Distribution Agreement

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TreeHouse Foods, Inc. | Dean Foods Company

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Title: Distribution Agreement
Date: 6/28/2005
Law Firm: Winston and Strawn LLP;Wilmer Cutler Pickering Hale and Dorr LLP

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Exhibit 2.1

Distribution Agreement

Dated as of June 27, 2005

Between

Dean Foods Company

and

TreeHouse Foods, Inc.

Table of Contents


			Page
Article I. DEFINITIONS			1
Section 1.1 Definitions			1
Section 1.2 Interpretation			8

Article II. BUSINESS SEPARATION			9
Section 2.1 Transfer of Transferred Businesses			9
Section 2.2 Retained Assets			12
Section 2.3 Assumption of Liabilities			13
Section 2.4 Retained Liabilities			14
Section 2.5 Termination of Existing Intercompany Agreements			14
Section 2.6 Shared Contracts			14
Section 2.7 Corporate Transactions			15
Section 2.8 Tax Matters			15

Article III. THE DISTRIBUTION			15
Section 3.1 Issuance and Delivery of TreeHouse Shares			15
Section 3.2 Distribution of TreeHouse Shares			15
Section 3.3 Treatment of Fractional Shares			15
Section 3.4 Dean Board Action			16
Section 3.5 Additional Approvals			16

Article IV. BUSINESS SEPARATION CLOSING MATTERS			16
Section 4.1 Delivery of Instruments of Conveyance			16
Section 4.2 Delivery of Other Agreements			16
Section 4.3 Provision of Corporate Records			16

Article V. NO REPRESENTATIONS AND WARRANTIES			17
Section 5.1 No Dean Representations or Warranties			17

Article VI. CERTAIN COVENANTS			17
Section 6.1 Material Governmental Approvals and Consents; Transition Environmental Matters			17
Section 6.2 Non-Assignable Contracts			18
Section 6.3 Novation of Assumed Liabilities			19
Section 6.4 Further Assurances			19
Section 6.5 Collection of Accounts Receivable			20
Section 6.6 Late Payments			21
Section 6.7 Registration and Listing			21
Section 6.8 Litigation			22
Section 6.9 Signs; Use of Company Name			22

Article VII. CONDITIONS TO THE DISTRIBUTION			23
Section 7.1 Approval by Dean Board of Directors			23


			Page
Section 7.2 IRS Private Letter Ruling			23
Section 7.3 Compliance with State and Foreign Securities and “Blue Sky” Laws			23
Section 7.4 SEC Filings and Approvals			23
Section 7.5 Effectiveness of Registration Statement; No Stop Order			23
Section 7.6 Dissemination of Information to Dean Stockholders			23
Section 7.7 Approval of NYSE Listing Application			24
Section 7.8 Operating Agreements			24
Section 7.9 Consents			24
Section 7.10 No Actions			24
Section 7.11 No Material Adverse Effect			24
Section 7.12 Opinions			24
Section 7.13 Other Actions			24
Section 7.14 Satisfaction of Conditions			24

Article VIII. INSURANCE MATTERS			24
Section 8.1 Insurance Prior to the Distribution Date			24
Section 8.2 Ownership of Existing Policies and Programs			25
Section 8.3 Maintenance of Insurance for TreeHouse			25
Section 8.4 Acquisition and Maintenance of Post-Distribution Insurance by TreeHouse			25
Section 8.5 Property Damage and Business Interruption Insurance Claims Administration for Pre-Distribution Claims			25
Section 8.6 Liability and Workers Compensation Insurance Claims Administration for Post-Distribution Claims			25
Section 8.7 Non-Waiver of Rights to Coverage			26
Section 8.8 Scope of Affected Policies of Insurance			26
Section 8.9 Letter of Credit Reimbursement			27

Article IX. EXPENSES			27
Section 9.1 Allocation of Expenses			27

Article X. INDEMNIFICATION			27
Section 10.1 Release of Pre-Distribution Claims			27
Section 10.2 Indemnification by TreeHouse			29
Section 10.3 Indemnification by Dean			29
Section 10.4 Applicability of and Limitation on Indemnification			30
Section 10.5 Adjustment of Indemnifiable Losses			30
Section 10.6 Procedures for Indemnification of Third Party Claims			31
Section 10.7 Procedures for Indemnification of Direct Claims			33
Section 10.8 Contribution			33
Section 10.9 Remedies Cumulative			34
Section 10.10 Survival			34

Article XI. DISPUTE RESOLUTION			34
Section 11.1 Escalation and Mediation			34
Section 11.2 Continuity of Service and Performance			35
Section 11.3 Choice of Forum			35


