exv10w9



 






Exhibit 10.9




EMPLOYMENT AND RELEASE AGREEMENT




     Effective this 7th day of November, 2005, (the “Effective Date”), Dean Foods
Company, together with each of its subsidiaries and affiliates, (hereinafter collectively referred
to as the “Company”) and Barry Fromberg (the “Executive”) agree and represent as follows:



     WHEREAS, the Executive has decided to retire, and the Executive and the Company desire a
smooth transition;



     WHEREAS, the Company and the Executive have agreed on a transition plan to allow the Executive
to complete certain projects and responsibilities for the Company and to allow the Company to begin
searching for Executive’s replacement and the Executive has agreed to remain employed to facilitate
this transition;



     WHEREAS, the Executive has agreed to remain in his position until his successor is selected
and until the Company’s 2005 financial statements are finalized, but in no event later than April
1, 2006.



     WHEREAS, the parties agree and wish to ensure that they have amicably resolved and settled all
possible differences, claims, or matters pertaining to, arising from, or associated with
Executive’s employment with the Company and subsequent retirement;



     THEREFORE, the parties mutually agree to enter into this Employment and Release Agreement (the
“Agreement”) and agree as follows:



     1. Employment



            (a) Employment Term. Subject to the terms and conditions of this Agreement, the
Company agrees to continue to employ the Executive as its Chief Financial Officer, and the
Executive agrees to continue to perform the duties associated with that position diligently and to
the reasonable satisfaction of the Company’s Chief Executive Officer from the Effective Date until
April 1, 2006 (the “Employment Term”). The Executive will devote his full business time, attention
and energies to the business of the Company during the Employment Term. The Executive will report
to the Chief Executive Officer of the Company and will comply with the policies and guidelines
established by the Company from time to time.



            (b) Compensation. During the Employment Term, the Company will pay the Executive at
his current base salary rate of $435,000 per year, payable biweekly or semi-monthly in accordance
with the payroll practices of the Company in effect from time to time. The Executive shall also,
during the Employment Term be eligible to participate in the bonus program the Company makes
available to similarly situated executives from time to time. The Executive’s Target Bonus
percentage under the program shall continue to be 65%. All of the Executive’s compensation under
this Agreement will be subject to deduction and withholding authorized or required by applicable
law. The Executive and the Company agree that, during the Employment



 









 







Term, the Executive will not be eligible for any further equity grants or other new incentive
benefits other than those he currently has a right to receive.



            (c) Executive Benefits. Beginning on the Effective Date and thereafter during the
Employment Term, the Company will provide to the Executive such fringe benefits, perquisites, paid
time off and other benefits that the Company provides to its similarly situated executives. The
Company will reimburse the Executive for reasonable out-of-pocket business expenses incurred and
documented in accordance with the policies of the Company in effect from time to time.



            (d) Termination. During the Employment Term, the Company may terminate this
Agreement only with Cause (as defined below) by giving 15 days written notice of termination to the
Executive. If the Executive voluntarily terminates his employment before April 1, 2006, or the
Company terminates the Executive’s employment with Cause, the Company will have no obligation to
pay the Executive the compensation described in section 4 or any other compensation except as
required by state or federal law.



            (e) “Cause.” “Cause” means the Executive’s (i) willful and intentional material
breach of this Agreement, which results in material injury (monetary or otherwise) to the Company
(ii) willful and intentional misconduct or gross negligence in the performance of, or willful
neglect of, the Executive’s duties, which has caused material injury (monetary or otherwise) to the
Company, (iii) material violation of the Company’s Code of Ethics, or (iv) conviction of, or plea
of nolo contendere to, a felony; provided, however, that no act or omission shall be grounds for a
determination of “Cause” for purposes of this Agreement unless the Board or the Chairman of the
Board provides to the Executive (a) written notice clearly and fully describing the particular acts
or omissions which the Board or the Chairman of the Board reasonably believes in good faith
constitutes “Cause” and (b) an opportunity, within thirty (30) days following his or her receipt of
such notice, to meet in person with the Board or the Chairman of the Board to explain or defend the
alleged acts or omissions relied upon by the Board prior to a final decision by the Board.



