Common use of D&O Indemnification and Insurance Clause in Contracts

D&O Indemnification and Insurance. (a) Buyer agrees that all rights to exculpation, indemnification, advancement of expenses and insurance coverage for liability for actions or omissions occurring on or prior to the Closing Date now existing in favor of each current and former director, manager, officer or employee of the Company Entities and each Person who served as a director, manager, officer, member, trustee or other fiduciary of a pension, benefit or other Employee Plan or another enterprise or Person if such service was at the request or for the benefit of a Company Entity (each, together with such Person’s heirs, executors or administrators, a “D&O Indemnified Party”), as provided in their respective Organizational Documents or in any Contract with any Company Entity, in each case, as in effect as of the date of this Agreement and accurate and complete and correct copies of which have been made available to Buyer prior to the date hereof, shall survive the Closing and shall continue in full force and effect in accordance with the current terms of such Organizational Document or Contract from the Closing Date until the expiration of the applicable statute of limitations with respect to any claims arising out of such acts or omissions. For a period of six years from the Closing Date, Buyer shall cause each Company Entity to maintain in effect the exculpation, indemnification, advancement of expenses and insurance coverage provisions of such Company Entity’s Organizational Documents as in effect immediately prior to the date hereof or in any indemnification agreements of any Company Entity with any D&O Indemnified Party as in effect immediately prior to the date hereof and accurate and complete and correct copies of which have been made available to Buyer prior to the date hereof, and Buyer shall not, and shall cause the Company Entities not to, amend, repeal or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of any D&O Indemnified Party; provided, however, that all rights to exculpation, indemnification, advancement of expenses or insurance coverage in respect of any Legal Proceedings pending or asserted or any claim made within such period shall continue until the disposition of such Legal Proceeding or resolution of such claim. From and after the Closing, Buyer shall cause the Company Entities to honor, in accordance with their respective terms, each of the covenants contained in this Section 5.12. Notwithstanding any provision in this Agreement to the contrary, the Parties hereby acknowledge that one or more of the D&O Indemnified Parties may have certain rights to exculpation, indemnification, advancement of expenses and/or insurance coverage provided by any Affiliate of a Company Stockholder or such D&O Indemnified Party or another Person of which such D&O Indemnified Party is a manager, director, officer, stockholder, member, partner or employee (an “Additional D&O Provider”). The Parties hereby agree that, with respect to any advancement or indemnification obligation owed, at any time, to a D&O Indemnified Party by the Company Entities, the Company Entities (i) are, relative to each Additional D&O Provider, the indemnitors of first resort (i.e., the Company Entities’ obligations to the applicable D&O Indemnified Party under this Agreement and the applicable Company Entity’s Organizational Documents and other applicable agreements are primary, and any duplicative, overlapping or corresponding obligations of an Additional D&O Provider are secondary), (ii) shall be required to make all advances and other payments under this Agreement and the applicable Company Entity’s Organizational Documents or Contracts, and shall be fully liable therefor, without regard to any rights any D&O Indemnified Party may have against any Additional D&O Provider and (iii) irrevocably waive, relinquish and release any such Additional D&O Provider from any and all claims against such Additional D&O Provider for contribution, subrogation or any other recovery of any kind in respect thereof. (b) From and after the Closing, Buyer shall cause each of the Company Entities to, to the fullest extent permitted under applicable Law, indemnify and hold harmless (and advance funds in respect of each of the foregoing, following receipt of any undertakings required by applicable Law) each D&O Indemnified Party against any Loss resulting from, arising out of or otherwise relating to any actual or threatened Legal Proceeding, resulting from, arising out of, or otherwise relating to any action or omission occurring on or prior to the Closing in such D&O Indemnified Party’s capacity as a director, manager, officer or employee of a Company Entity or in such D&O Indemnified Party’s capacity as a director, manager, officer, member, trustee or other fiduciary of a pension or other Benefit Plan or another enterprise or Person at the request or for the benefit of a Company Entity. In the event of any such Legal Proceeding, Buyer shall, and shall cause the Company Entities to, reasonably cooperate with the D&O Indemnified Party in the defense of any Legal Proceeding. (c) The rights of each D&O Indemnified Party under this Agreement shall be in addition to, and not in limitation of, any other rights such Person may have under the Organizational Documents of any Company Entity, any other Contract to which any Company Entity is a party, any applicable Law or otherwise. The provisions of this Section 5.12 shall survive the Closing and expressly are intended to benefit, and are enforceable by, each of the D&O Indemnified Parties, each of whom is an intended third-party beneficiary of this Section 5.12. (d) In the event Buyer, any Company Entity or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving Person in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in either such case, proper provision shall be made so that the successors and assigns of Buyer or such Company Entity, as the case may be, shall assume the obligations set forth in this Section 5.12, including, for the avoidance of doubt, any applicable obligations set forth in Section 6.4 of the Agreement and Plan of Merger among Smart & Final Stores, Inc., First Street Parent, Inc. and First Street Merger Sub, dated as of April 16, 2019, which obligations shall also be assumed by the Surviving Corporation as of the Effective Time.

