EXHIBIT 10.1
(DEAN FOODS LOGO)
DEAN FOODS COMPANY
SIXTH AMENDED AND RESTATED
1997 STOCK OPTION AND RESTRICTED STOCK PLAN
1. Purpose of the Plan. This Plan shall be known as the Dean Foods
Company Sixth Amended and Restated 1997 Stock Option and Restricted Stock Plan.
The purpose of the Plan is to attract and retain the best available persons for
positions of substantial responsibility and to provide incentives to such
persons to promote the success of the business of Dean Foods Company and its
subsidiaries.
Certain options granted under this Plan are intended to qualify as
"incentive stock options" pursuant to Section 422 of the Internal Revenue Code
of 1986, as amended from time to time.
2. Definitions. As used herein, the following definitions shall apply:
"Authorized Officers" shall have the meaning set forth in
Section 19 hereof.
"Board" means the Board of Directors of the Company.
"Change in Control" means (1) any "person" (as such term is
used in Section 13(d) of the Exchange Act) becomes the "beneficial owner" (as
determined pursuant to Rule 13d-3 under the Exchange Act, but specifically
excluding the Company, any Subsidiary of the Company, and/or any employee
benefit plan maintained by the Company or any Subsidiary of the Company),
directly or indirectly, of securities of the Company representing thirty percent
(30%) or more of the combined voting power of the Company's then outstanding
securities; or (2) during any period of two (2) consecutive years (not including
any period prior to the effective date of this amendment and restatement),
individuals who at the beginning of such period constitute the members of the
Board and any new director, whose election to the Board or nomination for
election to the Board by the Company's stockholders was approved by a vote of at
least two-thirds (?) of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to constitute a
majority of the Board; or (3) the Company or any Subsidiary shall merge with or
consolidate into any other company, other than a merger or consolidation which
would result in the holders of the voting securities of the Company outstanding
immediately prior thereto holding immediately thereafter securities representing
more than sixty percent (60%) of the combined voting power of the voting
securities of the Company or such surviving entity (or its ultimate parent, if
applicable) outstanding immediately after such merger or consolidation; or (4)
the stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets or such a plan is commenced.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, and any successor statute.
"Committee" means the committee described in Section 19 that
administers the Plan or, if no such committee has been appointed, the full
Board.
"Common Stock" means the common stock, $.01 par value per
share, of the Company. Except as otherwise provided herein, all Common Stock
issued pursuant to this Plan shall have the same rights as all other issued and
outstanding shares of Common Stock, including but not limited to voting rights,
the right to dividends, if declared and paid, and the right to pro rata
distributions of the Company's assets in the event of liquidation.
"Company" means Dean Foods Company, a Delaware corporation,
formerly known as Suiza Foods Corporation.
"Consultant" means any consultant or advisor who renders bona
fide services to the Company or one of its Subsidiaries, which services are not
in connection with the offer or sale of securities in a capital-raising
transaction.
"Date of Grant" shall have the meaning set forth in Section 8
hereof.
"Divested Business Unit" shall have the meaning set forth in
Section 10 hereof.
"Employee" means any officer or other key employee of the
Company or one of its Subsidiaries (including any director who is also an
officer or key employee of the Company or one of its Subsidiaries).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exercise Price" shall have the meaning set forth in Section 9
hereof.
"Fair Market Value" means the closing sale price (or average
of the quoted closing bid and asked prices if there is no closing sale price
reported) of the Common Stock on the date specified as reported by the principal
national exchange or trading system on which the Common Stock is then listed or
traded. If there is no reported price information for the Common Stock, the Fair
Market Value will be determined by the Board or the Committee, in its sole
discretion. In making such determination, the Board or the Committee may, but
shall not be obligated to, commission and rely upon an independent appraisal of
the Common Stock.
"Immediate Family Members" shall have the meaning set forth in
Section 15 hereof.
"Non-Employee Director" means an individual who is a
"non-employee director" as defined in Rule 16b-3 under the Exchange Act, an
"outside director" within the meaning of Treasury Regulation Section
1.162-27(e)(3) and an "independent director" within the meaning of the New York
Stock Exchange rules.