     2. Retirement. The parties acknowledge that the Executive will resign his employment and any
officer or director position he holds with the Company or any of its affiliates, effective April 1,
2006 (the “Retirement Date”). After the Retirement Date, the Executive agrees to make himself
available to assist the Company concerning any transition issues that may arise and/or to answer
any questions his successor may have regarding the Company’s financial statements or financial
accounting practices and procedures. As set forth more fully below and in consideration for the
execution of this Agreement, including but not limited to the Executive’s agreement to continue in
his position until the Retirement Date, the Executive’s agreement to assist with transitional
issues after the Retirement Date, the mutual release and waiver of all claims described more fully
in section 9 hereof and the Executive’s agreement to comply with the terms of sections 6 and 7 of
this Agreement, the Executive shall receive payments and consideration described in section 4



     3. Final Paycheck and Paid Time Off and/or Vacation Pay. The Company and the Executive agree
that the Executive shall receive all earned but unpaid salary
and unused paid time off (which includes vacation pay) through the Retirement Date as required
by state law.



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     4. Payments and Other Consideration.



            (a) The Company shall pay and provide the Executive the following amounts and items:




                        (1) Cash Payments. Provided the Executive delivers to the Company a Release and Waiver
in substantially the same form as section 9 below, this Agreement has not been terminated
for Cause by the Company and the Executive has not revoked the Agreement, the Company agrees
to pay and provide the following cash, less applicable taxes required to be withheld and any
authorized deductions, and other consideration, which the Executive acknowledges he is not
otherwise entitled to receive, as follows:




                                    a. October 15, 2006 (2 Years Base Salary) — $870,000




                                    b. October 15, 2006 (2 Years Target Bonus) — $565,500




                                    c. October 15, 2006 (Benefit Advance) — $24,000




                                    d. April 15, 2006 (Payment for Unvested Equity) — All options and stock units
previously granted to the Executive and not yet vested as of April 1, 2006 will be cancelled
on that date. On or before April 15, 2006, the Company will make a cash payment to the
Executive that is intended to compensate the Executive for the value of the stock options
and stock units (“SUs”) that were previously granted and were scheduled to vest at any time
after April 1, 2006 through 2008 (“Unvested SUs”), all as summarized on Schedule A attached
hereto. For unvested options, the amount of such payment will be calculated by multiplying
the difference between the Market Price (as defined below) of the Company’s stock and the
strike price of the associated option, times the number of shares underlying such options.
If the strike price is above the Market Price, no payment will be made for those “under
water” options. For the Unvested SUs scheduled to vest during the period after April 1,
2006 through 2008, the amount of such payment will be equal to the Market Price of the
Company’s stock times the numbers of such Unvested SUs. For purposes of this Agreement, the
Market Price will be the highest closing price of the Company’s common stock during the
thirty (30) trading days through and including March 31, 2006. The parties hereby agree
that for purposes of determining which SUs are scheduled to vest during the period after
April 1, 2006 through 2008, in the event that on or before April 1, 2006, the Stock
Performance Target is achieved under Section 2(b) of the Restricted Stock Unit Award
Agreement for any SU grant, then such all SUs for such grant that are unvested shall be
deemed to vest during the period after April 1, 2006 through 2008.




                                    e. On October 15, 2006, the Company will make a cash payment to the Executive in an
amount equal to three (3) times the amount of the
matching contribution that the Company paid or will pay into the Executive’s 401(k)
account for calendar year 2005.



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                                    f. March 15, 2007 (Pro-rated 2006 Bonus) — The Executive’s pro-rated target bonus for
the 3 months of his employment in 2006 based on the Company’s existing incentive bonus
program. The bonus will be calculated as follows: 2006 Base Salary x Target Bonus
Percentage x Payout Factor x 3/12. The parties understand and acknowledge that the
Executive’s pro-rated 2006 Bonus, if any, will be calculated and paid in the same manner and
fashion as for other similarly situated executive vice presidents of the Company.




                                    g. The Executive will also be eligible to receive payments under the Company’s
Supplemental Executive Retirement Plan for all compensation earned or paid through the
Retirement Date, including all payments to be made in 2007 for compensation earned in 2006.
The Executive will receive supplemental payments in the same manner, and amount and at the
same time as other similarly situated executives.




