exv10w4



 





Exhibit 10.4




DEAN FOODS COMPANY




POST-2004 EXECUTIVE DEFERRED COMPENSATION PLAN




(As Amended and Restated Retroactively Effective January 1, 2005)




 









 







DEAN FOODS COMPANY




POST-2004 EXECUTIVE DEFERRED COMPENSATION PLAN




Table of Contents




	 	 	 	 	 	 	 
	 	 	 	 	 	Page	 
	ARTICLE I

	 	DEFINITIONS
	 	 	1	 
	 
	 	 	 	 	 	 
	ARTICLE II

	 	ELIGIBILITY
	 	 	3	 
	 
	 	 	 	 	 	 
	ARTICLE III

	 	CREDITS TO ACCOUNT
	 	 	4	 
	 
	 	 	 	 	 	 
	ARTICLE IV

	 	BENEFITS
	 	 	5	 
	 
	 	 	 	 	 	 
	ARTICLE V

	 	PAYMENT OF BENEFITS AT TERMINATION
	 	 	7	 
	 
	 	 	 	 	 	 
	ARTICLE VI

	 	IN-SERVICE WITHDRAWALS
	 	 	8	 
	 
	 	 	 	 	 	 
	ARTICLE VII

	 	ADMINISTRATION OF THE PLAN
	 	 	9	 
	 
	 	 	 	 	 	 
	ARTICLE VIII

	 	CLAIMS REVIEW PROCEDURE
	 	 	10	 
	 
	 	 	 	 	 	 
	ARTICLE IX

	 	LIMITATION OF RIGHTS
	 	 	12	 
	 
	 	 	 	 	 	 
	ARTICLE X

	 	LIMITATION OF ASSIGNMENT AND PAYMENTS TO LEGALLY INCOMPETENT DISTRIBUTEE
	 	 	12	 
	 
	 	 	 	 	 	 
	ARTICLE XI

	 	AMENDMENT TO OR TERMINATION OF THE PLAN
	 	 	13	 
	 
	 	 	 	 	 	 
	ARTICLE XII

	 	GENERAL AND MISCELLANEOUS
	 	 	13	 






 









 





DEAN FOODS COMPANY



POST-2004 EXECUTIVE DEFERRED COMPENSATION PLAN




PREAMBLE




     WHEREAS, Dean Foods Company (the “Company”), a corporation formed under the laws of the State
of Delaware, sponsors the Dean Foods Company Executive Deferred Compensation Plan (the “Pre-2005
Plan”) for the exclusive benefit of a select group of management and highly compensated employees
of the Company and its affiliates to provide an additional means by which such employees may defer
funds for their retirement;



     WHEREAS, the American Jobs Creation Act of 2004 added Section 409A to the Internal Revenue
Code of 1986, as amended (the “Code”), imposing new restrictions on deferred compensation
arrangements for compensation earned after 2004;



     WHEREAS, the Company established a plan known as the Dean Foods Company Post-2004 Executive
Deferred Compensation Plan (the “Plan”) to provide for the deferral of compensation after 2004;



     WHEREAS, after the adoption of the Plan, further guidance was issued by the Internal Revenue
Service and the U.S. Department of Treasury concerning the meaning of various provisions in Code
Section 409A and the manner in which the Internal Revenue Service will enforce the provisions of
such law;



     WHEREAS, the Company desires to revise the Plan to comply with such additional guidance and to
comply with the provisions of the Pension Protection Act of 2006;



     NOW, THEREFORE, the Company hereby amends and restates the Plan to read as follows effective
as of January 1, 2005:



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 “Annual Compensation” shall mean the salary, bonuses and commissions paid or accrued by
the Company or an Affiliate to an employee as remuneration for personal services rendered 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, and any amounts
deferred by such employee pursuant to Section 3.1 hereof. The term “Annual Compensation” shall
also include any amounts paid as director’s fees to members of the Board or members of the board of
directors of an Affiliate.



     1.4 “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.



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



     1.6 “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.



