Common use of Director and Officer Indemnification Clause in Contracts

Director and Officer Indemnification. (a) From and after the Merger Effective Time, the Surviving Corporation shall indemnify the individuals who at or prior to the Merger Effective Time were directors or officers of BellRing, SpinCo or Merger Sub (each, a “D&O Indemnified Person”) with respect to all Losses arising from acts or omissions by them in their capacities as such at any time prior to the Merger Effective Time, to the fullest extent (i) required by the BellRing Charter Documents, SpinCo Charter Documents or SpinCo Subsidiary Charter Documents) as in effect on the date of this Agreement, (ii) required by any indemnification agreement between BellRing, SpinCo or Merger Sub and any such director or officer as in effect on the date hereof or as of the Merger Effective Time or (iii) permitted under applicable Law (the “D&O Indemnified Losses”). Without limiting the generality of the foregoing, the D&O Indemnified Losses shall include reasonable costs of prosecuting a claim under this Section 8.12. For six years after the Merger Effective Time, the Surviving Corporation shall periodically advance or reimburse each D&O Indemnified Person for all reasonable fees and expenses constituting D&O Indemnified Losses as such fees and expenses are incurred; provided that, as a condition to such advancement or reimbursement, such D&O Indemnified Person executes an undertaking pursuant to which such D&O Indemnified Person shall agree to promptly repay to the Surviving Corporation the amount of any such reimbursement if it shall be judicially determined by judgment or order not subject to further appeal or discretionary review that such D&O Indemnified Person is not entitled to be indemnified by the Surviving Corporation in connection with such matter. In the event that the Surviving Corporation sells, transfers or leases all of or substantially all of its assets or is not a surviving corporation in any merger, consolidation or other business combination in which it may enter with any Person, the Surviving Corporation shall, as a condition to any such transaction, cause such purchaser or such surviving corporation, as the case may be, to assume the Surviving Corporation’s obligations under this Section 8.12 upon the consummation of such transaction (unless such obligations are assumed by operation of Law (including by operation of Law in a merger)).

Director and Officer Indemnification. For three (a3) From and years after the Merger Effective TimeClosing Date and, to the extent of the coverage under the D&O Policy, for three (3) additional years thereafter, Parent shall and shall cause the Surviving Corporation shall indemnify to, indemnify, defend and hold harmless each of the individuals who current and former executive officers and directors of the Company and its Subsidiaries (the “D&O Indemnified Parties”) from and against any and all losses, claims, damages, costs, expenses, liabilities or judgments or amounts that are paid in settlement (with Parent’s consent), in each case, to the extent actually and reasonably incurred arising out of, relating to or in connection with any claim, action, suit, proceeding or investigation (a “D&O Proceeding”) by reason of the fact that such person is or was a director or officer of the Company or any of its Subsidiaries, whether pertaining to any matter existing or occurring at or prior to the Merger Effective Time were directors Closing Date and whether asserted or officers of BellRingclaimed prior to, SpinCo or Merger Sub (eachat or after, a “D&O Indemnified Person”) with respect to all Losses arising from acts or omissions by them in their capacities as such at any time prior to the Merger Effective Time, to the fullest extent (i) required by the BellRing Charter Documents, SpinCo Charter Documents or SpinCo Subsidiary Charter Documents) as in effect on the date of this Agreement, (ii) required by any indemnification agreement between BellRing, SpinCo or Merger Sub and any such director or officer as in effect on the date hereof or as of the Merger Effective Time or (iii) permitted under applicable Law Closing Date (the “D&O Indemnified LossesLiabilities”), and advance any documented expenses to the same extent such D&O Indemnified Party is indemnified or has the right to advancement of expenses as of the date of this Agreement by the Company pursuant to the Company’s charter documents and bylaws or pursuant to the terms of the Contracts listed on Schedule 6.22, in each case to the fullest extent permitted under applicable Law. Without limiting the generality foregoing, in the event any such D&O Proceeding is brought against one or more D&O Indemnified Parties after the Closing Date, the D&O Indemnified Party may retain counsel satisfactory to him or her and reasonably satisfactory to Parent, and Parent shall, and shall cause the Surviving Corporation to, pay all reasonable and documented fees and expenses of one (1) such counsel for the D&O Indemnified Parties in the applicable D&O Proceeding to the fullest extent permitted by Law and upon receipt of a reasonable undertaking contemplated by Section 145 of the DGCL. The parties hereto agree that all rights to indemnification hereunder, including provisions relating to advances of expenses incurred in defense of any such action or suit, existing in favor of the D&O Indemnified Parties with respect to matters occurring through the Closing Date shall continue in full force and effect for a period of three (3) years from the Closing Date and, to the extent a D&O Indemnification Liability or a D&O Proceeding is covered by the D&O Policy, for three (3) years thereafter; provided, however, that all rights to indemnification in respect of any D&O Indemnified Liabilities asserted or made following the Closing, within such periods shall continue until the disposition of such D&O Indemnified Liabilities. In furtherance of the foregoing, Parent shall, and shall cause the D&O Indemnified Losses shall include reasonable costs Surviving Corporation, to (i) maintain in full force and effect for a period of prosecuting a claim under this Section 8.12. For six (6) years after the Merger Effective TimeClosing Date a directors and officers insurance policy substantially similar, in the aggregate, to the policy currently maintained by the Company, as disclosed to Parent prior to the date of this Agreement (the “D&O Policy”); provided, however, that Parent and the Surviving Corporation shall periodically advance not be required to expend more than $25,000 in the aggregate, for such premiums for the insurance policies. The obligations of Parent under this Section 6.22 shall not be modified or reimburse each terminated in a manner that adversely affects any D&O Indemnified Person for all reasonable fees and expenses constituting D&O Indemnified Losses as such fees and expenses are incurred; provided that, as a condition to such advancement or reimbursement, Party without the prior written consent of such D&O Indemnified Person executes an undertaking pursuant to which such Party (it being understood and agreed that the D&O Indemnified Person shall agree to promptly repay to the Surviving Corporation the amount Parties are third-party beneficiaries of any such reimbursement if it shall be judicially determined by judgment or order not subject to further appeal or discretionary review that such D&O Indemnified Person is not entitled to be indemnified by the Surviving Corporation in connection with such matter. In the event that the Surviving Corporation sells, transfers or leases all of or substantially all of its assets or is not a surviving corporation in any merger, consolidation or other business combination in which it may enter with any Person, the Surviving Corporation shall, as a condition to any such transaction, cause such purchaser or such surviving corporation, as the case may be, to assume the Surviving Corporation’s obligations under this Section 8.12 upon the consummation of such transaction (unless such obligations are assumed by operation of Law (including by operation of Law in a merger)6.22).