                        (2)
Equity. The Executive and the Company acknowledge that the options to purchase shares of common stock of the Company and SUs of the Company previously granted to Executive
will continue to vest in accordance with their terms until April 1, 2006. All such options
which are currently vested or which are scheduled to vest before April 1, 2006 may be
exercised in accordance with their terms at any time after such vesting and on or before the
sixtieth (60th) day following the April 1, 2006. The terms of the stock plans and award
agreements will continue to be in effect and are incorporated into this Agreement by
reference. The Company, on behalf of the Executive, will file a Form 4 — Statement of
Changes in Beneficial Ownership of Securities pursuant to Section 16 of the Securities
Exchange Act of 1934, as amended (“Exchange Act”) within two (2) business days of the
cancellation of Executive’s stock options and SUs pursuant to this paragraph 4(a)(1)(d).
The Company, on behalf of the Executive, will also file a Form 4 when appropriate to
indicate that the Executive is no longer a reporting person or “insider” subject to the
obligations of Section 16 of the Exchange Act.




                        (3) Employee Benefits.




                                    a. Health, Vision and Dental Benefits. The Executive’s current health, dental and
vision coverage will terminate effective on the Retirement Date. The Executive may elect
COBRA continuation coverage pursuant to the COBRA materials that have been or will be
provided to Executive by the Company through a third-party service provider under separate
cover.




                                    b. Other Welfare Benefits. The Executive may elect, at the Executive’s own expense,
conversion of any other welfare benefits to the extent such conversion is available to
similarly situated employees of the Company. Executive acknowledges that, following the
Retirement Date, the Executive has no right to continued participation as an employee of the
Company in any Company-sponsored benefit plans, other than as set forth in this Agreement.



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                                    c. Retirement Plans. The Executive shall be deemed fully vested in all Company
sponsored retirement plans as of the Retirement Date. The Executive may make any additional
contributions into any Company-sponsored retirement plan, including any 401(k) plan, prior
to April 1, 2006, and the Company will contribute to any Company-sponsored retirement plan
on Executive’s behalf with respect to any amounts paid to Executive for services performed
on or before the Retirement Date according to the terms of the applicable plan. Executive
understands and agrees that Executive may not make any additional contributions into any
Company-sponsored retirement plan, including any 401(k) plan, nor will the Company
contribute to any Company-sponsored retirement plan on Executive’s behalf with respect to
any amounts paid to Executive other than for services performed on or before the Retirement
Date. Executive acknowledges that Executive’s rights to distributions of funds held on
Executive’s behalf in any Company-sponsored retirement plan, including any non-qualified
deferred compensation plan, will continue to be governed by such plan, with the terms of
such plan or plans incorporated into this Agreement by reference.




                                    d. Executive Stock Purchase Participation. Prior to the Retirement Date, Executive
will be eligible to purchase Company stock through the Company’s Employee Stock Purchase
Plan (“ESPP”). The Executive shall be deemed fully vested in all shares purchased under the
ESPP as of the Retirement Date, including the discounted portion of the purchase price. The
Executive understands and agrees that after the Retirement Date, Executive will not be
eligible to purchase Company stock through the Company’s Employee Stock Purchase Plan
(“ESPP”). Executive acknowledges that Executive’s rights to distribution of any stock
previously purchased under the ESPP will continue to be governed by such plan, with the
terms of such plans incorporated into this Agreement by reference.




                                    e. Annual Physical. The Company will provide Executive with an annual physical
conducted by the Cooper Clinic in 2006 and 2007, such physical to be of the same type and
extent as for other similarly situated executive vice presidents of the Company and at the
Company’s expense.




                                    f. Other Benefits. Executive acknowledges that Executive is waiving Executive’s
rights, if any, to continued participation in any other Company-sponsored benefit plans,
other than as stated in this Agreement. For the avoidance of doubt, through March 31, 2006,
the Executive shall continue to participate in the Company’s Post-2004 Executive Deferred
Compensation Plan and shall receive all contributions under such plan with respect to that
period.



            (b) Executive acknowledges that the cash payments to be paid by the Company pursuant to
subsections 4(a)(1) and 4(a)(2) will be reported to the Internal Revenue Service and other
appropriate taxing authorities as income and will be subject to withholding to the extent required
by law.



