EXHIBIT 10.3
DEAN FOODS COMPANY
EXECUTIVE DEFERRED COMPENSATION PLAN
(As Restated to Incorporate Amendments 1-6)
DEAN FOODS COMPANY
EXECUTIVE DEFERRED COMPENSATION PLAN
Table of Contents
Page
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ARTICLE I DEFINITIONS..............................................1
ARTICLE II ELIGIBILITY..............................................3
ARTICLE III CREDITS TO ACCOUNT.......................................3
ARTICLE IV BENEFITS.................................................5
ARTICLE V PAYMENT OF BENEFITS AT TERMINATION.......................6
ARTICLE VI IN-SERVICE WITHDRAWALS...................................7
ARTICLE VII ADMINISTRATION OF THE PLAN...............................9
ARTICLE VIII CLAIMS REVIEW PROCEDURE.................................10
ARTICLE IX LIMITATION OF RIGHTS....................................11
ARTICLE X LIMITATION OF ASSIGNMENT AND PAYMENTS TO
LEGALLY INCOMPETENT DISTRIBUTEE.........................11
ARTICLE XI AMENDMENT TO OR TERMINATION OF THE PLAN.................11
ARTICLE XII GENERAL AND MISCELLANEOUS...............................12
DEAN FOODS COMPANY
EXECUTIVE DEFERRED COMPENSATION PLAN
PREAMBLE
WHEREAS, Dean Foods Company (the "Company"), a corporation formed under
the laws of the State of Delaware, established the Suiza Foods Corporation
Executive Deferred Compensation Plan (the "Plan") effective July 1, 1999, for
the exclusive benefit of a select group of management and highly compensated
employees of the Company and its affiliates to provide an additional means by
which such employees may defer funds for their retirement;
WHEREAS the name of the Plan was later changed to Dean Foods Company
Executive Deferred Compensation Plan to reflect the new name of the Company;
WHEREAS, the Plan was subsequently amended by Amendments 1-6;
WHEREAS, the Company desires to restate the plan to incorporate all
such amendments;
NOW, THEREFORE, the Company hereby restates the Plan to read as
follows:
ARTICLE I
DEFINITIONS
1.1 "Account" shall mean the individual bookkeeping record established
by the Committee showing the monetary value of the interest in the Plan of each
Participant or Beneficiary.
1.2 "Affiliate" shall mean a member of a controlled group of
corporations (as defined in Section 414(b) of the Code), a group of trades or
businesses (whether or not incorporated) which are under common control (as
defined in Section 414(c) of the Code), or an affiliated service group (as
defined in Section 414(m) of the Code) of which the Company is a member; and any
entity otherwise required to be aggregated with the Company pursuant to Section
414(o) of the Code or the regulations issued thereunder; and any other entity in
which the Company has an ownership interest and to which the Company elects to
make participation in the Plan available.
1.3 "Annual Compensation" shall mean the total amounts paid or accrued
by the Company or an Affiliate to an employee as remuneration for personal
services rendered during each Plan Year, including bonuses and commissions, as
reported on the employee's federal income tax withholding statement or
statements (IRS Form W-2 or its subsequent equivalent), together with any
amounts not includable in such employee's gross income pursuant to Sections 125
or 402(g) of the Code, and any amounts deferred by such employee pursuant to
Section 3.1 hereof. The term "Annual Compensation" shall also include any
amounts paid as director's fees to members of the Board or members of the board
of directors of an Affiliate.
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1.4 "Beneficiary" shall mean the Beneficiary designated by each
Participant under the 401(k) Plan; provided, however, that a Participant may
designate a different Beneficiary hereunder by delivering to the Committee a
written beneficiary designation, in the form provided by the Committee, and
executed specifically with respect to this Plan.
1.5 "Board" shall mean the Board of Directors of the Company.
1.6 "Code" shall mean the Internal Revenue Code of 1986, as it may be
amended from time to time, and the rules and regulations promulgated thereunder.
1.7 "Committee" shall mean the Compensation Committee of the Board.
1.8 "Company" shall mean Dean Foods Company or its successor or
successors.
1.9 "Company Contribution Account" shall mean the subaccount of each
Participant's Account showing the monetary value of the Participant's interest
in the Plan which is attributable to matching or profit sharing contributions
credited pursuant to Sections 3.2 and 3.3.
