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Exhibit 10.1
CHANGE IN CONTROL AGREEMENT
This Agreement ("Agreement") dated as of _____________ ______, ________
is entered into by and between DEAN FOODS COMPANY, a Delaware corporation, or
its successors or assigns (the "Company"), and ________________________
(Executive").
RECITALS:
A. Executive is a key officer of the Company, and the Company desires
to be assured that Executive will continue his or her active participation in
the management and business of the Company.
B. The Company considers the establishment and maintenance of a sound
and vital management to be essential to protecting and enhancing the best
interests of the Company and its stockholders, and the Company recognizes that
the possibility of a Change in Control of the Company (as hereinafter defined)
may cause uncertainty among management and result in the departure or
distraction of management to the detriment of the Company and its stockholders.
C. The Board of Directors of the Company (the "Board") has determined
that appropriate action should be taken to reinforce and encourage the continued
attention and dedication of members of the Company's senior management to their
assigned duties without distraction in the face of the potentially disturbing
circumstances arising from the possibility of a Change in Control of the
Company.
D. Executive will be in a better position to consider the interests of
the Company and its stockholders if he or she is afforded reasonable security in
the event a Change in Control of the Company does occur.
NOW, THEREFORE, to induce Executive to remain in the employ of the
Company and in consideration of Executive's agreeing to remain in the employ of
the Company subject to the terms and conditions set forth below, the Company
agrees that the severance benefits set forth below will be provided to Executive
in the event Executive's employment with the Company is terminated subsequent to
a Change in Control of the Company under the circumstances described below.
1. Executive's Employment. During the term of this Agreement, Executive
agrees to continue to perform his or her regular duties as ________________ of
the Company and/or the duties of such other positions to which Executive may be
elected or assigned. Notwithstanding the foregoing, the Company may terminate
Executive's employment at any time, and Executive may resign as an employee at
any time or may retire at his or her "Normal Retirement Date" (as defined in the
Company's Salaried Employees Pension Plan) upon thirty (30) days' prior written
notice to the other party.
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2. Change in Control. No benefits shall be payable hereunder unless
there shall have been a Change in Control of the Company and Executive's
employment by the Company and its subsidiaries shall thereafter have been
terminated in accordance with Section 3 hereof. For purposes of this Agreement,
a "Change in Control of the Company" shall mean and be deemed to have occurred
if:
(a) the acquisition by an individual, entity or group (a
"Person"), including any "person" within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 (the
"Exchange Act"), of beneficial ownership within the meaning of Rule
13d-3 promulgated under the Exchange Act, of 33% or more of either (i)
then outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (ii) the combined voting power
of then outstanding securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Company Voting
Securities"), excluding, however, the following: (A) any acquisition
directly from the Company (excluding any acquisition resulting from the
exercise, conversion or exchange privilege unless the security being so
exercised, converted or exchanged was acquired directly from the
Company), (B) any acquisition by an employee benefit plan (or related
trust) sponsored or maintained by the Company or any corporation
controlled by the Company, or (C) any acquisition by any corporation
pursuant to a transaction which complies with clauses (i), (ii) and
(iii) of Subsection (c) of this Section 2; provided further, that for
purposes of clause (A) above, if any Person (other than the Company or
any employee benefit plan (or related trust) sponsored or maintained by
the Company or any corporation controlled by the Company) shall become
the beneficial owner of 33% or more of the Outstanding Company Common
Stock or 33% or more of the Outstanding Company Voting Securities by
reason of an acquisition by the Company, and such Person shall, after
such acquisition by the Company, become the beneficial owner of any
additional shares of the Outstanding Company Common Stock or any
additional Outstanding Company Voting Securities and such beneficial
ownership is publicly announced as required by the Exchange Act, such
additional beneficial ownership shall constitute a Change in Control;
(b) individuals who, as of the date hereof, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at
least a majority of such Board; provided that any individual who
becomes a director of the Company subsequent to the date hereof whose
