prospectus supplement, any agent
will be acting on a reasonable efforts basis for the period of
its appointment. In the case of sales we may directly make, no
commission will be payable.
If so indicated in a prospectus supplement, we will authorize
agents, underwriters or dealers to solicit offers by specified
institutions to purchase debt securities from us at the public
offering price set forth in that prospectus supplement pursuant
to delayed delivery contracts providing for payment and delivery
on a future date specified in the prospectus supplement. These
contracts will be subject to the conditions set forth in the
prospectus supplement, and the prospectus supplement will set
forth the commissions payable for solicitation of the contracts.
Agents and underwriters may be entitled under agreements entered
into with us to indemnification by us against specified civil
liabilities, including liabilities under the Securities Act of
1933, or to contribution with respect to payments which the
agents or underwriters may be required to make with respect to
the liabilities. Agents and underwriters may be customers of,
engage in transactions with, or perform services
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for us or our affiliates in the ordinary course of business for
which they have received or will receive customary fees and
expenses.
The debt securities of any series may not be listed on a
national securities exchange and, if listed, the listing of debt
securities may not continue until the maturity of such series of
such series of debt securities. Some broker-dealers may make a
market in the any series of debt securities, but they will not
be obligated to do so and may discontinue any market making
activities at any time and without any notice to you. Further,
we cannot assure you that any broker-dealer market will be
reasonably liquid or broad. If we know that any series of debt
securities will be listed on an exchange or that a broker-dealer
will make a market in any series of debt securities, we will
include that information in the prospectus supplement.
To facilitate an offering of a series of debt securities,
persons participating in the offering may engage in transactions
that stabilize, maintain, or otherwise affect the market price
of such debt securities. This may include over-allotments or
short sales of such debt securities, which involves the sale by
persons participating in the offering of more debt securities
than have been sold to them by us. In those circumstances, such
persons would cover such over-allotments or short positions by
purchasing in the open market or by exercising the
over-allotment option granted to those persons. In addition,
those persons may stabilize or maintain the price of debt
securities by bidding for or purchasing securities in the open
market or by imposing penalty bids, whereby selling concessions
allowed to underwriters or dealers participating in any such
offering may be reclaimed if debt securities sold by them are
repurchased in connection with stabilization transactions. The
effect of these transactions may be to stabilize or maintain the
market price of such debt securities at a level above that which
might otherwise prevail in the open market. Such transactions,
if commenced, may be discontinued at any time.
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LEGAL MATTERS
Legal matters relating to the debt securities will be passed
upon for us by Wilmer Cutler Pickering Hale and Dorr LLP,
Washington, D.C.
EXPERTS
The consolidated financial statements and related consolidated
financial statement schedules of Dean Foods Company and
subsidiaries (the Company) as of December 31,
2005 and 2004, and for each of the three years ended
December 31, 2005, 2004 and 2003, and managements
report on the effectiveness of internal control over financial
reporting as of December 31, 2005, incorporated in this
prospectus by reference to the Companys Annual Report on
Form 10-K filed on
March 10, 2006, have been audited by Deloitte &
Touche LLP, an independent registered public accounting firm,
and have been so incorporated by reference in reliance upon the
reports of such firm given upon their authority as experts in
accounting and auditing.
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