EXHIBIT 10.8
DEAN FOODS COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
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DEAN FOODS COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Table of Contents
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ARTICLE I DEFINITIONS............................................... 1
ARTICLE II ELIGIBILITY............................................... 3
ARTICLE III CREDITS TO ACCOUNT........................................ 3
ARTICLE IV BENEFITS.................................................. 3
ARTICLE V ADMINISTRATION OF THE PLAN................................ 4
ARTICLE VI CLAIMS REVIEW PROCEDURE................................... 5
ARTICLE VII LIMITATION OF RIGHTS...................................... 6
ARTICLE VIII LIMITATION OF ASSIGNMENT AND PAYMENTS TO LEGALLY
INCOMPETENT DISTRIBUTEE................................ 7
ARTICLE IX AMENDMENT TO OR TERMINATION OF THE PLAN................... 7
ARTICLE X GENERAL AND MISCELLANEOUS................................. 7
DEAN FOODS COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
PREAMBLE
WHEREAS, Dean Foods Company (the "Company") has determined that employees
who earn compensation in excess of the compensation that can be taken into
account under the Dean Foods 401(k) Plan (the "401(k) Plan") do not receive
retirement benefits from the Company that are equivalent, as a percentage of
total compensation, to the benefits provided to other employees;
WHEREAS, due the statutory limitations applicable to the 401(k) Plan, such
highly compensated employees may not receive adequate benefits from the 401(k)
Plan to adequately provide for their retirement needs;
WHEREAS, the Company has determined that it is appropriate to provide
additional benefits to such employees in a nonqualified deferred compensation
arrangement with respect to the compensation that cannot be taken into account
under the 401(k) Plan;
NOW, THEREFORE, the Company hereby adopts the Dean Foods Company
Supplemental Executive Retirement Plan (the "Plan"), reading 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 "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.
1.4 "Board" shall mean the Board of Directors of the Company.
1.5 "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.
1.6 "Committee" shall mean the Compensation Committee of the Board.
1.7 "Company" shall mean Dean Foods Company or its successor or successors.
1.8 "Covered Compensation" shall mean the total salary and bonuses paid 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, any amounts deferred by such
employee pursuant to the Dean Foods Company Post-2004 Executive Deferred
Compensation Plan, and any amounts withheld from such salary or bonuses pursuant
to a court order.
1.9 "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.
1.10 "Effective Date" shall mean January 1, 2005.
1.11 "Excess Compensation" shall mean that portion of the Participant's
Covered Compensation which is in excess of the limitation found in Section
401(a)(17) of the Code, or its successor, for the Plan Year.
1.12 "Participant" shall mean an individual who earns Excess Compensation
during a Plan Year or in a prior Plan Year on or after January 1, 2005.
1.13 "Plan" shall mean the Dean Foods Company Supplemental Executive
Retirement Plan set forth in this document, as it may be amended from time to
time.
1.14 "Plan Year" shall mean the twelve-month period beginning each January
1 and ending each December 31.
1.15 "Trust" shall mean the Dean Foods Company Supplemental Executive
Retirement Trust.
1.16 "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
A Participant shall participate in the Plan each Plan Year, commencing in
2005, in which he or she has Excess Compensation. A Participant who has Excess
Compensation for a Plan Year shall be entitled to continue to participate in the
Plan until his or her Account is paid in full even though the Participant may
not be entitled to credits to his or her Account during one or more Plan Years
because such Participant does not have Excess Compensation.
ARTICLE III
CREDITS TO ACCOUNT
3.1 The Committee shall credit to a Participant's Account an amount equal
to 4% of such Participant's Excess Compensation for the Plan Year. Such credit
shall be made on or before March 15th of the Plan Year following the Plan Year
in which such Excess Compensation is paid. An amount equal to the amount
credited to the Participant's Account shall be transferred to the Trust by March
31st of the Plan Year following the Plan Year in which the Excess Compensation
is paid.
3.2 At such times as is allowed by the Committee and pursuant to the
procedure specified by the Committee, the Participant shall designate, from the
investment alternatives selected by the Committee, the investments 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 the 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.
ARTICLE IV
BENEFITS
4.1 After the death of a Participant, the Beneficiary of such Participant
shall be paid in a lump sum the entire value of all amounts credited to such
Participant's Account, determined as of the Valuation Date coincident with or
immediately preceding the date of distribution.
4.2 As soon as administratively possible after the Committee determines
that the Participant has a Disability, such Participant shall be paid in a lump
sum the entire value of all amounts credited to such Participant's Account,
determined as of the Valuation Date coincident with or immediately preceding the
date of distribution.
4.3 After a Participant's employment terminates, such Participant shall be
paid in a lump sum the entire value of all amounts credited to the Account of
such Participant, determined as of the Valuation Date coincident with or
immediately preceding the date of distribution.
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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.
ARTICLE V
ADMINISTRATION OF THE PLAN
5.1 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.
5.2 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.
5.3 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.
5.4 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,
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interpretation and application of the Plan. All determinations of the Committee
shall be conclusive and binding on all employees, Participants and
Beneficiaries.
5.5 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 VI
CLAIMS REVIEW PROCEDURE
6.1 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;
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(ii) review pertinent Plan documents; and
(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.
6.2 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 VII
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
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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 VIII
LIMITATION OF ASSIGNMENT AND PAYMENTS
TO LEGALLY INCOMPETENT DISTRIBUTEE
8.1 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.
8.2 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 IX
AMENDMENT TO OR TERMINATION OF THE PLAN
The Board and the Committee 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 X
GENERAL AND MISCELLANEOUS
10.1 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.
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10.2 The Article 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.
10.3 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.
10.4 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.
10.5 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 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 _____
day of November, 2004.
DEAN FOODS COMPANY
By:
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