exv10w2



 




Exhibit 10.2




DEAN FOODS COMPANY

RESTRICTED STOCK UNIT (“RSU”) AWARD AGREEMENT




     This AGREEMENT (this “Agreement”), effective as of the date indicated on the Notice of
Grant of Award 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
Third Amended and Restated 1989 Stock Awards Plan (the “Plan”), which Plan was approved as
required by the Company’s stockholders and provides for the grant of Options, Restricted Stock and
other stock-based Awards 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, the Awards provided for under the Plan are intended to comply with the requirements
of Rule 16b-3 under the Exchange Act; and



     WHEREAS, the Committee has selected you to participate in the Plan and has awarded the
restricted stock units (“RSUs”) described in this Agreement to you.



     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 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 Common Stock,
subject to the terms and conditions set forth in the Plan and in this Agreement. The shares of
Common 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 three equal annual increments commencing on the first anniversary of
the Date of Grant.



2005 Grant

Dairy Group and Corporate




 









 





               (b) Accelerated Vesting. In addition to the vesting provisions contained in Sections
2(a) above, your RSUs will automatically and immediately vest in full upon a Change in Control.



               (c) Forfeiture of Unvested RSUs. Notwithstanding the provisions of Sections 2(a) and
2(b) above or any provisions of the Plan to the contrary, if your employment with the Company or
any Subsidiary terminates for any reason (including, without limitation, by reason of your death,
permanent or total disability, Qualifying Retirement or other retirement) before all or any portion
of the RSUs subject to this Award have vested, the unvested RSUs will be immediately forfeited and
neither you nor your estate will have any further rights to such unvested RSUs or the Shares
represented by those forfeited RSUs.



     3. Distribution of Shares.



          (a) Distribution Upon Vesting. The Company will distribute to you (or to your estate
in the event that your death occurs after a vesting date but before distribution of the
corresponding Shares), as soon as administratively practicable after each vesting date, the Shares
of Common Stock represented by the RSUs that vested on such vesting date.



     (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 RSUs whether vested or unvested and
your right to receive any undistributed Shares will be immediately and permanently forfeited. For
purposes of this Agreement, your discharge will be deemed to be “for Cause” only if you
have (i) misappropriated funds or property of the Company or any Subsidiary to your personal use,
or (ii) willfully and without authorization disclosed Confidential Information (as defined below)
that resulted in or could reasonably result in material harm to the Company or any Subsidiary, or
(iii) been convicted of a felony, or (iv) violated the Company’s Code of Ethics. The determination
of whether you have been discharged for Cause will be determined by the Board or the Committee.
For purposes of this Agreement, “Confidential Information” shall mean all business records,
trade secrets, know-how, customer lists or compilations, terms of customer agreements, sources of
supply, pricing or cost information, financial information or personnel data and other confidential
or proprietary information used and/or obtained by you in the course of your employment with the
Company or any Subsidiary; provided that the term “Confidential Information” will not include
information which (i) is or becomes publicly available other than as a result of a disclosure by
you which is prohibited by this agreement or by any other legal, contractual or fiduciary
obligation that you may owe to the Company or any Subsidiary, or (ii) is widely known within one or
more of the industries in which the Company or any Subsidiary operates, or you can demonstrate was
otherwise known to you prior to becoming an employee of the Company or any Subsidiary, or (iii) is
or becomes available to you on a nonconfidential basis from a source (other than the Company or any
Subsidiary, including any employee thereof) that is not prohibited from disclosing such information
to you by a legal, contractual or fiduciary obligation to the Company or any Subsidiary.



2005 Grant

Dairy Group and Corporate




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          (c) Compliance With Law. The Company shall not be obligated to issue your Shares upon
the vesting of any RSU or otherwise unless the issuance and delivery of such Shares complies with
all relevant provisions of law and other legal requirements including, without limitation, any
applicable federal or state securities laws and the requirements of any stock exchange upon which
shares of the Company’s Common Stock may then be listed. As a condition to the distribution of
your Shares, the Company may require you to make such representations and warranties as may be
necessary to assure the availability of an exemption from the registration requirements of
applicable federal or state securities laws. The Company shall not be liable for refusing to issue
your Shares if the Company cannot obtain authority from the appropriate regulatory bodies deemed by
the Company to be necessary to lawfully distribute your Shares. In addition, the Company shall
have no obligation to you, express or implied, to list, register or otherwise qualify any of your
Shares of Common Stock.