"Nonqualified Option" means any Option that is not a Qualified
Option.
"Option" means a stock option granted pursuant to Section 6 of
this Plan.
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"Optionee" means any Employee, Consultant or Non-Employee
Director who receives an Option.
"Participant" means any Employee, Consultant or Non-Employee
Director who receives an Option or Restricted Stock pursuant to this Plan.
"Qualified Option" means any Option that is intended to
qualify as an "incentive stock option" within the meaning of Section 422 of the
Code.
"Qualifying Retirement" means retirement by a Participant from
employment or other service to the Company or any Subsidiary after such
Participant reaches the age of 65.
"Restricted Stock" means Common Stock awarded to an Employee,
Consultant or Non-Employee Director pursuant to Section 7 of this Plan.
"Restricted Stock Cap" shall have the meaning set forth in
Section 7 hereof.
"Rule 16b-3" means Rule 16b-3 of the rules and regulations
under the Exchange Act, as Rule 16b-3 may be amended from time to time, and any
successor provisions to Rule 16b-3 under the Exchange Act.
"Subsidiary" means any now existing or hereinafter organized
or acquired company of which more than fifty percent (50%) of the issued and
outstanding voting interests are owned or controlled directly or indirectly by
the Company or through one or more Subsidiaries of the Company.
"10-Percent Stockholder" shall have the meaning set forth in
Section 9 hereof.
3. Term of Plan. The Plan has been adopted by the Board effective as of
February 24, 1997 and approved by the stockholders of the Company. The Plan
shall continue in effect until terminated pursuant to Section 19.
4. Shares Subject to the Plan. Except as otherwise provided in Section
18 hereof, the aggregate number of shares of Common Stock issuable upon the
exercise of Options or upon the grant of Restricted Stock pursuant to this Plan
shall be 37,500,000 shares. Such shares may either be authorized but unissued
shares or treasury shares. The Company shall, during the term of this Plan,
reserve and keep available a number of shares of Common Stock sufficient to
satisfy the requirements of the Plan. If an Option should expire or become
unexercisable for any reason without having been exercised in full, or
Restricted Stock should fail to vest and be forfeited in whole or in part for
any reason, then the shares that were subject thereto shall, unless the Plan has
terminated, be available for the grant of additional Options or Restricted Stock
under this Plan, subject to the limitations set forth above and in Section 19
hereof.
5. Eligibility. Qualified Options may be granted under Section 6 of the
Plan to such Employees of the Company or its Subsidiaries as may be determined
by the Board or the Committee (or the Authorized Officers, to the extent
permitted by Section 19 of this Plan). Nonqualified Options may be granted under
Section 6 of the Plan to such Employees,
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Consultants and Non-Employee Directors of the Company or its Subsidiaries as may
be determined by the Board or the Committee (or the Authorized Officers, to the
extent permitted by Section 19 of this Plan). Restricted Stock may be granted
under Section 7 of the Plan to such Employees, Consultants and Non-Employee
Directors of the Company or its Subsidiaries as may be determined by the Board
or the Committee (or the Authorized Officers, to the extent permitted by Section
19 of this Plan).
6. Grant of Options. (a) Except as limited by Section 4 hereof, the
Board or the Committee shall determine the number of shares of Common Stock to
be offered from time to time pursuant to Options granted hereunder and shall
grant Options under the Plan. In connection with the granting of Qualified
Options, the aggregate Fair Market Value (determined at the Date of Grant of a
Qualified Option) of the shares with respect to which Qualified Options are
exercisable for the first time by an Optionee during any calendar year (under
all such plans of the Optionee's employer company and its parent and subsidiary
corporations as defined in Section 424(e) and (f) of the Code, or a corporation
or a parent or subsidiary corporation of such corporation issuing or assuming an
Option in a transaction to which Section 424(a) of the Code applies) shall not
exceed $100,000 or such other amount as from time to time provided in Section
422(d) of the Code or any successor provision. The grant of Options shall be
evidenced by Option agreements containing such terms and provisions as are
approved by the Board or the Committee and executed on behalf of the Company by
an appropriate officer.