D&O Indemnification and Insurance. (a) Buyer The Purchaser agrees that all rights to exculpation, indemnification, indemnification and advancement of expenses and insurance coverage for liability for actions or omissions occurring on or prior to the Closing Date now existing in favor of each the current and or former directordirectors, managerofficers or employees, officer or employee as the case may be, of the Company Entities and each Person who served as a director, manager, officer, member, trustee or other fiduciary of a pension, benefit or other Employee Plan or another enterprise or Person if such service was at the request or for the benefit of a Company Entity (each, together with such Person’s heirs, executors or administrators, a “D&O Indemnified Party”), Transferred Companies as provided in their respective Organizational Governing Documents or in any Contract agreement with any a Transferred Company Entity, in each case, as in effect as of the date of this Agreement and accurate and complete and correct copies of which have been made available to Buyer prior to the date hereof, shall survive the Closing and shall continue in full force and effect in accordance with the current terms of such Organizational Document or Contract from the Closing Date until the expiration of the applicable statute of limitations with respect to any claims arising out of such acts or omissionseffect. For a period of six years one (1) year from the Closing Date, Buyer the Purchaser shall cause each Transferred Company Entity to maintain in effect the exculpation, indemnification, indemnification and advancement of expenses and insurance coverage provisions of such Company EntityTransferred Company’s Organizational Governing Documents as applicable, as in effect immediately prior to the date hereof Closing Date or in any indemnification agreements of any such Transferred Company Entity with any D&O Indemnified Party of their current or former respective directors, officers or employees as in effect immediately prior to the date hereof and accurate and complete and correct copies of which have been made available to Buyer prior to the date hereofClosing Date, and Buyer shall not, and the Purchaser shall cause the each Transferred Company Entities to not to, amend, repeal or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of any D&O Indemnified Partyindividuals who at the Closing Date were current or former directors, officers or employees of a Transferred Company; provided, however, that all rights to exculpation, indemnification, indemnification or advancement of expenses or insurance coverage in respect of any Legal Proceedings Claim pending or asserted or any claim made within such period shall continue until the disposition of such Legal Proceeding or resolution of such claim. From and after the Closing, Buyer shall cause the Company Entities to honor, in accordance with their respective terms, each of the covenants contained in this Section 5.12. Notwithstanding any provision in this Agreement to the contrary, the Parties hereby acknowledge that one or more of the D&O Indemnified Parties may have certain rights to exculpation, indemnification, advancement of expenses and/or insurance coverage provided by any Affiliate of a Company Stockholder or such D&O Indemnified Party or another Person of which such D&O Indemnified Party is a manager, director, officer, stockholder, member, partner or employee (an “Additional D&O Provider”). The Parties hereby agree that, with respect to any advancement or indemnification obligation owed, at any time, to a D&O Indemnified Party by the Company Entities, the Company Entities (i) are, relative to each Additional D&O Provider, the indemnitors of first resort (i.e., the Company Entities’ obligations to the applicable D&O Indemnified Party under this Agreement and the applicable Company Entity’s Organizational Documents and other applicable agreements are primary, and any duplicative, overlapping or corresponding obligations of an Additional D&O Provider are secondary), (ii) shall be required to make all advances and other payments under this Agreement and the applicable Company Entity’s Organizational Documents or Contracts, and shall be fully liable therefor, without regard to any rights any D&O Indemnified Party may have against any Additional D&O Provider and (iii) irrevocably waive, relinquish and release any such Additional D&O Provider from any and all claims against such Additional D&O Provider for contribution, subrogation or any other recovery of any kind in respect thereofClaim. (b) From Except as otherwise provided in Section 5.12(e), from and after the ClosingClosing Date, Buyer and with the benefit of the D&O Tail described in Section 5.12(c), the Purchaser shall, and shall cause each of the Company Entities toTransferred Companies, to the fullest extent permitted under applicable Law, to indemnify and hold harmless (and advance funds in respect of each of the foregoing) each current and former director, following receipt officer or employee of any undertakings required by applicable Law) Transferred Company and each person who served as a director, officer, member, trustee or other fiduciary of another corporation, partnership, limited liability company, joint venture, trust, proprietorship or other business entity, pension or other employee benefit plan or enterprise at the request or for the benefit of a Transferred Company (each, together with such person’s heirs, executors or administrators, a “D&O Indemnified Party Party”) against any Loss Damages resulting from, arising out of or otherwise relating with respect to any actual or threatened Legal ProceedingClaim, resulting from, arising out of, or otherwise relating with respect to any action or omission occurring on or prior alleged to the Closing have occurred in such D&O Indemnified Party’s capacity as a director, manager, officer or employee of a Transferred Company Entity or in such D&O Indemnified Party’s capacity as a director, manager, officer, member, trustee or other fiduciary of a another corporation, partnership, limited liability company, joint venture, trust, proprietorship or other business entity, pension or other Benefit Plan employee benefit plan or another enterprise or Person at the request or for the benefit of a Transferred Company Entitybefore the Closing Date (including acts or omissions in connection with such Persons serving as an officer, director, member, trustee or other fiduciary in any entity if such service was at the request or for the benefit of a Transferred Company). In the event of any such Legal ProceedingClaim, Buyer shall, and the Purchaser shall cause the Company Entities to, Transferred Companies to reasonably cooperate with the D&O Indemnified Party in the defense of any Legal Proceedingsuch Claim. (c) The Purchaser may, or may cause each Transferred Company (at the Purchaser’s expense) to, obtain prior to the Closing Date one or more customary “tail” insurance policies (the “D&O Tail”) with respect to runoff directors’ and officers’ liability insurance for the period prior to Closing. Purchaser will be responsible for the payment of the D&O Tail premium as well as all other related expenses, and such premium and other amounts shall not be taken into account in the calculation of the Purchase Price Shares or the Post-Closing Net Adjustment Amount. (d) The rights of each D&O Indemnified Party under this Agreement hereunder shall be in addition to, and not in limitation of, any other rights such Person person may have under the Organizational Governing Documents of any Company Entityeach Transferred Company, any other Contract to which any Company Entity is a partyindemnification arrangement, any applicable Law or otherwise. The provisions of this Section 5.12 shall survive the Closing and expressly are intended to benefit, and are enforceable by, each of the D&O Indemnified Parties, each of whom is an intended third-party beneficiary of this Section 5.12. (de) In Notwithstanding anything in the event Buyerforegoing to the contrary, no current or former director, officer or employee of any Success Subject Company Entity shall be entitled to indemnification pursuant to this Section 5.12 in connection with any Claim (a) resulting from the acts or any omissions of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving Person in such consolidation or merger Seller Parties prior to the Closing Date, or (iib) transfers all with regard to which Purchaser or substantially all of its properties and assets Greenbrook would otherwise be entitled to any Person, then, and in either such case, proper provision shall be made so that the successors and assigns of Buyer or such Company Entity, as the case may be, shall assume the obligations set forth in this Section 5.12, including, for the avoidance of doubt, any applicable obligations set forth in Section 6.4 of the Agreement and Plan of Merger among Smart & Final Stores, Inc., First Street Parent, Inc. and First Street Merger Sub, dated as of April 16, 2019, which obligations shall also be assumed indemnified by the Surviving Corporation as of the Effective TimeSeller Parties in accordance with this Agreement.