Director and Officer Indemnification. For six (a6) From years from and after the Merger Effective Time, the Surviving Corporation shall indemnify the individuals who at or prior to the Merger Effective Time were directors or officers of BellRing, SpinCo or Merger Sub (each, a “D&O Indemnified Person”) with respect to all Losses arising from acts or omissions by them in their capacities as such at any time prior to the Merger Effective TimeClosing Date, to the fullest extent permitted by applicable Law, Buyer shall, and Buyer shall cause the Surviving Company and the Surviving Company’s Subsidiaries (icollectively, the “Surviving Company Group”) required by to, indemnify and hold harmless the BellRing Charter Documentsofficers, SpinCo Charter Documents managers and directors of any member of the Surviving Company Group who held any such position at any time on or SpinCo Subsidiary Charter Documentsprior to the Closing (collectively, “Indemnified Officers”) as in respect of acts or omission occurring prior to the Closing, and Buyer shall cause the applicable member of the Surviving Company Group to maintain for six (6) years from and after the Closing indemnification provisions in its organizational documents that are no less favorable to the Indemnified Officers than those in effect on the date of this Agreement, (ii) required by any indemnification agreement between BellRing, SpinCo or Merger Sub and any with respect to such director or officer as in effect on the date hereof or as member of the Merger Effective Time or (iii) permitted under applicable Law (Company Group immediately prior to the “D&O Indemnified Losses”)Closing. Without limiting the generality foregoing and in connection therewith, the applicable member of the foregoingSurviving Company Group shall, the D&O Indemnified Losses and Buyer shall include reasonable costs cause such member of prosecuting a claim under this Section 8.12. For six years after the Merger Effective Time, the Surviving Corporation shall Company Group to, periodically advance or reimburse each D&O Indemnified Person Officer for all reasonable fees and expenses constituting D&O Indemnified Losses (including attorney’s fees) as such fees and expenses are incurred; provided thatprovided, as a condition to that such advancement or reimbursement, such D&O Indemnified Person executes an undertaking pursuant to which such D&O Indemnified Person Officer shall agree to promptly repay to the Surviving Corporation the amount of any such reimbursement if it shall be judicially determined by judgment or order not subject to further appeal or discretionary review that such D&O Indemnified Person Officer is not entitled to be indemnified by the Surviving Corporation indemnification in connection with such matter. In Buyer shall cause to be obtained and maintained in effect, for a period of six (6) years after the event Closing, policies of directors’ and officers’ liability insurance protecting the Indemnified Officers with coverage and containing terms and conditions (including with respect to deductible, amount and payment of attorneys’ fees) that are no less favorable than those in existing policies, provided that after the Effective Time, Buyer shall not be required to pay with respect to such insurance policies in respect of any one policy year annual premiums in excess of 300% of the last annual premium paid by the Company prior to the date hereof in respect of the coverage required to be obtained pursuant hereto, but in such case shall purchase as much coverage as reasonably practicable for such amount; and further provided that if the Surviving Corporation sells, transfers or leases all Company purchases a “tail policy” and the same coverage costs more than 500% of or substantially all of its assets or is not a surviving corporation in any merger, consolidation or other business combination in which it may enter with any Personsuch last annual premium, the Surviving Corporation shallCompany shall purchase the maximum amount of coverage that can be obtained for 500% of such last annual premium. Prior to the Closing, as a condition to any such transactionthe Company shall have the right, cause such purchaser or such surviving corporation, as but not the case may beobligation, to assume acquire a six (6) year tail policy for the Surviving Corporationpersons currently covered by the Company’s obligations directors’ and officers’ liability insurance policy, provided that such policy shall be fully paid prior to the Closing and shall be non-cancelable. Notwithstanding any other provision of this Agreement to the contrary, each of the Parties agrees that from and after the Closing Date each Indemnified Officer shall be a third party beneficiary under this Agreement for purposes of enforcing this Section 8.12 upon the consummation of such transaction (unless such obligations are assumed by operation of Law (including by operation of Law in a merger))6.7.

Director and Officer Indemnification. (a) From For six years from and after the Merger Effective Time, the Surviving Corporation shall indemnify the individuals who at or prior to the Merger Effective Time were directors or officers of BellRing, SpinCo or Merger Sub (each, a “D&O Indemnified Person”) with respect to all Losses arising from acts or omissions by them in their capacities as such at any time prior to the Merger Effective TimeClosing, to the fullest extent (i) required permitted by the BellRing Charter DocumentsCompany’s articles of incorporation and bylaws, SpinCo Charter Documents as currently in effect, and applicable Law, the Buyer shall cause the Company to indemnify and hold harmless the officers and directors of the Company who held any such position at any time on or SpinCo Subsidiary Charter Documentsprior to the Closing (collectively, “Indemnified Officers/Directors”) as in respect of acts or omissions (other than illegal acts or acts of fraud) occurring prior to the Closing, and the Buyer shall cause the Company to maintain, for six years from and after the Closing, indemnification provisions in its organizational documents that are no less favorable to the Indemnified Officers/Directors than those in effect on with respect to the Company immediately prior to the date hereof; provided, however, that no indemnification shall be made to any Indemnified Officers/Directors to the extent it is finally determined by a court of this Agreementcompetent jurisdiction that such Indemnified Officer/Director did not, (ii) required by any with respect to the matter subject to indemnification agreement between BellRing, SpinCo hereunder act in good faith and in a manner which he or Merger Sub and any such director she reasonably believed to be in or officer as in effect on not opposed to the date hereof or as best interests of the Merger Effective Time or (iii) permitted under applicable Law (the “D&O Indemnified Losses”)Company. Without limiting the generality of the foregoingforegoing and in connection therewith, the D&O Indemnified Losses Company shall, and the Buyer shall include reasonable costs of prosecuting a claim under this Section 8.12. For six years after cause the Merger Effective TimeCompany to, the Surviving Corporation shall periodically advance or reimburse each D&O Indemnified Person Officer/Director for all reasonable fees and expenses constituting D&O Indemnified Losses of counsel as such fees and expenses are incurredincurred in accordance with the Company’s articles of incorporation and bylaws, as currently in effect, and applicable Law; provided that, as a condition to that such advancement or reimbursement, such D&O Indemnified Person executes an undertaking pursuant to which such D&O Indemnified Person Officer/Director shall agree to promptly repay to the Surviving Corporation the amount of any such reimbursement if it shall be judicially determined by judgment or order not subject to further appeal or discretionary review that such D&O Indemnified Person Officer/Director is not entitled to be indemnified by the Surviving Corporation indemnification in connection with such matter. In The Buyer shall cause to be obtained and maintained in effect, for a period of six years after the event that Closing, policies of directors’ and officers’ liability insurance with an insurance carrier with the Surviving Corporation sells, transfers same or leases all of or substantially all of its assets or is not a surviving corporation in any merger, consolidation or other business combination in which it may enter with any Person, the Surviving Corporation shall, as a condition to any such transaction, cause such purchaser or such surviving corporation, better credit rating as the case may beCompany’s current insurance carrier protecting the Indemnified Officers/Directors with coverages and containing terms and conditions (including with respect to deductible, amount and payment of attorneys’ fees) that are no less favorable than those set forth in the term sheet providing $15 million of liability coverage, dated June 6, 2013, from National Union Fire Insurance Company of Pittsburgh, Pa., provided to assume Buyer prior to the Surviving Corporation’s obligations date hereof. Notwithstanding any other provision of this Agreement to the contrary, each of the Parties agrees that from and after the Closing Date each Indemnified Officer/Director shall be a third party beneficiary under this Agreement for purposes of enforcing this Section 8.12 upon the consummation of such transaction (unless such obligations are assumed by operation of Law (including by operation of Law in a merger))6.11.