(b) Unless the Board or the Committee determines otherwise
with respect to a particular year, each Non-Employee Director will automatically
be granted a Nonqualified Option to purchase 7,500 shares of Common Stock
(subject to adjustment pursuant to Section 18 hereof), at an exercise price
equal to the Fair Market Value of the Common Stock on the Date of Grant, on June
30 of each year.
7. Restricted Stock. The Board or the Committee shall from time to time
determine the number of shares of Common Stock to be granted as Restricted
Stock; provided that no more than an aggregate amount of 225,000 shares of
Restricted Stock may be issued under the Plan (such limit being herein referred
to as the "Restricted Stock Cap"). Any shares of Restricted Stock that fail to
vest and are forfeited shall not count against the Restricted Stock Cap set
forth in the preceding sentence. The grant of Restricted Stock shall be
evidenced by Restricted Stock agreements containing such terms and provisions as
are approved by the Board or the Committee and executed on behalf of the Company
by an appropriate officer.
8. Date of Grant. The date of grant of an Option or Restricted Stock
under the Plan (the "Date of Grant") shall be the date on which the Board or the
Committee awards the Option or Restricted Stock or, if the Board or the
Committee so determines, the date specified by the Board or the Committee as the
date the award is to be effective. Notice of the grant shall be given to each
Participant to whom an Option or Restricted Stock is granted promptly after the
date of such grant.
9. Price. The exercise price for each share of Common Stock subject to
an Option (the "Exercise Price") granted pursuant to Section 6 of the Plan shall
be determined by the Board or the Committee at the Date of Grant; provided,
however, that (a) the Exercise Price for any Option shall not be less than 100%
of the Fair Market Value of the Common Stock at the Date of Grant, and (b) if
the Optionee owns on the Date of Grant more than 10 percent of the total
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combined voting power of all classes of stock of the Company or its parent or
any of its subsidiaries, as more fully described in Section 422(b)(6) of the
Code or any successor provision (such stockholder is referred to herein as a
"10-Percent Stockholder"), the Exercise Price for any Qualified Option granted
to such Optionee shall not be less than 110% of the Fair Market Value of the
Common Stock at the Date of Grant. The Board or the Committee in its discretion
may award shares of Restricted Stock under Section 7 of the Plan to Participants
without requiring the payment of cash consideration for such shares.
10. Vesting. (a) Subject to the provisions of this Plan, each Option
and Restricted Stock award under the Plan shall vest or be subject to forfeiture
in accordance with the provisions set forth in the applicable Option agreement
or Restricted Stock agreement.
(b) In addition to the vesting provisions contained in each
Option and Restricted Stock agreement, each Option and share of Restricted Stock
granted under the Plan shall also be subject to the following vesting
provisions:
(i) If the Company shall sell or otherwise divest of
all of its ownership interest in any Subsidiary or any business unit or
operation (a "Divested Business Unit") owned by the Company or any Subsidiary,
then the outstanding unvested Options and shares of Restricted Stock held by
each Employee of such Divested Business Unit shall automatically vest in full as
of the date of the consummation of such sale or divestiture;
(ii) Each unvested Option and share of Restricted
Stock shall immediately vest in full upon the death of the holder of such Option
or Restricted Stock;
(iii) Each unvested Option and share of Restricted
Stock shall immediately vest in full upon any Change in Control;
(iv) Each unvested Option and share of Restricted
Stock shall immediately vest in full upon the permanent and total disability (as
defined within the meaning of Section 22(e)(3) of the Code) of the holder of
such Option or Restricted Stock; and
(iv) In the event of the Qualifying Retirement of a
Participant, all unvested Options and shares of Restricted Stock held by such
Participant shall automatically vest in full as of the effective date of such
Participant's Qualifying Retirement.
11. Exercise. (a) An Option will not be deemed to be exercised and
shares will not be issued, until the applicable Exercise Price is received by
the Company. A Participant may pay the Exercise Price of an Option by the
delivery of cash, check or wire transfer.
