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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549


SCHEDULE 13E-3

(RULE 13e-100)

TRANSACTION STATEMENT UNDER SECTION 13(e) OF THE SECURITIES EXCHANGE ACT OF 1934 AND RULE 13e-3 THEREUNDER

RULE 13e-3 TRANSACTION STATEMENT UNDER SECTION 13(e) OF THE SECURITIES EXCHANGE ACT OF 1934


HORIZON ORGANIC HOLDING CORPORATION

(Name of the Issuer)

Horizon Organic Holding Corporation and Dean Foods Company

(Name of Person(s) Filing Statement)

Common Stock, $0.001 Par Value Per Share

(Title of Class of Securities)

 

 

44043T 10 3

 

 
   
(CUSIP Number of Class of Securities)
   

 

 

Michael A. Sabian, Esq.
Shughart Thomson & Kilroy P.C.
Suite 2300, 1050 17th Street
Denver, Colorado 80265
(303) 572-9300

 

 

 

 

Copy to: William A. McCormack
Hughes & Luce LLP
1717 Main Street, Suite 2800
Dallas, Texas 75201
(214) 939-5633

 

 

(Name, Address, and Telephone Numbers of Person Authorized to Receive Notices and Communications on Behalf of the Person(s) Filing Statement)

        This statement is filed in connection with (check the appropriate box):

a.   ý   The filing of solicitation materials or an information statement subject to Regulation 14A, Regulation 14C or Rule 13e-3(c) under the Securities Exchange Act of 1934.

b.

 

o

 

The filing of a registration statement under the Securities Act of 1933.

c.

 

o

 

A tender offer.

d.

 

o

 

None of the above.

        Check the following box if the soliciting materials or information statement referred to in checking box (a) are preliminary copies: ý

        Check the following box if the filing is a final amendment reporting the results of the transaction: o

Calculation of Filing Fee

Transaction Valuation
  Amount of Filing Fee
$ 216,630,960*   $ 17,525.45**

*
Estimated for purposes of calculating the amount of the filing fee only. This calculation assumes the acquisition by Dean Foods Company of the 9,026,290 shares of common stock, par value $0.001 per share, of Horizon Organic Holding Corporation outstanding as of July 31, 2003 that it does not already own, at a purchase price of $24.00 per share.

**
In accordance with the Commission's April 29, 2002 Order Making Fiscal 2003 Annual Adjustments to the Fee Rates Applicable Under Section 6(b) of the Securities Act of 1933 and Sections 13(e), 14(g), 31(b) and 31(c) of the Securities Exchange Act of 1934, and Rule 0-11(b) under the Securities Exchange Act of 1934, as amended, the Filing Fee has been calculated as $80.90 per $1,000,000 of Transaction Valuation.

ý
Check the box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.

Amount Previously Paid: $17,525.45   Filing Party: Horizon Organic Holding Corporation

Form or Registration No.: Schedule 14A

 

Date Filed: August     , 2003


INTRODUCTION

        This Rule 13e-3 Transaction Statement on Schedule 13E-3 (this "Schedule 13E-3") is being filed with the Securities and Exchange Commission (the "Commission") by Dean Foods Company, a Delaware corporation ("Parent"), and Horizon Organic Holding Corporation, a Delaware corporation (the "Company"). Pursuant to an Agreement and Plan of Merger, dated as of June 29, 2003 (the "Merger Agreement"), by and among the Company, Parent and Capricorn Acquisition Sub, Inc., a Delaware corporation and wholly-owned subsidiary of Parent ("Purchaser"), Purchaser will merge with and into the Company (the "Merger"). Pursuant to the Merger Agreement, the Company will continue as the surviving corporation in the Merger, and each issued and outstanding share of common stock, par value $0.001 per share, of the Company (sometimes referred to as the "subject securities"), other than shares held by dissenting shareholders and shares held by Parent, will be canceled and converted into the right to receive a cash payment per share, without interest, of $24.00. As a result of the Merger, the Company (sometimes referred to as the "subject company") will become a wholly-owned subsidiary of Parent.

        Concurrently with the filing of this Schedule 13E-3, the Company is filing a preliminary proxy statement on Schedule 14A (the "Proxy Statement") with the Commission in connection with a special meeting of the stockholders of the Company (the "Special Meeting"). At the Special Meeting, the stockholders of the Company will, among other things, vote on the adoption and approval of the Merger Agreement.

        The information in the Proxy Statement, including all appendices thereto, is expressly incorporated by reference into this Schedule 13E-3, and the responses to each item in this Schedule 13E-3 are qualified in their entirety by the provisions of the Proxy Statement. All summaries and references in this Schedule 13E-3 of or to agreements, opinions and other documents attached as appendices to the Proxy Statement or as exhibits to this Schedule 13E-3 are qualified in their entirety by the complete text of such appendices or exhibits.

        The Proxy Statement is in preliminary form and is subject to completion or amendments.

        The filing of this Schedule 13E-3 by Parent should not be construed as an admission by Parent that it, or any of its affiliates, is an "affiliate" of the Company within the meaning of Rule 13e-3 under Section 13(e) of the Securities Exchange Act, as amended (the "Exchange Act").