            (c) Executive hereby acknowledges that the payments under subsection 4(a)(1) and 4(a)(2) do
not entitle Executive to, and Executive specifically



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waives any rights to, any and all Company vacation, paid-time off, and bonuses including, but
not limited to, holiday, merit, or performance bonuses after the Retirement Date, except as
otherwise provided herein.



            (d) The Executive consents to and agrees that the Company may offset from the payments under
subsections 4(a)(1) and 4(a)(2) any business expenses or other debts owed by the Executive to the
Company that have not been reconciled to the Company’s satisfaction, and the cost of any Company
property that has not been returned by Executive to the Company, as of the date of execution of
this Agreement.



     5. Property of the Company. The Executive hereby agrees to return and will certify that he
has returned any and all computer programs and/or data disks, files, records, or information of any
sort with regard to such confidential information, trade secrets, or any other business of the
Company. The Executive further agrees to return and will certify that Executive has returned all
other property of the Company to the Company, including vehicles or all keys, security passes or
other means of access to the Company’s plants or other facilities. Notwithstanding the foregoing,
the Executive shall be entitled to retain his personal computer, cell phone, Blackberry wireless
device and related equipment.



     6. Nondisparagement. The Company and the Executive agree that neither party will make or
cause to be made any statements, observations or opinions, or communicate any information (whether
oral or written) that disparages or is likely in any way to harm the reputation of the other party.



     7. Restrictive Covenants.



            (a) No solicitation of employees. The Executive agrees that during the term of this Agreement
and for a period of twenty four (24) months following the Retirement Date, the Executive will not,
either directly or indirectly, induce or encourage any employees of Company to terminate their
relationship with Company in order to join any company or enterprise with which the Executive is
affiliated, whether as an employee, consultant, stockholder, director or otherwise, without prior
written consent of the Company’s Chief Executive Officer.



            (b) No solicitation of customers. The Executive agrees that during the term of this Agreement
and for a period of twenty four (24) months following the Retirement Date, the Executive will not:
approach, consult, solicit business from, or contact or otherwise communicate, directly or
indirectly, in any way, with any customer or broker of the Company to convince such customer or
broker to change or alter the customer’s or broker’s existing or prospective contractual terms and
conditions with the Company. The Executive may request that the Company waive this restriction;
however, the Company will have sole discretion as to whether this restrictive covenant will be
waived.



            (c) Nondisclosure and Confidentiality. The Executive covenants not to use or impart to any
other person, corporation, or entity any trade secrets or confidential information that he has
acquired while an employee of the Company, except as may be required by law or judicial process.
The Executive agrees and acknowledges that such matters include, but are not limited to certain
personnel, business, financial, technical and other proprietary information and materials, as well
as



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any sales, marketing, financial data, or strategic planning information that relates to any
business activities of the Company, its subsidiaries and affiliates. The Executive further agrees
that, in the event it appears that he will be compelled by law or judicial process to disclose any
such confidential information to avoid potential liability, he will notify the Company in writing
immediately upon his receipt of a subpoena or other legal process.



     8. Remedies. The Executive acknowledges that the Company is engaged in a highly competitive
business and that the trade secrets and confidential information referred to in section 7 above are
of great significance in the various markets in which it is active. The Executive further agrees
that the restrictions contained in section 7 above are reasonable and necessary in order to protect
the good will and legitimate business interests of the Company and that any violation thereof would
result in irreparable injury to the Company. The Executive further acknowledges and agrees that,
in the event of any violation thereof, the Company shall be authorized and entitled to obtain from
any court of competent jurisdiction temporary, preliminary, and/or permanent injunctive relief as
well as an equitable accounting of all profits and benefits arising out of such violation, which
rights and remedies shall be cumulative and in addition to any other rights or remedies to which
the Company may be entitled. Additionally, in the event that the Executive breaches any of the
covenants and restrictions contained in section 7 of this Agreement, the Company shall have the
right to immediately cease making further payments provided for by this Agreement and shall have
the right to collect the amounts previously paid to the Executive. The Executive agrees that the
exercise of such rights by Company shall not make this Agreement or any release contained herein
void or voidable. In any action to enforce this Agreement, the prevailing party shall be awarded
all reasonable attorney’s fees and costs.



