EXHIBIT 10.1
RELEASE AGREEMENT
WhiteWave Foods
Company, together with its parent, and each of their subsidiaries
and affiliates, including but not limited to Dean Foods Company,
and White Wave, Inc (hereinafter collectively referred to as the
“Company”) and Steven Demos (the
“Employee”) agree and represent as follows:
WHEREAS, the
parties agree and wish to ensure that they have amicably resolved
and settled all possible differences, claims, or matters pertaining
to, arising from, or associated with Employee’s employment
with the Company and subsequent Termination from
employment;
THEREFORE, the
parties mutually agree to enter into this Release Agreement (the
“Agreement”) and agree as follows:
1.
Termination. The Parties acknowledge that Employee’s
employment with the Company terminated without cause and that
Employee shall resign from any officer or director position
Employee holds with the Company or any of its affiliates effective
March 14, 2005, and his employment effective April 1,
2005 (the “Termination Date”). As set forth more fully
below and in consideration for the execution of the Mutual Release
and Waiver of All Claims described more fully in Section 8
hereof, Employee shall receive payments and consideration described
in Section 3.
2. Final
Paycheck and Paid Time Off and/or Vacation Pay. The Company and
Employee agree that Employee shall receive all earned salary and
paid time off or vacation through the Termination Date as required
by state law.
3.
Payments and Other Consideration.
(a) In
consideration of Employee’s execution of this Agreement and
for the releases granted herein, the Company shall pay and provide
Employee the following amounts and items, which Employee
acknowledges Employee is not otherwise entitled to
receive:
(1)
Cash Payments. The Company agrees to pay Employee an amount
equal to (a) $153,125.00 per month on the 15th day of each month
commencing October 15, 2005 and ending March 15, 2006;
(b) $10,800.00 on October 15, 2005; (c) $76,562.50 per month
commencing April 1, 2006 and ending March 1, 2007; and
(d) $10,800.00 on October 15, 2006. In addition, the Company
shall pay in a lump sum on or before March 1, 2006, the
excess, if any, of the amount Employee would have received as a
2005 actual bonus over $393,750. All such payments shall be reduced
by applicable taxes required to be withheld and any authorized
deductions through the Company’s standard payroll
process.
(2)
Acceleration of Vesting of Stock Options and DSU’s.
Upon execution of this Agreement, the Company hereby accelerates
the vesting of the Employee’s Stock Options and DSU’s.
In lieu of exercising his options or receiving stock as provided in
his DSU’s, the Company shall pay Employee a lump sum amount
of $1,214,000, less required withholdings, within 10 days after the
execution of this Agreement. The Company and Employee agree that as
of
such
payment, all DSU’s and options issued to Employee are
cancelled. Although the Company and Employee believe that such
payment will not be considered to be subject to Section 409A
of the Internal Code of 1986, as amended, should another
interpretation later be determined to be more appropriate, the
parties agree that the Company and Employee have agreed that
payment as provided in this section 3.a.2 constitutes a
cancellation of a deferred compensation arrangement as authorized
by IRS Notice 2005-1, Q&A 20(a). The Company shall file
Form 4 – Statement of Changes and Beneficial Ownership
pursuant to Section 16 of the Exchange Act of 1934
(“Exchange Act”) within two (2) business days of
cancellation of Employee’s Stock Options and DSUs pursuant to
this paragraph 3(a)(2). Such Form 4 shall also indicate
Employee is no longer subject to the reporting obligations of
Section 16 of the Exchange Act.
(3)
Employee Benefits.
a.
Health, Vision and Dental Benefits. Employee’s current
health, dental and vision insurance coverage will terminate
effective on the Termination Date. The Employee may elect COBRA
continuation coverage to allow for continued health care coverage
for Employee and Employee’s dependents.
b.
Other Welfare Benefits. Employee may elect, at
Employee’s own expense, conversion of any other welfare
benefits to the extent such conversion is available to similarly
situated employees of the Company. Employee acknowledges that
Employee has no right to continued participation as an employee of
the Company in any Company-sponsored benefit plans, other than as
set forth in this Agreement.
c.
Retirement Plans. Employee understands and agrees that
Employee may not make any additional contributions into any
Company-sponsored retirement plan, including any 401(k) plan, nor
will the Company contribute to any Company-sponsored retirement
plan on Employee’s behalf with respect to any amounts paid to
Employee other than for services performed on or before the
Termination Date. Employee acknowledges that Employee’s
rights to distributions of funds held on Employee’s behalf in
any Company-sponsored retirement plan will continue to be governed
by such plan, with the terms of such plan or plans incorporated
into this Agreement by reference.
d.
Employee Stock Purchase Participation. Employee understands
and agrees that after the Termination Date, Employee will not be
eligible to purchase Company stock through the Company’s
Employee Stock Purchase Plan (“ESPP”). Employee
acknowledges that Employee’s rights to distribution of any
stock previously purchased under the ESPP will continue to be
governed by such plan, with the terms of such plans incorporated
into this Agreement by reference.
e.
Other Benefits. Employee acknowledges that Employee is
waiving Employee’s rights, if any, to continued participation
in any other Company-sponsored benefit plans, other than as stated
in this Agreement.
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(b) Employee
acknowledges that the payments to be paid by the Company pursuant
to subsection 3.a will be reported to the Internal Revenue Service
and other appropriate taxing authorities as income and will be
subject to withholding to the extent required by law.
(c) Employee
hereby acknowledges that the payment of such payments under
subsection 3.a does not entitle Employee to, and Employee
specifically waives any rights to, any and all Company vacation,
paid-time off, and bonuses including, but not limited to, holiday,
merit, or performance bonuses after the Termination Date, except as
otherwise provided herein.
(d) Employee
consents to and agrees that the Company may offset from the
payments under subsection 3.a. any business expenses or other debts
owed by Employee to the Company that have not been reconciled to
the Company’s satisfaction, and the cost of any Company
property that has not been returned by Employee to the Company, as
of the date of Execution of this Agreement.
4.
Property of the Company. Employee hereby agrees to return
and certifies that he has returned any and all computer programs
and/or data disks, files, records, or information of any sort with
regard to such confidential information, trade secrets, or any
other business of the Company. Employee further agrees to return
and certifies that Employee has returned all other property of the
Company to the Company, including vehicles or all keys, security
passes or other means of access to the Company’s plants or
other facilities except that Company agrees to transfer ownership
of the following to Employee: Employee’s current laptop,
docking station, computer monitor, and desk chair. The Company
represents as of the execution of this Agreement that the Company
is unaware of any other property that Employee needs to
return.
5.
Nondisparagement. Company and Employee agree that neither
party will make or cause to be made any statements, observations or
opinions, or communicate any information (whether oral or written)
that disparages or is likely in any way to harm the
reputation