Director and Officer Indemnification. (a) From and after the Merger Effective Time, the Surviving Corporation shall indemnify the individuals who at or prior to the Merger Effective Time were directors or officers of BellRing, SpinCo or Merger Sub (each, a “D&O Indemnified Person”) with respect to all Losses arising from acts or omissions by them in their capacities as such at any time prior to the Merger Effective Time, to the fullest extent (i) required by the BellRing Charter Documents, SpinCo Charter Documents or SpinCo Subsidiary Charter Documents) as in effect on the date of this Agreement, (ii) required by any indemnification agreement between BellRing, SpinCo or Merger Sub and any such director or officer as in effect on the date hereof or as of the Merger Effective Time or (iii) permitted under applicable Law (the “D&O Indemnified Losses”). Without limiting the generality of the foregoing, the D&O Indemnified Losses shall include reasonable costs of prosecuting a claim under this Section 8.12. For six years after the Merger Effective Time, the Surviving Corporation shall periodically advance or reimburse each D&O Indemnified Person for all reasonable fees and expenses constituting D&O Indemnified Losses as such fees and expenses are incurred; provided that, as a condition to such advancement or reimbursement, such D&O Indemnified Person executes an undertaking pursuant to which such D&O Indemnified Person shall agree to promptly repay to the Surviving Corporation the amount of any such reimbursement if it shall be judicially determined by judgment or order not subject to further appeal or discretionary review that such D&O Indemnified Person is not entitled to be indemnified by the Surviving Corporation in connection with such matter. In the event that the Surviving Corporation sells, transfers or leases all of or substantially all of its assets or is not a surviving corporation in any merger, consolidation or other business combination in which it may enter with any PersonPurchase Date, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, assume all obligations of the Company to each individual who at the Effective Time is, or any time prior to the Effective Time was, a director or officer of the Company or any of its Subsidiaries (the “Indemnitees”) in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (“Indemnified Liabilities”) as provided in the Company Charter Documents. Without limiting the foregoing, Parent, for a condition period of six (6) years from and after the Effective Time, shall cause the certificate of incorporation and by-laws of the Surviving Corporation to any such transactioncontain provisions no less favorable to the Indemnitees with respect to Indemnified Liabilities than are set forth as of the date of this Agreement in the Company Charter Documents, cause such purchaser or such surviving corporationwhich provisions, as they apply to Indemnified Liabilities, shall not be amended, repealed or otherwise modified in a manner that would adversely affect the case may berights of the Indemnitees with respect to Indemnified Liabilities. On or before the Purchase Date, the Company shall purchase a six (6) year Extended Reporting Provision (Tail) under its current Director’s & Officer’s Liability policy, to assume include Employment Practices Liability and Fiduciary Liability, which will be the sole and exclusive source of funding for the Surviving Corporation’s and its Subsidiaries’ obligations under this Section 8.12 upon to Indemnitees in respect of Indemnified Liabilities. Notwithstanding the consummation foregoing and notwithstanding anything to the contrary set forth in the Company Charter Documents or the above-referenced insurance policies, the Company and/or one or more of such transaction (unless such obligations its Subsidiaries may merge with and into other Persons so long as the rights of the Indemnitees in respect of Indemnified Liabilities are assumed by operation of Law (including by operation of Law in a merger))not adversely affected thereby.

Director and Officer Indemnification. (a) From and Purchaser agrees that after the Merger Effective Time, it shall cause the Surviving Corporation shall to indemnify and hold harmless the individuals who at or prior to present and former officers and directors of the Merger Effective Time were directors or officers of BellRing, SpinCo or Merger Sub Company (each, each a “"Company D&O Indemnified Person”Indemnitee") with respect to all Losses arising from for acts or omissions by them in their capacities capacity as such at any time an officer or director of the Company occurring prior to the Merger Effective Time, Time to the fullest extent (i) required by the BellRing Charter Documentsprovided under, SpinCo Charter Documents or SpinCo Subsidiary Charter Documents) in each case as in effect on as of the date of this Agreement, (i) written agreements with such individuals, copies of which have been provided to Purchaser and which also contain a D&O Indemnity Cap (as defined herein below), and (ii) required by any indemnification agreement between BellRingthe Company's Articles of Incorporation and Bylaws; provided, SpinCo or Merger Sub and any such director or officer as however, in effect on the date hereof or as of the Merger Effective Time or (iii) permitted under applicable Law (the “D&O Indemnified Losses”). Without limiting the generality of the foregoing, the D&O Indemnified Losses shall include reasonable costs of prosecuting a claim under this Section 8.12. For six years after the Merger Effective Time, the Surviving Corporation shall periodically advance or reimburse each D&O Indemnified Person for all reasonable fees and expenses constituting D&O Indemnified Losses as such fees and expenses are incurred; provided that, as a condition to such advancement or reimbursement, such D&O Indemnified Person executes an undertaking pursuant to which such D&O Indemnified Person shall agree to promptly repay to the Surviving Corporation the amount of any such reimbursement if it shall be judicially determined by judgment or order not subject to further appeal or discretionary review that such D&O Indemnified Person is not entitled to be indemnified by the Surviving Corporation in connection with such matter. In the event that the Surviving Corporation sellsis required to indemnify any Company D&O Indemnitee pursuant to this section as a result of and to the extent that such matter constitutes a claim for which Purchaser or the Surviving Corporation is entitled to indemnification for Damages pursuant to Section 8.2(b)(iii) below, transfers then the Surviving Corporation's actual out-of-pocket cost of the indemnification so provided shall be Damages for which Purchaser or leases all of or substantially all of its assets or is not a surviving corporation in any merger, consolidation or other business combination in which it may enter with any Personthe Surviving Corporation shall be entitled to indemnification under Section 8.2(b)(iii). Notwithstanding anything contained herein to the contrary, the Surviving Corporation shallshall only be obligated to indemnify any Company D&O Indemnitee, pursuant to this section, as a condition result of and to any the extent that such transaction, cause such purchaser matter constitutes a claim for which Purchaser or such surviving corporation, as the case may be, to assume the Surviving Corporation’s Corporation is entitled to indemnification for Damages pursuant to Section 8.2(b)(iii) below, up to a maximum of Two Hundred Thousand Dollars ($200,000) (the "D&O Indemnity Cap"). MR. XXX XXX XXXX, IN HIS INDIVIDUAL CAPACITY, HEREBY WAIVES ANY AND ALL RIGHTS TO INDEMNIFICATION, WHETHER PURSUANT TO THE TERMS OF THIS SECTION 7.6, OR UNDER THE COMPANY'S ARTICLES OF INCORPORATION AND BYLAWS, OR AS PROVIDED FOR IN HIS WRITTEN INDEMNITY AGREEMENT OR OTHERWISE, FOR MATTERS WHICH CONSTITUTE A CLAIM FOR WHICH PURCHASER OR THE SURVIVING CORPORATION IS ENTITLED TO INDEMNIFICATION FOR DAMAGES PURSUANT TO SECTION 8.2(B)(III) FOR AMOUNTS IN EXCESS OF THE D&O INDEMNITY CAP. Notwithstanding anything contained herein to the contrary, the Surviving Corporation shall not indemnify any Company D&O Indemnitee for any indemnification obligation of such Company D&O Indemnitee pursuant to the terms of this Agreement (A) for Damages incurred by such Company D&O Indemnitee as a result of their indemnification obligations under as a Shareholder pursuant to Section 8 with respect to breaches of any representation or warranty contained in Section 5 or any covenant of the Company contained herein or (B) breaches of any representation or warranty contained in Section 4 made by such Company D&O Indemnitee in 40 their capacity as a Shareholder. The Company D&O Indemnitees shall be third party beneficiaries for the purposes of enforcing this Section 8.12 upon the consummation of such transaction (unless such obligations are assumed by operation of Law (including by operation of Law in a merger))7.6.