1.10 "Company Stock" shall mean the common stock of the Company.
1.11 "Disability" shall mean a physical or mental condition which, in
the opinion of the Committee, prevents a Participant from being able to perform
the substantial duties of his employment with the Company and is expected to be
of long duration or to result in death.
1.12 "Effective Date" shall mean July 1, 1999.
1.13 "401(k) Plan" shall mean the Dean Foods 401(k) Plan.
1.14 "Participant" shall mean an individual who has been designated by
the Committee as being eligible to participate in the Plan.
1.15 "Plan" shall mean the Dean Foods Company Executive Deferred
Compensation Plan set forth in this document, as it may be amended from time to
time.
1.16 "Plan Year" shall mean the twelve month period beginning each
January 1 and ending each December 31, except that the first Plan Year shall
commence July 1, 1999 and end December 31, 1999.
1.17 "Profit Sharing Credit" shall mean the amount contributed to the
Participant's Account as a profit sharing credit pursuant to Section 3.3 hereof.
1.18 "Trust" shall mean the Dean Foods Company Executive Deferred
Compensation Plan Trust.
1.19 "Valuation Date" shall mean each business day on which the
financial markets are open for trading activity or such other dates as may be
established by the Committee.
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ARTICLE II
ELIGIBILITY
Participation in the Plan shall be made available to a select group of
individuals, as determined by the Committee, who are providing services to the
Company or an Affiliate in key positions of management and responsibility.
Participation in the Plan shall also be made available to members of the Board
and any outside directors of subsidiaries of the Company. Such individuals may
elect to participate hereunder by executing a participation agreement in such
form and at such time as the Committee shall require, provided that each
participation agreement shall be executed no later than the day immediately
preceding the Plan Year for which an individual elects to make contributions to
the Plan in accordance with the provisions of Section 3.1 hereof.
Notwithstanding the foregoing, in the first year in which an individual becomes
eligible to participate in the Plan, he may elect to participate in the Plan by
executing a participation agreement, in such form as the Committee shall
require, within thirty (30) days of the date on which he is notified by the
Committee of his eligibility to participate in the Plan. In such event, his
election to participate in the Plan shall become effective as of the first full
payroll period beginning on or after the Committee's receipt of his
participation agreement. The determination as to the eligibility of any
individual to participate in the Plan shall be in the sole and absolute
discretion of the Committee, whose decision in that regard shall be conclusive
and binding for all purposes hereunder.
ARTICLE III
CREDITS TO ACCOUNT
3.1 For any Plan Year, a Participant may, in the manner prescribed by
the Committee, irrevocably elect to defer a portion of the Annual Compensation
otherwise payable to such Participant with respect to such Plan Year, not to
exceed the maximum amount established by the Committee. Any amount deferred,
pursuant to this Article III, from the Annual Compensation otherwise payable to
a Participant shall be transferred to the Trust and credited to the Account of
such Participant as soon as practicable after the date on which such amounts
would otherwise have been paid to the Participant.
3.2 The Committee shall credit a matching contribution, calculated as
provided in this Section 3.2, to the Company Contribution Account of each
Participant who has deferred amounts under the Plan during any Plan Year
pursuant to Section 3.1 above. The matching contribution, if any, shall be
computed as follows: (i) the Committee shall first compute a maximum matching
contribution for each Participant for a Plan Year, on the salary deferrals made
by the Participant under the 401(k) plan in which the Participant participates,
using the formula applied by such 401(k) plan with respect to percentage of
salary deferrals matched and the maximum percentage of compensation which is
subject to the match, but using the Participant's Annual Compensation as defined
in this Plan up to the maximum compensation that may be considered on behalf of
a participant under such 401(k) plan (unless otherwise approved by the Board of
Directors of the Company); (ii) the Committee shall then determine the amount of
matching contributions made for the Participant under such 401(k) plan; and
(iii) the difference between (i) and (ii), if any, is the matching contribution
to be credited to the Participant's Company Contribution Account
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under the Plan. The Committee shall credit a matching contribution, if any, to
the Participant's Company Contribution Account as soon as administratively
practicable following the end of the Plan Year in which the 401(k) plan year
ends, and the Company shall transfer a similar amount to the Trust as soon as
administratively practicable following such date. A member of the Board or an
outside director of a subsidiary who participates in the Plan is not eligible
for matching contributions.