(b) If the shares to be purchased are covered by an effective
registration statement under the Securities Act of 1933, as amended, any Option
may be exercised by a broker-dealer acting on behalf of an Optionee if (i) the
broker-dealer has received from the Company confirmation of the existence and
validity of the Option to be exercised, together with instructions from the
Optionee requesting the Company to deliver the shares of Common Stock subject to
such Option to the broker-dealer on behalf of the Optionee and specifying the
account into which such shares should be deposited, (ii) adequate provision has
been made with respect to the payment of any withholding taxes due upon such
exercise, and (iii) the broker-dealer and
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the Optionee have otherwise complied with Section 220.3(e)(4) of Regulation T,
12 CFR Part 220, or any successor provision, and any other applicable
regulations.
12. Expiration of Options. (a) No Option shall be exercisable at any
time after the expiration of ten (10) years from the Date of Grant; provided,
however, that if the Optionee with respect to a Qualified Option is a 10-Percent
Stockholder on the Date of Grant of such Qualified Option, then such Option
shall not be exercisable after the expiration of five (5) years from its Date of
Grant.
(b) In addition, if an Optionee ceases to be an Employee or
Non-Employee Director of the Company or any Subsidiary for any reason (including
because such Optionee is an Employee of a Divested Business Unit), such
Optionee's vested Options shall expire on the earlier of the expiration date
contained in the corresponding Option Agreement or (a) 60 days following the
date such Optionee ceases to be an Employee or Non-Employee Director of the
Company or any Subsidiary, if such cessation of service is not due to the death,
Qualifying Retirement or permanent and total disability (within the meaning of
Section 22(e)(3) of the Code) of the Optionee, or (b) 12 months following the
date such Optionee ceases to be an Employee or Non-Employee Director of the
Company or any Subsidiary, if such cessation of service is due to the death or
permanent and total disability (as defined above) of the Optionee. Options held
by an Optionee who has retired pursuant to a Qualifying Retirement will remain
exercisable until the earlier of (i) the tenth anniversary of the date the
Option was granted, and (ii) the first anniversary of the Optionee's death. Upon
the death of an Optionee, any vested Option exercisable on the date of death may
be exercised by the Optionee's estate or by a person who acquires the right to
exercise such Option by bequest or inheritance or by reason of the death of the
Optionee, provided that such exercise occurs within the shorter of the remaining
option term of the Option and 12 months after the date of the Optionee's death.
(c) Notwithstanding any provision of this Plan or any Option
Agreement to the contrary, no Optionee may, under any circumstances, exercise a
vested Option following termination of employment if the Optionee is discharged
due to the Optionee's willful or intentional fraud, embezzlement or other
conduct seriously detrimental to the Company or any Subsidiary. The
determination of whether or not an Optionee has been discharged for any of the
reasons specified in the preceding sentence will be made by the Committee or the
Board.
13. Option Financing. Upon the exercise of any Option granted under the
Plan, the Company may, but shall not be required to, make financing available to
the Participant for the purchase of shares of Common Stock pursuant to such
Option on such terms as the Board or the Committee may specify.
14. Withholding of Taxes. The Board or the Committee shall make such
provisions and take such steps as it may deem necessary or appropriate for the
withholding of any taxes that the Company is required by any law or regulation
of any governmental authority to withhold in connection with any Option or
Restricted Stock including, but not limited to, withholding the issuance of all
or any portion of the shares of Common Stock subject to such Option or
Restricted Stock until the Participant reimburses the Company for the amount it
is required to withhold with respect to such taxes, canceling any portion of
such issuance in an amount sufficient to reimburse the Company for the amount it
is required to withhold or taking any other action reasonably required to
satisfy the Company's withholding obligation.
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15. Conditions Upon Issuance of Shares. (a) The Company shall not be
obligated to sell or issue any shares upon the exercise of any Option granted
under the Plan or to deliver Restricted Stock unless the issuance and delivery
of shares complies with all provisions of applicable federal and state
securities laws and the requirements of any national exchange or trading system
on which the Common Stock is then listed or traded.