Item 1. Summary Term Sheet

        The information set forth in the Proxy Statement under the caption "SUMMARY TERM SHEET" and "QUESTIONS AND ANSWERS ABOUT THE MERGER PROPOSAL" is incorporated herein by reference.


Item 2. Subject Company Information


Item 3. Identity and Background of Filing Person


Item 4. Terms of the Transaction


Item 5. Past Contacts, Transactions, Negotiations and Agreements


Clark R. Mandigo II   Director
Richard L. Robinson   Director
Michelle P. Goolsby   Director


Item 6. Purposes of the Transaction and Plans or Proposals


Item 7. Purposes, Alternatives, Reasons and Effects


Item 8. Fairness of the Transaction


Item 9. Reports, Opinions, Appraisals and Negotiations


Item 10. Source and Amount of Funds or Other Consideration


Item 11. Interest in Securities of the Subject Company


Item 12. The Solicitation Or Recommendation


Item 13. Financial Statements


Item 14. Persons/Assets, Retained, Employed, Compensated or Used


Item 15. Additional Information

        All of the information contained in the Proxy Statement, including all appendices thereto, is incorporated herein by reference.


Item 16. Exhibits

  SIGNATURE

        After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete, and correct.

  HORIZON ORGANIC HOLDING CORPORATION

 

/s/ Thomas P. Briggs

(Signature)

 

THOMAS P. BRIGGS, SECRETARY

(Name and title)

 

8/25/03

(Date)

 

DEAN FOODS COMPANY

 

/s/ Ronald H. Klein

(Signature)

 

RONALD H. KLEIN, VICE PRESIDENT CORPORATE DEVELOPMENT

(Name and title)

 

8/25/03

(Date)


EXHIBIT INDEX

Exhibit
Number

  Description
(a)(1)   Preliminary Proxy Statement filed with the Commission on August     , 2003 (incorporated herein by reference to the Proxy Statement as filed with the Commission on August     , 2003).

(a)(2)

 

Form of Proxy filed with the Commission along with the Proxy Statement (incorporated herein by reference to the Proxy Statement as filed with the Commission on August     , 2003).

(b)(1)

 

Credit Agreement, dated July 31, 2001, among Parent, the guarantors party thereto, the lenders party thereto and the administrative, syndication and co-documentation agents party thereto (filed as exhibit to Parent's Quarterly Report on Form 10-Q for the quarter ended June 30, 2001 (File No. 1-12755)).

(b)(2)

 

First Amendment to Credit Agreement, dated December 19, 2001 (filed as exhibit to Parent's Current Report on Form 8-K filed January 7, 2002 (File No. 1-12755)).

(b)(3)

 

Amendment No. 2 to Senior Credit Facility (filed as exhibit to Parent's Quarterly Report on Form 10-Q for the quarter ended March 31, 2002 (File No. 1-12755)).

(c)(1)

 

Opinion of RBC Dain Rauscher Inc., a member company of RBC Capital Markets (incorporated herein by reference to the Proxy Statement as filed with the Commission on August     , 2003).

(c)(2)

 

RBC Presentation, dated June 26, 2003, provided to the Special Committee of the Horizon Organic Board.

(c)(3)

 

RBC Presentation, dated June 28, 2003, provided to the Special Committee of the Horizon Organic Board.

(c)(4)

 

RBC Presentation, dated June 29, 2003, provided to the Horizon Organic Board.

(c)(5)

 

Discussion Materials, dated February 21, 2003, provided to Parent by Goldman, Sachs & Co. (Portions of this exhibit have been omitted pursuant to a request for confidential treatment. The omitted information has been filed with the Securities and Exchange Commission.)

(c)(6)

 

Discussion Materials, dated June 27, 2003, provided to Parent by Goldman, Sachs & Co.

(d)(1)

 

Agreement and Plan of Merger, dated as of June 29, 2003, by and among Dean Foods Company, Capricorn Acquisition Sub, Inc. and Horizon Organic Holding Corporation (incorporated herein by reference to the Proxy Statement as filed with the Commission on August     , 2003).

(d)(2)

 

Stock Purchase Agreement, dated June 5, 1998, by and between Dean Foods Company and Horizon Organic Holding Corporation (filed as Exhibit 10.17 to Horizon Organic's Registration Statement on Form S-1 (filed June 9, 1998) (File number 333-51465)).

(d)(3)

 

Stockholder Agreement, dated June 5, 1998, by and between Dean Foods Company and Horizon Organic Holding Corporation (filed as Exhibit 10.18 to Horizon Organic's Registration Statement on Form S-1 (filed June 9, 1998) (File number 333-51465)).

(d)(4)

 

Major Stockholder Agreement, dated June 5, 1998, by and between Dean Foods Company (f.k.a. Suiza Foods Corporation) and certain investors in Horizon Organic Holding Corporation.

(f)     

 

Section 262 of the Delaware General Corporation Law (incorporated herein by reference to the Proxy Statement as filed with the Commission on August     , 2003).



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INTRODUCTION
EXHIBIT INDEX