Director and Officer Indemnification. (a) From and after the Merger Effective Time, Buyer and the Surviving Corporation shall, and Buyer shall indemnify cause the individuals who at or prior Surviving Corporation to the Merger Effective Time were directors fullest extent permitted by applicable Law to, indemnify, defend, and hold harmless each person who is now, or officers of BellRing, SpinCo or Merger Sub (each, a “D&O Indemnified Person”) with respect to all Losses arising from acts or omissions by them in their capacities as such has been at any time prior to the Merger date hereof, or who becomes prior to the Effective Time, to the fullest extent (i) required by the BellRing Charter Documents, SpinCo Charter Documents or SpinCo Subsidiary Charter Documents) as in effect on the date of this Agreement, (ii) required by any indemnification agreement between BellRing, SpinCo or Merger Sub and any such a director or officer as in effect on the date hereof or as of the Merger Company or any subsidiary thereof (each an "Indemnified Party" and, collectively, the "Indemnified Parties") against all losses, expenses (including, reasonable attorneys' fees and expenses), claims, damages, costs or liabilities or, subject to the proviso of the next succeeding sentence, amounts paid in settlement, arising out of actions or omissions occurring at or prior to the Effective Time and whether asserted or (iii) permitted under applicable Law (claimed prior to, at or after the “D&O Indemnified Losses”)Effective Time that are in whole or in part based on, or arising out of the fact that such person is or was a director or officer of such Party or a subsidiary of such Party. Without limiting the generality of the foregoing, in the D&O Indemnified Losses shall include reasonable costs event of prosecuting a claim under this Section 8.12. For six years after any such loss, expense, claim, damage, cost or liability (whether or not arising before the Merger Effective Time), (A) Buyer and the Surviving Corporation shall periodically advance or reimburse each D&O Indemnified Person for all pay the reasonable fees and expenses constituting D&O of counsel selected by the Indemnified Losses as such fees Parties, which counsel shall be reasonably satisfactory to the Surviving Corporation, promptly after statements therefor are received and expenses are incurred; provided that, as a condition otherwise advance to such advancement Indemnified Party upon request for reimbursement of documented expenses reasonably incurred, in either case to the extent not prohibited by the Act and upon receipt of any affirmation and undertaking required by the Act, (B) the Surviving Corporation will cooperate in the vigorous defense of any such matter and (C) any determination required to be made in respect of whether an Indemnified Party's conduct complies with the standards set forth under the Act and the Surviving Corporation's articles of incorporation or reimbursement, such D&O Indemnified Person executes an undertaking pursuant to which such D&O Indemnified Person by-laws shall agree to promptly repay be made by independent counsel mutually acceptable to the Surviving Corporation and the amount of any such reimbursement if it shall be judicially determined by judgment or order not subject to further appeal or discretionary review Indemnified Party; provided, however, that such D&O Indemnified Person is not entitled to be indemnified by neither Buyer nor the Surviving Corporation in connection with such mattershall be liable for any settlement effected without their written consent (which consent shall not be unreasonably withheld). In the event that the Surviving Corporation sells, transfers or leases all of or substantially all of its assets or is not a surviving corporation in any merger, consolidation or other business combination in which it may enter with any Person, the Surviving Corporation shall, The Indemnified Parties as a condition group may retain only one law firm in respect of each related matter except to the extent there is, in the opinion of counsel to an Indemnified Party, under applicable standards of professional conduct, a conflict on any such transaction, cause such purchaser significant issue between positions of any two or such surviving corporation, as the case may be, to assume the Surviving Corporation’s obligations under this Section 8.12 upon the consummation of such transaction (unless such obligations are assumed by operation of Law (including by operation of Law in a merger))more Indemnified Parties.

Director and Officer Indemnification. (a) From and after the Merger Effective Time, the Surviving Corporation shall indemnify the individuals who at or prior to the Merger Effective Time were directors or officers of BellRing, SpinCo or Merger Sub (each, a “D&O Indemnified Person”) with respect to all Losses arising from acts or omissions by them in their capacities as such at any time prior to the Merger Effective Time, to the fullest extent (i) required by the BellRing Charter Documents, SpinCo Charter Documents or SpinCo Subsidiary Charter Documents) as in effect on the date of this Agreement, (ii) required by any indemnification agreement between BellRing, SpinCo or Merger Sub and any such director or officer as in effect on the date hereof or as of the Merger Effective Time or (iii) permitted under applicable Law (the “D&O Indemnified Losses”). Without limiting the generality of the foregoing, the D&O Indemnified Losses shall include reasonable costs of prosecuting a claim under this Section 8.12. For six years after the Merger Effective Time, the Surviving Corporation shall periodically advance or reimburse each D&O Indemnified Person for all reasonable fees and expenses constituting D&O Indemnified Losses as such fees and expenses are incurred; provided that, as a condition to such advancement or reimbursement, such D&O Indemnified Person executes an undertaking pursuant to which such D&O Indemnified Person shall agree to promptly repay to the Surviving Corporation the amount of any such reimbursement if it shall be judicially determined by judgment or order not subject to further appeal or discretionary review that such D&O Indemnified Person is not entitled to be indemnified by the Surviving Corporation in connection with such matter. In the event that the Surviving Corporation sells, transfers or leases all of or substantially all of its assets or is not a surviving corporation in any merger, consolidation or other business combination in which it may enter with any PersonPurchase Date, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, assume all obligations of the Company to each individual who at the Effective Time is, or any time prior to the Effective Time was, a director or officer of the Company or any of its Subsidiaries (the "Indemnitees") in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time ("Indemnified Liabilities") as provided in the Company Charter Documents. Without limiting the foregoing, Parent, for a condition period of six (6) years from and after the Effective Time, shall cause the certificate of incorporation and by-laws of the Surviving Corporation to any such transactioncontain provisions no less favorable to the Indemnitees with respect to Indemnified Liabilities than are set forth as of the date of this Agreement in the Company Charter Documents, cause such purchaser or such surviving corporationwhich provisions, as they apply to Indemnified Liabilities, shall not be amended, repealed or otherwise modified in a manner that would adversely affect the case may berights of the Indemnitees with respect to Indemnified Liabilities. On or before the Purchase Date, the Company shall purchase a six (6) year Extended Reporting Provision (Tail) under its current Director's & Officer's Liability policy, to assume include Employment Practices Liability and Fiduciary Liability, which will be the sole and exclusive source of funding for the Surviving Corporation’s 's and its Subsidiaries' obligations under this Section 8.12 upon to Indemnitees in respect of Indemnified Liabilities. Notwithstanding the consummation foregoing and notwithstanding anything to the contrary set forth in the Company Charter Documents or the above-referenced insurance policies, the Company and/or one or more of such transaction (unless such obligations its Subsidiaries may merge with and into other Persons so long as the rights of the Indemnitees in respect of Indemnified Liabilities are assumed by operation of Law (including by operation of Law in a merger))not adversely affected thereby.

