EXHIBIT 10.4
DEAN FOODS COMPANY
POST-2004 EXECUTIVE DEFERRED COMPENSATION PLAN
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DEAN FOODS COMPANY
POST-2004 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................................ 8
ARTICLE VIII CLAIMS REVIEW PROCEDURE................................... 9
ARTICLE IX LIMITATION OF RIGHTS...................................... 10
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................................. 11
DEAN FOODS COMPANY
POST-2004 EXECUTIVE DEFERRED COMPENSATION PLAN
PREAMBLE
WHEREAS, Dean Foods Company (the "Company"), a corporation formed under the
laws of the State of Delaware, sponsors the Dean Foods Company Executive
Deferred Compensation Plan (the "Pre-2005 Plan") 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 American Jobs Creation Act of 2004 imposes new restrictions on
deferred compensation arrangements for compensation earned after 2004;
WHEREAS, the Company desires to establish a new plan to be known as the
Dean Foods Company Post-2004 Executive Deferred Compensation Plan (the "Plan")
to provide for the deferral of compensation after 2004;
NOW, THEREFORE, the Company hereby adopts 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 salary, bonuses and commissions
paid or accrued by the Company or an Affiliate to an employee as remuneration
for personal services rendered during each Plan Year, 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.
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 "Disability" shall mean the Participant either (a) is unable to engage
in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than 12 months, or (b) is,
by reason of any medically determinable physical or mental impairment which can
be expected to result in death or can be expected to last for a continuous
period of not less than 12 months, receiving income replacement benefits for a
period of not less than 3 months under an accident and health plan covering
employees of the Company.
1.11 "Effective Date" shall mean January 1, 2005.
1.12 "401(k) Plan" shall mean the Dean Foods 401(k) Plan.
1.13 "Participant" shall mean an individual who has been designated by the
Committee as being eligible to participate in the Plan.
1.14 "Performance-Based Compensation" shall mean compensation earned by a
Participant based on satisfaction of variable and contingent individual or
organizational performance criteria not readily ascertainable at the time the
election is made and is based on services to be performed over a period of at
least 12 months.
1.15 "Performance Period" shall mean the period over which
Performance-Based Compensation is earned.
1.16 "Plan" shall mean the Dean Foods Company Post-2004 Executive Deferred
Compensation Plan set forth in this document, as it may be amended from time to
time.
1.17 "Plan Year" shall mean the twelve-month period beginning each January
1 and ending each December 31.
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1.18 "Profit Sharing Credit" shall mean the amount contributed to the
Participant's Account as a profit sharing credit pursuant to Section 3.3 hereof.
1.19 "Trust" shall mean the Dean Foods Company Executive Deferred
Compensation Plan Trust.
1.20 "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.
ARTICLE II
ELIGIBILITY
Participation in the Plan shall be made available to a select group of
individuals, as determined by the Board or 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 for compensation other than Performance-Based Compensation, and not later
than six months before the end of the Performance Period, for Performance-Based
Compensation. 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 after the date on which he
is notified by the Committee of his eligibility to participate in the Plan or,
with respect to Performance-Based Compensation, such later date as is specified
in the preceding sentence. The election to participate in the Plan for a
Participant first enrolled during a Plan Year 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 and at the time
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.
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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 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 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 To the extent allowed by regulations issued by the U.S. Department of
the Treasury, if there is a change in the ownership or effective control of the
employer of the Participant (or the employer's parent) or in the ownership of a
substantial portion of the assets of the employer of the Participant
(hereinafter collectively called a "Change in Control"), the Plan shall
distribute the Accounts of all Participants employed by such employer or its
subsidiaries impacted by such Change in Control, in a single lump sum within 30
days after such Change in Control or at such later date as is required by such
regulations. The determination of whether a Change in Control has occurred and
whether a distribution may be made to the Participants shall be made based on
the definition of a Change in Control that is found in the regulations issued by
the U.S. Department of the Treasury under Section 409A of the Code, which
regulations are incorporated herein by reference.
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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 or such smaller amount allowed by regulations issued by the
U.S. Department of the Treasury) shall be paid in cash, 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; or
(3) substantially equal annual installments over ten (10) years.
