exv10w7



 





Exhibit
10.7



DEAN FOODS COMPANY




SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN




(As Revised and Restated Effective January 1, 2005)




 









 





DEAN FOODS COMPANY

SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN

(As Revised and Restated Effective January 1, 2005)




Table of Contents




	 	 	 	 	 	 	 
	 	 	 	 	Page
	ARTICLE I

	 	DEFINITIONS
	 	 	1	 
	 
	 	 	 	 	 	 
	ARTICLE II

	 	ELIGIBILITY
	 	 	2	 
	 
	 	 	 	 	 	 
	ARTICLE III

	 	CREDITS TO ACCOUNT
	 	 	3	 
	 
	 	 	 	 	 	 
	ARTICLE IV

	 	BENEFITS
	 	 	3	 
	 
	 	 	 	 	 	 
	ARTICLE V

	 	ADMINISTRATION OF THE PLAN
	 	 	4	 
	 
	 	 	 	 	 	 
	ARTICLE VI

	 	CLAIMS REVIEW PROCEDURE
	 	 	5	 
	 
	 	 	 	 	 	 
	ARTICLE VII

	 	LIMITATION OF RIGHTS
	 	 	6	 
	 
	 	 	 	 	 	 
	ARTICLE VIII

	 	LIMITATION OF ASSIGNMENT AND PAYMENTS TO

LEGALLY INCOMPETENT DISTRIBUTEE
	 	 	7	 
	 
	 	 	 	 	 	 
	ARTICLE IX

	 	AMENDMENT TO OR TERMINATION OF THE PLAN
	 	 	7	 
	 
	 	 	 	 	 	 
	ARTICLE X

	 	GENERAL AND MISCELLANEOUS
	 	 	7	 






 









 





DEAN FOODS COMPANY




SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN




PREAMBLE




     WHEREAS, Dean Foods Company (the “Company”) adopted the Dean Foods Company Supplemental
Executive Retirement Plan (the “Plan”) on March 18, 2005 to provide additional benefits in a
nonqualified deferred compensation arrangement for employees who earn compensation in excess of the
compensation that can be taken into account under the Dean Foods 401(k) Plan (the “401(k) Plan”) so
that such employees will receive retirement benefits from the Company that are equivalent, as a
percentage of total compensation, to the benefits provided to other employees;



     WHEREAS, in the process of implementing the Plan, the Company has identified certain
provisions that should be revised to promote the efficient administration of the Plan;



     NOW, THEREFORE, the Company hereby amends and restates 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 “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.



     1.4 “Board” shall mean the Board of Directors of the Company.



     1.5 “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.



     1.6 “Committee” shall mean the Compensation Committee of the Board.



 









 





     1.7 “Company” shall mean Dean Foods Company or its successor or successors.



     1.8 “Covered Compensation” shall mean the total salary and bonuses paid by the Company or an
Affiliate to an employee 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, any amounts deferred by such employee from such salary or bonuses payable during the Plan
Year pursuant to the Dean Foods Company Post-2004 Executive Deferred Compensation Plan, and any
amounts withheld from such salary or bonuses pursuant to a court order.



     1.9 “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.



     1.10 “Effective Date” shall mean January 1, 2005.



     1.11 “Excess Compensation” shall mean that portion of the Participant’s Covered Compensation
which is in excess of the limitation found in Section 401(a)(17) of the Code, or its successor, for
the Plan Year.



     1.12 “Participant” shall mean an individual who has Excess Compensation during a Plan Year or
who has an Account as a result of having Excess Compensation in a prior Plan Year on or after
January 1, 2005.



     1.13 “Plan” shall mean the Dean Foods Company Supplemental Executive Retirement Plan set forth
in this document, as it may be amended from time to time.



     1.14 “Plan Year” shall mean the twelve-month period beginning each January 1 and ending each
December 31.



     1.15 “Trust” shall mean the Dean Foods Company Supplemental Executive Retirement Trust.



     1.16 “Valuation Date” shall mean each June 30th, and any other date established by
the Committee.



ARTICLE II




ELIGIBILITY




     A Participant shall participate in the Plan each Plan Year, commencing in 2005, in which he or
she has Excess Compensation. A Participant who has Excess Compensation for a Plan



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Year shall be entitled to continue to participate in the Plan until his or her Account is paid
in full even though the Participant may not be entitled to credits to his or her Account during one
or more Plan Years because such Participant does not have Excess Compensation.




