EXHIBIT 10.4 DEAN FOODS COMPANY POST-2004 EXECUTIVE DEFERRED COMPENSATION PLAN

 

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                                                                    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

 

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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

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                               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.

 

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     1.4 "Beneficiary" shall mean the Beneficiary designated by each Participant

under the 401(k) Plan; provided, however, that a Participant may designate a

different Beneficiary hereunder by delivering to the Committee a written

beneficiary designation, in the form provided by the Committee, and executed

specifically with respect to this Plan.

 

     1.5 "Board" shall mean the Board of Directors of the Company.

 

     1.6 "Code" shall mean the Internal Revenue Code of 1986, as it may be

amended from time to time, and the rules and regulations promulgated thereunder.

 

     1.7 "Committee" shall mean the Compensation Committee of the Board.

 

     1.8 "Company" shall mean Dean Foods Company or its successor or successors.

 

     1.9 "Company Contribution Account" shall mean the subaccount of each

Participant's Account showing the monetary value of the Participant's interest

in the Plan which is attributable to matching or profit sharing contributions

credited pursuant to Sections 3.2 and 3.3.

 

     1.10 "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 suc