election, or nomination for election by the Company's stockholders, was
approved by the vote of at least a majority of the directors then
comprising the Incumbent Board shall be deemed a member of the
Incumbent Board; and provided further, that any individual who was
initially elected as a director of the Company as a result of an actual
or threatened election contest, as such terms are used in Rule 14a-11
of Regulation 14A promulgated under the Exchange Act, or any other
actual or threatened solicitation of proxies or consents by or on
behalf of any Person other than the Board shall not be deemed a member
of the Incumbent Board;
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(c) approval by the stockholders of the Company of a
reorganization, merger or consolidation or sale or other disposition of
all or substantially all of the assets of the Company (a "Corporate
Transaction"); excluding, however, a Corporate Transaction pursuant to
which (i) all or substantially all of the individuals or entities who
are the beneficial owners, respectively, of the Outstanding Company
Common Stock and the Outstanding Company Voting Securities immediately
prior to such Corporate Transaction will beneficially own, directly or
indirectly, more than 67% of, respectively, the outstanding shares of
common stock, and the combined voting power of the outstanding
securities of such corporation entitled to vote generally in the
election of directors, as the case may be, of the corporation resulting
from such Corporate Transaction (including, without limitation, a
corporation which as a result of such transaction owns the Company or
all or substantially all of the Company's assets either directly or
indirectly) in substantially the same proportions relative to each
other as their ownership, immediately prior to such Corporate
Transaction, of the Outstanding Company Common Stock and the
Outstanding Company Voting Securities, as the case may be, (ii) no
Person (other than: the Company; any employee benefit plan (or related
trust) sponsored or maintained by the Company or any corporation
controlled by the Company; the corporation resulting from such
Corporate Transaction; and any Person which beneficially owned,
immediately prior to such Corporate Transaction, directly or
indirectly, 33% or more of the Outstanding Company Common Stock or the
Outstanding Company Voting Securities, as the case may be) will
beneficially own, directly or indirectly, 33% or more of, respectively,
the outstanding shares of common stock of the corporation resulting
from such Corporate Transaction or the combined voting power of the
outstanding securities of such corporation entitled to vote generally
in the election of directors, and (iii) individuals who were members of
the Incumbent Board will constitute at least a majority of the members
of the board of directors of the corporation resulting from such
Corporate Transaction; or
(d) the Company is liquidated or dissolved or adopts a plan of
liquidation or dissolution.
3. Termination Following a Change in Control. In the event that, during
the term of this Agreement and within two (2) years after a Change in Control,
the Executive's employment terminates in a Qualifying Termination, as defined in
Subsection 3(a), the Executive shall be entitled to receive the payments and
benefits described in Section 4 unless the termination is because Executive has
died, has been "permanently disabled" (as defined for Social Security purposes)
for six (6) months, or has reached his or her Normal Retirement Date.
(a) A Qualifying Termination occurs if:
(i) The Company and its subsidiaries terminates the
Executive's employment with the Company for any reason other
than "good cause" as defined in Subsection 3(b) below.
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(ii) The Executive separates from employment with the
Company in response to a "Constructive Termination," which
means a material reduction in base salary, bonus formula or
benefits, or a requirement to relocate (except for office
relocations that would not increase the Executive's one-way
commute distance by more than 30 miles) or a material increase
in Executive's travel requirements; or
(iii) During the sixty (60) days after the first
anniversary of the occurrence of a Change in Control, the
Executive notifies the Company, in accordance with Section 10
hereof, of his or her intent to voluntarily separate from
employment with the Company for any reason.
Termination of Executive's employment shall be made by written notice delivered
as provided in Section 10 hereof. The notice of termination shall specify the
characterization of the termination and the date of termination (which date
shall not be more than sixty (60) or less than fourteen (14) days after the date
the notice is delivered, except that if the termination is by the Company for
"good cause" it may be effective immediately). The Date of Termination means the
date so specified in the notice of termination, or if none is so specified, the
date of delivery of the notice of termination.