(b) As a condition to the exercise of an Option or the grant
of Restricted Stock, the Company may require the person exercising the Option or
receiving the grant of Restricted Stock to make such representations and
warranties as may be necessary to assure the availability of an exemption from
the registration requirements of applicable federal and state securities laws.
(c) The Company shall not be liable for refusing to sell or
issue any shares covered by any Option or for refusing to issue Restricted Stock
if the Company cannot obtain authority from the appropriate regulatory bodies
deemed by the Company to be necessary to sell or issue such shares in compliance
with all applicable federal and state securities laws and the requirements of
any national exchange or trading system on which the Common Stock is then listed
or traded. In addition, the Company shall have no obligation to any Participant,
express or implied, to list, register or otherwise qualify the shares of Common
Stock covered by any Option or Restricted Stock.
(d) No Participant will be, or will be deemed to be, a holder
of any Common Stock subject to an Option unless and until the Option is vested,
and the Participant has exercised the Option and paid the purchase price for the
subject shares of Common Stock. Options and shares of Restricted Stock that have
not fully vested shall be transferable only by will or the laws of descent and
distribution and Options shall be exercisable during the Participant's lifetime
only by such Participant; provided, however, that the Participant may transfer
his or her Options and/or unvested Restricted Stock without consideration, to
(i) the spouse, children or grandchildren of the Participant ("Immediate Family
Members"), (ii) a trust or trusts, or to a guardian under the Uniform Gift to
Minors Act, for the exclusive benefit of such Immediate Family Members, or (iii)
a partnership or other entity in which such Immediate Family Members are the
only partners, provided that subsequent transfers of transferred Options or
unvested shares of Restricted Stock shall be prohibited except by will or the
laws of descent and distribution. Following transfer, any such Options shall
continue to be subject to the same terms and conditions as were applicable
immediately prior to transfer, provided that, for purposes of each award
agreement and the vesting and expiration provisions hereof, the terms
"Participant" and "Optionee" shall be deemed to refer to the transferee
(however, the events of termination of employment, if any, set forth in the
agreement and the obligation to pay withholding taxes shall continue to apply to
the transferor). Qualified Options shall be nontransferable except by will or
the laws of descent and distribution, and may only be exercisable during the
Participant's lifetime, by the Participant.
16. Restrictions on Shares. Shares of Common Stock issued pursuant to
the Plan may be subject to restrictions on transfer under applicable federal and
state securities laws. The Board may impose such additional restrictions on the
ownership and transfer of shares of Common Stock issued pursuant to the Plan as
it deems desirable; any such restrictions shall be set forth in any award
agreement entered into hereunder.
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17. Modification of Awards. At any time and from time to time, the
Board or the Committee may execute an instrument providing for modification,
extension or renewal of any outstanding award, provided that no such
modification, extension or renewal shall (a) impair any award without the
consent of the holder of the award, or (b) decrease the exercise price of any
Option without the consent of the stockholders of the Company. Notwithstanding
the foregoing, in the event of a modification, extension or renewal of a
Qualified Option, the Board or the Committee may increase the exercise price of
such Option if necessary to retain the qualified status of such Option. Any
amendment to the Plan shall apply to all Options and shares of Restricted Stock
outstanding at the time of such amendment in addition to all awards granted
thereafter, subject to the limitations of clause (a) of the first sentence of
this Section 17.
18. Effect of Change in Stock Subject to the Plan. In the event that
each of the outstanding shares of Common Stock (other than shares held by
dissenting stockholders) shall be changed into or exchanged for a different
number or kind of shares of stock of the Company or of another company (whether
by reason of merger, consolidation, recapitalization, reclassification,
split-up, combination of shares or otherwise), or in the event a stock split or
stock dividend occurs, then there shall be substituted for each share of Common
Stock then subject to Options or Restricted Stock awards or available for
Options or Restricted Stock awards the number and kind of shares of stock into
which each outstanding share of Common Stock (other than shares held by
dissenting stockholders) shall be so changed or exchanged, or the number of
shares of Common Stock as is equitably required in the event of a stock split or
stock dividend, together with an appropriate adjustment of the Exercise Price.