3.3 For each Plan Year, the Committee shall credit each Participant's
Company Contribution Account with an amount that represents a Profit Sharing
Credit. The Profit Sharing Credit shall be equal in amount to the additional
contribution, if any, which would have been allocated as a non-matching
contribution to the Participant's account in the 401(k) plan in which the
Participant is eligible to participate, if the Participant had not elected to
defer, pursuant to this Plan, Annual Compensation that otherwise would have been
paid during the plan year of the 401(k) plan which ends in the Plan Year. The
Committee shall credit the Profit Sharing Credit to the Company Contribution
Account of each Participant entitled thereto as soon as administratively
practicable following the end of the Plan Year. A member of the Board or an
outside director of a subsidiary who participates in the Plan is not eligible
for a Profit Sharing Credit.
3.4 At the time of making the deferrals elections described in Section
3.1 and at such other times as is allowed by the Committee, the Participant
shall designate, on a form provided by the Committee, the types of investments,
including life insurance policies, in which the Participant's Account will be
deemed to be invested for purposes of determining the amount of earnings to be
credited to that Account. On a quarterly or other basis selected by the
Committee, the Committee shall credit to each Participant's Account an amount
equal to the interest, earnings or losses that would have resulted to the
Account if the amounts credited to the Account were invested as elected by the
Participant. If the Participant designates a deemed investment in a life
insurance policy, the rate of earnings to be credited to such Participant's
Account shall be as set forth in a split-dollar life insurance agreement or
other agreement concerning such a policy.
3.5 In addition to the other investments which the Participant may
designate in which such Participant's Account shall be deemed to be invested for
the purpose of determining the amount of earnings to be credited to that
Account, a Participant may designate that all or a portion of such Participant's
bonus be deemed to be invested in Company stock. If a Participant makes such an
election, the Committee shall credit to the Participant's Account the number of
shares that could have been purchased on the open market on a date and at a time
selected by the Company which is not more than two business days after the bonus
is determined by the Company, but applying a 15% discount to the purchase price.
If the Participant makes such a designation with respect to a bonus, such
designation shall remain in force throughout the Participant's participation in
the Plan and the Participant shall not be entitled to change such designation. A
Participant who makes such a designation with respect to bonuses paid in one
year can make another investment designation for bonuses paid in other years.
3.6 At any time, the Company may, in its sole discretion, credit an
amount on behalf of a particular Participant to his or her account. The
crediting of such an amount shall be evidenced by providing the Participant a
notice or statement specifying the amount of the credit.
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Thereafter, the amount credited to the Participant's Account shall be subject to
all of the same terms and provisions as amounts credited to the Account under
Sections 3.1 through 3.4 of the Plan.
ARTICLE IV
BENEFITS
4.1 After the death of a Participant, the Beneficiary of such
Participant shall be entitled to the entire value of all amounts credited to
such Participant's Account, determined as of the Valuation Date coincident with
or preceding the date of distribution, including any additional amount credited
to such Participant's Account as a result of life insurance proceeds payable on
the Participant's death.
4.2 After the Disability of a Participant, such Participant shall be
entitled to the entire value of all amounts credited to such Participant's
Account, determined as of the Valuation Date coincident with or preceding the
date of Disability. Such amount shall be payable to the Participant at the time
and in the manner determined by the Committee.
4.3 After a Participant's employment terminates or such Participant
ceases to be a member of the Board or a board of directors of a subsidiary for
any reason other than death or Disability, such Participant shall be entitled to
the entire value of all amounts credited to the Account of such Participant,
determined as of the Valuation Date coincident with or preceding the date of
distribution, except that the Participant shall only be entitled to the vested
portion, if any, of his Company Contribution Account. The vested portion of a
Participant's Company Contribution Account shall be determined by applying the
Participant's vesting percentage calculated pursuant to the terms of the 401(k)
Plan. In addition to crediting service with Related Employers, as that term is
defined in the 401(k) Plan, the Company will credit service with organizations
and their predecessors in which the Company owns an interest but which do not
qualify as Related Employers.