Notwithstanding the Participant's distribution election, if the amount
credited to a Participant's Account is equal to or less than $25,000 (or such
smaller amount allowed by regulations issued by the U.S. Department of the
Treasury), 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 such smaller amount allowed by regulations issued by the U.S. Department of
the Treasury), 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 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. To the extent allowed by
regulations issued by the U.S. Department of the Treasury, a Participant may
modify the time or 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 and as long as the change
postpones the payment(s) at least five years after their scheduled payment
date(s).
5.2 Payment of a Participant's benefit on account of death shall be made to
the Beneficiary of such Participant in a lump sum in cash 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, and to the
extent allowed by regulations issued by the U.S. Department of the Treasury, 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 U.S. Department of the Treasury, a decision
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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's or Beneficiary's receiving the distribution in a
different taxable year than if no such delay had occurred.
ARTICLE VI
IN-SERVICE WITHDRAWALS
6.1 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 an illness or
accident of the Participant, the Participant's spouse, or 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 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 plus the amount needed to pay
taxes reasonably anticipated as a result of the distribution. All hardship
withdrawals shall be paid in a lump sum in cash.
6.2 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, additional credits made that Plan Year pursuant to Sections 3.3, 3.4, or
3.5 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-
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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 five years
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.
6.3 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.
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.
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.
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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.
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 within 90 days after the claim is filed
(45 days in the case of a Disability claim) unless an extension of time for
processing the claim is necessary because more information is needed (or, in the
case of a Disability claim, an extension is necessary for reasons beyond the
control of the Committee), in which case a decision will be rendered not later
than 180 days (75 days in the case of a Disability claim which may be further
extended to 105 days if the additional extension is necessary due to reasons
beyond the control of the Committee) after the initial receipt of the claim. If
such an extension of time for processing the claim is required, written notice
of the extension and additional information that is necessary to process the
claim will be furnished to the Claimant prior to the expiration of the initial
90-day (or 45-day) period and will indicate the special circumstances requiring
an extension of time for processing the claim and will indicate the date the
Committee expects to render its decision. In no event will such extension exceed
a period of 90 days from the end of the initial period. The notice 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) if the claim is a claim for a Disability benefit, the Participant will
be notified if an internal rule, guideline, protocol or other similar
criterion was relied on by the Committee and the Participant will be
provided with a copy of such rule, guideline, protocol, or other
criterion free of charge on the Participant's request. If the claim is
a claim for a Disability benefit and the denial is based on a medical
necessity or other similar exclusion or limit, the Participant will be
provided, free of charge at his or her request, an explanation of how
that exclusion or limit and any clinical judgments apply to the
Participant's medical circumstances.
(e) a statement that the Claimant may:
(i) request a review upon written application to the Committee;
(ii) review pertinent Plan documents; and
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(iii) submit issues and comments in writing; and
(f) that any appeal the Claimant wishes to make of the adverse
determination must be in writing and received by the Committee within
60 days (180 days in the case of a Disability claim) 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 60-day (or 180-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 60 days
(45 days in the case of a Disability claim) of the Claimant's written request
for review, unless special circumstances (such as a hearing) would make the
rendering of a decision within the 60-day (or 45-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 (90 days in the case of a Disability claim)
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 Claimant will also be entitled to receive, on request and free of charge,
access to and copies of all documents, records, and other information relevant
to the claim. In addition, if the claim is a claim for a Disability benefit, the
Participant will be notified if an internal rule, guideline, protocol or other
similar criterion was relied on by the Committee and will be provided with a
copy of such rule, guideline, protocol, or other criterion free of charge at
your request. If the claim is a claim for a Disability benefit and the denial is
based on a medical necessity or other similar exclusion or limit, the
Participant will be provided, free of charge at his or her request, an
explanation of how that exclusion or limit and any clinical judgments apply to
the Participant's medical circumstances. In the case of a Disability claim, the
review on appeal must be made by a different decision-maker from the Committee
and that decision-maker cannot give procedural deference to the original
decision. If the Claimant is dissatisfied with the Committee's (or other
independent fiduciary's) review decision, the Claimant has the right to file
suit in a federal or state court.
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
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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 and the Board reserve 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.
ARTICLE XII
GENERAL AND MISCELLANEOUS
12.1 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 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
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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 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 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 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 this
document to be executed on this _____ day of March, 2005, but effective as of
the first day of January, 2005.
COMPANY:
DEAN FOODS COMPANY
By:
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