     4. Shareholder 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. Any provision of this Agreement to the contrary notwithstanding,
the Company may take such steps as it deems necessary or desirable for the withholding of any taxes
that it is required by law or regulation of any governmental authority, federal, state or local,
domestic or foreign, to withhold in connection with vesting of any RSU or issuance of any of the
Shares subject thereto.



     6. Transfer of RSUs. The RSUs granted herein are not transferable except in
accordance with the provisions of the Plan.



     7. Covenant Not to Compete or Solicit. In consideration of this Award, you hereby
agree that, during the term of your employment with the Company or any Subsidiary and for a period
of two years thereafter, you will not, directly or indirectly, individually or on behalf of any
person or entity other than the Company or any of its Subsidiaries:



          (a) Become associated with (as defined below) any company or business (other than the Company
or any Subsidiary) engaged primarily in the manufacture, distribution, sale or marketing of any of
the Relevant Products (as defined below) in any geographical area in which the Company or any of
its Subsidiaries operates;



          (b) Approach, consult, solicit business from, or contact or otherwise communicate, directly or
indirectly, in any way with any Customer (as defined below) in an attempt to (1) divert business
from, or interfere with any business relationship of the Company or any of its Subsidiaries, or (2)
convince any Customer to change or alter any of such Customer’s existing or prospective contractual
terms and conditions with the Company or any Subsidiary; or



          (c) Solicit, induce, recruit or encourage, either directly or indirectly, any employee of the
Company or any Subsidiary to leave his or her employment with the Company



2005 Grant

Dairy Group and Corporate




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or any Subsidiary or employ or offer to employ any employee of the Company or any Subsidiary. For
the purposes of this section, an employee of the Company or any Subsidiary shall be deemed to be an
employee of the Company or any Subsidiary while employed by the Company and for a period of 60 days
thereafter.




     For purposes of this Agreement, the following terms shall have the meanings indicated:



     “associated with” means to become involved or act as an owner, partner, stockholder,
investor, joint venturer, lender, director, manager, officer, employee, consultant, independent
contractor, representative or agent.



     “Customer” means all persons or entities who purchased any Relevant Product from the
Company or any Subsidiary during the term of your employment with the Company or any Subsidiary.



     “Relevant Product(s)” means (i) milk and milk-based beverages, (ii) creams and
creamers, (iii) ice cream and ice cream novelties, (iv) ice cream mix, and (v) cultured dairy
products.



     Notwithstanding the foregoing, (1) the restrictions of this Section 7 shall terminate
immediately if your employment with the Company or any Subsidiary is involuntarily terminated by
the Company or such Subsidiary without Cause (as defined in Section 3(c) hereof), and (2) you are
not prohibited from owning, either of record or beneficially, not more than five percent (5%) of
the shares or other equity of any publicly traded company. Your obligation under this Section 7
shall survive the vesting or forfeiture of your RSUs and/or the distribution or forfeiture of the
underlying Shares. The provisions of this Section 7 are not intended to override, supercede,
reduce, modify or affect in any manner any other non-competition or non-solicitation agreement
between you and the Company or any Subsidiary. Any such covenant or agreement shall remain in full
force and effect in accordance with its terms. Any breach of any provision of this Section 7 will
result in immediate and complete forfeiture of your unvested RSUs and your undistributed Shares.
In addition, you hereby agree that if you violate any provision of this Section 7, you will return
to the Company any Shares that were previously issued to you or, if you no longer own the Shares,
an amount in cash equal to the fair market value of any such Shares on the date they were issued to
you. In addition, the Company will be entitled to injunctive and other relief to prevent or enjoin
any violation of the provisions of this Agreement.



     You acknowledge that you have given careful consideration to the restraints imposed by this
Agreement, and you fully agree that they are necessary for the reasonable and proper protection of
the business of the Company and its Subsidiaries. You agree that each and every restraint imposed
by this Agreement is reasonable with respect to subject matter, time period, and geographical area.
Except as expressly set forth herein, the restraints imposed by this Agreement shall continue
during their full time periods and throughout the geographical area set forth in this Agreement.



