DEAN FOODS COMPANY 2008 NON-QUALIFIED STOCK OPTION AGREEMENT
Exhibit 10.37
XXXX FOODS COMPANY
2008 NON-QUALIFIED STOCK OPTION AGREEMENT
2008 NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT (the “Agreement”), effective as of the date indicated on the Notice of
Grant delivered herewith (the “Notice of Grant”), is made and entered into by and between
Xxxx 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 Xxxx Foods Company
2007 Stock Incentive Plan (the “Plan”), which was approved as required by the Company’s
stockholders and provides for the grant of non-qualified stock options (“Options”) and
other forms of stock-based compensation to certain 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 Options and other Awards provided for under the Plan are intended to comply with
the requirements of Rule 16b-3 under the Securities Exchange Act of 1934, as amended; and
WHEREAS, the Committee has selected you to participate in the Plan and has awarded the Option
described in this Agreement to you; and
WHEREAS, the parties hereto desire to evidence in writing the terms and conditions of the
Option.
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) and to promote the success of the business of the Company and its Subsidiaries, the
parties hereby agree as follows:
1. Grant of Option. The Company hereby grants to you and you hereby accept, effective
as of the date shown on the Notice of Grant (the “Date of Grant”), and on the terms and
subject to the conditions, limitations and restrictions set forth in the Plan and in this
Agreement, an Option to purchase all or any portion of the number of shares shown on the Notice of
Grant for the per share price shown on the Notice of Grant (the “Exercise Price”).
2. Vesting. The Option shall vest ratably with respect to the underlying shares of
Stock in three equal annual increments commencing on the first anniversary of the Date of Grant.
In addition to the vesting provisions contained in the foregoing sentence, the Option shall also be
subject to the following vesting provisions:
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(a) Each unvested Option shall immediately vest in full upon your death;
(b) Each unvested Option shall immediately vest in full upon a Change in Control, as such term
is defined in the Plan;
(c) Each unvested Option shall immediately vest in full upon your Disability; and
(d) In the event of your Retirement, each unvested Option shall automatically vest in full as
of the effective date of such Retirement.
For purposes of this Agreement, “Retirement” shall be defined as your retirement from
employment or other service to the Company or any Subsidiary after you reach the age of 65.
“Disability” shall be defined as your permanent and total disability (within the meaning of Section
22(e)(3) of the Code).
3. Exercise. In order to exercise the Option with respect to any vested portion, you
must notify the Company in writing, either sent to the Corporate Secretary’s attention at the
Company’s principal office or via the internet through E*Trade (the Company’s plan broker) at
xxx.xxxxxx.xxx. No Stock shall be delivered pursuant to any exercise of an Option until payment in
full of the exercise price therefor is received by the Company. At the time of exercise, you must
pay to the Company the exercise price (as set forth on the Notice of Grant) times the number of
vested shares for which the Option is being exercised. Such payment may be made in cash or its
equivalent or, if permitted by the Committee, (i) by exchanging shares of Stock you have owned for
at least six months (or for such greater or lesser period as the Committee may determine from time
to time) and which are not the subject of any pledge or other security interest, (ii) through an
arrangement with a broker approved by the Company whereby payment of the exercise price is
accomplished with the proceeds of the sale of Stock or (iii) by a combination of the foregoing,
provided that the combined value of all cash and cash equivalents and the fair market value of any
Stock tendered to the Company, valued as of the date of such tender, is at least equal to such
exercise price of the portion of the Option being exercised.
4. Expiration of Option. The Option shall expire, and shall not be exercisable with
respect to any vested portion as to which the Option has not been exercised, on the first to occur
of:
(a) the tenth anniversary of the Date of Grant;
(b) 90 days after the effective date of any termination of your employment with the Company or
any Subsidiary or at such later date as may be determined by the Committee for any reason other
than death, Retirement or Disability, or termination for Cause (as defined below);
(c) 12 months following the date you cease to be an employee of the Company or a Subsidiary,
if such cessation of service is due to your death or Disability; or
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(d) the earlier of (i) the tenth anniversary of the Date of Grant, and (ii) the first
anniversary of your death, for any Options you hold upon your Retirement.
Upon your death, any vested Option exercisable on the date of death may be exercised by your
estate or by a person who acquires the right to exercise such Option by bequest or inheritance or
by reason of your death, provided that such exercise occurs within the shorter of the remaining
option term of the Option and twelve months after the date of your death.
Notwithstanding anything to the contrary in the Plan or this Agreement, if your service is
terminated for Cause, then all Options shall terminate and be canceled immediately upon such
termination, regardless of whether such Options are vested or exercisable. Cause is defined as your
(i) willful failure to perform substantially your duties; (ii) willful or serious misconduct that
has caused, or could reasonably be expected to result in, material injury to the business or
reputation of an Employer; (iii) conviction of, or entering a plea of guilty or nolo contendere to,
a crime constituting a felony; (iv) your breach of any written covenant or agreement with an
Employer, any material written policy of your Employer or any Employer’s “code of conduct;” or (v)
your failure to cooperate with an Employer in any internal investigation or administrative,
regulatory or judicial proceeding. In addition, your Service shall be deemed to have terminated
for Cause if, after your Service has terminated (for a reason other than Cause), facts and
circumstances are discovered that would have justified a termination for Cause.