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



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



     1.9 “Company Contribution Account” shall mean the subaccount of each Participant’s Account
showing the monetary value of the Participant’s interest in the Plan which is attributable to
matching or Profit Sharing Credits credited pursuant to Sections 3.2 and 3.3. A separate
subaccount shall be maintained for each Plan Year.



     1.10 “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.



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



     1.12 “401(k) Plan” shall mean the Dean Foods 401(k) Plan.



     1.13 “Participant” shall mean an individual who has been designated by the Committee as being
eligible to participate in the Plan.



     1.14 “Performance-Based Compensation” shall mean compensation earned by a Participant based on
satisfaction of variable and contingent individual or organizational performance criteria not
readily ascertainable at the time the election is made and is based on services to be performed
over a period of at least 12 months.



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     1.15 “Performance Period” shall mean the period over which Performance-Based Compensation is
earned.



     1.16 “Plan” shall mean the Dean Foods Company Post-2004 Executive Deferred Compensation Plan
set forth in this document, as it may be amended from time to time.



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



     1.18 “Profit Sharing Credit” shall mean the amount contributed to the Participant’s Account as
a profit sharing credit pursuant to Section 3.3 hereof.



     1.19 “Trust” shall mean the Dean Foods Company Executive Deferred Compensation Plan Trust.



     1.20 “Valuation Date” shall mean each business day on which the financial markets are open for
trading activity or such other dates as may be established by the Committee.



ARTICLE II




ELIGIBILITY




     Participation in the Plan shall be made available to a select group of individuals, as
determined by the Board or the Committee, who are providing services to the Company or an Affiliate
in key positions of management and responsibility. Participation in the Plan shall also be made
available to members of the Board and any outside directors of subsidiaries of the Company. Such
individuals may elect to participate hereunder by executing a participation agreement in such form
and at such time as the Committee shall require, provided that each participation agreement shall
be executed no later than the day immediately preceding the Plan Year for which an individual
elects to make contributions to the Plan in accordance with the provisions of Section 3.1 hereof
for compensation other than Performance-Based Compensation, and not later than six months before
the end of the Performance Period, for Performance-Based Compensation. Notwithstanding the
foregoing, in the first year in which an individual becomes eligible to participate in the Plan, he
may elect to participate in the Plan by executing a participation agreement, in such form as the
Committee shall require, within thirty (30) days after the date on which he is notified by the
Committee of his eligibility to participate in the Plan or, with respect to Performance-Based
Compensation, such later date as is specified in the preceding sentence. The election to
participate in the Plan for a Participant first enrolled during a Plan Year shall become effective
as of the first full payroll period beginning on or after the Committee’s receipt of his
participation agreement. The determination as to the eligibility of any individual to participate
in the Plan shall be in the sole and absolute discretion of the Committee, whose decision in that
regard shall be conclusive and binding for all purposes hereunder.



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ARTICLE III




CREDITS TO ACCOUNT




     3.1 For any Plan Year, a Participant may, in the manner and at the time prescribed by the
Committee, irrevocably elect to defer a portion of the Annual Compensation otherwise payable to
such Participant with respect to such Plan Year, not to exceed the maximum amount established by
the Committee. Such an election, if made, shall only be effective if the Participant is still an
employee of the Company or an Affiliate (or in the case of a member of the Board or an outside
director of a subsidiary, if such Participant is still a director), as of the date that the Annual
Compensation would otherwise have been paid. Any amount deferred, pursuant to this Article III,
from the Annual Compensation otherwise payable to a Participant shall be transferred to the Trust
and credited to the Account of such Participant as soon as practicable after the date on which such
amounts would otherwise have been paid to the Participant.