4.4 If a Participant has designated that all or a portion of a bonus
that otherwise would be paid to such Participant shall be deferred pursuant to
the Plan and deemed to be invested in Company Stock, then the following rules
shall apply to that portion of the Participant's Account:
(a) If the Participant becomes entitled to a distribution from the
Plan and such distribution is as a result of the Participant's
termination of employment because of death, Disability, or
retirement on or after age 65, then such Participant shall be
entitled to a distribution of the portion of his Account which
is deemed to be invested in Company Stock either in shares of
Company Stock or in a cash payment equal to the value of such
Company Stock, determined as of the Valuation Date coincident
with or preceding the date of distribution.
(b) If a Participant is entitled to a distribution for a reason
other than death, Disability, or retirement on or after age
65, or if a Participant elects to take an in-service
withdrawal as authorized in Article VI, the Participant shall
be entitled to
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receive Company Stock that has been credited to the
Participant's account for the number of years in the schedule
below, calculated as of the date of the termination or request
for withdrawal, as the case may be (or a cash payment equal to
the value of such shares), in the percentage set forth below:
<Table>
<Caption>
Vested Percentage Number of Years
----------------- ---------------
85% less than one year
92.5% at least one but less than two years
100% two or more years
</Table>
In the case of an in-service withdrawal, the reductions and limitations of
Article VI shall apply to the amount determined pursuant to this Section 4.4(b).
ARTICLE V
PAYMENT OF BENEFITS AT TERMINATION
5.1 In the case of a Participant who terminates employment with the
Company or ceases to be a member of the Board or an outside director of a
subsidiary of the Company, the amount credited to the Participant's Account
(provided it is more than $25,000) shall be paid in cash (except as otherwise
provided in Section 4.4), to the Participant, at the time the distribution of
the Account is to commence, from among the following optional forms of benefit
as elected by the Participant on the form provided by the Company upon his or
her initial participation in the Plan:
(1) a lump sum distribution;
(2) substantially equal annual installments over five (5) years;
(3) substantially equal annual installments over ten (10) years;
or
(4) substantially equal annual installments over fifteen (15)
years.
If a portion of the Participant's Account is invested in Company Stock,
and an installment form of payment is elected, then the distribution shall be
deemed to be made on a pro rata basis out of the other investment options in
which amounts credited to a Participant's Account are deemed to be invested
first, and then, after all such other amounts are distributed, from the portion
of the Participant's Account which is deemed to be invested in Company Stock.
Notwithstanding the Participant's distribution election, if the amount credited
to a Participant's Account is $25,000 or less, at the time distribution of the
Account is to commence, payment will be made in a lump sum, and even if
installment payments have commenced under this Section 5.1, at such time as the
value of such remaining amounts is $25,000 or less, all remaining amounts
credited to a Participant's Account shall be distributed in a lump sum.
Payment shall commence as soon as practicable following the
Participant's termination of employment with the Company or termination as a
member of the Board or a director of a subsidiary of the Company, or, if so
elected by the Participant in the Participant's deferral election form provided
by the Committee, as soon as practicable during the calendar year following the
year in which such event occurs. If installment payments are made, the unpaid
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balance of the Participant's Account shall continue to share in the income and
losses attributable thereto, in accordance with the provisions of the Trust,
during the period for which installment payments are made. A Participant may
modify the optional form of benefit that he or she has previously elected, as
long as he or she provides the Committee with written notice at least one (1)
year in advance of the effective date of the change.
5.2 Payment of a Participant's benefit on account of death shall be
made in a lump sum in cash or, to the extent that Section 4.4 applies, in shares
of Company Stock. Payment of a Participant's death benefit shall be made to the
Beneficiary of such Participant as soon as practicable following the Committee's
receipt of proper notice of such Participant's death.
5.3 Notwithstanding the provisions of Sections 5.1 or 5.2, the benefits
payable hereunder may be paid before they would otherwise be payable if, based
on a change in the federal or applicable state tax or revenue laws, a published
ruling or similar announcement issued by the Internal Revenue Service, a
regulation issued by the Secretary of the Treasury, a decision by a court of
competent jurisdiction involving a Participant or a Beneficiary, or a closing
agreement made under Section 7121 of the Code that is approved by the Internal
Revenue Service and involves a Participant, the Committee determines that a
Participant has or will recognize income for federal or state income tax
purposes with respect to amounts that are or will be payable under the Plan
before they otherwise would be paid. The amount of any payments pursuant to this
Section 5.3 shall not exceed the lesser of: (a) the amount in the Participant's
Account or (b) the amount of taxable income with respect to which the tax
liability is assessed or determined.