ARTICLE III




CREDITS TO ACCOUNT




     3.1 As of each Valuation Date, and before the credit made to the Participants’ Accounts
pursuant to Section 3.2, the Committee shall credit to each Participant’s Account an amount equal
to the interest that would have been earned by the Account since the immediately preceding
Valuation Date, if the balance of the Account (reduced by any distributions made since the
immediately preceding Valuation Date) had been invested at the mid-term applicable federal rate
(AFR) set by the Internal Revenue Service for the month which includes the Valuation Date, plus one
percent (1%).



     3.2 As of each Valuation Date, commencing June 30, 2006, and after the earnings credit made to
the Participant’s Account pursuant to Section 3.1, the Committee shall credit to each Participant’s
Account an amount equal to 4% of such Participant’s Excess Compensation for the immediately
preceding Plan Year. The Company shall transfer to the Trust, within two weeks after such
Valuation Date, an amount sufficient to cause the Trust to have assets with a value at least equal
to the value of all Participants’ Accounts.



ARTICLE IV




BENEFITS




     4.1 After the credits are made to the Accounts of all Participants as of a Valuation Date, and
not later than two weeks after such Valuation Date, an amount equal to the value of the
Participant’s Account shall be paid in a lump sum to the Beneficiary of any Participant who has
died since the immediately preceding Valuation Date.



     4.2 After the credits are made to the Accounts of all Participants as of a Valuation Date, and
not later than two weeks after such Valuation Date, an amount equal to the value of the
Participant’s Account shall be paid in a lump sum to any Participant who has been determined by the
Committee to have a Disability.



     4.3 After the credits are made to the Accounts of all Participants as of a Valuation Date, and
not later than two weeks after such Valuation Date, an amount equal to the value of the
Participant’s Account shall be paid in a lump sum to any Participant whose employment has
terminated for any reason other than death or Disability since the immediately preceding Valuation
Date.



     4.4 If there is a change in the ownership or effective control of the employer of the
Participant (or the employer’s parent) or in the ownership of a substantial portion of the assets
of the employer of the Participant (hereinafter collectively called a “Change in Control”), the
Plan shall distribute the Accounts of all Participants employed by such employer or its
subsidiaries



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impacted by such Change in Control, in a single lump sum within 30 days after such Change in
Control or at such later date as is required by such regulations. In the event of a Change in
Control, the Committee shall determine an appropriate Valuation Date to be used in connection with
the distributions to be made, which Valuation Date shall not be more then 90 days prior to the date
of distribution. The determination of whether a Change in Control has occurred and whether a
distribution may be made to the Participants shall be made based on the definition of a Change in
Control that is found in the regulations issued by the U.S. Department of the Treasury under
Section 409A of the Code, which regulations are incorporated herein by reference.




ARTICLE V




ADMINISTRATION OF THE PLAN




     5.1 The Plan shall be administered by the Committee. The members of the Committee shall not
receive compensation with respect to their services for the Committee. The members of the
Committee shall serve without bond or security for the performance of their duties hereunder unless
applicable law makes the furnishing of such bond or security mandatory or unless required by the
Company.



     5.2 The Committee shall perform any act which the Plan authorizes expressed by a vote at a
meeting or in a writing signed by a majority of its members without a meeting. The Committee may,
by a writing signed by a majority of its members, appoint any member of the Committee to act on
behalf of the Committee. Any person who is a member of the Committee shall not vote or decide upon
any matter relating solely to such member or vote in any case in which the individual right or
claim of such member to any benefit under the Plan is particularly involved. If, in any matter or
case in which a person is so disqualified to act, the remaining persons constituting the Committee
cannot resolve such matter or case, the Board will appoint a temporary substitute to exercise all
the powers of the disqualified person concerning the matter or case in which such person is
disqualified.



     5.3 The Committee may designate in writing other persons to carry out its responsibilities
under the Plan, and may remove any person designated to carry out its responsibilities under the
Plan by notice in writing to that person. The Committee may employ persons to render advice with
regard to any of its responsibilities. All usual and reasonable expenses of the Committee shall be
paid by the Company. The Company shall indemnify and hold harmless each member of the Committee
from and against any and all claims and expenses (including, without limitation, attorneys’ fees
and related costs), in connection with the performance by such member of duties in that capacity,
other than any of the foregoing arising in connection with the willful neglect or willful
misconduct of the person so acting.