     9. Mutual Release and Waiver of All Claims. The Executive, and for his heirs, executors, and
assigns, does hereby discharge and release the Company, its predecessors and affiliates, including
but not limited to Dean Foods Company, its shareholders, representatives, agents, associates,
servants, employees, attorneys, officers, directors, trustees, successors and assigns, from any and
all liability or responsibility for all grievances, disputes, actions, and claims at law or equity,
sounding in contract or tort, whether under any state or federal statutory or common law, arising
out of or related in any way to the Executive’s employment with and termination from employment
with the Company, including but not limited to claims for wrongful discharge, unlawful
discrimination, retaliation, breach of contract (express or implied), intentional or negligent
infliction of emotional distress, negligence, defamation, duress, fraud, or misrepresentation, any
violation of the Age Discrimination in Employment Act of 1967, Title VII of the Civil Rights Act of
1964, the Employee Retirement Income Security Act of 1974, the Equal Pay Act of 1963, the Family
and Medical Leave Act of 1993, the Fair Labor Standards Act, the Americans with Disabilities Act,
the National Labor Relations Act, the Texas Labor Code, any claim based upon the Dean Foods 401(k)
Plan or deferred compensation plan maintained on behalf of the Company’s employees, the laws of any
state, and all claims under related common law, statutes, and executive orders at the federal,
state and local levels of government, and any claims to any benefits from employment with the
Company, other than those benefits enumerated herein or those benefits to which Executive is
entitled by law. In addition, the Executive represents that no incident has occurred during his
employment with the Company that could form the basis for any claim by his against the Company
for any work-related injury.



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     The Company, for itself, its predecessors, successors and assigns, does hereby discharge and
release the Executive from any and all liability or responsibility for all grievances, disputes,
actions, and claims at law or equity, sounding in contract or tort, and whether under any state or
federal statutory or common law, arising out of or related in any way to the Executive’s employment
with and termination from employment with the Company, including but not limited to claims for
breach of contract (express or implied), intentional or negligent infliction of emotional distress,
negligence, defamation, duress, fraud, or misrepresentation, the laws of any state, and all claims
under related common law, statutes, and executive orders at the federal, state and local levels of
government.



     10. Effect of Release and Waiver. The effect of this Agreement is to waive and release any
and all claims, demands, actions, or causes of action that the Executive and the Company may now or
hereafter have against the other for any liability, whether known or unknown, vicarious,
derivative, or direct. The Executive’s and the Company’s waivers and releases include but are not
limited to any claims for damages (actual or punitive), back wages, future wages, commission
payments, bonuses, reinstatement, accrued vacation leave benefits, past and future employee
benefits (except to which there is vested entitlement or as provided for herein) including
contributions to the Company’s employee benefit plans, compensatory damages, penalties, equitable
relief, attorneys’ fees, costs of court, interest, and any and all other loss, expense, or
detriment of whatever kind resulting from, growing out of, connected with, or related in any way to
the Executive’s employment by the Company or the termination of such employment. This release does
not apply to any claims that may arise after the date the Executive and the Company execute this
Agreement.



     11. Agreement as to Section 409A. Although the Company and the Executive believe that the
payments made and benefits provided pursuant to sections 4(a)(1) and 4(a)(2) of this Agreement will
not be considered to be subject to Section 409A of the Internal Code of 1986, as amended (the
“Code”), the parties agree to cooperate to revise and amend this Agreement in order to satisfy the
Code in order to prevent the imposition of any excise taxes.



     12. No Duplication. There shall be no duplication of severance pay in any manner. In this
regard, the Executive shall not be entitled to benefits or payments hereunder for more than one
position with the Company. If the Executive is entitled to any benefit for termination under any
other plan or policy of the Company or any notice or payment in lieu of any notice of termination
of employment required by federal, state or local law, including but not limited to the Worker
Adjustment and Retraining Notification Act, the severance compensation to which the Executive would
otherwise be entitled under this Agreement shall be reduced by the amount of any such payment in
lieu of notice and in lieu of any such payment due under any such plan or policy of the Company.



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     13. Notice. The Executive understands and agrees that he:



            (a) Has had a full twenty-one (21) days within which to consider this Agreement before
executing it.



            (b) Has carefully read and fully understands all of the provisions of this Agreement.