     3.2 The Committee shall credit a matching contribution, calculated as provided in this Section
3.2, to the Company Contribution Account of each Participant who has deferred amounts under the
Plan during any Plan Year pursuant to Section 3.1 above. The matching contribution, if any, shall
be computed as follows: (i) the Committee shall first compute a maximum matching contribution for
each Participant for a Plan Year, on the salary deferrals made by the Participant under the 401(k)
plan in which the Participant participates, using the formula applied by such 401(k) plan with
respect to the percentage of salary deferrals matched and the maximum percentage of compensation
which is subject to the match, but using the Participant’s Annual Compensation as defined in this
Plan up to the maximum compensation that may be considered on behalf of a participant under such
401(k) plan (unless otherwise approved by the Board of Directors of the Company); (ii) the
Committee shall then determine the amount of matching contributions made for the Participant under
such 401(k) plan; and (iii) the difference between (i) and (ii), if any, is the matching
contribution to be credited to the Participant’s Company Contribution Account under the Plan. The
Committee shall credit a matching contribution, if any, to the Participant’s Company Contribution
Account as soon as administratively practicable following the end of the Plan Year in which the
401(k) plan year ends, and the Company shall transfer a similar amount to the Trust as soon as
administratively practicable following such date. A member of the Board or an outside director of
a subsidiary who participates in the Plan is not eligible for matching contributions.



     3.3 For each Plan Year, the Committee shall credit each Participant’s Company Contribution
Account with an amount that represents a Profit Sharing Credit. The Profit Sharing Credit shall be
equal in amount to the additional contribution, if any, which would have been allocated as a
non-matching contribution to the Participant’s account in the 401(k) plan in which the Participant
is eligible to participate, if the Participant had not elected to defer, pursuant to this Plan,
Annual Compensation that otherwise would have been paid during the plan year of the 401(k) plan
which ends in the Plan Year. The Committee shall credit the Profit Sharing Credit to the Company
Contribution Account of each Participant entitled thereto as soon as administratively practicable
following the end of the Plan Year. A member of the Board or an outside director of a subsidiary
who participates in the Plan is not eligible for a Profit Sharing Credit.



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     3.4 At the time of making the deferral elections described in Section 3.1 and at such other
times as is allowed by the Committee, the Participant shall designate, on a form provided by the
Committee, the types of investments, including life insurance policies, in which the Participant’s
Account will be deemed to be invested for purposes of determining the amount of earnings to be
credited to that Account. Such designations may vary by deferral source (i.e., salary or bonus)
and by deferral Plan Year. Any Company Contributions pursuant to Section 3.2 and or 3.3 shall be
deemed to be invested in the same investments elected by the Participant for his or her deferrals
from salary for the Plan Year for which the Company Contribution is made (even though it is
credited in a subsequent Plan Year), or if none, as elected by the Participant for his deferrals
from bonuses for such Plan Year. On a quarterly or other basis selected by the Committee, the
Committee shall credit to each Participant’s Account an amount equal to the interest, earnings or
losses that would have resulted to the Account if the amounts credited to the Account were invested
as elected by the Participant. If the Participant designates a deemed investment in a life
insurance policy, the rate of earnings to be credited to such Participant’s Account shall be as set
forth in a split-dollar life insurance agreement or other agreement concerning such a policy.



     3.5 At any time, the Company may, in its sole discretion, credit an amount on behalf of a
particular Participant to his or her account. The crediting of such an amount shall be evidenced
by providing the Participant a notice or statement specifying the amount of the credit.
Thereafter, the amount credited to the Participant’s Account shall be subject to all of the same
terms and provisions as amounts credited to the Account under Section 3.2 of the Plan.



     3.6 Notwithstanding the provisions of this Article III, effective August 17, 2006, if the
transfer of assets to the Trust would cause amounts to be immediately taxed to the Participants as
a result of the application of the provisions of the Pension Protection Act of 2006 (the “PPA”),
the transfer to the Trust shall be delayed until such time as the provisions of the PPA no longer
will cause adverse consequences to the Participants.