Director and Officer Indemnification. (a) From Buyer agrees that all rights to exculpation, indemnification and after advancement of expenses pursuant to the Merger Effective Time, Organizational Documents of the Surviving Corporation shall indemnify the individuals who at Acquired Companies or any indemnification agreement to which any D&O Indemnified Person is party for acts or omissions occurring on or prior to the Merger Effective Time were directors Closing Date, whether (i) asserted or officers claimed prior to, on or after the Closing Date (including in respect of BellRingany matters arising in connection with this Agreement and the transactions contemplated hereby), SpinCo (ii) now existing or Merger Sub (iii) arising prior to Closing, in favor of each Person who is now, or who has been at any time prior to the date hereof, or who becomes prior to the Closing, a director or officer of an Acquired Company (each, a “D&O Indemnified Person”) shall survive the Closing Date and the consummation of the transactions contemplated hereby and remain in full force and effect. For a period of at least six (6) years after the Closing Date, (A) Buyer shall not, and shall not permit any Acquired Company to, amend, repeal or modify any provision in any Acquired Company’s Organizational Documents relating to the exculpation, indemnification or advancement of expenses with respect to all Losses arising from any D&O Indemnified Person in connection with acts or omissions by them in their capacities as such at any time occurring on or prior to the Merger Effective TimeClosing Date, whether asserted or claimed prior to, on or after the Closing Date (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby), unless, and only to the extent, required by applicable Law, it being the intent of the Parties that all such D&O Indemnified Persons shall continue to be entitled to such exculpation, indemnification and advancement of expenses to the fullest extent (i) required permitted by the BellRing Charter Documentsapplicable Law, SpinCo Charter Documents and that no change, modification or SpinCo Subsidiary Charter Documents) as in effect on the date amendment of this Agreement, (ii) required by such documents or arrangements may be made that will adversely affect any indemnification agreement between BellRing, SpinCo or Merger Sub and any such director or officer as in effect on the date hereof or as of the Merger Effective Time or (iii) permitted under applicable Law (the “D&O Indemnified Losses”). Without limiting the generality of the foregoing, the D&O Indemnified Losses shall include reasonable costs of prosecuting a claim under this Section 8.12. For six years after the Merger Effective Time, the Surviving Corporation shall periodically advance or reimburse each D&O Indemnified Person for all reasonable fees and expenses constituting D&O Indemnified Losses as such fees and expenses are incurred; provided that, as a condition to such advancement or reimbursement, such D&O Indemnified Person executes an undertaking pursuant to which Person’s rights thereto without the prior written consent of such D&O Indemnified Person Person, and (B) Buyer shall, and shall agree to promptly repay to cause the Surviving Corporation the amount Acquired Companies to, maintain in full force and effect any indemnification agreements of any such reimbursement if it shall be judicially determined by judgment or order not subject to further appeal or discretionary review that such Acquired Company with any D&O Indemnified Person is not entitled to be indemnified Person. Confidential treatment requested by the Surviving Corporation in connection with such matter. In the event that the Surviving Corporation sells, transfers or leases all registrant for its submission of or substantially all of its assets or is not a surviving corporation in any merger, consolidation or other business combination in which it may enter with any Person, the Surviving Corporation shall, as a condition this draft registration MIC-0680 statement pursuant to any such transaction, cause such purchaser or such surviving corporation, as the case may be, to assume the Surviving Corporation’s obligations under this Section 8.12 upon the consummation of such transaction (unless such obligations are assumed by operation of Law (including by operation of Law in a merger)).Securities and Exchange Commission Rule 83

Director and Officer Indemnification. (a) From and after If the Merger Effective Timeis consummated, then until the sixth (6th) anniversary of the Closing Date, subject to applicable Law, Parent will cause the Surviving Corporation shall Company to fulfill and honor in all respects the obligations of the Company and the Company Bank to its present and former directors and officers (in each case, when acting in such capacity) determined as of immediately prior to the Effective Time (the “D&O Indemnified Persons”) pursuant to the Company Certificate or the Company By-laws or any of the indemnification agreements set forth on Section 7.12(a) of the Company Disclosure Letter between the Company or any of its Subsidiaries and such present or former directors or officers who are parties thereto (in each case, as in effect immediately prior to the Closing, but only with respect to such obligations in effect as of the Execution Date) (the “Company Indemnification Provisions”), to indemnify the individuals who D&O Indemnified Persons against any costs or expenses (including reasonable attorneys’ fees), judgments, losses or damages with respect to claims arising out of acts or omissions occurring at or prior to the Merger Effective Time were directors or officers of BellRing, SpinCo or Merger Sub (each, a “D&O Indemnified Person”) with respect to all Losses arising from acts or omissions by them in their capacities as such at any time that are asserted prior to or after the Merger Effective Time; provided, to that, if the fullest extent (i) required by the BellRing Charter DocumentsCompany Indemnification Provisions provide for advancement of expenses, SpinCo Charter Documents Parent or SpinCo Subsidiary Charter Documents) as in effect on the date of this Agreement, (ii) required by any indemnification agreement between BellRing, SpinCo or Merger Sub and any such director or officer as in effect on the date hereof or as of the Merger Effective Time or (iii) permitted under applicable Law (the “D&O Indemnified Losses”). Without limiting the generality of the foregoing, the D&O Indemnified Losses shall include reasonable costs of prosecuting a claim under this Section 8.12. For six years after the Merger Effective Time, the Surviving Corporation Company shall periodically only advance or reimburse each D&O Indemnified Person for all reasonable fees and expenses constituting D&O Indemnified Losses as such fees and expenses are incurred; provided that, as a condition to such advancement or reimbursement, incurred by such D&O Indemnified Person executes an undertaking pursuant to which if such D&O Indemnified Person shall agree provides an undertaking to promptly repay to the Surviving Corporation the amount of any such reimbursement advances if it shall be judicially is ultimately determined by judgment or order not subject to further appeal or discretionary review that such D&O Indemnified Person is not entitled to be indemnified by indemnification. The Surviving Company shall reasonably cooperate with the D&O Indemnified Person, and the D&O Indemnified Person shall reasonably cooperate with Parent and the Surviving Corporation Company, in connection with such matter. In the event that the Surviving Corporation sells, transfers or leases all defense of or substantially all of its assets or is not a surviving corporation in any merger, consolidation or other business combination in which it may enter with any Person, the Surviving Corporation shall, as a condition to any such transaction, cause such purchaser or such surviving corporation, as the case may be, to assume the Surviving Corporation’s obligations under this Section 8.12 upon the consummation of such transaction (unless such obligations are assumed by operation of Law (including by operation of Law in a merger))claim.

