DEAN FOODS COMPANY 2007 NONQUALIFIED STOCK OPTION AGREEMENT
EXHIBIT
10.12
XXXX FOODS COMPANY
2007 NONQUALIFIED STOCK OPTION AGREEMENT
2007 NONQUALIFIED 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 (the “Participant”).
WITNESSETH:
WHEREAS, the Board of Directors of the Company has adopted and approved the Xxxx Foods Company
Eighth Amended and Restated 1997 Stock Option and Restricted Stock Plan (the “Plan”), which
was approved as required by the Company’s stockholders and provides for the grant of Options and
Restricted Stock 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 Restricted Stock 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 the Participant to participate in the Plan and has awarded
the Nonqualified Option described in this Agreement (the “Option”) to the Participant; 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 the Participant 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 the Participant, 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”). The Participant hereby
accepts the Option from the Company.
2. Vesting. The shares of Common Stock subject to the Option shall vest ratably 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 shares of Common Stock
subject to the Options shall also be subject to the following vesting provisions:
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(a) Each unvested share of Common Stock subject to the Option shall immediately vest in full
upon the death of the Participant;
(b) Each share of Common Stock subject to the Option shall immediately vest in full upon a
Change in Control;
(c) Each unvested share subject to this Option shall immediately vest in full upon the
permanent and total disability (as defined within the meaning of Section 22(e)(3) of the Code) of
the Participant; and
(d) In the event of the Qualifying Retirement of the Participant, all unvested shares subject
to this Option shall automatically vest in full as of the effective date of the Participant’s
Qualifying Retirement.
3. Exercise. In order to exercise the Option with respect to any vested portion, the
Participant shall 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. At the time of exercise, the Participant shall pay to the Company the Exercise
Price times the number of vested shares as to which the Option is being exercised. The Option will
not be deemed to be exercised and shares will not be issued until the applicable Exercise Price is
received by the Company. The Participant shall make such payment in cash, check or wire transfer
or, at the discretion of the Committee, in shares of Common Stock already owned by the Participant.
If the shares to be purchased are covered by an effective registration statement under the
Securities Act of 1933, as amended (the “Act”), the Option may be exercised by a
broker-dealer acting on behalf of the Participant if (a) the broker-dealer has received from the
Company confirmation of the existence and validity of the Option to be exercised, and the Company
has received instructions from the Participant requesting the Company to deliver the shares of
Common Stock subject to such option to the broker-dealer on behalf of the Participant and
specifying the account into which such shares should be deposited, (b) adequate provision has been
made with respect to the payment of any withholding taxes due upon such exercise, and (c) the
broker-dealer and the Participant have otherwise complied with Section 220.3(e)(4) of Regulation T,
12 CFR Part 220, or any successor provision, and any other applicable regulations.
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 any termination of the
Participant’s employment with the Company or any Subsidiary or at such later date as may be
determined by the Compensation Committee for any reason other than death, Qualifying Retirement or
permanent and total disability, or (c) 12 months following the date the Participant ceases to be an
employee of the Company or a Subsidiary, if such cessation of service is due to the death or
permanent and total disability of the Participant. Options held by Participant upon his or her
Qualifying Retirement will remain exercisable until the earlier of (i) the tenth anniversary of the
Date of Grant, and (ii) the first anniversary of the Participant’s death. Upon the death of
Participant, any vested Option exercisable on the date of death may be exercised by
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the Participant’s estate or by a person who acquires the right to exercise such Option by bequest
or inheritance or by reason of the death of Participant, provided that such exercise occurs within
the shorter of the remaining option term of the Option and twelve months after the date of the
Participant’s death. Notwithstanding any provision of the Plan or this Agreement to the contrary,
Participant may not, under any circumstances, exercise a vested Option following termination of
employment if Participant is discharged due to Participant’s (i) willful failure to perform
substantially his or her employment-related 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 the Company; (iii) conviction of, or entering a plea of guilty or nolo contendere to, a crime
constituting a felony; or (iv) material breach of any written covenant or agreement with the
Company or of any material written policy of the Company or the Company’s Code of Ethics.
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 any of the shares of Common Stock subject
hereto.
6. Transfer of Option. The Option is not transferable except in accordance with the
provisions of the Plan.
7. Certain Legal Restrictions. The Company shall not be obligated to sell or issue
any shares of Common Stock upon the exercise of the Option or otherwise unless the issuance and
delivery of such shares shall comply 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 Common Stock may then be listed. As a
condition to the exercise of the Option or the sale by the Company of any additional shares of
Common Stock to the Participant, the Company may require the Participant 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 sell or issue any shares if the Company cannot obtain authority from
the appropriate regulatory bodies deemed by the Company to be necessary to lawfully sell or issue
such shares. In addition, the Company shall have no obligation to the Participant, express or
implied, to list, register or otherwise qualify any of the Participant’s shares of Common Stock.
8. Plan Incorporated. The Participant accepts the 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 the Participant hereby agrees that all right, title and interest to any and all
products, improvements or processes (“Intellectual Property”) whatsoever, discovered,
invented or
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conceived during the course of 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 the
Participant hereby forever waives any and all interest he or she may have in such Intellectual
Property and agrees 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 the Participant to exercise the Option or any part thereof. Nothing contained in this
Agreement shall affect the right of the Company to terminate the Participant at any time, with or
without cause, or shall be deemed to create any rights to employment on the part of the
Participant. 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 the
Participant, 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 the Participant; 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 the Participant nor any person claiming under or
through the Participant shall be or shall have any of the rights or privileges of a stockholder of
the Company 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 the
Participant or such Participant’s 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 the Participant shall be addressed to the
Participant 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 on the
transferability by the Participant of the Option and any shares of Common Stock, this Agreement
shall be binding upon and inure to the benefit of the representatives, executors, successors or
beneficiaries of the parties hereto.
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(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.
(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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