ARTICLE IV




BENEFITS




     4.1 After the death of a Participant, the Beneficiary of such Participant shall be entitled to
the entire value of all amounts credited to such Participant’s Account, determined as of the
Valuation Date coincident with or preceding the date of distribution, including any additional
amount credited to such Participant’s Account as a result of life insurance proceeds payable due to
an investment direction made by the Participant to deem to invest a portion of the Account in
insurance on the Participant’s death. In addition, if the Participant dies before his entire
Account is paid, and the Participant is insured under the variable universal life insurance owned
by the Trust, an additional $50,000 death benefit will be paid to the Beneficiary.



     4.2 If a Participant suffers a Disability while employed by the Company or an Affiliate (even
if the official determination of such Disability does not occur until after the end of such
Participant’s employment) or if a Participant who is a member of the Board or is an outside
director of a subsidiary suffers a Disability while serving in such capacity, such Participant
shall be entitled to the entire value of all amounts credited to such Participant’s Account,
determined



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as of the Valuation Date coincident with or immediately preceding the date of distribution.
Such amount shall be payable to the Participant as soon as administratively feasible after the
Committee determines that the Participant has suffered a Disability.



     4.3 After a Participant’s employment terminates or such Participant ceases to be a member of
the Board or a board of directors of a subsidiary for any reason other than death or Disability,
such Participant shall be entitled to the entire value of all amounts credited to the Account of
such Participant, determined as of the Valuation Date coincident with or preceding the date of
distribution, except that the Participant shall only be entitled to the vested portion, if any, of
his Company Contribution Account. The vested portion of a Participant’s Company Contribution
Account shall be determined by applying the Participant’s vesting percentage calculated pursuant to
the terms of the 401(k) Plan. In addition to crediting service with Related Employers, as that
term is defined in the 401(k) Plan, the Company will credit service with organizations and their
predecessors in which the Company owns an interest but which do not qualify as Related Employers.



     4.4 If there is a Change in Control of an employer or its direct or ultimate parent, the Plan
shall distribute the Accounts of all Participants employed by such entity or its subsidiaries
impacted by such Change in Control, in a single lump sum within 30 days after such 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 than one month prior to the
date of distribution. A “Change in Control” means (1) any “person” [as such term is used in
Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), but
specifically excluding the employer, the direct or ultimate parent or any wholly-owned subsidiary
of the employer, and/or any employee benefit plan maintained by the employer, or the direct or
ultimate parent or any wholly-owned subsidiary of the employer] acquires (or has acquired during
the 12-month period ending on the date of the most recent acquisition by such person) as
“beneficial owner” (as determined pursuant to Rule 13d-3 of the Exchange Act), directly or
indirectly, securities of the employer (or its direct or ultimate parent) representing at least
thirty-five percent (35%) of the total voting power of the employer’s (or its direct or ultimate
parent’s) then outstanding securities; or (2) individuals who currently serve on the board of
directors of the employer or its direct or ultimate parent, or whose election to the board of
directors or nomination for election to the board of directors was approved by a vote of at least
two-thirds (2/3) of the directors who either currently serve on the board of directors, or whose
election or nomination for election was previously so approved, who represent a majority of the
board of directors, are replaced during any 12-month period by directors who constitute a majority
of the board of directors and who were not approved by a vote of at least two-thirds (2/3) of the
directors prior to the date of appointment or election; or (3) the employer or its direct or
ultimate parent shall merge with or consolidate into any other corporation, other than a merger or
consolidation which would result in the holders of the voting securities of the employer or its
direct or ultimate parent outstanding immediately prior thereto holding immediately thereafter
securities representing more than sixty percent (60%) of the total voting power of the voting
securities of the employer, its direct or ultimate parent, or such surviving entity (or its direct
or ultimate parent, if applicable) outstanding immediately after such merger or consolidation; or
(4) the sale or disposition of all or substantially all of the assets of the employer to an
unrelated person.



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ARTICLE V




PAYMENT OF BENEFITS AT TERMINATION




     5.1 In the case of a Participant who terminates employment with the Company or ceases to be a
member of the Board or an outside director of a subsidiary of the Company, the amount credited to
the Participant’s Account (provided it is more than $25,000 or such smaller amount allowed by
regulations issued by the U.S. Department of the Treasury) shall be paid in cash, to the
Participant, at the time and in the form selected by the Participant in the deferral election form
completed by the Participant for a Plan Year. The Participant may elect from among the following
optional forms of benefit:




	 	(a)	 	a lump sum distribution;
	 
	 	(b)	 	substantially equal annual installments over five (5) years; or
	 
	 	(c)	 	substantially equal annual installments over ten (10) years.