D&O Indemnification and Insurance. (a) Buyer agrees Parent and Merger Sub agree that all rights provisions as to exculpation, indemnification, advancement of expenses and insurance coverage for liability for actions exculpation by Target or omissions occurring on or prior to the Closing Date any Target Subsidiary now existing in favor of each current and former Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time an officer, director, member, manager, officer employee or employee agent of the Company Entities and Target or a Target Subsidiary (each Person who served as a director, manager, officer, member, trustee or other fiduciary of a pension, benefit or other Employee Plan or another enterprise or Person if such service was at the request or for the benefit of a Company Entity (each, together with such Person’s heirs, executors or administrators, a “D&O Indemnified Party”), ) as provided in their respective Organizational the Charter Documents or in any Contract with any Company Entityof Target and the Target Subsidiaries, in each case, case as in effect as of on the date of this Agreement Agreement, shall be assumed by and accurate be obligations of the Merger Sub, without further action, at the Effective Time (whether or not the Charter Documents of the Surviving Entity provide for different or no such provisions for rights to indemnification, advancement of expenses and complete exculpation of any D&O Indemnified Party) and correct copies of which have been made available to Buyer prior to the date hereof, shall survive the Closing Merger and shall continue remain in full force and effect in accordance with the current their terms of such Organizational Document or Contract from the Closing Date until the expiration of the applicable statute of limitations with respect to any claims arising out of such acts or omissions. For for a period of six (6) years from following the Closing Date, Buyer shall cause each Company Entity to maintain in effect the exculpation, indemnification, advancement of expenses and insurance coverage provisions of such Company Entity’s Organizational Documents as in effect immediately prior to the date hereof or in any indemnification agreements of any Company Entity with any D&O Indemnified Party as in effect immediately prior to the date hereof and accurate and complete and correct copies of which have been made available to Buyer prior to the date hereof, and Buyer shall not, and shall cause the Company Entities not to, amend, repeal or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of any D&O Indemnified Party; provided, however, that all rights to exculpation, indemnification, advancement of expenses or insurance coverage in respect of any Legal Proceedings pending or asserted or any claim made within such period shall continue until the disposition of such Legal Proceeding or resolution of such claim. From and For six years after the Closing, Buyer shall cause the Company Entities to honor, in accordance with their respective terms, each of the covenants contained in this Section 5.12. Notwithstanding any provision in this Agreement to the contrary, the Parties hereby acknowledge that one or more of the D&O Indemnified Parties may have certain rights to exculpation, indemnification, advancement of expenses and/or insurance coverage provided by any Affiliate of a Company Stockholder or such D&O Indemnified Party or another Person of which such D&O Indemnified Party is a manager, director, officer, stockholder, member, partner or employee (an “Additional D&O Provider”). The Parties hereby agree that, with respect to any advancement or indemnification obligation owed, at any time, to a D&O Indemnified Party by the Company Entities, the Company Entities (i) are, relative to each Additional D&O Provider, the indemnitors of first resort (i.e., the Company Entities’ obligations to the applicable D&O Indemnified Party under this Agreement and the applicable Company Entity’s Organizational Documents and other applicable agreements are primary, and any duplicative, overlapping or corresponding obligations of an Additional D&O Provider are secondary), (ii) shall be required to make all advances and other payments under this Agreement and the applicable Company Entity’s Organizational Documents or Contracts, and shall be fully liable therefor, without regard to any rights any D&O Indemnified Party may have against any Additional D&O Provider and (iii) irrevocably waive, relinquish and release any such Additional D&O Provider from any and all claims against such Additional D&O Provider for contribution, subrogation or any other recovery of any kind in respect thereof. (b) From and after the Closing, Buyer shall cause each of the Company Entities toEffective Time, to the fullest extent permitted under applicable Law, indemnify Merger Sub shall indemnify, defend and hold harmless (and advance funds in respect of each of the foregoing, following receipt of any undertakings required by applicable Law) each D&O Indemnified Party Party, and provide for the advancement of expenses and exculpation to such D&O Indemnified Parties, against all losses, claims, damages, liabilities, judgments, costs, expenses (including reasonable attorneys’ fees), fines and settlements in connection with any Loss resulting fromthreatened, pending or completed claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or otherwise relating to any actual or threatened Legal Proceeding, resulting from, arising out of, or otherwise relating pertaining to any action by or omission of such D&O Indemnified Party occurring on or prior to the Closing in such Date (each a “D&O Indemnified Party’s capacity as a director, manager, officer Claim”) whether asserted or employee of a Company Entity or in such D&O Indemnified Party’s capacity as a director, manager, officer, member, trustee or other fiduciary of a pension or other Benefit Plan or another enterprise or Person at the request or for the benefit of a Company Entity. In the event of any such Legal Proceeding, Buyer shall, and shall cause the Company Entities commenced prior to, reasonably cooperate with the D&O Indemnified Party in the defense of any Legal Proceeding. (c) The rights of each D&O Indemnified Party under this Agreement shall be in addition to, and not in limitation of, any other rights such Person may have under the Organizational Documents of any Company Entity, any other Contract to which any Company Entity is a party, any applicable Law on or otherwise. The provisions of this Section 5.12 shall survive after the Closing and expressly are intended Date to benefit, and are enforceable by, each of the D&O Indemnified Parties, each of whom is an intended third-party beneficiary of this Section 5.12. (d) In the event Buyer, any Company Entity fullest extent required or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving Person in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in either such case, proper provision shall be made so that the successors and assigns of Buyer or such Company Entity, as the case may be, shall assume the obligations set forth in this Section 5.12, including, for the avoidance of doubt, any applicable obligations set forth in Section 6.4 of the Agreement and Plan of Merger among Smart & Final Stores, Inc., First Street Parent, Inc. and First Street Merger Sub, dated as of April 16, 2019, which obligations shall also be assumed permitted by the Surviving Corporation as of the Effective TimeIndemnification Provisions.

D&O Indemnification and Insurance. (a) The Buyer agrees that all rights to exculpation, indemnification, advancement of expenses and insurance coverage for liability for actions or omissions occurring on or prior to the Closing Date now existing in favor of each current and former director, manager, officer or employee of the Company Entities and each Person who served as a director, manager, officer, stockholder, member, trustee or other fiduciary of a pension, benefit pension or other Employee Benefit Plan or another enterprise or Person if such service was at the request or for the benefit of a Company Entity (each, together with such Person’s heirs, executors or administrators, a “D&O Indemnified Party”), as provided in their respective Organizational Documents or in any Contract with any Company Entity, in each case, as in effect as of the date of this Agreement and accurate and complete and correct copies of which have been made available to Buyer prior to the date hereof, Entity shall survive the Closing and shall continue in full force and effect in accordance with the current terms of such Organizational Document or Contract from the Closing Date until the expiration of the applicable statute of limitations with respect to any claims arising out of such acts or omissionseffect. For a period of six years from the Closing Date, the Buyer shall cause each Company Entity to maintain in effect the exculpation, indemnification, advancement of expenses and insurance coverage provisions of such Company Entity’s Organizational Documents as in effect immediately prior to the date hereof Closing or in any indemnification agreements of any Company Entity with any D&O Indemnified Party as in effect immediately prior to the date hereof and accurate and complete and correct copies of which have been made available to Buyer prior to the date hereofClosing, and the Buyer shall not, and shall cause the Company Entities not to, amend, repeal or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of any D&O Indemnified Party; provided, however, that all rights to exculpation, indemnification, advancement of expenses or insurance coverage in respect of any Legal Proceedings pending