2005 Grant

Dairy Group and Corporate




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     If you have violated any provision of this Section 7 and any of the provisions of subsections
(a), (b) or (c) of this Section 7 are deemed to be unenforceable, then (1) your unvested RSUs and
undistributed Shares shall be forfeited and (2) you hereby agree that you will return to the
Company any Shares that were previously issued to you or, if you no longer own the Shares, an
amount in cash equal to the fair market value of any such Shares on the date they were issued to
you. In addition, if any of the restrictions of this Section 7 are deemed unenforceable as
written, the parties expressly authorize the court to revise, delete, or add to the restrictions
contained in this Section 7 to the extent necessary to enforce the intent of the parties and to
provide the goodwill, confidential information, and other business interests of the Company and its
Subsidiaries with effective protection.



     8. Plan Incorporated. You accept the RSUs hereby granted subject to all the
provisions of the Plan, which, except as expressly contradicted by the terms hereof, are
incorporated into this Agreement, including the provisions that authorize the Committee to
administer and interpret the Plan and which provide that the Committee’s decisions, determinations
and interpretations with respect to the Plan are final and conclusive on all persons affected
thereby.



     9. Miscellaneous.



          (a) No Guaranteed Employment. Nothing contained in this Agreement shall affect the
right of the Company to terminate your employment at any time, with or without Cause, or shall be
deemed to create any rights to employment on your part. The rights and obligations arising under
this Agreement are not intended to and do not affect the employment relationship that otherwise
exists between the Company and you, whether such employment relationship is at will or defined by
an employment contract. Moreover, this Agreement is not intended to and does not amend any
existing employment contract between the Company and you. To the extent there is a conflict
between this Agreement and such an employment contract, the employment contract shall govern and
take priority.



          (b) Notices. Any notice to be given to the Company under the terms of this Agreement
shall be addressed to the Company at its principal executive offices, and any notice to be given to
you shall be addressed to you at the address set forth on the attached Notice of Grant, or at such
other address for a party as such party may hereafter designate in writing to the other. Any such
notice shall be deemed to have been duly given if mailed, postage prepaid, addressed as aforesaid.



          (c) Binding Agreement. Subject to the limitations in this Agreement on the
transferability by you of the Award granted herein, this Agreement shall be binding upon and inure
to the benefit of the representatives, executors, successors or beneficiaries of the parties
hereto.



          (d) Governing Law. The interpretation, performance and enforcement of this Agreement
shall be governed by the laws of the State of Delaware and the United States, as applicable,
without reference to the conflict of laws provisions thereof.



2005 Grant

Dairy Group and Corporate





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          (e) Severability. If any provision of this Agreement is declared or found to be
illegal, unenforceable or void, in whole or in part, then the parties shall be relieved of all
obligations arising under such provision, but only to the extent that it is illegal, unenforceable
or void, it being the intent and agreement of the parties that this Agreement shall be deemed
amended by modifying such provision to the extent necessary to make it legal and enforceable while
preserving its intent or, if that is not possible, by substituting therefor another provision that
is legal and enforceable and achieves the same objectives.



          (f) Interpretation. All section titles and captions in this Agreement are for
convenience only, shall not be deemed part of this Agreement, and in no way shall define, limit,
extend or describe the scope or intent of any provisions of this Agreement.



          (g) Entire Agreement. This Agreement constitutes the entire agreement among the
parties hereto pertaining to the subject matter hereof and supersedes all prior agreements and
understandings pertaining thereto.



          (h) No Waiver. No failure by any party to insist upon the strict performance of any
covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy
consequent upon a breach thereof shall constitute waiver of any such breach or any other covenant,
duty, agreement or condition.



          (i) Counterparts. This Agreement may be executed in counterparts, all of which
together shall constitute one agreement binding on all the parties hereto, notwithstanding that all
such parties are not signatories to the original or the same counterpart.



          (j) Relief. In addition to all other rights or remedies available at law or in
equity, the Company shall be entitled to injunctive and other equitable relief to prevent or enjoin
any violation of the provisions of this Agreement.



END OF AGREEMENT




2005 Grant

Dairy Group and Corporate





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