Exhibit 10.39
DEAN FOODS COMPANY
2008 RESTRICTED STOCK UNIT (“RSU”)
AWARD AGREEMENT
This AGREEMENT (this “
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 Plan
was approved as required by the Company’s stockholders and
provides for the grant of Restricted Stock Units and other forms of
stock-based compensation to certain selected 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, during your employment, and
based upon your position with the Company and/or its Subsidiaries,
you have acquired and will continue to acquire, by reason of your
position, substantial knowledge of the operations and practices of
the business of the Company; and
WHEREAS, the Company desires to
assure that, to the extent and for the period of your service and
for a reasonable period thereafter, it may maintain the
confidentiality of its trade secrets and proprietary information,
goodwill and other legitimate business interests, each of which
could be compromised if any competitive business were to secure
your services; and
WHEREAS, the Restricted Stock Units
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 to you the
Restricted Stock Units, which are referred to in this Agreement as
RSUs, described in this Agreement and in the Notice of Grant.
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), you and the Company hereby
agree as follows:
1. Grant of Award . The
Company hereby grants to you and you hereby accept, subject to the
terms and conditions set forth in the Plan and in this Agreement,
the number of
2008
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Dairy Group and Corporate
RSUs
shown on the Notice of Grant, effective as of the date indicated on
the Notice of Grant (the “ Date of Grant ”).
Each RSU represents the right to receive one share of the
Company’s Stock, subject to the terms and conditions set
forth in the Plan and in this Agreement. The shares of Stock that
are issuable upon vesting of the RSUs granted to you pursuant to
this Agreement are referred to in this Agreement as “ the
Shares .” Subject to the provisions of
Sections 2(c), 3(b) and 7 hereof, this Award of RSUs is
irrevocable and is intended to conform in all respects with the
Plan.
2. Vesting .
(a)
Regular Vesting . Except as otherwise provided in the Plan
or in this Section 2, your RSUs will vest ratably in five
equal annual increments commencing on the first anniversary of the
Date of Grant.
(b)
Accelerated Vesting .
(1) Notwithstanding
the vesting schedule in Section 2(a) above, 100% of the unvested
RSUs subject to this Award will become fully vested, on the date
specified below, if the Volume Weighted Average Price (as defined
below) of the Company’s Stock equals or exceeds
per share for any 60 consecutive trading days (the “ Stock
Performance Target ”). For purposes of this Agreement,
“ Volume Weighted Average Price ” means, for any
given 60 consecutive trading days:
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(i) |
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the aggregate sales price of all trades of Stock during such
60 day period, |
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divided by |
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(ii) |
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the total number of shares of Stock traded during such
60 day period. |
If the
Stock Performance Target is achieved, 100% of your unvested RSUs
subject to this Award will become automatically vested on the later
of (i)
, or (ii) the trading day on which the Stock Performance
Target is achieved. The failure of the Stock to achieve the Stock
Performance Target will not prevent your RSUs from vesting in
accordance with Section 2(a) or 2(b)(2) of this Agreement.
(2) Unless
otherwise determined by the Committee, or except as provided in an
agreement between you and your Employer, if your Service terminates
by reason of death, Disability or Retirement during the Restriction
Period, all unvested RSUs you held at the time of such termination
will vest in full at the date of such termination. 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).
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(3) In
addition to the vesting provisions contained in Sections 2(a),
2(b)(1) and 2(b)(2) above, your RSUs will automatically and
immediately vest in full upon a Change in Control.
(c)
Forfeiture of Unvested RSUs . Unless otherwise determined by
the Committee, or except as provided in an agreement between you
and your Employer, if your Service terminates for any reason other
than death, Disability or Retirement during the Restriction Period,
any RSUs you held will be forfeited and canceled as of the date of
such termination of Service. Notwithstanding anything to the
contrary in this Section 2, your rights with respect to
unvested RSUs shall in all events be immediately forfeited and
canceled as of the date of your termination of Service for
Cause.
3. Distribution of
Shares .
(a)
Distribution Upon Vesting . The Company will distribute to
you (or to your estate in the event of your death) the Shares of
Stock represented by the RSUs that vested on such vesting date as
soon as administratively practicable after such vesting date but in
no event later than the fifteenth day of the third calendar month
beginning after the calendar year in which such RSUs shall have
become vested.
(b)
Forfeiture of Shares . Notwithstanding any provision of this
Agreement or the Plan to the contrary, if you are discharged from
the employment of the Company or any of its Subsidiaries for Cause
(as defined below), your rights in your unvested RSUs will be
immediately forfeited and canceled as of such termination date. For
purposes of this Agreement, “ Cause” means
(i) your willful failure to perform substantially your duties;
(ii) your willful or serious misconduct that has caused, or
could reasonably be expected to result in, material injury to the
business or reputation of an Employer; (iii) your conviction
of, or entering a plea of guilty or nolo contendere to, a
crime constituting a felony; (iv) your breach of any written
covenant or agreement with an Employer, any material written policy
of any Employer or any Employer’s “code of
conduct”, or (v) your failure to cooperate with an
Employer in any internal investigation or administrative,
regulatory or judicial proceeding. In addition, your Service shall
be deemed to have terminated for Cause if, after your Service has
terminated (for a reason other than Cause), facts and circumstances
are discovered that would have justified a termination for Cause.
Your RSUs will also be immediately forfeited and canceled in
accordance with Section 7 upon your breach of the provisions
set forth in Section 7.
(c)
Compliance With Law . The Plan, the granting and exercising
of this RSU, and any obligations of the Company under the Plan,
shall be subject to all applicable federal, state and foreign
country laws, rules and regulations, and to such approvals by any
regulatory or governmental agency as may be required, and to any
rules or regulations of any exchange on which the Stock is listed.
The Company, in its discretion, may postpone the granting and
exercising of this RSU, the issuance or delivery of Stock under
this RSU or any other action permitted under the Plan to permit the
Company, with reasonable diligence, to complete such stock exchange
listing or registration or qualification of such Stock or other
required action under any federal, state or foreign country law,
rule or regulation and may require you to make such representations
and furnish such information as it may consider
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appropriate in connection with the issuance or delivery of Stock in
compliance with applicable laws, rules and regulations. The Company
shall not be obligated by virtue of any provision of the Plan to
recognize the exercise of this RSU or to otherwise sell or issue
Stock in violation of any such laws, rules or regulations, and any
postponement of the exercise or settlement of this RSU under this
provision shall not extend the term of the RSU. Neither the Company
nor its directors or officers shall have any obligation or
liability to you with respect to any RSU (or Stock issuable
thereunder) that shall lapse because of such postponement.
4. Stockholder Rights .
Except as set forth in the Plan, neither you nor any person
claiming under or through you shall be, or have any of the rights
or privileges of, a stockholder of the Company in respect of the
Shares issuable pursuant to this Award unless and until your Shares
shall have been issued.
5. Tax Withholding . The
Employer shall have the right to deduct from all amounts paid to
you in cash (whether under this Plan or otherwise) any amount
required by law to be withheld in respect of Awards under this Plan
as may be necessary in the opinion of the Employer to satisfy any
applicable tax withholding requirements under the laws of any
country, state, province, city or other jurisdiction, including but
not l
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