or asserted or any claim made within such period shall continue until the disposition of such Legal Proceeding or resolution of such claim. From and after the Closing, the Buyer shall cause the Company Entities to honor, in accordance with their respective terms, each of the covenants contained in this Section ‎Section 5.12. Notwithstanding any provision in this Agreement to the contrary, the Parties hereby acknowledge that one or more of the D&O Indemnified Parties may have certain rights to exculpation, indemnification, advancement of expenses and/or insurance coverage provided by any Affiliate of a Company Stockholder or such D&O Indemnified Party or another Person of which such D&O Indemnified Party is a manager, director, officer, stockholder, member, partner or employee (an “Additional D&O Provider”). The Parties hereby agree that, with respect to any advancement or indemnification obligation owed, at any time, to a D&O Indemnified Party by the Company Entities, the Company Entities (i) are, relative to each Additional D&O Provider, the indemnitors of first resort (i.e., the Company Entities’ obligations to the applicable D&O Indemnified Party under this Agreement and the applicable Company Entity’s Organizational Documents and other applicable agreements are primary, and any duplicative, overlapping or corresponding obligations of an Additional D&O Provider are secondary), (ii) shall be required to make all advances and other payments under this Agreement and the applicable Company Entity’s Organizational Documents or Contracts, and shall be fully liable therefor, without regard to any rights any D&O Indemnified Party may have against any Additional D&O Provider and (iii) irrevocably waive, relinquish and release any such Additional D&O Provider from any and all claims against such Additional D&O Provider for contribution, subrogation or any other recovery of any kind in respect thereof. (b) From and after the Closing, Buyer shall cause each of the Company Entities to, to the fullest extent permitted under applicable Law, indemnify and hold harmless (and advance funds in respect of each of the foregoing, following receipt of any undertakings required by applicable Law) each D&O Indemnified Party against any Loss resulting from, arising out of or otherwise relating to any actual or threatened Legal Proceeding, resulting from, arising out of, or otherwise relating to any action or omission occurring on or prior to the Closing in such D&O Indemnified Party’s capacity as a director, manager, officer or employee of a Company Entity or in such D&O Indemnified Party’s capacity as a director, manager, officer, member, trustee or other fiduciary of a pension or other Benefit Plan or another enterprise or Person at the request or for the benefit of a Company Entity. In the event of any such Legal Proceeding, Buyer shall, and shall cause the Company Entities to, reasonably cooperate with the D&O Indemnified Party in the defense of any Legal Proceeding. (c) The rights of each D&O Indemnified Party under this Agreement shall be in addition to, and not in limitation of, any other rights such Person may have under the Organizational Documents of any Company Entity, any other Contract to which any Company Entity is a party, any applicable Law or otherwise. The provisions of this Section ‎Section 5.12 shall survive the Closing and expressly are intended to benefit, and are enforceable by, each of the D&O Indemnified Parties, each of whom is an intended third-party beneficiary of this Section ‎Section 5.12. (dc) In the event the Buyer, any Company Entity or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving Person in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in either such case, proper provision shall be made so that the successors and assigns of the Buyer or such Company Entity, as the case may be, shall assume the obligations set forth in this Section ‎Section 5.12, including, for the avoidance of doubt, any applicable obligations set forth in Section 6.4 of the Agreement and Plan of Merger among Smart & Final Stores, Inc., First Street Parent, Inc. and First Street Merger Sub, dated as of April 16, 2019, which obligations shall also be assumed by the Surviving Corporation as of the Effective Time.

D&O Indemnification and Insurance. (a) Buyer The Purchaser agrees that all rights to exculpation, indemnification, advancement of expenses and insurance coverage exculpation from liabilities for liability for actions acts or omissions occurring on or prior to the Closing Date now existing in favor of each current and former director, manager, officer or employee favour of the Company Entities and each Person who served as a director, manager, officer, member, trustee current or other fiduciary of a pension, benefit former directors or other Employee Plan or another enterprise or Person if such service was at the request or for the benefit of a Company Entity officers (each, together with such Person’s heirs, executors or administrators, a “D&O Indemnified Party”), ) of the Purchased Entity as provided in their respective Organizational its Constating Documents or in any Contract with any Company Entity, in each case, as in effect as will remain obligations of the date of this Agreement Purchased Entity and accurate and complete and correct copies of which have been made available to Buyer prior to the date hereof, shall survive the Closing and shall will continue in full force and effect in accordance with the current their terms of such Organizational Document or Contract from the Closing Date until the expiration of the applicable statute of limitations with respect to any claims arising out of such acts or omissions. For for a period of not less than six years from the Closing DateClosing. (b) Prior to the Closing, Buyer the Sellers shall cause each Company the Purchased Entity to maintain in effect obtain and fully pay for customary “tail” coverage with reputable and financially sound carriers or otherwise, directors’ and officers’ and corporate liability insurance, fiduciary liability insurance and employment practices liability insurance covering the exculpationD&O Indemnified Parties providing benefits, indemnificationterms, advancement conditions, retentions and levels of expenses and insurance coverage provisions of that are at least as favorable to any beneficiary as such Company Entity’s Organizational Documents as in effect immediately existing policies held by the Purchased Entity prior to the date hereof or in any indemnification agreements Closing. The Sellers shall bear the costs of any Company Entity with any D&O Indemnified Party as in effect immediately such “tail” policy, and such costs, if for whatever reason not paid prior to the date hereof Closing, shall be included in the determination of Closing Working Capital as a Current Liability. The Purchaser shall cause the Purchased Entity to perform at the expense of the Sellers all obligations of the Purchased Entity, if any, under all such “tail” insurance policies and accurate and complete and correct copies of which have been made available to Buyer prior to the date hereof, and Buyer shall not, not (and shall cause the Company Entities Purchased Entity not to, amend, repeal ) take any action following the Closing to cause such “tail” policy to be cancelled or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of any D&O Indemnified Partyprovision therein to be amended or waived; provided, howeverthat neither the Purchaser, that all rights Purchased Entity nor any Affiliate thereof shall be obligated to exculpation, indemnification, advancement of expenses pay any premiums or insurance coverage other amounts in respect of any Legal Proceedings pending such policy. (c) The provisions of this Section 6.12 are intended to be for the benefit of, and will be enforceable by, each D&O Indemnified Party and his or asserted or any claim made within such period shall continue until the disposition of such Legal Proceeding or resolution of such claimher heirs and representatives. From and after the Closing, Buyer the Purchaser shall cause the Company Entities Purchased Entity to honorpay or cause to be paid (as incurred) all expenses, including reasonable fees and expenses of counsel, that a D&O Indemnified Party may incur in accordance with their respective terms, each of enforcing the covenants contained indemnity and other obligations provided for in this Section 5.12. Notwithstanding any provision in this Agreement 6.12 (subject to the contrary, the Parties hereby acknowledge that one or more of the D&O Indemnified Parties may have certain rights to exculpation, indemnification, advancement of expenses and/or insurance coverage provided by any Affiliate of a Company Stockholder or such D&O Indemnified Party or another Person of which reimbursement if such D&O Indemnified Party is a manager, director, officer, stockholder, member, partner or employee (an “Additional D&O Provider”). The Parties hereby agree that, with respect subsequently determined not to any advancement or be entitled to indemnification obligation owed, at any time, to a D&O Indemnified Party by the Company Entities, the Company Entities (i) are, relative to each Additional D&O Provider, the indemnitors of first resort (i.e., the Company Entities’ obligations to the applicable D&O Indemnified Party under this Agreement and the applicable Company Entity’s Organizational Documents and other applicable agreements are primary, and any duplicative, overlapping or corresponding obligations of an Additional D&O Provider are secondarySection 6.12), (ii) shall be required to make all advances and other payments under this Agreement and the applicable