     If an installment form of payment is elected, then the distribution shall be deemed to be made
on a pro rata basis out of all investment options in which amounts credited to a Participant’s
Account are deemed to be invested. A Participant may make a separate distribution election with
respect to each deferral source for each Plan Year. Notwithstanding the Participant’s distribution
election, if the amount credited to a Participant’s Account is equal to or less than $25,000 (or
such smaller amount allowed by regulations issued by the U.S. Department of the Treasury), at the
time distribution of the Account is to commence, payment will be made in a lump sum, and even if
installment payments have commenced under this Section 5.1, if the value of such remaining amounts
is $25,000 (or such smaller amount allowed by regulations issued by the U.S. Department of the
Treasury) as of a payment date, all remaining amounts credited to a Participant’s Account shall be
distributed in a lump sum.



     Payment shall be made, or in the case of installment payments, shall commence, as soon as
administratively practicable, during the calendar quarter immediately following the Participant’s
termination of employment with the Company or termination as a member of the Board or as a director
of a subsidiary of the Company, or, if so elected by the Participant in the Participant’s deferral
election form, as soon as administratively practicable during the calendar year following the year
in which such event occurs. If installment payments are made, the unpaid balance of the
Participant’s Account shall continue to share in the income and losses attributable thereto, in
accordance with the provisions of the Plan, during the period for which installment payments are
made.



     A Participant may modify the time or form of benefit for a distribution due to termination of
employment subject to the following limitations:




	 	(a)	 	the Participant may change the time and/or form of distribution
for a distribution due to termination of employment attributable to deferrals
made in a Plan Year, but effective January 1, 2006, such a change may be made
only one time per deferral type (i.e., salary or bonus);




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	 	(b)	 	any change must be made by a written notice to the Committee or
its designee at least one year in advance of the Participant’s termination of
employment; and
	 
	 	(c)	 	the change must postpone the payment(s) at least five years
after their scheduled payment date(s).





     5.2 Payment of a Participant’s benefit on account of death shall be made to the Beneficiary of
such Participant in a lump sum in cash as soon as practicable following the Committee’s receipt of
proper notice of such Participant’s death.



     5.3 The payment of benefits under the Plan shall begin at the date specified in accordance
with the provisions of Sections 5.1 and 5.2 hereof; provided that, in case of administrative
necessity, the starting date of payment of benefits may be delayed up to thirty (30) days as long
as such delay does not result in the Participant’s or Beneficiary’s receiving the distribution in a
different taxable year than if no such delay had occurred.



     5.4 Each distribution shall be charged to the appropriate Plan Year and deferral type
subaccount of the Participant from which the distribution is to be made. If less than the total
balance of such subaccount is to be distributed, such distribution shall be charged on a pro rata
basis to each investment in which such subaccount is deemed to be invested.



     5.5 Notwithstanding anything in Section 4.3 or 5.1 to the contrary, no distributions as a
result of termination of employment shall be made to a Participant before the date that is six
months after the date a Participant terminates employment with the Company, if that Participant is,
on the date of termination, a “specified employee,” as defined 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 VI