5.4 The payment of benefits under the Plan shall begin at the date
specified in accordance with the provisions of Sections 5.1 and 5.2 hereof;
provided that, in case of administrative necessity, the starting date of payment
of benefits may be delayed up to thirty (30) days as long as such delay does not
result in the Participant or Beneficiary receiving the distribution in a
different taxable year than if no such delay had occurred.
ARTICLE VI
IN-SERVICE WITHDRAWALS
6.1 (HARDSHIP WITHDRAWALS): In the event of an unforeseeable emergency,
a Participant may make a request to the Committee for a withdrawal from the
Account of such Participant. For purposes of this Section, the term
"unforeseeable emergency" shall mean a severe financial hardship to the
Participant resulting from a sudden and unexpected illness or accident of the
Participant or of a dependent (as defined in Section 152(a) of the Code) of the
Participant, loss of the Participant's property due to casualty, or other
similar extraordinary and unforeseeable circumstances arising as a result of
events beyond the control of the Participant. Any determination of the existence
of an unforeseeable emergency and the amount to be withdrawn on account thereof
shall be made by the Committee, in its sole and absolute discretion. However,
notwithstanding the foregoing, a withdrawal will not be permitted to the extent
that the financial hardship is or may be relieved: (i) through reimbursement or
compensation by insurance or otherwise; (ii) by liquidation of the Participant's
assets, to the extent that liquidation of such assets would not itself cause
severe financial hardship; or (iii) by
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cessation of deferrals under this Plan. In no event shall the need to send a
Participant's child to college or the desire to purchase a home be deemed to
constitute an unforeseeable emergency. No member of the Committee shall vote or
decide upon any matter relating to the determination of the existence of such
member's own financial hardship or the amount to be withdrawn on account
thereof. A request for a hardship withdrawal must be made in the manner
prescribed by the Committee, and must be expressed as a specific dollar amount.
The amount of a hardship withdrawal may not exceed the amount required to meet
the severe financial hardship. All hardship withdrawals shall be paid in a lump
sum in cash or, to the extent Section 4.4 applies, in shares of Company Stock.
6.2 (SCHEDULED IN-SERVICE WITHDRAWALS): On a form prescribed by the
Committee, a Participant, prior to the beginning of any Plan Year, can elect to
receive that Plan Year's deferrals made pursuant to Section 3.1, matching
contributions credited pursuant to Section 3.2, any additional credits made that
Plan Year pursuant to Sections 3.3, 3.5 or 3.6, and earnings thereon, at a date
specified by the Participant. Such date shall be no earlier than two (2) years
from the last day of the Plan Year for which the deferrals and matching and
other credits are made. A Participant may extend the scheduled in-service
withdrawal date for any Plan Year, as long as the Participant provides advance
written notice to the Committee at least one year before the scheduled payment
date, and such extension is for a period of not less than one year from the
previous, scheduled in-service withdrawal date. Any withdrawal under this
Section 6.2 shall be made in a single lump sum, in cash, or to the extent
Section 4.4 applies, in shares of Company Stock.
6.3 (UNSCHEDULED IN-SERVICE WITHDRAWALS): Notwithstanding any other
provision herein to the contrary, a Participant who is actively employed or has
started receiving installment payments, (as provided in Section 5.1 above) may
elect to accelerate the date on which payment of his benefit hereunder would
otherwise be made, using a form provided by and filed with the Committee. Upon
such election, the amount to which such Participant is entitled shall be any
whole percentage, from ten percent (10%) to ninety percent (90%) of the benefit
otherwise payable hereunder, which shall be distributed in one lump sum, in cash
(or in shares of Company Stock to the extent that Section 4.4 applies), as soon
as administratively practicable after the early distribution election is made.
Ten percent (10%) of any amounts withdrawn from such Participant's Account shall
be forfeited as of the date of such distribution.
If, at the time of such election, the Participant is employed by the
Company or an Affiliate, such Participant shall be prohibited from participating
in the Plan for the balance of the Plan Year and no amounts shall be credited to
his or her Account pursuant to Section 3.1 hereunder during this period. The
Participant may again elect to participate in the Plan as of the first full
payroll period after the last day of that Plan Year by executing a new
participation agreement within the time prior to such date established by the
Committee.