The Board may, but shall not be required to, provide additional anti-dilution
protection to a Participant under the terms of the Participant's Option or
Restricted Stock agreement.
19. Administration. (a) The Plan shall be administered by the Board or
by a committee of the Board comprised solely of two or more Non-Employee
Directors appointed by the Board (the "Committee"). Options and Restricted Stock
may be granted under Sections 6 and 7, respectively, (i) by the Board as a
whole, or (ii) by majority agreement of the members of the Committee. Subject to
the limitations and qualifications set forth in this Plan, the Board or the
Committee shall determine the number of Options or shares of Restricted Stock to
be granted, the number of shares subject to each Option or Restricted Stock
grant, the exercise price or prices of each Option, the vesting and exercise
period of each Option and the vesting and/or forfeiture provisions relating to
Restricted Stock, whether an Option may be exercised as to less than all of the
Common Stock subject thereto, and such other terms and conditions of each Option
or grant of Restricted Stock, if any, as are consistent with the provisions of
this Plan. To the extent permitted by applicable law (including the Exchange Act
and the Code), the Board or the Committee may at any given time authorize an
aggregate number of Options or shares of Restricted Stock to be granted to
eligible Employees, and then authorize one or more officers of the Company (the
"Authorized Officers") to allocate such awards among eligible Employees;
provided that the Authorized Officers may not allocate awards to themselves or
other executive officers, and the terms of the awards, including the Exercise
Price (if any) must be established by the Board or the Committee. Option
agreements and Restricted Stock agreements, in the forms as approved by the
Board or the Committee, and containing such terms and conditions consistent with
the provisions of this Plan as are determined by the Board or the Committee, may
be executed on behalf of the Company by the Chairman of the Board, the President
or any Vice President of the Company. The Board or the Committee shall have
complete authority to
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construe, interpret and administer the provisions of this Plan and the
provisions of the Option agreements and Restricted Stock agreements granted
hereunder; to prescribe, amend and rescind rules and regulations pertaining to
this Plan; to suspend or discontinue this Plan; and to make all other
determinations necessary or deemed advisable in the administration of the Plan.
The determinations, interpretations and constructions made by the Board or the
Committee shall be final and conclusive. No member of the Board or the Committee
shall be liable for any action taken, or failed to be taken, made in good faith
relating to the Plan or any award thereunder, and the members of the Board or
the Committee shall be entitled to indemnification and reimbursement by the
Company in respect of any claim, loss, damage or expense (including attorneys'
fees) arising therefrom to the fullest extent permitted by law.
(b) Although the Board or the Committee may suspend or
discontinue the Plan at any time, all Qualified Options must be granted before
February 24, 2007.
(c) Subject to any applicable requirements of Rule 16b-3 or of
any national exchange or trading system on which the Common Stock is then listed
or traded, and subject to the stockholder approval requirements of Sections 422
and 162(m)(4)(C) of the Code, the Board may amend any provision of this Plan in
any respect in its discretion.
20. Continued Employment Not Presumed. Nothing in this Plan or any
document describing it nor the grant of any Option or Restricted Stock shall
give any Participant the right to continue in the employment of the Company or
affect the right of the Company to terminate the employment of any such person
with or without cause.
21. Liability of the Company. Neither the Company, its directors,
officers or employees or the Committee, nor any Subsidiary which is in existence
or hereafter comes into existence, shall be liable to any Participant or other
person if it is determined for any reason by the Internal Revenue Service or any
court having jurisdiction that any Qualified Option granted hereunder does not
qualify for tax treatment as an incentive stock option under Section 422 of the
Code.
22. GOVERNING LAW. THE PLAN SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF STATE OF DELAWARE AND THE UNITED STATES, AS
APPLICABLE, WITHOUT REFERENCE TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
23. Severability of Provisions. If any provision of this Plan is
determined to be invalid, illegal or unenforceable, such invalidity, illegality
or unenforceability shall not affect the remaining provisions of the Plan, but
such invalid, illegal or unenforceable provision shall be fully severable, and
the Plan shall be construed and enforced as if such provision had never been
inserted herein.
Last Amended and Restated July 2003
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