Company Entity’s Organizational Documents or Contracts, and shall be fully liable therefor, without regard to any rights any D&O Indemnified Party may have against any Additional D&O Provider and (iii) irrevocably waive, relinquish and release any such Additional D&O Provider from any and all claims against such Additional D&O Provider for contribution, subrogation or any other recovery of any kind in respect thereof. (b) From and after the Closing, Buyer shall cause each of the Company Entities to, to the fullest extent permitted under applicable Law, indemnify and hold harmless (and advance funds in respect of each of the foregoing, following receipt of any undertakings required by applicable Law) each D&O Indemnified Party against any Loss resulting from, arising out of or otherwise relating to any actual or threatened Legal Proceeding, resulting from, arising out of, or otherwise relating to any action or omission occurring on or prior to the Closing in such D&O Indemnified Party’s capacity as a director, manager, officer or employee of a Company Entity or in such D&O Indemnified Party’s capacity as a director, manager, officer, member, trustee or other fiduciary of a pension or other Benefit Plan or another enterprise or Person at the request or for the benefit of a Company Entity. In the event of any such Legal Proceeding, Buyer shall, and shall cause the Company Entities to, reasonably cooperate with the D&O Indemnified Party in the defense of any Legal Proceeding. (c) The rights of each D&O Indemnified Party under this Agreement shall be in addition to, and not in limitation of, any other rights such Person may have under the Organizational Documents of any Company Entity, any other Contract to which any Company Entity is a party, any applicable Law or otherwise. The provisions of this Section 5.12 shall survive the Closing and expressly are intended to benefit, and are enforceable by, each of the D&O Indemnified Parties, each of whom is an intended third-party beneficiary of this Section 5.12. (d) In the event Buyer, any Company Entity or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving Person in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in either such case, proper provision shall be made so that the successors and assigns of Buyer or such Company Entity, as the case may be, shall assume the obligations set forth in this Section 5.12, including, for the avoidance of doubt, any applicable obligations set forth in Section 6.4 of the Agreement and Plan of Merger among Smart & Final Stores, Inc., First Street Parent, Inc. and First Street Merger Sub, dated as of April 16, 2019, which obligations shall also be assumed by the Surviving Corporation as of the Effective Time.

D&O Indemnification and Insurance. (a) The Buyer agrees that all rights to exculpation, indemnification, advancement of expenses and insurance coverage for liability for actions or omissions occurring on or prior to the Closing Date now existing in favor of each current and former director, manager, officer or employee of the Company Entities and each Person who served as a director, manager, officer, stockholder, member, trustee or other fiduciary of a pension, benefit pension or other Employee Benefit Plan or another enterprise or Person if such service was at the request or for the benefit of a Company Entity (each, together with such Person’s heirs, executors or administrators, a “D&O Indemnified Party”), as provided in their respective Organizational Documents or in any Contract with any Company Entity, Entity and disclosed in each case, as in effect as Section 6.12 of the date of this Agreement and accurate and complete and correct copies of which have been made available to Buyer prior to the date hereof, Disclosure Schedule shall survive the Closing and shall continue in full force and effect in accordance with the current terms of such Organizational Document or Contract from the Closing Date until the expiration of the applicable statute of limitations with respect to any claims arising out of such acts or omissionstheir respective terms. For a period of six years from the Closing Date, the Buyer shall cause each Company Entity to maintain in effect the exculpation, indemnification, advancement of expenses and insurance coverage provisions of such Company Entity’s Organizational Documents as in effect immediately prior to the date hereof Closing or in any indemnification agreements of any Company Entity with any D&O Indemnified Party as in effect immediately prior to the date hereof and accurate and complete and correct copies of which have been made available to Buyer prior to the date hereofClosing, and the Buyer shall not, and shall cause the Company Entities not to, amend, repeal or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of any D&O Indemnified Party; provided, however, that all rights to exculpation, indemnification, advancement of expenses or insurance coverage in respect of any Legal Proceedings pending or asserted or any claim made within such period shall continue until the disposition of such Legal Proceeding or resolution of such claim. From and after the Closing, the Buyer shall cause the Company Entities to honor, in accordance with their respective terms, each of the covenants contained in this Section 5.126.12. Notwithstanding any provision in this Agreement to the contrary, the Parties hereby acknowledge that one or more of the D&O Indemnified Parties may have certain rights to exculpation, indemnification, advancement of expenses and/or insurance coverage provided by any Affiliate of a Company Stockholder the Seller or such D&O Indemnified Party or another Person of which such D&O Indemnified Party is a manager, director, officer, stockholder, member, partner or employee (an “Additional D&O Provider”). The Parties hereby agree that, with respect to any advancement or indemnification obligation owed, at any time, to a such D&O Indemnified Party by the Company EntitiesParty, the Company Entities (i) are, relative to each Additional D&O Provider, the indemnitors of first resort (i.e., the Company Entities’ obligations to the applicable D&O Indemnified Party under this Agreement and the applicable Company Entity’s Organizational Documents and other applicable agreements are primary, and any duplicative, overlapping or corresponding obligations of an Additional D&O Provider are secondary), (ii) shall be required to make all advances and other payments under this Agreement and the applicable Company Entity’s Organizational Documents or Contracts, and shall be fully liable therefor, without regard to any rights any D&O Indemnified Party may have against any Additional D&O Provider and (iii) irrevocably waive, relinquish and release any such Additional D&O Provider from any and all claims against such Additional D&O Provider for contribution, subrogation or any other recovery of any kind in respect thereof. (b) From and after At or prior to the Closing, Buyer the Seller shall obtain, or cause each the Company Entities to obtain at the Seller’s expense, effective as of the Closing, a fully-paid, six-year “tail” insurance policy (the “D&O Tail”) with respect to any liability of the directors, managers and officers of the Company Entities to, to the fullest extent permitted under applicable Law, indemnify and hold harmless (and advance funds in respect of each of the foregoing, following receipt of any undertakings required by applicable Law) each D&O Indemnified Party against any Loss resulting from, arising out of or otherwise relating to any actual or threatened Legal Proceeding, resulting from, arising out of, or otherwise relating to any action or omission occurring actions taken in their capacity as such on or prior to the Closing in such D&O Indemnified Party’s capacity as a director, manager, officer or employee of a Company Entity or in such D&O Indemnified Party’s capacity as a director, manager, officer, member, trustee or other fiduciary of a pension or other Benefit Plan or another enterprise or Person at the request or for the benefit of a Company EntityDate. In the event of any such Legal Proceeding, The Buyer shall, and or shall cause the Company Entities to, reasonably cooperate with maintain the D&O Indemnified Party Tail in full force and effect, for its full term, and cause all obligations thereunder to be honored by the defense of any Legal ProceedingBuyer and the Company Entities, as applicable. (c) The rights of each D&O Indemnified Party under this Agreement shall be in addition to, and not in limitation of, any other rights such Person may have under the Organizational Documents of any Company Entity, any other Contract to which any Company Entity is a party, any applicable Law or otherwise. The provisions of this Section 5.12 6.12 shall survive the Closing and expressly are intended to benefit, and are enforceable by, each of the D&O Indemnified Parties, each of whom is an intended third-party beneficiary of this Section 5.126.12. (d) In the event the Buyer, any Company Entity or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving Person in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in either such case, proper provision shall be made so that the successors and assigns of the Buyer or such Company Entity, as the case may be, shall assume the obligations set forth in this Section 5.12, including, for the avoidance of doubt, any applicable obligations set forth in Section 6.4 of the Agreement and Plan of Merger among Smart & Final Stores, Inc., First Street Parent, Inc. and First Street Merger Sub, dated as of April 16, 2019, which obligations shall also be assumed by the Surviving Corporation as of the Effective Time6.12.