(b) For purposes hereof, a discharge is for "good cause" only
if the Executive has:
(i) misappropriated Company funds or property to his
or her or her personal use, or
(ii) willfully and without authorization disclosed
confidential information relating to the Company or its
subsidiaries that results in or could reasonably result in
material harm to the company or its subsidiaries, or
(iii) been convicted of a felony relating to the
performance of Executive's job duties; or
(iv) in carrying out his or her or her duties,
committed gross negligence or gross misconduct resulting, in
either case, in material harm to the Company.
4. Certain Benefits Upon Termination. The severance benefits which the
Executive shall be entitled to receive upon a Qualifying Termination are:
(a) The Company shall pay Executive his or her base salary,
plus accrued vacation pay, through the Date of Termination at the rate
in effect at the time notice of termination is given.
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(b) If the Executive's annual incentive bonus under the
Company's annual incentive bonus plan or long term incentive bonus
under the Company's long term incentive plan for the preceding fiscal
year has not been paid at the Date of Termination, the Company shall
pay Executive the amount of such bonus amounts determined in good faith
based upon the actual results of the Company and the highest level of
individual employee performance in accordance with past practices.
(c) The Company shall pay Executive:
(i) his or her annual incentive bonus under the
Company's annual incentive bonus plan for the then current
fiscal year at the planned target level, on a prorated basis,
if applicable; plus
(ii) his or her long term incentive bonus or award
under any Company long term incentive plan for any multi-year
bonus period(s) within which the Date of Termination falls, in
accordance with the applicable terms and conditions set forth
in any plan or agreement.
(d) The Company shall pay Executive an amount necessary to
reimburse Executive for all reasonable attorneys' fees and expenses
incurred by Executive in successfully contesting any characterization
by the Company of a termination of employment as being for good cause
or in prevailing in any proceeding or legal action to enforce any right
or benefit provided by this Agreement.
(e) The Company shall pay Executive an amount equal to two (2)
times the sum of:
(i) Executive's annual base salary at the highest
rate in effect during the twelve (12) months immediately
preceding the Date of Termination; plus
(ii) Executive's annual incentive bonus for the year
of the Date of Termination under the Company's annual
incentive bonus plan at the planned target level; plus
(iii) The amount paid to Executive for financial
planning and tax preparation services for the most recently
concluded calendar year;
provided, if the Date of Termination precedes Executive's Normal
Retirement Date by less than seven hundred thirty (730) days, the
amounts set forth above in this subsection (e) shall also be multiplied
by a fraction, the numerator of which is the number of days between the
Date of Termination and Executive's Normal Retirement Date and the
denominator of which is 730.
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(f) The Company shall maintain in full force and effect, for
Executive's continued benefit, all life insurance, dental, medical,
health and accident and disability plans, programs or arrangements in
which Executive was entitled to participate immediately prior to the
Change in Control of the Company, to the same extent as if Executive
continued to be an employee of the Company holding the same positions
as held by him or her at the time of the Change in Control of the
Company, during the two (2) year period following the Date of
Termination (or if shorter, the period until Executive's death or
reaching his or her Normal Retirement Date), and to the extent such
continued participation is not possible or practicable, the Company
shall arrange to provide Executive with substantially the same benefits
at a similar cost to Executive, provided that: (i) such benefits shall
not be greater than the benefits to which Executive would be entitled
if he or she retired during such period on his or her Normal Retirement
Date; and (ii) such benefits shall be reduced or offset to the extent
they are replaced by substantially similar benefits provided by a new
employer or to the extent Executive becomes eligible for substantially
similar benefits provided by a new employer.