6.4 Withdrawals shall be charged pro rata to the investment options in
which amounts credited to a Participant's Account are deemed to be invested
pursuant to Section 3.4 hereof. If a withdrawal exceeds the amount of a
Participant's Account which is deemed to be invested pursuant to Section 3.4
hereof, then such withdrawals shall be charged to the portion of the
Participant's Account which is deemed to be invested in Company Stock as
provided in Section 3.5 hereof.
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ARTICLE VII
ADMINISTRATION OF THE PLAN
7.1 The Plan shall be administered by the Committee. The members of the
Committee shall not receive compensation with respect to their services for the
Committee. The members of the Committee shall serve without bond or security for
the performance of their duties hereunder unless applicable law makes the
furnishing of such bond or security mandatory or unless required by the Company.
Any member of the Committee may resign by delivering a written resignation to
the Company and to the other members of the Committee.
7.2 The Committee shall perform any act which the Plan authorizes
expressed by a vote at a meeting or in a writing signed by a majority of its
members without a meeting. The Committee may, by a writing signed by a majority
of its members, appoint any member of the Committee to act on behalf of the
Committee. Any person who is a member of the Committee shall not vote or decide
upon any matter relating solely to such member or vote in any case in which the
individual right or claim of such member to any benefit under the Plan is
particularly involved. If, in any matter or case in which a person is so
disqualified to act, the remaining persons constituting the Committee cannot
resolve such matter or case, the Board will appoint a temporary substitute to
exercise all the powers of the disqualified person concerning the matter or case
in which such person is disqualified.
7.3 The Committee may designate in writing other persons to carry out
its responsibilities under the Plan, and may remove any person designated to
carry out its responsibilities under the Plan by notice in writing to that
person. The Committee may employ persons to render advice with regard to any of
its responsibilities. All usual and reasonable expenses of the Committee shall
be paid by the Company. The Company shall indemnify and hold harmless each
member of the Committee from and against any and all claims and expenses
(including, without limitation, attorneys' fees and related costs), in
connection with the performance by such member of duties in that capacity, other
than any of the foregoing arising in connection with the willful neglect or
willful misconduct of the person so acting.
7.4 The Committee shall establish rules and procedures, not contrary to
the provisions of the Plan, for the administration of the Plan and the
transaction of its business. The Committee shall determine the eligibility of
any individual to participate in the Plan, shall interpret the Plan in its sole
and absolute discretion, and shall determine all questions arising in the
administration, interpretation and application of the Plan. All determinations
of the Committee shall be conclusive and binding on all employees, Participants
and Beneficiaries.
7.5 Any action to be taken hereunder by the Company shall be taken by
resolution adopted by the Board or by a committee thereof; provided, however,
that by resolution, the Board or a committee thereof may delegate to any officer
of the Company the authority to take any such actions hereunder.
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ARTICLE VIII
CLAIMS REVIEW PROCEDURE
8.1 In the event that a Participant or Beneficiary is denied a claim
for benefits under this Plan (the "Claimant"), the Committee shall provide to
the Claimant written notice of the denial which shall set forth:
(a) the specific reason or reasons for the denial;
(b) specific references to pertinent Plan provisions on which the
Committee based its denial;
(c) a description of any additional material or information needed
for the Claimant to perfect the claim and an explanation of
why the material or information is needed;
(d) a statement that the Claimant may:
(i) request a review upon written application to the
Committee;
(ii) review pertinent Plan documents; and
(iii) submit issues and comments in writing; and
(e) that any appeal the Claimant wishes to make of the adverse
determination must be in writing and received by the Committee
within sixty (60) days after receipt of the Committee's notice
of denial of benefits. The Committee's notice must further
advise the Claimant that failure to appeal the action to the
Committee in writing within the sixty (60) day period will
render the Committee's determination final, binding, and
conclusive.
8.2 If the Claimant should appeal to the Committee, the Claimant, or
the duly authorized representative of such Claimant, may submit, in writing,
whatever issues and comments such Claimant, or the duly authorized
representative of such Claimant, feels are pertinent. The Committee shall
re-examine all facts related to the appeal and make a final determination as to
whether the denial of benefits is justified under the circumstances. The
Committee shall advise the Claimant in writing of its decision on the appeal,
the specific reasons for the decision, and the specific Plan provisions on which
the decision is based. The notice of the decision shall be given within sixty
(60) days of the Claimant's written request for review, unless special
circumstances (such as a hearing) would make the rendering of a decision within
the sixty (60) day period infeasible, but in no event shall the Committee render
a decision regarding the denial of a claim for benefits later than 120 days
after its receipt of a request for review. If an extension of time for review is
required because of special circumstances, written notice of the extension shall
be furnished to the Claimant prior to the date the extension period commences.