			Page
Section 11.4 Ability to Pursue Other Legal Remedies			35

Article XII. ACCESS TO INFORMATION AND SERVICES			35
Section 12.1 Agreement for Exchange of Information			35
Section 12.2 Ownership of Information			36
Section 12.3 Compensation for Providing Information			36
Section 12.4 Retention of Records			36
Section 12.5 Limitation of Liability			36
Section 12.6 Production of Witnesses			36
Section 12.7 Confidentiality			36
Section 12.8 Privileged Matters			37

Article XIII. MISCELLANEOUS			38
Section 13.1 Entire Agreement			38
Section 13.2 Choice of Law and Forum			38
Section 13.3 Amendment			38
Section 13.4 Waiver			38
Section 13.5 Partial Invalidity			38
Section 13.6 Execution in Counterparts			39
Section 13.7 Successors and Assigns			39
Section 13.8 Third Party Beneficiaries			39
Section 13.9 Notices			39
Section 13.10 Performance			40
Section 13.11 Termination			40

Schedules


Schedule 2.1(d)(i)		Owned Real Property
Schedule 2.1(d)(ii)		Real Estate Leases
Schedule 2.1(e)		Personal Property Leases
Schedule 2.1(g)		Transferred Intellectual Property
Schedule 2.1(h)		Retained Contracts
Schedule 2.1(h)(i)		Acquisition Contracts
Schedule 2.1(h)(ii)		Raw Material Contracts
Schedule 2.1(h)(iii)		Service Contracts
Schedule 2.1(h)(iv)		Transferred Shared Contracts
Schedule 2.1(h)(v)		Other Transferred Contracts
Schedule 2.5		Intercompany Agreements
Schedule 6.8(a)		Certain Assumed Actions
Schedule 6.8(b)		Certain Transferred Actions
Schedule 6.8(e)		Certain Litigation
Schedule 8.3		Insurance Policies
Schedule 10.2(a)		TreeHouse Information/Dean Information
Schedule 10.2(h)		Special Indemnification

iii

DISTRIBUTION AGREEMENT

THIS DISTRIBUTION AGREEMENT is made on June 27, 2005 by and between Dean Foods Company, a Delaware corporation (“ Dean ”), and TreeHouse Foods, Inc., a Delaware corporation (“ TreeHouse ”).

WHEREAS, Dean, through its subsidiaries, operates the Specialty Foods Group, MochaMix ®, SecondNature ®, and food service dressings businesses (collectively, the “ Transferred Businesses ”);

WHEREAS, the Board of Directors of Dean has determined that it would be advisable and in the best interests of Dean and its stockholders for Dean to transfer and assign, or cause to be transferred and assigned, to TreeHouse substantially all the business, operations, assets and liabilities related to the Transferred Businesses;

WHEREAS, Dean desires to transfer and assign, or cause to be transferred or assigned, to the TreeHouse Parties the assets and properties of the Transferred Businesses and the TreeHouse Parties desire to accept the transfer and assignment of such assets and to assume, or cause to be assumed, the liabilities and obligations arising out of or relating to the Transferred Businesses (the “ Contribution ”);

WHEREAS, the Board of Directors of Dean has determined that it would be advisable and in the best interests of Dean and its stockholders for Dean to distribute on a pro rata basis to the holders of Dean’s common stock, par value $0.01 per share (the “ Dean Common Stock ”), without any consideration being paid by the holders of such Dean Common Stock, all of the outstanding shares of TreeHouse common stock, par value $0.01 per share (together with the preferred share purchase rights associated therewith, the “ TreeHouse Common Stock ”), then owned by Dean (the “ Distribution ”);

WHEREAS, for federal income tax purposes, the Distribution is intended to qualify under Section 355 of the Internal Revenue Code of 1986, as amended (the “ Code ”); and

WHEREAS, it is appropriate and desirable to set forth the principal transactions required to effect the Contribution and Distribution and certain other agreements that will govern the relationship of Dean and TreeHouse following the Distribution.

NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties hereto hereby agree as follows:

ARTICLE I.
DEFINITIONS

Section 1.1 Definitions . As used in this Agreement, the following terms shall have the meanings set forth in this Section 1.1.

“ Actions ” means any action, claim, demand, suit, arbitration, inquiry, subpoena, discovery request, proceeding or investigation by or before any court or grand jury, any governmental or other regulatory or administrative entity, agency or commission or any arbitration tribunal, domestic or foreign.

“ Affiliate ” means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by or is under common control with such Person. For the purpose of this definition, the term “control” means the power to direct the management of an entity, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the term “controlled” has the meaning correlative to the foregoing. After the Distribution, TreeHouse and Dean shall not be deemed to be under common control for purposes hereof due solely to the fact that TreeHouse and Dean have common stockholders.