Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (“DGCL”) empowers a Delaware corporation to indemnify any persons who were or are, or are threatened to be made, parties to any threatened, pending or completed legal action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation), by reason of the fact that such person is or was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding;
provided, that,
such officer or director acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s best interests, and, for criminal proceedings, had no reasonable cause to believe his conduct was illegal. A Delaware corporation may indemnify officers and directors in an action by or in the right of the corporation under the same conditions, except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation in the performance of his duty. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against the expenses which such officer or director actually and reasonably incurred.
The Registrant’s restated certificate of incorporation, as amended, provides that it shall indemnify its directors and officers to the fullest extent authorized by the DGCL as it exists or as it may be amended to provide broader indemnification rights than previously permitted. However, except for proceedings to enforce rights to indemnification, the Registrant will indemnify a director or officer in connection with a proceeding initiated by the director or officer only if the proceeding was authorized by the Registrant’s board of directors. The Registrant will indemnify the director or officer for expenses incurred in defending any proceeding in advance of final disposition of the proceeding, or “advancement of expenses,” provided that, if required by the DGCL, the Registrant will advance these expenses only if the director or officer delivers an undertaking to repay the amounts advanced if it is ultimately determined by non-appealable judicial decision that the director or officer is not entitled to be indemnified. These rights to indemnification and advancement of expenses are non-exclusive.
As permitted by the DGCL, the Registrant’s restated certificate of incorporation, as amended, provides that directors will not be personally liable to Dean Foods or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability:
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for any breach of the director’s duty of loyalty to Dean Foods or its stockholders,
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for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law,
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under Section 174 of the DGCL (providing for liability of directors for unlawful payment of dividends or unlawful stock purchases or redemptions), or
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for any transaction from which the director derived any improper personal benefit.
The Registrant also maintains insurance coverage relating to certain liabilities of directors and officers.
The Registrant has entered into indemnification agreements with its officers and directors pursuant to which the Registrant has agreed to indemnify such persons to the fullest extent permitted by Delaware law, as the same may be amended from time to time.