Director and Officer Indemnification. (a) From and after the Merger Effective Time, Acquiror and the Surviving Corporation Company agree that they shall indemnify the individuals who and hold harmless each present and former director and officer of Acquiror, Merger Sub and each Company Entity (each, a “Indemnified Person”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Merger Effective Time were directors Time, whether asserted or officers of BellRingclaimed prior to, SpinCo at or Merger Sub (each, a “D&O Indemnified Person”) with respect to all Losses arising from acts or omissions by them in their capacities as such at any time prior to after the Merger Effective Time, to the fullest extent (i) required by that the BellRing Charter DocumentsAcquiror, SpinCo Charter Documents or SpinCo Subsidiary Charter Documents) as in effect on the date of this Agreement, (ii) required by any indemnification agreement between BellRing, SpinCo or Merger Sub and or any such director or officer as in effect on the date hereof or as of the Merger Effective Time or (iii) permitted under applicable Law (the “D&O Indemnified Losses”). Without limiting the generality of the foregoing, the D&O Indemnified Losses shall include reasonable costs of prosecuting a claim under this Section 8.12. For six years after the Merger Effective Time, the Surviving Corporation shall periodically advance or reimburse each D&O Indemnified Person for all reasonable fees and expenses constituting D&O Indemnified Losses as such fees and expenses are incurred; provided that, as a condition to such advancement or reimbursement, such D&O Indemnified Person executes an undertaking pursuant to which such D&O Indemnified Person shall agree to promptly repay to the Surviving Corporation the amount of any such reimbursement if it shall be judicially determined by judgment or order not subject to further appeal or discretionary review that such D&O Indemnified Person is not entitled to be indemnified by the Surviving Corporation in connection with such matter. In the event that the Surviving Corporation sells, transfers or leases all of or substantially all of its assets or is not a surviving corporation in any merger, consolidation or other business combination in which it may enter with any Person, the Surviving Corporation shall, as a condition to any such transaction, cause such purchaser or such surviving corporationCompany Entity, as the case may be, would have been permitted under applicable Law and their respective Organizational Documents to assume indemnify such Indemnified Person (including the advancing of expenses as incurred to the fullest extent permitted under applicable Law). Without limiting the foregoing, Acquiror shall, and shall cause the Surviving CorporationCompany to, (i) maintain for a period of not less than six (6) years from the Effective Time provisions in its certificate of incorporation, bylaws and other Organizational Documents concerning the indemnification and exoneration (including provisions relating to expense advancement) of officers and directors that are no less favorable to those Indemnified Persons than the provisions in the Company’s obligations under or the Acquiror’s Organizational Documents, as applicable, and (ii) not amend, repeal or otherwise modify such provisions in any respect that would adversely affect the rights of those Persons thereunder, in each case, except as required by Law. Acquiror shall assume, and be liable for, and shall cause the Surviving Company to honor, each of the covenants in this Section 8.12 upon the consummation of such transaction (unless such obligations are assumed by operation of Law (including by operation of Law in a merger))6.10.

Director and Officer Indemnification. (a) From The Merger Agreement provides that Adobe and after the Merger Effective TimePurchaser agree that all rights to indemnification by TubeMogul now existing in favor of each person who is now, the Surviving Corporation shall indemnify the individuals who at or prior to the Merger Effective Time were directors or officers of BellRing, SpinCo or Merger Sub (each, a “D&O Indemnified Person”) with respect to all Losses arising from acts or omissions by them in their capacities as such has been at any time prior to the date of the Merger Effective Time, Agreement or who becomes prior to the fullest extent Effective Time an officer or director of TubeMogul or any of its subsidiaries (i) required each an "Indemnified Party"), with respect to actions or omissions taken by an Indemnified Party prior to the BellRing Charter DocumentsEffective Time in his or her capacity as an officer or director of TubeMogul or any of its subsidiaries, SpinCo Charter Documents as provided in TubeMogul's certificate of incorporation or SpinCo Subsidiary Charter Documents) bylaws, in each case as in effect on the date of this the Merger Agreement, (ii) required by or pursuant to any indemnification agreement between BellRingagreements identified in the disclosure schedule delivered in connection with the Merger Agreement, SpinCo or Merger Sub and any such director or officer in each case as in effect on the date hereof or as of the Merger Agreement, copies of which have been made available to Adobe, including provisions relating to the advancement of expenses incurred in the defense of any action or suit, will survive the Merger and will remain in full force and effect. From the Effective Time or (iii) permitted under applicable Law through the six year anniversary of the date on which the Effective Time occurs, Adobe shall cause the Surviving Corporation to abide by such indemnification obligations to the Indemnified Parties. The Merger Agreement further provides that Adobe shall cause the Surviving Corporation to maintain TubeMogul's officers' and directors' liability insurance policies, in effect on the date of the Merger Agreement (the “"D&O Indemnified Losses”Insurance"). Without limiting the generality , for a period of the foregoing, the D&O Indemnified Losses shall include reasonable costs of prosecuting a claim under this Section 8.12. For six years after the Merger Effective Time, but only to the extent related to actions or omissions prior to the Effective Time; provided that (i) the Surviving Corporation may substitute therefor policies of at least the same coverage and amounts containing terms no less advantageous to such former directors or officers and (ii) such substitution will not result in gaps or lapses of coverage with respect to matters occurring prior to the Effective Time; provided, further, that in no event will Adobe or the Surviving Corporation be required to expend more than an amount per year equal to 300% of current annual premiums paid by TubeMogul for such insurance (the "Maximum Amount") to maintain or procure insurance coverage pursuant to the Merger Agreement; and provided, further, that if the amount of the annual premiums necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, Adobe and the Surviving Corporation shall periodically advance procure and maintain for such six-year period as much coverage as reasonably practicable for the Maximum Amount. Adobe or reimburse each D&O Indemnified Person for all reasonable fees and expenses constituting D&O Indemnified Losses as such fees and expenses are incurred; provided that, as a condition to such advancement or reimbursement, such D&O Indemnified Person executes an undertaking pursuant to which such D&O Indemnified Person shall agree to promptly repay to the Surviving Corporation shall have the amount of any such reimbursement if it shall be judicially determined by judgment or order not subject right to further appeal or discretionary review that such D&O Indemnified Person is not entitled cause coverage to be indemnified extended under the D&O Insurance by obtaining a six-year "tail" policy on terms and conditions no less advantageous than the Surviving Corporation in connection with D&O Insurance, and such matter. In "tail" policy will satisfy the event that provisions of the Surviving Corporation sells, transfers or leases all of or substantially all of its assets or is not a surviving corporation in any merger, consolidation or other business combination in which it may enter with any Person, the Surviving Corporation shall, as a condition to any such transaction, cause such purchaser or such surviving corporation, as the case may be, to assume the Surviving Corporation’s obligations under this Section 8.12 upon the consummation of such transaction (unless such obligations are assumed by operation of Law (including by operation of Law in a merger))Merger Agreement.

