Exhibit 10.36
DEAN FOODS COMPANY
2008 INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT (the “
Agreement ”), effective as of the date indicated on
the Notice of Grant delivered herewith (the “ 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 Notice of Grant
(“you”).
WITNESSETH:
WHEREAS, the Board of Directors of
the Company has adopted and approved the Dean Foods Company 2007
Stock Incentive Plan (the “ Plan ”), which was
approved as required by the Company’s stockholders and
provides for the grant of incentive 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, the Committee has selected
you to participate in the Plan and has awarded the Option described
in this Agreement to you; and
WHEREAS, the parties hereto desire to
evidence in writing the terms and conditions of the Option.
NOW, THEREFORE, in consideration of
the foregoing and of the mutual covenants and agreements herein
contained, and as an inducement to you to continue as an employee
of the Company (or its Subsidiaries) 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 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 all or any portion of the number
of shares shown on the Notice of Grant for the per share price
shown on the Notice of Grant (the “ Exercise Price
”).
2. Vesting . The Option
shall vest ratably with respect to the underlying shares of Stock
in three equal annual increments commencing on the first
anniversary of the Date of Grant. In addition to the vesting
provisions contained in the foregoing sentence, the Option shall
also be subject to the following vesting provisions:
(a) Each
unvested Option shall immediately vest in full upon your death
;
(b) Each
unvested Option shall immediately vest in full upon a Change in
Control, as such term is defined in the Plan.
(c) Each
unvested Option shall immediately vest in full upon your
Disability; and
(d) In
the event of your Retirement, each unvested Option shall
automatically vest in full as of the effective date of such
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).
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
pursuant 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 the effective date of any termination of your employment with
the Company or any Subsidiary, or at any such later date as may be
determined by the Committee, for any reason other than death,
Retirement or Disability, or termination for Cause (as defined
below);
(c) 12 months
following the date you cease to be an employee of the Company or a
Subsidiary, if such cessation of service is due to your death or
Disability; or
-2-
(d) the
earlier of (i) the tenth anniversary of the Date of Grant, and
(ii) the first anniversary of the your death, for any Options
you hold upon your Retirement.
Upon your death, any vested Option
exercisable on the date of death may be exercised by your estate or
by a person who acquires the right to exercise such Option by
bequest or inheritance or by reason of your death, provided that
such exercise occurs within the shorter of the remaining option
term of the Option and twelve months after the date of your
death
Notwithstanding anything to the
contrary in the Plan or this Agreement, if your service is
terminated for Cause, then all Options shall terminate and be
canceled immediately upon such termination, regardless of whether
such Options are vested or exercisable. Cause is defined as your
(i) willful failure to perform substantially your duties;
(ii) willful or serious misconduct that has caused, or could
reasonably be expected to result in, material injury to the
business or reputatio
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