D&O Indemnification and Insurance. (a) The Buyer agrees that all rights to exculpation, indemnification, indemnification and advancement of expenses and insurance coverage for liability for actions or omissions occurring on or prior to the Closing Date now existing in favor of each the current and or former directordirectors or officers, manageras the case may be, officer or employee of the Company Entities and each Person who served as a director, manager, officer, member, trustee or other fiduciary of a pension, benefit or other Employee Plan or another enterprise or Person if such service was at the request or for the benefit of a Company any Hostess Entity (each, together with such Personperson’s heirs, executors or administrators, a “D&O Indemnified Party”), as provided in their respective Organizational Documents or in any Contract indemnification agreement with any Company Entity, in each case, as in effect as a Hostess Entity set forth on Section 6.18(a) of the date of this Agreement and accurate and complete and correct copies of which have been made available to Buyer prior to the date hereof, Disclosure Schedule shall survive the Closing and shall continue in full force and effect in accordance with the current terms of such Organizational Document or Contract from the Closing Date until the expiration of the applicable statute of limitations with respect to any claims arising out of such acts or omissionseffect. For a period of six years from the Closing Date, the Buyer shall cause each Company Entity the Hostess Entities to maintain in effect the exculpation, indemnification, indemnification and advancement of expenses and insurance coverage provisions of such Company Hostess Entity’s Organizational Documents as in effect immediately prior to the date hereof Closing Date or in any indemnification agreements of any Company each Hostess Entity with any D&O Indemnified Party as in effect immediately prior to the date hereof and accurate and complete and correct copies of which have been made available to Buyer prior to the date hereofClosing Date, and the Buyer shall notshall, and shall cause the Company Hostess Entities not to, not amend, repeal or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of any D&O Indemnified Party; provided, however, that all rights to exculpation, indemnification, indemnification or advancement of expenses or insurance coverage in respect of any Legal Proceedings pending or asserted or any claim made within such period shall continue until the disposition of such Legal Proceeding or resolution of such claim. From and after the ClosingClosing Date, the Buyer shall cause the Company Hostess Entities to honor, in accordance with their respective terms, each of the covenants contained in this Section 5.12. Notwithstanding any provision in this Agreement 6.18 without limit as to the contrary, the Parties hereby acknowledge that one or more of the D&O Indemnified Parties may have certain rights to exculpation, indemnification, advancement of expenses and/or insurance coverage provided by any Affiliate of a Company Stockholder or such D&O Indemnified Party or another Person of which such D&O Indemnified Party is a manager, director, officer, stockholder, member, partner or employee (an “Additional D&O Provider”). The Parties hereby agree that, with respect to any advancement or indemnification obligation owed, at any time, to a D&O Indemnified Party by the Company Entities, the Company Entities (i) are, relative to each Additional D&O Provider, the indemnitors of first resort (i.e., the Company Entities’ obligations to the applicable D&O Indemnified Party under this Agreement and the applicable Company Entity’s Organizational Documents and other applicable agreements are primary, and any duplicative, overlapping or corresponding obligations of an Additional D&O Provider are secondary), (ii) shall be required to make all advances and other payments under this Agreement and the applicable Company Entity’s Organizational Documents or Contracts, and shall be fully liable therefor, without regard to any rights any D&O Indemnified Party may have against any Additional D&O Provider and (iii) irrevocably waive, relinquish and release any such Additional D&O Provider from any and all claims against such Additional D&O Provider for contribution, subrogation or any other recovery of any kind in respect thereof. (b) From and after the Closing, Buyer The Sellers shall cause each of the Company Hostess Entities to, to the fullest extent permitted under applicable Law, indemnify and hold harmless (and advance funds in respect of each of the foregoing, following receipt of any undertakings required by applicable Law) each D&O Indemnified Party against any Loss resulting from, arising out of or otherwise relating to any actual or threatened Legal Proceeding, resulting from, arising out of, or otherwise relating to any action or omission occurring on or obtain prior to the Closing in such Date fully-paid six-year “tail” insurance policies (the “D&O Indemnified Party’s capacity Tail”) with respect to directors’ and officers’ liability insurance of the type and with the amount of coverage no less favorable than those of the directors’ and officers’ liability insurance maintained as a director, manager, officer or employee of a Company Entity or in such D&O Indemnified Party’s capacity as a director, manager, officer, member, trustee or other fiduciary of a pension or other Benefit Plan or another enterprise or Person at the request or for date hereof by the benefit of a Company Entity. In Hostess Entities (the event of any such Legal Proceeding, Buyer shall“Current Policies”), and with such other terms as are no less favorable in the aggregate than those in the Current Policies. The Buyer shall cause the Company Hostess Entities to, reasonably cooperate with to maintain the D&O Indemnified Party Tail in full force and effect, for its full term, and cause all obligations thereunder to be honored by the defense of Hostess Entities, as applicable, and no other party shall have any Legal Proceedingfurther obligation to purchase or pay for such insurance pursuant to this Section 6.18(b). (c) The rights of each D&O Indemnified Party under this Agreement hereunder shall be in addition to, and not in limitation of, any other rights such Person person may have under the Organizational Documents of any Company Hostess Entity, any other Contract to which any Company Entity is a partyindemnification arrangement, any applicable Law or otherwise. The provisions of this Section 5.12 6.18 shall survive the Closing and expressly are intended to benefit, and are enforceable by, each of the D&O Indemnified Parties, each of whom is an intended third-party beneficiary of this Section 5.126.18. (d) In the event the Buyer, any Company Hostess Entity or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is shall not be the continuing or surviving Person corporation or entity in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in either such case, proper provision shall be made so that the successors and assigns of Buyer or the Buyer, such Company Entity, as the case may be, Hostess Entity shall assume the obligations set forth in this Section 5.12, including, for the avoidance of doubt, any applicable obligations set forth in Section 6.4 of the Agreement and Plan of Merger among Smart & Final Stores, Inc., First Street Parent, Inc. and First Street Merger Sub, dated as of April 16, 2019, which obligations shall also be assumed by the Surviving Corporation as of the Effective Time6.18.