Director and Officer Indemnification. (a) From and For a period of six (6) years after the Merger Effective TimeClosing, Purchaser shall, and shall cause each of the Surviving Corporation shall indemnify the individuals who NewCo Entities to, indemnify, defend and hold harmless all Covered Persons for acts, omissions or any other matters occurring or allegedly occurring at or prior to the Merger Effective Time were directors or officers of BellRing, SpinCo or Merger Sub (each, a “D&O Indemnified Person”) with respect to all Losses arising from acts or omissions by them in their capacities as such at any time prior Closing pertaining to the Merger Effective Timefact that he or she is or was a director, officer or manager (as a member of the board of managers) of any NewCo Entity or part of a group of persons or role that is indemnified under the Organizational Documents of any NewCo Entity where required by applicable Law to the fullest extent (i) required by provided under the BellRing Charter Documentsapplicable Organizational Documents of the NewCo Entities, SpinCo Charter Documents or SpinCo Subsidiary Charter Documents) in each case, as in effect on immediately prior to the Closing; provided that, with respect to any NewCo Entity that is not formed as of the date of this Agreement, (ii) required Seller shall provide to Purchaser drafts of the Organizational Documents of such NewCo Entities prior to the formation thereof in connection with the Pre-Closing Restructuring and reasonably consider in good faith any reasonable comments of Purchaser thereto. Any such indemnification under this Section 5.12 shall include advancement of expenses to the fullest extent permitted by any indemnification agreement between BellRingLaw and provided under the applicable Organizational Documents of the NewCo Entities, SpinCo or Merger Sub and any such director or officer in each case, as in effect on immediately prior to the date hereof or as of the Merger Effective Time or (iii) permitted under applicable Law (the “D&O Indemnified Losses”). Without limiting the generality of the foregoingClosing; provided, the D&O Indemnified Losses shall include reasonable costs of prosecuting a claim under this Section 8.12. For six years after the Merger Effective Time, the Surviving Corporation shall periodically advance or reimburse each D&O Indemnified that such Covered Person for all reasonable fees and expenses constituting D&O Indemnified Losses as such fees and to whom expenses are incurred; provided that, as a condition to such advancement or reimbursement, such D&O Indemnified Person executes advanced provides an undertaking pursuant (which shall not require security) to which repay such D&O Indemnified Person shall agree to promptly repay to the Surviving Corporation the amount of any such reimbursement advances if it shall be judicially is ultimately determined by judgment or order not subject to further appeal or discretionary review that such D&O Indemnified Person is not entitled to indemnification. For a period of six (6) years after the Closing, Purchaser shall not, and shall not permit any of the NewCo Entities to, amend, modify or repeal in any way adverse to any Covered Person the exculpation, indemnification, contribution and expense advancement or reimbursement provisions set forth in the applicable Organizational Documents of the NewCo Entities with respect to acts, omissions or any other matters occurring or allegedly occurring at or prior to the Closing. From and after the Closing, Purchaser shall not, and shall cause each of the NewCo Entities not to, settle, compromise or consent to the entry of any Judgment in any Proceeding (in which indemnification could be indemnified sought by the Surviving Corporation in connection with a Covered Person), unless such matter. In the event that the Surviving Corporation sellssettlement, transfers compromise or leases consent includes an unconditional release of such Covered Person from all Liability arising out of or substantially all of its assets or is not a surviving corporation in any merger, consolidation or other business combination in which it may enter with any Person, the Surviving Corporation shall, as a condition relating to any such transaction, cause such purchaser Proceeding or such surviving corporation, as the case may be, to assume the Surviving Corporation’s obligations under this Section 8.12 upon the consummation of such transaction (unless such obligations are assumed by operation of Law (including by operation of Law Covered Person otherwise consents in a merger))writing.

Director and Officer Indemnification. (a) From and after the Merger Effective TimeClosing, Purchaser shall cause the Companies to indemnify, defend and hold harmless the present and former officers and directors of the Companies (collectively, the Surviving Corporation shall indemnify “Embarcadero Indemnified Parties”) against all costs and expenses (including reasonable attorneys’ fees and expenses), judgments, fines, losses, claims, Damages, Liabilities and settlement amounts paid in connection with any Proceeding or investigation (whether arising before or after the individuals who at Closing Date and whether civil, criminal, administrative or prior investigative) arising out of or pertaining to any action or omission in their capacity as an officer or director, in each case occurring before the Closing Date (excluding, to the Merger Effective Time were extent not covered by insurance, claims by any Seller or any beneficiary of a Seller or any other Person against officers and directors or officers of BellRing, SpinCo or Merger Sub (each, a “D&O Indemnified Person”) any Company with respect to all Losses arising from acts or omissions matters as to which Purchaser Indemnitees may be indemnified under Article X, but otherwise including the transactions contemplated by them in their capacities this Agreement), and advance expenses as such at any time prior to the Merger Effective Time, incurred to the fullest extent (i) required permitted by California law but not less than the same extent such Embarcadero Indemnified Parties are indemnified or have the right to advancement of expenses as of the date of this Agreement by the BellRing Charter DocumentsCompanies pursuant to the Organizational Documents of Embarcadero and the Embarcadero Subsidiaries or any other Contract or other agreement, SpinCo Charter Documents or SpinCo Subsidiary Charter Documents) including insurance arrangements, in existence as in effect on of the date of this Agreement, (ii) required provided that any Person to whom expenses are advanced provides an undertaking to repay such advances as contemplated by any indemnification agreement between BellRing, SpinCo or Merger Sub and any such director or officer as in effect on the date hereof or as of the Merger Effective Time or (iii) permitted under applicable Law (the “D&O Indemnified Losses”)Law. Without limiting the generality 45 In furtherance of the foregoing, Purchaser shall cause the D&O Indemnified Losses shall include reasonable costs Company to (i) maintain in full force and effect for a period of prosecuting a claim under this Section 8.12. For six (6) years after the Merger Effective TimeClosing Date the directors and officers insurance policies maintained by the Company as of the Closing and (ii) include and maintain in the Organizational Documents of Embarcadero and the Embarcadero Subsidiaries for a period of six (6) years after the Closing Date provisions regarding the elimination of liability for, and indemnification of, officers and directors and the Surviving Corporation advancement of expenses that are no less advantageous to the intended beneficiaries thereof than the corresponding provisions contained in the Organizational Documents of Embarcadero and the Embarcadero Subsidiaries in existence as of the date of this Agreement; provided, however, that neither Purchaser, Parent nor any Company shall periodically advance be required to expend more than $150,000 per annum, in the aggregate, for the premiums for the insurance policies described in clause (i) of this Section 6.5(a). Purchaser agrees that all rights to indemnification, including provisions relating to advances of expenses incurred in defense of any Proceeding or reimburse each D&O investigation existing in favor of the Embarcadero Indemnified Person for all reasonable fees Parties as provided in the Organizational Documents of Embarcadero and expenses constituting D&O Indemnified Losses as such fees and expenses are incurred; provided thatthe Embarcadero Subsidiaries or any other Contract or agreement, including insurance arrangements, as in effect as of the date hereof, with respect to matters occurring through the Closing, shall survive the Closing and shall continue in full force and effect. The obligations of this Section 6.5(a) shall not be modified or terminated in a condition to manner that adversely affects any Embarcadero Indemnified Party without the written consent of such advancement or reimbursement, such D&O Embarcadero Indemnified Person executes an undertaking pursuant to which such D&O Indemnified Person shall agree to promptly repay to the Surviving Corporation the amount of any such reimbursement if Party (it shall be judicially determined by judgment or order not subject to further appeal or discretionary review that such D&O Indemnified Person is not entitled to be indemnified by the Surviving Corporation in connection with such matter. In the event being understood and agreed that the Surviving Corporation sells, transfers or leases all Embarcadero Indemnified Parties are third-party beneficiaries of or substantially all of its assets or is not a surviving corporation in any merger, consolidation or other business combination in which it may enter with any Person, the Surviving Corporation shall, as a condition to any such transaction, cause such purchaser or such surviving corporation, as the case may be, to assume the Surviving Corporation’s obligations under this Section 8.12 upon the consummation of such transaction (unless such obligations are assumed by operation of Law (including by operation of Law in a merger)6.5).