(g) Executive's pension benefits provided under the Company's
Salaried Employees Pension Plan or any successor qualified plan (the
"Pension Plan") and supplemental benefits provided under the Company's
Supplemental Benefit Plan shall be paid as provided therein after being
augmented by giving Executive credit under each plan for two (2) years
of credited service beyond the Date of Termination (or if Executive's
Normal Retirement Date is within two (2) years after the Date of
Termination, Executive shall be given credit for the period from the
Date of Termination until his or her Normal Retirement Date) and
including the compensation paid to Executive pursuant to (a), (b), (c)
and (e) above, provided that, to the extent such augmentation is not
permitted by the terms of any such plan, the Company shall pay
Executive an amount equal to the present value of such augmented
benefit determined in the same manner as the present value of benefits
is determined under the Pension Plan.
(h) The Company shall reimburse Executive's outplacement
services not to exceed $25,000 per year, within thirty (30) days after
Executive provides the Company with reasonably satisfactory evidence of
such fees.
(i) All of Executive's unvested or unexercisable grants of
incentive stock options, non-qualified stock options, restricted stock
or other equity-based awards granted under the Company's 1989 Stock
Awards Plan shall vest and become exercisable immediately upon the
occurrence of a Change in Control of the Company.
(j) The Company shall pay Executive any other bonus award or
payment under any documented compensation program or benefit plan not
expressly mentioned herein which amount shall be based upon the planned
target level and be prorated, if applicable.
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5. Time for Payment of Severance Benefits.
(a) The payments provided for in Subsections 4(a), (b), (c),
(e) and (j) hereof shall be made to Executive within fourteen (14)
business days after the Date of Termination.
(b) Payments under Subsection 4(d) hereof shall be made
promptly following demand after verification of the fees and expenses.
(c) Payments under Subsection 4(g) hereof shall be made in
accordance with the terms of Executive's election(s) of benefits under
the respective plans referred to therein; and to the extent the Company
must make payment of the present value of substituted benefits, within
ninety (90) days after the Date of Termination.
(d) Payments under Subsections 4(f) and (h) hereof shall be
made in accordance with the terms hereof.
All such payments will be subject to applicable payroll or other taxes
required to be withheld by the Company.
6. Characterization of Payments. Payments to Executive hereunder shall
be considered severance pay in consideration of his or her past service and his
or her continued service after the date of this Agreement and Executive shall
not be required to mitigate the amount of any payment provided for herein by
seeking other employment or otherwise, and, except as provided in Subsections
4(f) hereof, the amount of any payment provided for herein shall not be reduced
by any compensation earned by Executive as the result of other employment after
the Date of Termination. Notwithstanding anything to the contrary contained
herein, the payments to Executive hereunder shall be reduced by any severance
pay or other pay contingent upon or resulting from the Executive's termination
or a Change in Control or failure to obtain a stated office or position which
Executive receives pursuant to any other agreements or arrangements with the
Company.
7. Certain Additional Payments.
(a) If the Executive becomes entitled to one or more payments
(with a "payment" including, but not limited to, the vesting of any
stock options or other non-cash benefit or property), whether pursuant
to the terms of this Agreement or any other plan, arrangement, or
agreement with the Company or any affiliated company (the "Total
Payments"), which are or become subject to the tax imposed by Section
4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or
any similar tax that may hereafter be imposed) (the "Excise Tax"), the
Company shall pay to the Executive at the time specified below an
additional amount (the "Gross-Up Payment") (which shall include, but
not be limited to, reimbursement for any penalties and interest that
may accrue in respect of such
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Excise Tax) such that the Excise Tax (including any penalties or
interest thereon) on the Total Payments and any federal, state and
local income or employment tax and Excise Tax on the Gross-Up Payment
provided for by this Section 7, but before reduction for any federal,
state, or local income or employment tax on the Total Payments, shall
be equal to the sum of (a) the Total Payments, and (b) an amount equal
to the product of any deductions disallowed to the Executive for
federal, state or local income tax purposes because of the inclusion of
the Gross-Up Payment in the Executive's adjusted gross income
multiplied by the highest applicable marginal rate of federal, state or
local income taxation, respectively, for the calendar year in which the
Gross-Up Payment is to be made.