            (c) Is, through this Agreement, releasing the Company from any and all claims Executive may
have against the Company, including claims under the Age Discrimination in Employment Act of 1967.



            (d) Knowingly and voluntarily agrees to all of the terms set forth in this Agreement.



            (e) Knowingly and voluntarily intends to be legally bound by the same.



            (f) Was advised and hereby is advised in writing to consider the terms of this Agreement and
consult with an attorney of Executive’s choice prior to executing this Agreement.



            (g) Has a full seven (7) days following the execution of this Agreement to revoke this
Agreement and has been and hereby is advised in writing that this Agreement shall not become
effective or enforceable until the revocation period has expired.



            (h) Understands that rights or claims under the Age Discrimination in Employment Act of 1967
(29 U.S.C. § 621, et seq.) that may arise after the date this Agreement is executed are not waived.



     14. Notice. Company understands and agrees that it:



            (a) Has carefully read and fully understands all of the provisions of this Agreement.



            (b) Is, through this Agreement, releasing the Executive from any and all claims Company may
have against the Executive;



            (c) Knowingly and voluntarily agrees to all of the terms set forth in this Agreement.



            (d) Knowingly and voluntarily intends to be legally bound by the same.



            (e) Has consulted with an attorney of Company’s choice prior to executing this Agreement.



     15. Miscellaneous.



            (a) This writing represents the entire agreement and understanding of the parties with respect
to the subject matter hereof and supersedes all prior agreements and understandings of the parties
in connection therewith; it may not be altered or



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amended except by mutual agreement evidenced by a writing signed by both parties and
specifically identified as an amendment to this Agreement. The parties shall continue to be bound
by the Indemnity Agreement, dated as of February 21, 2003, between them, which agreement is hereby
ratified and confirmed.



            (b) Except as specifically provided above, this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, executors, administrators, personal
representatives, successors, and assigns [whether such succession is, in the case of the Company,
direct or indirect by purchase, merger, consolidation, change in control or otherwise].



            (c) The parties, by signing this Agreement, acknowledge that they each have been afforded an
opportunity to review this Agreement with an attorney or other advisers of their choice, that they
have read and understand this Agreement, and that they have signed this Agreement knowingly,
voluntarily, and without any form of duress or coercion.



            (d) By signing below, the parties acknowledge that they have the authority to do so, and such
authority has not been delegated or assigned.



            (e) This Agreement is made pursuant to and shall be governed, construed, and enforced in all
respects and for all purposes in accordance with the laws of the state of Texas without regard to
the law of conflicts.



     16. Signatures and Counterparts. To signify their agreement to the terms of this Agreement,
the parties have executed this Agreement on the dates set forth opposite their signatures. This
Agreement may be executed in counterparts. A facsimile of this Agreement and signatures shall be
as effective as an original.



	 	 	 	 	 
	Executive	 	 
	/s/ Barry Fromberg 
	 	 
	 	 	 
	Barry Fromberg	 	 
	 
	 	 	 	 
	Date:
	 	November 7, 2005 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Company	 	 
	/s/
Robert Dunn 
	 	 
	 	 	 
	Title: 
	 	Senior Vice President-Human
Resources 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Date:
	 	November 7, 2005 	 	 
	 

	 	 	 	 





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ACKNOWLEDGMENT




     I, Barry Fromberg, hereby acknowledge that on November 7, 2005, I received the Release
Agreement (the “Agreement”) for my review and consideration.



     I also acknowledge that the Company has advised me to consult with an attorney before
executing the Agreement, which is a legal document. I understand that I have twenty-one (21) days
from the date above to execute the Agreement. Further, I understand that, should I decide to
execute the Agreement, I may revoke my acceptance of this Agreement within seven (7) days following
the execution and that the release provision and all other provisions of the Agreement will not
become effective or enforceable until the revocation period has expired.



     Finally, I understand that I will be receiving from the Company a notice regarding the
continuation of health, vision, and dental benefits (COBRA notice) and that I must elect
continuation coverage and return my election form to the Company in order to continue such
benefits.