IN-SERVICE WITHDRAWALS




     6.1 In the event of an unforeseeable emergency, a Participant may make a request to the
Committee for a withdrawal from the Account of such Participant. For purposes of this Section, the
term “unforeseeable emergency” shall mean a severe financial hardship to the Participant resulting
from an illness or accident of the Participant, the Participant’s spouse, or a dependent [as
defined in Section 152(a) of the Code] of the Participant, loss of the Participant’s property due
to casualty, or other similar extraordinary and unforeseeable circumstances arising as a result of
events beyond the control of the Participant. Any determination of the existence of an
unforeseeable emergency and the amount to be withdrawn on account thereof shall be made by the
Committee, in its sole and absolute discretion. However, notwithstanding the foregoing, a
withdrawal will not be permitted to the extent that the financial hardship is or may be relieved:
(i) through reimbursement or compensation by insurance or otherwise; (ii) by liquidation of the
Participant’s assets, to the extent that liquidation of such assets would not itself cause severe
financial hardship; or (iii) by cessation of deferrals under this Plan. In no event shall the need
to send a Participant’s child to college or the desire to purchase a home be deemed to constitute
an



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unforeseeable emergency. No member of the Committee shall vote or decide upon any matter
relating to the determination of the existence of such member’s own financial hardship or the
amount to be withdrawn on account thereof. A request for a hardship withdrawal must be made in the
manner prescribed by the Committee, and must be expressed as a specific dollar amount. The amount
of a hardship withdrawal may not exceed the amount required to meet the severe financial hardship
plus the amount needed to pay taxes reasonably anticipated as a result of the distribution. All
hardship withdrawals shall be paid in a lump sum in cash.




     6.2 On a form prescribed by the Committee during the applicable enrollment period, a
Participant can elect to receive that Plan Year’s deferrals made pursuant to Section 3.1, matching
contributions credited pursuant to Section 3.2, additional credits made that Plan Year pursuant to
Sections 3.3, 3.4, or 3.5 and earnings thereon, at a date specified by the Participant. Such date
shall be no earlier than two (2) years from the last day of the Plan Year for which the deferrals
and matching and other credits are made. Any withdrawal under this Section 6.2 shall be made in a
single lump sum, in cash. A Participant may delay the time for a scheduled in-service withdrawal
subject to the following limitations:




	 	(a)	 	the Participant may delay the time for a scheduled in-service
withdrawal attributable to deferrals made in a Plan Year, but effective January
1, 2006, such a delay may be made only one time per deferral type;
	 
	 	(b)	 	the change must be made by a written notice to the Committee or
its designee at least one year in advance of the date the payment was scheduled
to be made; and
	 
	 	(c)	 	the change must postpone the payment at least five years after
its scheduled payment date.





     6.3 In the case of a withdrawal pursuant to Section 6.1, if less than the total balance of the
Participant’s account is being withdrawn, then the withdrawal shall be charged to each subaccount
of the Participant on a pro rata basis, and with respect to each subaccount, the withdrawal shall
be charged on a pro rata basis to each investment in which such subaccount is deemed to be
invested. In the case of a scheduled in-service withdrawal pursuant to Section 6.2, such
withdrawal shall be charged to the appropriate Plan Year and deferral type subaccount of the
Participant, and if the withdrawal is less than the total amount of such subaccount, it shall be
charged on a pro rata basis to each investment in which such subaccount is deemed to be invested.



ARTICLE VII




ADMINISTRATION OF THE PLAN




     7.1 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



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or unless required by the Company. Any member of the Committee may resign by delivering a
written resignation to the Company and to the other members of the Committee.




     7.2 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.



     7.3 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.



     7.4 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.



     7.5 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 VIII




CLAIMS REVIEW PROCEDURE




     8.1 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



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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
	 
	 	(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.





     8.2 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



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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 IX




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 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 X




LIMITATION OF ASSIGNMENT AND PAYMENTS



TO LEGALLY INCOMPETENT DISTRIBUTEE




     10.1 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.



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     10.2 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 XI




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 or to add a supplement to the Plan to
provide benefits for specified Participants. 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 XII




GENERAL AND MISCELLANEOUS




     12.1 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.



     12.2 The Section 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.



     12.3 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.



     12.4 The Company is not required to set aside any assets for payment of the benefits provided
under this Plan. 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.



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     12.5 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 5th day of September, 2006, but effective as of the first day of January, 2005.



	 	 	 	 	 	 	 
	 	 	DEAN FOODS COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Vice President, HR Administrative Services	 	 







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