(b) For purposes of determining whether any of the Total
Payments will be subject to the Excise Tax and the amount of such
Excise Tax:
(i) the Total Payments shall be treated as "parachute
payments" within the meaning of Code Section 280G(b)(2), and
all "excess parachute payments" within the meaning of Code
Section 280G(b)(1) shall be treated as subject to the Excise
Tax, unless, and except to the extent that, in the written
opinion of independent compensation consultants or auditors of
nationally recognized standing ("Independent Advisors")
selected by the Company and reasonably acceptable to the
Executive, the Total Payments (in whole or in part) do not
constitute parachute payments, or such excess parachute
payments (in whole or in part) represent reasonable
compensation for services actually rendered within the meaning
of Code Section 280G(b)(4) in excess of the base amount within
the meaning of Code Section 280G(b)(3) or are otherwise not
subject to the Excise Tax;
(ii) the amount of the Total Payments which shall be
treated as subject to the Excise Tax shall be equal to the
lesser of (A) the total amount of the Total Payments or (B)
the total amount of excess parachute payments within the
meaning of Code Section 280G(b)(1) (after applying clause (i)
above); and
(iii) the value of any non-cash benefits or any
deferred payment or benefit shall be determined by the
Independent Advisors in accordance with the principles of Code
Sections 280G(d)(3) and (4).
(c) For purposes of determining the amount of the Gross-Up
Payment, the Executive shall be deemed (A) to pay federal income taxes
at the highest marginal rate of federal income taxation for the
calendar year in which the Gross-Up Payment is to be made; (B) to pay
any applicable state or local income taxes at the highest marginal rate
of taxation for the calendar year in which the Gross-Up Payment is to
be made, net of the maximum reduction in federal income taxes which
could be obtained from deduction of such state and local taxes if paid
in such year (determined without regard to limitations on deductions
based upon the
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amount of the Executive's adjusted gross income); and (C) to have
otherwise allowed deductions for federal, state and local income tax
purposes at least equal to those disallowed because of the inclusion of
the Gross-Up Payment in the Executive's adjusted gross income. In the
event that the Excise Tax is subsequently determined to be less than
the amount taken into account hereunder at the time the Gross-Up
Payment is made, the Executive shall repay to the Company at the time
the amount of such reduction in Excise Tax is finally determined (but,
if previously paid to the taxing authorities, not prior to the time the
amount of such reduction is refunded to the Executive or otherwise
realized as a benefit of the Executive) the portion of the Gross-Up
Payment that would not have been paid if such Excise Tax had been
applied in initially calculating the Gross-Up Payment, plus interest on
the amount of such repayment at the rate provided in Code Section
1274(b)(2)(B). In the event that the Excise Tax is determined to exceed
the amount taken into account hereunder at the time the Gross-Up
Payment is made (including by reason of any payment the existence or
amount of which cannot be determined at the time of the Gross-Up
Payment), the Company shall make an additional Gross-Up Payment in
respect of such excess (plus any interest and penalties payable with
respect to such excess) at the time that the amount of such excess is
finally determined.