D&O Indemnification and Insurance. (a) Buyer The Purchaser agrees that all rights to exculpation, indemnification, indemnification and advancement of expenses and insurance coverage for liability for actions or omissions occurring on or prior to the Closing Date now existing in favor of each the current and or former directordirectors, managerofficers or employees, officer or employee as the case may be, of the Company Entities and each Person who served as a director, manager, officer, member, trustee or other fiduciary of a pension, benefit or other Employee Plan or another enterprise or Person if such service was at the request or for the benefit of a Company Entity (each, together with such Person’s heirs, executors or administrators, a “D&O Indemnified Party”), Transferred Companies as provided in their respective Organizational Governing Documents or in any Contract agreement with any a Transferred Company Entity, in each case, as in effect as of the date of this Agreement and accurate and complete and correct copies of which have been made available to Buyer prior to the date hereof, shall survive the Closing and shall continue in full force and effect in accordance with the current terms of such Organizational Document or Contract from the Closing Date until the expiration of the applicable statute of limitations with respect to any claims arising out of such acts or omissionseffect. For a period of six years one (1) year from the Closing Date, Buyer the Purchaser shall cause each Transferred Company Entity to maintain in effect the exculpation, indemnification, indemnification and advancement of expenses and insurance coverage provisions of such Company Entity’s Organizational Transferred Company's Governing Documents as applicable, as in effect immediately prior to the date hereof Closing Date or in any indemnification agreements of any such Transferred Company Entity with any D&O Indemnified Party of their current or former respective directors, officers or employees as in effect immediately prior to the date hereof and accurate and complete and correct copies of which have been made available to Buyer prior to the date hereofClosing Date, and Buyer shall not, and the Purchaser shall cause the each Transferred Company Entities to not to, amend, repeal or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of any D&O Indemnified Partyindividuals who at the Closing Date were current or former directors, officers or employees of a Transferred Company; provided, however, that all rights to exculpation, indemnification, indemnification or advancement of expenses or insurance coverage in respect of any Legal Proceedings Claim pending or asserted or any claim made within such period shall continue until the disposition of such Legal Proceeding or resolution of such claim. From and after the Closing, Buyer shall cause the Company Entities to honor, in accordance with their respective terms, each of the covenants contained in this Section 5.12. Notwithstanding any provision in this Agreement to the contrary, the Parties hereby acknowledge that one or more of the D&O Indemnified Parties may have certain rights to exculpation, indemnification, advancement of expenses and/or insurance coverage provided by any Affiliate of a Company Stockholder or such D&O Indemnified Party or another Person of which such D&O Indemnified Party is a manager, director, officer, stockholder, member, partner or employee (an “Additional D&O Provider”). The Parties hereby agree that, with respect to any advancement or indemnification obligation owed, at any time, to a D&O Indemnified Party by the Company Entities, the Company Entities (i) are, relative to each Additional D&O Provider, the indemnitors of first resort (i.e., the Company Entities’ obligations to the applicable D&O Indemnified Party under this Agreement and the applicable Company Entity’s Organizational Documents and other applicable agreements are primary, and any duplicative, overlapping or corresponding obligations of an Additional D&O Provider are secondary), (ii) shall be required to make all advances and other payments under this Agreement and the applicable Company Entity’s Organizational Documents or Contracts, and shall be fully liable therefor, without regard to any rights any D&O Indemnified Party may have against any Additional D&O Provider and (iii) irrevocably waive, relinquish and release any such Additional D&O Provider from any and all claims against such Additional D&O Provider for contribution, subrogation or any other recovery of any kind in respect thereofClaim. (b) From Except as otherwise provided in Section 5.12(e), from and after the ClosingClosing Date, Buyer and with the benefit of the D&O Tail described in Section 5.12(c), the Purchaser shall, and shall cause each of the Company Entities toTransferred Companies, to the fullest extent permitted under applicable Law, to indemnify and hold harmless (and advance funds in respect of each of the foregoing) each current and former director, following receipt officer or employee of any undertakings required by applicable Law) Transferred Company and each person who served as a director, officer, member, trustee or other fiduciary of another corporation, partnership, limited liability company, joint venture, trust, proprietorship or other business entity, pension or other employee benefit plan or enterprise at the request or for the benefit of a Transferred Company (each, together with such person's heirs, executors or administrators, a "D&O Indemnified Party Party") against any Loss Damages resulting from, arising out of or otherwise relating with respect to any actual or threatened Legal ProceedingClaim, resulting from, arising out of, or otherwise relating with respect to any action or omission occurring on or prior alleged to the Closing have occurred in such D&O Indemnified Party’s 's capacity as a director, manager, officer or employee of a Transferred Company Entity or in such D&O Indemnified Party’s 's capacity as a director, manager, officer, member, trustee or other fiduciary of a another corporation, partnership, limited liability company, joint venture, trust, proprietorship or other business entity, pension or other Benefit Plan employee benefit plan or another enterprise or Person at the request or for the benefit of a Transferred Company Entitybefore the Closing Date (including acts or omissions in connection with such Persons serving as an officer, director, member, trustee or other fiduciary in any entity if such service was at the request or for the benefit of a Transferred Company). In the event of any such Legal ProceedingClaim, Buyer shall, and the Purchaser shall cause the Company Entities to, Transferred Companies to reasonably cooperate with the D&O Indemnified Party in the defense of any Legal Proceedingsuch Claim. (c) The Purchaser may, or may cause each Transferred Company (at the Purchaser's expense) to, obtain prior to the Closing Date one or more customary "tail" insurance policies (the "D&O Tail") with respect to runoff directors' and officers' liability insurance for the period prior to Closing. Purchaser will be responsible for the payment of the D&O Tail premium as well as all other related expenses, and such premium and other amounts shall not be taken into account in the calculation of the Purchase Price Shares or the Post-Closing Net Adjustment Amount. (d) The rights of each D&O Indemnified Party under this Agreement hereunder shall be in addition to, and not in limitation of, any other rights such Person person may have under the Organizational Governing Documents of any Company Entityeach Transferred Company, any other Contract to which any Company Entity is a partyindemnification arrangement, any applicable Law or otherwise. The provisions of this Section 5.12 shall survive the Closing and expressly are intended to benefit, and are enforceable by, each of the D&O Indemnified Parties, each of whom is an intended third-party beneficiary of this Section 5.12. (de) In Notwithstanding anything in the event Buyerforegoing to the contrary, no current or former director, officer or employee of any Success Subject Company Entity shall be entitled to indemnification pursuant to this Section 5.12 in connection with any Claim (a) resulting from the acts or any omissions of their respective successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving Person in such consolidation or merger Seller Parties prior to the Closing Date, or (iib) transfers all with regard to which Purchaser or substantially all of its properties and assets Greenbrook would otherwise be entitled to any Person, then, and in either such case, proper provision shall be made so that the successors and assigns of Buyer or such Company Entity, as the case may be, shall assume the obligations set forth in this Section 5.12, including, for the avoidance of doubt, any applicable obligations set forth in Section 6.4 of the Agreement and Plan of Merger among Smart & Final Stores, Inc., First Street Parent, Inc. and First Street Merger Sub, dated as of April 16, 2019, which obligations shall also be assumed indemnified by the Surviving Corporation as of the Effective TimeSeller Parties in accordance with this Agreement.