     5.4 The Committee shall establish rules and procedures, not contrary to the provisions of the
Plan, for the administration of the Plan and the transaction of its business. The Committee shall
determine the eligibility of any individual to participate in the Plan, shall interpret the Plan in
its sole and absolute discretion, and shall determine all questions arising in the administration,
interpretation and application of the Plan. All determinations of the Committee shall be
conclusive and binding on all employees, Participants and Beneficiaries.



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     5.5 Any action to be taken hereunder by the Company shall be taken by resolution adopted by
the Board or by a committee thereof; provided, however, that by resolution, the Board or a
committee thereof may delegate to any officer of the Company the authority to take any such actions
hereunder.



ARTICLE VI




CLAIMS REVIEW PROCEDURE




     6.1 In the event that a Participant or Beneficiary is denied a claim for benefits under this
Plan (the “Claimant”), the Committee shall provide to the Claimant written notice of the denial
within 90 days after the claim is filed (45 days in the case of a Disability claim) unless an
extension of time for processing the claim is necessary because more information is needed (or, in
the case of a Disability claim, an extension is necessary for reasons beyond the control of the
Committee), in which case a decision will be rendered not later than 180 days (75 days in the case
of a Disability claim which may be further extended to 105 days if the additional extension is
necessary due to reasons beyond the control of the Committee) after the initial receipt of the
claim. If such an extension of time for processing the claim is required, written notice of the
extension and additional information that is necessary to process the claim will be furnished to
the Claimant prior to the expiration of the initial 90-day (or 45-day) period and will indicate the
special circumstances requiring an extension of time for processing the claim and will indicate the
date the Committee expects to render its decision. In no event will such extension exceed a period
of 90 days from the end of the initial period. The notice shall set forth:




	 	(a)	 	the specific reason or reasons for the denial;
	 
	 	(b)	 	specific references to pertinent Plan provisions on which the Committee based
its denial;
	 
	 	(c)	 	a description of any additional material or information needed for the Claimant
to perfect the claim and an explanation of why the material or information is needed;
	 
	 	(d)	 	if the claim is a claim for a Disability benefit, the Participant will be
notified if an internal rule, guideline, protocol or other similar criterion was relied
on by the Committee and the Participant will be provided with a copy of such rule,
guideline, protocol, or other criterion free of charge on the Participant’s request.
If the claim is a claim for a Disability benefit and the denial is based on a medical
necessity or other similar exclusion or limit, the Participant will be provided, free
of charge at his or her request, an explanation of how that exclusion or limit and any
clinical judgments apply to the Participant’s medical circumstances.
	 
	 	(e)	 	a statement that the Claimant may:






	 	(i)	 	request a review upon written application to the Committee;
	 
	 	(ii)	 	review pertinent Plan documents; and





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	 	(iii)	 	submit issues and comments in writing; and






	 	(f)	 	that any appeal the Claimant wishes to make of the adverse determination must
be in writing and received by the Committee within 60 days (180 days in the case of a
Disability claim) after receipt of the Committee’s notice of denial of benefits. The
Committee’s notice must further advise the Claimant that failure to appeal the action
to the Committee in writing within the 60-day (or 180-day) period will render the
Committee’s determination final, binding, and conclusive.





     6.2 If the Claimant should appeal to the Committee, the Claimant, or the duly authorized
representative of such Claimant, may submit, in writing, whatever issues and comments such
Claimant, or the duly authorized representative of such Claimant, feels are pertinent. The
Committee shall re-examine all facts related to the appeal and make a final determination as to
whether the denial of benefits is justified under the circumstances. The Committee shall advise
the Claimant in writing of its decision on the appeal, the specific reasons for the decision, and
the specific Plan provisions on which the decision is based. The notice of the decision shall be
given within 60 days (45 days in the case of a Disability claim) of the Claimant’s written request
for review, unless special circumstances (such as a hearing) would make the rendering of a decision
within the 60-day (or 45-day) period infeasible, but in no event shall the Committee render a
decision regarding the denial of a claim for benefits later than 120 days (90 days in the case of a
Disability claim) after its receipt of a request for review. If an extension of time for review is
required because of special circumstances, written notice of the extension shall be furnished to
the Claimant prior to the date the extension period commences. The Claimant will also be entitled
to receive, on request and free of charge, access to and copies of all documents, records, and
other information relevant to the claim. In addition, if the claim is a claim for a Disability
benefit, the Participant will be notified if an internal rule, guideline, protocol or other similar
criterion was relied on by the Committee and will be provided with a copy of such rule, guideline,
protocol, or other criterion free of charge at your request. If the claim is a claim for a
Disability benefit and the denial is based on a medical necessity or other similar exclusion or
limit, the Participant will be provided, free of charge at his or her request, an explanation of
how that exclusion or limit and any clinical judgments apply to the Participant’s medical
circumstances. In the case of a Disability claim, the review on appeal must be made by a different
decision-maker from the Committee and that decision-maker cannot give procedural deference to the
original decision. If the Claimant is dissatisfied with the Committee’s (or other independent
fiduciary’s) review decision, the Claimant has the right to file suit in a federal or state court.