The Committee's notice of denial of benefits shall identify the address to which
the Claimant may forward an appeal.
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ARTICLE IX
LIMITATION OF RIGHTS
The establishment of this Plan shall not be construed as giving to any
Participant, employee of the Company or any person whomsoever, any legal,
equitable or other rights against the Company, or its officers, directors,
agents or shareholders, or as giving to any Participant or Beneficiary any
equity or other interest in the assets or business of the Company or shares of
Company stock or as giving any employee the right to be retained in the
employment of the Company. All employees of the Company and Participants shall
be subject to discharge to the same extent they would have been if this Plan had
never been adopted.
ARTICLE X
LIMITATION OF ASSIGNMENT AND PAYMENTS
TO LEGALLY INCOMPETENT DISTRIBUTEE
10.1 No benefits which shall be payable under the Plan to any person
shall be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance or charge, and any attempt to anticipate,
alienate, sell, transfer, assign, pledge, encumber, charge or otherwise dispose
of the same shall be void. No benefit shall in any manner be subject to the
debts, contracts, liabilities, engagements or torts of any person, nor shall it
be subject to attachment or legal process for or against any person, except to
the extent required by law.
10.2 Whenever any benefit which shall be payable under the Plan is to
be paid to or for the benefit of any person who is then a minor or determined by
the Committee, on the basis of qualified medical advice, to be incompetent, the
Committee need not require the appointment of a guardian or custodian, but shall
be authorized to cause the same to be paid over to the person having custody of
the minor or incompetent, or to cause the same to be paid to the minor or
incompetent without the intervention of a guardian or custodian, or to cause the
same to be paid to a legal guardian or custodian of the minor or incompetent, if
one has been appointed, or to cause the same to be used for the benefit of the
minor or incompetent.
ARTICLE XI
AMENDMENT TO OR TERMINATION OF THE PLAN
The Committee reserves the right at any time to amend or terminate the
Plan in whole or in part. No amendment shall have the effect of retroactively
depriving Participants or Beneficiaries of rights already accrued under the
Plan. Upon termination of the Plan, the Committee may, in its sole and absolute
discretion, and notwithstanding any other provision hereunder to the contrary,
direct that all benefits hereunder will be paid as soon as administratively
practicable thereafter.
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ARTICLE XII
GENERAL AND MISCELLANEOUS
12.1 Severability. In the event that any provision of this Plan shall
be declared illegal or invalid for any reason, said illegality or invalidity
shall not affect the remaining provisions of this Plan but shall be fully
severable and this Plan shall be construed and enforced as if said illegal or
invalid provision had never been inserted herein.
12.2 Construction. The Section headings and numbers are included only
for convenience of reference and are not to be taken as limiting or extending
the meaning of any of the terms and provisions of this Plan. Whenever
appropriate, words used in the singular shall include the plural or the plural
may be read as the singular.
12.3 Governing Law. The validity and effect of this Plan and the rights
and obligations of all persons affected hereby shall be construed and determined
in accordance with the laws of the State of Texas unless superseded by federal
law.
12.4 No Requirement to Fund. The Company is not required to set aside
any assets for payment of the benefits provided under this Plan. A Participant
shall have no security interest in any amounts credited hereunder on such
Participant's behalf. It is the Company's intention that this Plan be construed
as a plan which is unfunded and maintained primarily for the purpose of
providing deferred compensation for a select group of highly compensated
employees.
12.5 Taxes. All amounts payable hereunder shall be reduced by any and
all federal, state and local taxes imposed upon the Participant or a Beneficiary
which are required to be paid or withheld by the Company.
IN WITNESS WHEREOF, Dean Foods Company, the Company, has caused its
corporate seal to be affixed hereto and these presents to be duly executed in
its name and behalf by its proper officers thereunto duly authorized this 25th
day of November, 2002.
COMPANY:
DEAN FOODS COMPANY
By: /s/ Michelle P. Goolsby
----------------------------
Executive Vice President and
General Counsel
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