Exhibit 10.38
DEAN FOODS COMPANY
2008 DIRECTOR’S NON-QUALIFIED STOCK OPTION
AGREEMENT
THIS AGREEMENT (the “
Agreement ”), effective as of the date indicated on
the attached Notice of Grant, is made and entered into by and
between Dean Foods Company, a Delaware corporation (the “
Company ”), and the individual named on the cover page
of this Agreement (“ you ”).
WITNESSETH:
WHEREAS, the Company has adopted and
approved the Dean Foods Company 2007 Stock Incentive Plan (the
“ Plan ”), which was adopted by the
Company’s Board of Directors (the “ Board
”) and approved as required by the Company’s
stockholders, and which provides for the grant of non-qualified
stock options (“ Options ”) and other forms of
stock-based compensation to certain Employees and non-employee
Directors of the Company and its Subsidiaries (Capitalized terms
used and not otherwise defined in this Agreement shall have the
meanings set forth in the Plan); and
WHEREAS, the Options and other Awards
provided for under the Plan are intended to comply with the
requirements of Rule 16b-3 under the Securities Exchange Act
of 1934, as amended; and
WHEREAS, you are a non-employee
Director; and
WHEREAS, The Dean Foods Company
Eighth Amended and Restated 1997 Stock Option and Restricted Stock
Plan provided that on June 30 of each year, each non-employee
Director would automatically be granted a non-qualified Option to
purchase 7,500 shares of Stock, subject to the terms and conditions
described therein; and
WHEREAS, it is the intent of the
Compensation Committee of the Board of Directors that such practice
be continued under the Plan;
NOW, THEREFORE, in consideration of
the foregoing and of the mutual covenants and agreements herein
contained, and to promote the success of the business of the
Company and its Subsidiaries, the parties hereby agree as
follows:
1. Grant of Option . The
Company hereby grants to you, and you hereby accept, effective as
of the date shown on the attached Notice of Grant (the “
Date of Grant ”) and on the terms and subject to the
conditions, limitations and restrictions set forth in the Plan and
in this Agreement, an Option to purchase 7,500 shares of Stock for
$
per share (the “ Exercise Price ”).
2. Vesting . The Option
is immediately vested in full with respect to all of the underlying
shares of Stock subject thereto.
2008
Grant
3. Exercise . In order
to exercise the Option with respect to any vested portion, you must
notify the Company in writing, either sent to the Corporate
Secretary’s attention at the Company’s principal
office, or via the internet through E*Trade (the Company’s
plan broker) at www.etrade.com . No Stock shall be delivered
prusuant to any exercise of an Option until payment in full of the
exercise price therefor is received by the Company. At the time of
exercise, you must pay to the Company the exercise price (as set
forth on the Notice of Grant) times the number of vested shares for
which the Option is being exercised. Such payment may be made in
cash or its equivalent or, if permitted by the Committee,
(i) by exchanging shares of Stock you have owned for at least
six months (or for such greater or lesser period as the Committee
may determine from time to time) and which are not the subject of
any pledge or other security interest, (ii) through an
arrangement with a broker approved by the Company whereby payment
of the exercise price is accomplished with the proceeds of the sale
of Stock or (iii) by a combination of the foregoing, provided
that the combined value of all cash and cash equivalents and the
fair market value of any Stock tendered to the Company, valued as
of the date of such tender, is at least equal to such exercise
price of the portion of the Option being exercised.
4. Expiration of Option
. The Option shall expire, and shall not be exercisable with
respect to any vested portion as to which the Option has not been
exercised, on the first to occur of:
(a) the
tenth anniversary of the Date of Grant;
(b) 90 days
after your term as a non-employee Director of the Company has
expired or been otherwise terminated for any reason other than
death, Retirement or Disability;
(c) 12 months
following the date your term as a non-employee Director of the
Company has expired or been otherwise terminated, if such cessation
of service is due to your death or Disability; or
(d) the
earlier of (i) the tenth anniversary of the Date of Grant, or
(ii) the first anniversary of your death for any Options you
hold upon Retirement.
For purposes of this Agreement,
“ Retirement ” shall be defined as your
retirement from employment or other service to the Company or any
Subsidiary after you reach the age of 65. “ Disability
” shall be defined as your permanent and total disability
(within the meaning of Section 22(e)(3) of the Code).
Upon your death, any vested Option
exercisable on the date of dea