D&O Indemnification and Insurance. (a) Buyer agrees that all rights For six years after the Effective Time, Clover shall cause the Surviving Corporation to exculpation, indemnification, advancement indemnify and hold harmless the present (as of expenses the Effective Time) and insurance coverage for liability for actions former officers and directors of each SpinCo Entity (“SpinCo Directors and Officers”) in respect of acts or omissions occurring on at or prior to the Closing Date now existing in favor of each current and former director, manager, officer or employee of the Company Entities and each Person who served as a director, manager, officer, member, trustee or other fiduciary of a pension, benefit or other Employee Plan or another enterprise or Person if such service was at the request or for the benefit of a Company Entity (each, together with such Person’s heirs, executors or administrators, a “D&O Indemnified Party”), as provided in their respective Organizational Documents or in any Contract with any Company Entity, in each case, as in effect as of the date of this Agreement and accurate and complete and correct copies of which have been made available to Buyer prior Effective Time to the date hereof, shall survive fullest extent permitted by the Closing and shall continue in full force and effect in accordance with the current terms of DGCL or any other applicable Law or provided under such Organizational Document or Contract from the Closing Date until the expiration of the applicable statute of limitations with respect to any claims arising out of such acts or omissions. For a period of six years from the Closing Date, Buyer shall cause each Company Entity to maintain in effect the exculpation, indemnification, advancement of expenses and insurance coverage provisions of such Company SpinCo Entity’s Organizational Documents as in effect immediately prior to on the date hereof or (or, in any indemnification agreements the case of any Company a SpinCo Entity with any D&O Indemnified Party as in effect immediately prior to the date hereof and accurate and complete and correct copies of which have been made available to Buyer prior to created after the date hereof, and Buyer shall noton customary terms). (b) For six years after the Effective Time, and Clover shall cause the Company Entities not to, amend, repeal or otherwise modify any such to be maintained in effect provisions in any manner that would adversely affect the rights thereunder each SpinCo Entity’s Organizational Documents regarding elimination of any D&O Indemnified Party; providedliability of directors, however, that all rights to exculpation, indemnification, indemnification of officers and directors and advancement of expenses or insurance coverage to the SpinCo Entities’ respective former and current officers and directors that are no less advantageous to those Persons than the corresponding provisions in respect existence on the date hereof (or, in the case of any Legal Proceedings pending or asserted or any claim made within such period shall continue until the disposition of such Legal Proceeding or resolution of such claim. From and a SpinCo Entity created after the Closingdate hereof, Buyer shall cause the Company Entities to honor, in accordance with their respective on customary terms, each of the covenants ). (c) Notwithstanding anything contained in this Section 5.12. Notwithstanding any provision in this Agreement to the contrary, this Section 7.9 shall survive the Parties hereby acknowledge that one or more consummation of the D&O Indemnified Parties may have certain rights to exculpation, indemnification, advancement of expenses and/or insurance coverage provided by any Affiliate of a Company Stockholder or such D&O Indemnified Party or another Person of which such D&O Indemnified Party is a manager, director, officer, stockholder, member, partner or employee (an “Additional D&O Provider”). The Parties transactions contemplated hereby agree that, with respect to any advancement or indemnification obligation owed, at any time, to a D&O Indemnified Party by the Company Entities, the Company Entities (i) are, relative to each Additional D&O Provider, the indemnitors of first resort (i.e., the Company Entities’ obligations to the applicable D&O Indemnified Party under this Agreement and the applicable Company Entity’s Organizational Documents and other applicable agreements are primary, and any duplicative, overlapping or corresponding obligations of an Additional D&O Provider are secondary), (ii) shall be required to make all advances and other payments under this Agreement and the applicable Company Entity’s Organizational Documents or Contracts, and shall be fully liable therefor, without regard binding on all successors and assigns of Clover and the Surviving Corporation and are intended to any rights any D&O Indemnified Party may have against any Additional D&O Provider and (iii) irrevocably waive, relinquish and release any such Additional D&O Provider from any and all claims against such Additional D&O Provider for contribution, subrogation or any other recovery of any kind in respect thereof. (b) From and after the Closing, Buyer shall cause each of the Company Entities to, to the fullest extent permitted under applicable Law, indemnify and hold harmless (and advance funds in respect of each of the foregoing, following receipt of any undertakings required by applicable Law) each D&O Indemnified Party against any Loss resulting from, arising out of or otherwise relating to any actual or threatened Legal Proceeding, resulting from, arising out of, or otherwise relating to any action or omission occurring on or prior to the Closing in such D&O Indemnified Party’s capacity as a director, manager, officer or employee of a Company Entity or in such D&O Indemnified Party’s capacity as a director, manager, officer, member, trustee or other fiduciary of a pension or other Benefit Plan or another enterprise or Person at the request or be for the benefit of a Company Entity. In the event of any such Legal Proceeding, Buyer shallof, and shall cause the Company Entities to, reasonably cooperate with the D&O Indemnified Party in the defense of any Legal Proceeding. (c) The rights of each D&O Indemnified Party under this Agreement shall will be in addition to, and not in limitation of, any other rights such Person may have under the Organizational Documents of any Company Entity, any other Contract to which any Company Entity is a party, any applicable Law or otherwise. The provisions of this Section 5.12 shall survive the Closing and expressly are intended to benefit, and are enforceable by, each of SpinCo Director and Officer and his or her heirs and representatives. If Clover, the D&O Indemnified Parties, each of whom is an intended third-party beneficiary of this Section 5.12. (d) In the event Buyer, any Company Entity Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is shall not be the continuing or surviving Person in corporation or entity of such consolidation or merger merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in either each such case, proper provision shall be made so that the successors and assigns of Buyer Clover or such Company Entitythe Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 5.12, including, for the avoidance of doubt, any applicable obligations set forth in Section 6.4 of the Agreement and Plan of Merger among Smart & Final Stores, Inc., First Street Parent, Inc. and First Street Merger Sub, dated as of April 16, 2019, which obligations shall also be assumed by the Surviving Corporation as of the Effective Time7.9.