(d) The Gross-Up Payment provided for above shall be paid on
the 30th day (or such earlier date as the Excise Tax becomes due and
payable to the taxing authorities) after it has been determined that
the Total Payments (or any portion thereof) are subject to the Excise
Tax; provided, however, that if the amount of such Gross-Up Payment or
portion thereof cannot be finally determined on or before such day, the
Company shall pay to the Executive on such day an estimate, as
determined by the Independent Advisors, of the minimum amount of such
payments and shall pay the remainder of such payments (together with
the interest at a rate provided in Code Section 1274(b)(2)(B)), as soon
as the amount thereof can be determined. In the event that the amount
of the estimated payments exceeds the amount subsequently determined to
have been due, such excess shall constitute a loan by the Company to
the Executive, payable on the fifth day after demand by the Company
(together with interest at the rate provided in Code Section
1274(b)(2)(B)). If more than one Gross-Up Payment is made, the amount
of each Gross-Up Payment shall be computed so as not to duplicate any
prior Gross-Up Payment. The Company shall have the right to control all
proceedings with the Internal Revenue Service that may arise in
connection with the determination and assessment of any Excise Tax and,
at its sole option, the Company may pursue or forego any and all
administrative appeals, proceedings, hearings, and conferences with any
taxing authority in respect of such Excise Tax (including any interest
or penalties thereon); provided, however, that the Company's control
over any such proceedings shall be limited to issues with respect to
which a Gross-Up Payment would be payable hereunder, and the Executive
shall be entitled to settle or contest any other issue raised by the
Internal Revenue Service or any other taxing authority. The Executive
shall cooperate with the Company in any proceeding relating to the
determination and
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assessment of any Excise Tax and shall not take any position or action
that would materially increase the amount of any Gross-Up Payment
hereunder.
(e) Should the Company's Board adopt a policy regarding
payments in the nature of Gross-Up Payments applicable to its senior
executives generally, Executive shall consider in good faith any
Company request to replace the provisions contained in this Section 7
with the provisions contained in such policy.
8. Term of Agreement. This Agreement shall continue in effect
indefinitely until cancelled as herein provided. If the Company has not given
Executive written notice of cancellation as provided below prior to a Change in
Control of the Company, the Company may not cancel this Agreement with respect
to such Change in Control of the Company. Until a Change in Control of the
Company has occurred, the Board at any time by written notice to Executive may
notify him or her that the Company's obligations under this Agreement shall be
cancelled with respect to any Change in Control of the Company that occurs after
the cancellation date specified in such notice, provided such cancellation date
must be at least two (2) years after the date such notice is given.
9. Successors; Binding Agreement.
(a) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company, by
agreement in form and substance satisfactory to Executive, to expressly
assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform if no
such succession had taken place. Failure of the Company to obtain such
agreement prior to the effectiveness of any such succession shall be a
breach of this Agreement and shall entitle Executive to compensation
from the Company in the same amount and on the same terms as Executive
would be entitled to hereunder if Executive terminated his or her
employment with the Company within sixty (60) days after the first
anniversary of the Change in Control of the Company for a reason
entitling him to the benefits provided in Section 4 hereof and the Date
of Termination was the date such succession was effected.
(b) This Agreement shall inure to the benefit of and be
enforceable by Executive's personal or legal representatives,
executors, administrators, successors, beneficiaries and assigns. If
Executive dies while any amount would still be payable to Executive
hereunder if Executive had continued to live, such amount shall be paid
in accordance with the terms of this Agreement to Executive's
designated beneficiary or, if there be no such designated beneficiary,
to Executive's estate unless otherwise provided herein or in an
effective election or designation of beneficiary under another written
agreement or plan of the Company.
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10. Notice. Notices and all other communications provided for in this
Agreement shall be in writing and shall be deemed to have been duly given when
delivered in person to Executive or to the Chief Executive Officer of the
Company on behalf of the Company, as the case may be, or on the second business
day after mailed by certified or registered mail, return receipt requested,
postage prepaid, addressed, or on the next business day after sent by an
overnight mail or courier service.
If to the Company:
Chief Executive Officer
Dean Foods Company
3600 North River Road
Franklin Park, Illinois 60131
or if to Executive:
_________________________
_________________________
_________________________
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notice of change of address shall be
effective only upon receipt.
11. Miscellaneous.
(a) No provisions of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to
in writing signed by Executive and on behalf of the Company by the
Chief Executive Officer, or such other officer as may be specifically
designated by the Board. No waiver by either party at any time of any
breach by the other party of, or noncompliance by the other party with,
any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of any other breach or
noncompliance or of any similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to
the subject matter hereof have been made by either party which are not
expressly set forth in this Agreement.
(b) Except as expressly provided herein, this Agreement shall
not supersede or in any way limit the rights, duties or obligations
Executive may have under any other written agreement with the Company.