ARTICLE VII




LIMITATION OF RIGHTS




     The establishment of this Plan shall not be construed as giving to any Participant, employee
of the Company or any person whomsoever, any legal, equitable or other rights against the Company,
or its officers, directors, agents or shareholders, or as giving to any Participant or Beneficiary
any equity or other interest in the assets or business of the Company or shares of Company stock or
as giving any employee the right to be retained in the employment of the



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Company. All employees of the Company and Participants shall be subject to discharge to the
same extent they would have been if this Plan had never been adopted.




ARTICLE VIII




LIMITATION OF ASSIGNMENT AND PAYMENTS

TO LEGALLY INCOMPETENT DISTRIBUTEE




     8.1 No benefits which shall be payable under the Plan to any person shall be subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge, and
any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, charge or otherwise
dispose of the same shall be void. No benefit shall in any manner be subject to the debts,
contracts, liabilities, engagements or torts of any person, nor shall it be subject to attachment
or legal process for or against any person, except to the extent required by law.



     8.2 Whenever any benefit which shall be payable under the Plan is to be paid to or for the
benefit of any person who is then a minor or determined by the Committee, on the basis of qualified
medical advice, to be incompetent, the Committee need not require the appointment of a guardian or
custodian, but shall be authorized to cause the same to be paid over to the person having custody
of the minor or incompetent, or to cause the same to be paid to the minor or incompetent without
the intervention of a guardian or custodian, or to cause the same to be paid to a legal guardian or
custodian of the minor or incompetent, if one has been appointed, or to cause the same to be used
for the benefit of the minor or incompetent.



ARTICLE IX




AMENDMENT TO OR TERMINATION OF THE PLAN




     The Board and the Committee, or either of them acting independently, reserve the right at any
time to amend or terminate the Plan in whole or in part. No amendment shall have the effect of
retroactively depriving Participants or Beneficiaries of rights already accrued under the Plan.
Any amendment to the Plan shall be executed by an officer of the Company. Upon termination of the
Plan, the Committee may, in its sole and absolute discretion, and notwithstanding any other
provision hereunder to the contrary, direct that all benefits hereunder will be paid as soon as
administratively practicable thereafter.



ARTICLE X




GENERAL AND MISCELLANEOUS




     10.1 In the event that any provision of this Plan shall be declared illegal or invalid for any
reason, said illegality or invalidity shall not affect the remaining provisions of this Plan but
shall be fully severable and this Plan shall be construed and enforced as if said illegal or
invalid provision had never been inserted herein.



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     10.2 The Article headings and numbers are included only for convenience of reference and are
not to be taken as limiting or extending the meaning of any of the terms and provisions of this
Plan. Whenever appropriate, words used in the singular shall include the plural or the plural may
be read as the singular.



     10.3 The validity and effect of this Plan and the rights and obligations of all persons
affected hereby shall be construed and determined in accordance with the laws of the State of Texas
unless superseded by federal law.



     10.4 A Participant shall have no security interest in any amounts credited hereunder on such
Participant’s behalf. It is the Company’s intention that this Plan be construed as a plan which is
unfunded and maintained primarily for the purpose of providing deferred compensation for a select
group of highly compensated employees.



     10.5 All amounts payable hereunder shall be reduced by any and all federal, state and local
taxes imposed upon the Participant or a Beneficiary which are required to be paid or withheld by
the Company.



     IN WITNESS WHEREOF, Dean Foods Company, the Company, has caused this document to be executed
on this on this ___ day of November, 2005, but effective as of the first day of January 2005.



	 	 	 	 	 	 	 
	 	 	DEAN FOODS COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 






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