5. Tax Withholding. The Employer shall have the right to deduct from all amounts paid
to you in cash (whether under the Plan or otherwise) any amount required by law to be withheld in
respect of any awards under the Plan as may be necessary in the opinion of the Employer to satisfy
any applicable tax withholding requirements under the laws of any country, state, province, city or
other jurisdiction, including but not limited to income taxes, capital gains taxes, transfer taxes,
and social security contributions that are required by law to be withheld. In the case of payments
of awards in the form of Stock, at the Committee’s discretion, you will be required to either pay
to the Employer the amount of any taxes required to be withheld with respect to such Stock or, in
lieu thereof, the Employer shall have the right to retain (or you may be offered the opportunity to
elect to tender) the number of shares of Stock whose fair market value equals such amount required
to be withheld.
6. Transfer of Option. The Option is not transferable except in accordance with the
provisions of the Plan.
7. Certain Legal Restrictions. The Plan, the granting and exercising of this Option,
and any obligations of the Company under the Plan, shall be subject to all applicable federal,
state and foreign country laws, rules and regulations, and to such approvals by any regulatory or
governmental agency as may be required, and to any rules or regulations of any exchange on which
the Stock is listed. The Company, in its discretion, may postpone the granting and exercising of
this Option, the issuance or delivery of Stock under this Option or any other action permitted
under the Plan to permit the Company, with reasonable diligence, to complete such stock exchange
listing or registration or qualification of such Stock or other required action under any federal,
state or foreign country law, rule or regulation and may require you to make such representations
and furnish such information as it may consider appropriate in connection
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with the issuance or delivery of Stock in compliance with applicable laws, rules and
regulations. The Company shall not be obligated by virtue of any provision of the Plan to
recognize the exercise of this Option or to otherwise sell or issue Stock in violation of any such
laws, rules or regulations, and any postponement of the exercise or settlement of this Option under
this provision shall not extend the term of the Option. Neither the Company nor its directors or
officers shall have any obligation or liability to you with respect to any Option (or Stock
issuable thereunder) that shall lapse because of such postponement.
8. Plan Incorporated. You accept this Option subject to all the provisions of the
Plan, which 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. Except as otherwise set forth in this Agreement, terms defined in the Plan have
the same meanings herein.
9. Assignment of Intellectual Property Rights. In consideration of the granting of
the Option, you hereby agree that all right, title and interest to any and all products,
improvements or processes (“Intellectual Property”) whatsoever, discovered, invented or
conceived during the course of your employment with the Company or any of its Subsidiaries,
relating to the subject matter of the business of the Company or any of its Subsidiaries or which
may be directly or indirectly utilized in connection therewith, are vested in the Company, and you
hereby forever waive any and all interest you may have in such Intellectual Property and agree to
assign such Intellectual Property to the Company. In addition, all writings produced in the course
of work or employment for the Company or any Subsidiary are works produced for hire and the
property of the Company and its Subsidiaries, including any copyrights for those writings.
10. Miscellaneous.
(a) No ISO Treatment. The Option is intended to be a non-qualified stock option under
applicable tax laws, and it is not to be characterized or treated as an incentive stock option
under such laws.
(b) No Guaranteed Employment. The granting of the Option shall impose no obligation
upon you to exercise the Option or any part thereof. Nothing contained in this Agreement shall
affect the right of the Company or Employer to terminate you at any time, with or without cause, or
shall be deemed to create any rights to your employment. The rights and obligations arising under
this Agreement are not intended to and do not affect your employment relationship that otherwise
exists between you and the Company or Employer, 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 you and the Company or Employer; to the extent there is a
conflict between this Agreement and such an employment contract, the employment contract shall
govern and take priority.
(c) No Stockholder Rights. Neither you nor any person claiming under or through you
shall be or shall have any of the rights or privileges of a stockholder of the Company
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in respect of any of the shares issuable upon the exercise of the Option herein unless and
until certificates representing such shares shall have been issued and delivered to you or your
agent.
(d) Notices. Any notice to be given to the Company under the terms of this Agreement
or any delivery of the Option to the Company 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.
(e) Binding Agreement. Subject to the limitations in this Agreement and the Plan on
the transferability by you of the Option and any shares of Stock, this Agreement shall be binding
upon and inure to the benefit of your representatives, executors, successors or beneficiaries.
(f) 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.
(g) 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.
(h) 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.
(i) 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.
(j) 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.
(k) 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.
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(l) 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.
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