(c) The validity, interpretation, construction and performance
of this Agreement shall be governed by the laws of the State of
Delaware.
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12. Validity. The invalidity or unenforceability of any provisions of
this Agreement shall not effect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
13. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
14. Dispute Resolution.
(a) Executive and Company shall attempt in good faith to
resolve and terminate any controversy, claim or dispute arising out of
or relating to this Agreement promptly by negotiations. Such
negotiations shall take place between representatives of Executive and
Company who have the authority to settle and resolve the dispute. Such
negotiations shall begin upon written notice from one party to the
other describing any dispute or claim which has not been resolved in
the ordinary course of business and suggesting a location for a meeting
in the Chicago, Illinois area between the parties to conduct such
negotiation within ten (10) days after delivery of such notice.
Representatives of Executive and Company shall meet at a mutually
acceptable time and place within ten (10) days after delivery of such
and thereafter as often as they reasonably deem necessary, to exchange
relevant information and to attempt to resolve the dispute. Any such
meeting may be attended by one or more representatives of each party.
No such meeting shall be attended by an attorney representing either
party unless such party shall have first given the other party at least
three days' notice that it will be accompanied by an attorney at the
next scheduled meeting and at such meeting the other party may also be
accompanied by an attorney.
(b) If the dispute has not been resolved within thirty (30)
days after the notice or if the party receiving such notice has failed
to meet within fifteen (15) days, either party may initiate mediation
by a request therefor in writing to the other party. Upon receipt of
such notice, Executive and Company shall be obligated to engage in
mediation in the Chicago, Illinois area, in accordance with the current
Procedures published by the Center For Public Resources for Mediation
of Business Disputes. If the parties fail to agree within fifteen (15)
days after the date of such request for mediation on the selection of a
mediator, then each party shall select a mediator who shall then in
turn jointly appoint a third mediator and the parties shall continue
efforts through mediation with such mediator to resolve the controversy
and dispute between them until mediation is terminated by the
occurrence of any of the following events:
(i) A written resolution in settlement of the dispute
is reached;or
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(ii) The mediator informs the parties in writing that
further efforts would not be productive; or
(iii) The parties agree in writing that further
efforts would not be productive.
(c) If the dispute has not been resolved in accordance with
the foregoing within sixty (60) days after the commencement of the
negotiation procedure, either party may initiate litigation upon ten
(10) days written notice to the other party; provided, however, that if
any party has failed to voluntarily participate in the requirements of
the foregoing Sections, the other party may initiate litigation before
the expiration of the sixty (60) day period. Both parties consent and
agree that the jurisdiction and venue of all litigation regarding this
Agreement shall be the state or federal courts located in Chicago,
Illinois.
(d) All negotiations and mediations pursuant to this Section
of the Agreement are confidential and shall be treated as compromise
and settlement negotiations for purposes of the Federal Rules of
Evidence and any similar state rules of evidence.
(e) All applicable statutes of limitation and defenses based
upon the passage of time shall be tolled during the procedures
specified in this Section. All deadlines specified by this Section may
be extended by mutual agreement of the parties.
(f) The procedures specified by this Section shall be the sole
and exclusive procedures for the resolution of disputes between
Executive and Company arising out of or relating to this Agreement.
15. Execution of this Agreement shall supersede and terminate any and
all existing agreements by and between Executive and the Company with respect to
the subject matter hereof, including but not limited to, any agreement or
agreements the principal purpose of which is the payment of compensation and
benefits resulting from a change in control of the Company.
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IN WITNESS WHEREOF, the parties have executed this Agreement at
Franklin Park, Illinois on the date first mentioned above.
THE COMPANY:
DEAN FOODS COMPANY
Howard M. Dean
Chairman and Chief Executive Officer
EXECUTIVE:
___________________________________
Address
City State Zip
SOCIAL SECURITY #: ________________
DATED: ____________________________
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