      



      



	 	 	 
	
/s/ Barry Fromberg 

	 	November 7,
2005 
	Barry Fromberg

	 	Date






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ACKNOWLEDGMENT AND WAIVER




     I, Barry Fromberg, as evidenced by my signature below, acknowledge and understand that by
signing the Release Agreement (the “Agreement”) with the Company, sooner than twenty-one (21) days
following my receipt of the Agreement, I am knowingly and voluntarily waiving my right to consider
the Agreement for twenty-one (21) days and accept such lesser time as I utilized. I promise and
guarantee that neither the Company, nor its parent corporation, nor any of its subsidiaries,
affiliates, employees, agents or representatives, induced this waiver of the full twenty-one (21)
day period by fraud, misrepresentation or a threat to withdraw or alter the Agreement before the
expiration of the twenty-one (21) day period.



     I understand that I have until seven (7) days following the date of my signing of the
Agreement to revoke the Agreement by delivering a signed, written revocation to a representative of
the Company’s Human Resources Department.



      



      



	 	 	 
	/s/ Barry Fromberg

	 	November 7, 2005
	 

	 	 
	Barry Fromberg

	 	Date







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Unvested Options




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Shares Vesting	 	 	 	 	 	 	 	 
	Grant Date	 	Type	 	 	2007	 	 	2008	 	 	Total	 	 	Strike Price	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	1/13/2004
	 	ISO	 	 	1,069	 	 	 	 	 	 	 	1,069	 	 	$	26.3199	 	 	 	 	 
	1/13/2004
	 	NQ	 	 	15,597	 	 	 	 	 	 	 	15,597	 	 	$	26.3199	 	 	 	 	 
	1/13/2004
	 	NQ	 	 	2,874	 	 	 	 	 	 	 	2,874	 	 	$	26.3199	 	 	 	 	 
	1/13/2004
	 	ISO	 	 	197	 	 	 	 	 	 	 	197	 	 	$	26.3199	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Sub-total 2004 Grant	 	 	19,737	 	 	 	—	 	 	 	19,737	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	1/7/2005
	 	ISO	 	 	2,093	 	 	 	3,139	 	 	 	5,232	 	 	$	26.8941	 	 	 	 	 
	1/7/2005
	 	NQ	 	 	16,574	 	 	 	15,527	 	 	 	32,101	 	 	$	26.8941	 	 	 	 	 
	1/7/2005
	 	NQ	 	 	3,118	 	 	 	3,119	 	 	 	6,237	 	 	$	26.8941	 	 	 	 	 
	1/7/2005
	 	ISO	 	 	321	 	 	 	322	 	 	 	643	 	 	$	26.8941	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Sub-total 2005 Grant	 	 	22,106	 	 	 	22,107	 	 	 	44,213	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total Unvested Options	 	 	41,843	 	 	 	22,107	 	 	 	63,950	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Unvested SU’s	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	1/13/2004
	 	SU	 	 	3,200	 	 	 	3,200	 	 	 	6,400	 	 	$	—	 	 	 	 	 
	1/13/2004
	 	SU	 	 	590	 	 	 	590	 	 	 	1,180	 	 	$	—	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	1/7/2005
	 	SU	 	 	4,100	 	 	 	4,100	 	 	 	8,200	 	 	$	—	 	 	 	 	 
	1/7/2005
	 	SU	 	 	756	 	 	 	756	 	 	 	1,512	 	 	$	—	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total Unvested SU’s	 	 	8,646	 	 	 	8,646	 	 	 	17,292	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






SU’s Subject to Acceleration




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Accelerated Vesting	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Acceleration	 
	Grant Date	 	Type	 	 	2006	 	 	2007	 	 	Total	 	 	Strike Price	 	 	Target Price	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	1/13/2004
	 	SU	 	 	3,200	 	 	 	 	 	 	 	3,200	 	 	$	—	 	 	$	37.85	 
	1/13/2004
	 	SU	 	 	589	 	 	 	 	 	 	 	589	 	 	$	—	 	 	$	37.85	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	1/7/2005
	 	SU	 	 	 	 	 	 	8,200	 	 	 	8,200	 	 	$	—	 	 	$	38.89	 
	1/7/2005
	 	SU	 	 	 	 	 	 	1,510	 	 	 	1,510	 	 	$	—	 	 	$	38.89	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Total SU’s Subject to Acceleration	 	 	 	 	3,789	 	 	 	9,710	 	 	 	13,499