Director and Officer Indemnification. (a) From and after the Merger Effective Time, Acquiror and the Surviving Corporation Company agree that they shall indemnify the individuals who and hold harmless each present and former director and officer of Acquiror, Merger Sub and each Company Entity (each, a “Indemnified Person”) against any and all costs and expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages and liabilities incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Merger Effective Time were directors Time, whether asserted or officers of BellRingclaimed prior to, SpinCo at or Merger Sub (each, a “D&O Indemnified Person”) with respect to all Losses arising from acts or omissions by them in their capacities as such at any time prior to after the Merger Effective Time, to the fullest extent (i) required by that the BellRing Charter DocumentsAcquiror, SpinCo Charter Documents or SpinCo Subsidiary Charter Documents) as in effect on the date of this Agreement, (ii) required by any indemnification agreement between BellRing, SpinCo or Merger Sub and or any such director or officer as in effect on the date hereof or as of the Merger Effective Time or (iii) permitted under applicable Law (the “D&O Indemnified Losses”). Without limiting the generality of the foregoing, the D&O Indemnified Losses shall include reasonable costs of prosecuting a claim under this Section 8.12. For six years after the Merger Effective Time, the Surviving Corporation shall periodically advance or reimburse each D&O Indemnified Person for all reasonable fees and expenses constituting D&O Indemnified Losses as such fees and expenses are incurred; provided that, as a condition to such advancement or reimbursement, such D&O Indemnified Person executes an undertaking pursuant to which such D&O Indemnified Person shall agree to promptly repay to the Surviving Corporation the amount of any such reimbursement if it shall be judicially determined by judgment or order not subject to further appeal or discretionary review that such D&O Indemnified Person is not entitled to be indemnified by the Surviving Corporation in connection with such matter. In the event that the Surviving Corporation sells, transfers or leases all of or substantially all of its assets or is not a surviving corporation in any merger, consolidation or other business combination in which it may enter with any Person, the Surviving Corporation shall, as a condition to any such transaction, cause such purchaser or such surviving corporationCompany Entity, as the case may be, would have been permitted under applicable Law and their respective Organizational Documents to assume indemnify such Indemnified Person (including the advancing of expenses as incurred to the fullest extent permitted under applicable Law). Without limiting the foregoing, Acquiror shall, and shall cause the Surviving CorporationCompany to, (i) maintain for a period of not less than six (6) years from the Effective Time provisions in its certificate of incorporation, bylaws and other Organizational Documents concerning the indemnification and exoneration (including provisions relating to expense advancement) of officers and directors that are no less favorable to those Indemnified Persons than the provisions in the Company’s obligations under or the Acquiror’s Organizational Documents, as applicable, and (ii) not amend, repeal or otherwise modify such provisions in any respect that would adversely affect the rights of those Persons thereunder, in each case, except as required by Law. Acquiror shall assume, and be liable for, and shall cause the Surviving Company to honor, each of the covenants in this Section 8.12 upon the consummation of such transaction (unless such obligations are assumed by operation of Law (including by operation of Law in a merger))6.10.

Director and Officer Indemnification. (a) From and The Merger Agreement provides that, subject to certain limitations on premiums, for six years after the Merger Effective Time, Parent will, or will cause the Surviving Corporation to, maintain and extend all existing officers’ and directors’ liability insurance of Cerner (or equivalent prepaid “tail” or “runoff” policies obtained prior to the Effective Time) with respect to acts or omissions occurring prior to the Effective Time covering each Person covered as of the date of the Merger Agreement by Cerner’s officers’ and directors’ liability insurance policy on terms with respect to coverage and amount no less favorable than those of such policy in effect as of the date of the Merger Agreement; provided that neither Parent nor Purchaser shall be obligated to pay annual premiums in excess of 250% of the amount Cerner paid for its officers’ and directors’ liability insurance policy. The Merger Agreement provides that, from the Effective Time through the sixth anniversary of the date on which the Effective Time occurred, the Surviving Corporation shall indemnify will, and Parent will cause the individuals who at or prior Surviving Corporation to, fulfill and honor in all respects the obligations of Cerner and its Subsidiaries under: (i) each indemnification agreement disclosed pursuant to the Merger Effective Time were directors Agreement with any person who is now, or officers of BellRing, SpinCo or Merger Sub (each, a “D&O Indemnified Person”) with respect to all Losses arising from acts or omissions by them in their capacities as such has been at any time prior to the date of the Merger Agreement, or who becomes prior to the Effective Time, to a director or officer of Cerner or any of its Subsidiaries (an “Indemnified Party”); and (ii) any advancement or indemnification provision and any exculpation provision set forth in the fullest extent (i) required by the BellRing Charter Documents, SpinCo Charter Documents certificate of incorporation or SpinCo Subsidiary Charter Documents) bylaws of Cerner as in effect on the date of this the Merger Agreement, (ii) required subject in each case to any limitations imposed by any indemnification agreement between BellRing, SpinCo the certificate of incorporation or Merger Sub and any such director or officer bylaws of Cerner as in effect on the date hereof or as of the Merger Effective Time or (iii) permitted Agreement and as imposed from time to time under applicable Law (law. The Merger Agreement provides that the “D&O Indemnified Losses”). Without limiting the generality obligations of the foregoing, the D&O Indemnified Losses shall include reasonable costs of prosecuting a claim under this Section 8.12. For six years after the Merger Effective Time, Parent and the Surviving Corporation shall periodically advance under the provisions of the Merger Agreement which are summarized in this paragraph will not be terminated or reimburse each D&O modified in such a manner as to adversely affect any Indemnified Person for all reasonable fees Party without the written consent of such Indemnified Party and expenses constituting D&O that the Indemnified Losses as such fees Parties will be third-party beneficiaries of those provisions and expenses are incurred; provided that, as a condition to such advancement or reimbursement, such D&O Indemnified Person executes an undertaking pursuant to which such D&O Indemnified Person shall agree to promptly repay to the Surviving Corporation the amount of any such reimbursement if it shall be judicially determined by judgment or order not subject to further appeal or discretionary review that such D&O Indemnified Person is not entitled to be indemnified by enforce the Surviving Corporation covenants contained in connection with such matter. In the event that the Surviving Corporation sells, transfers or leases all of or substantially all of its assets or is not a surviving corporation in any merger, consolidation or other business combination in which it may enter with any Person, the Surviving Corporation shall, as a condition to any such transaction, cause such purchaser or such surviving corporation, as the case may be, to assume the Surviving Corporation’s obligations under this Section 8.12 upon the consummation of such transaction (unless such obligations are assumed by operation of Law (including by operation of Law in a merger))those provisions.

Director and Officer Indemnification. At all times following the Merger, ATS will indemnify all present and former officers and directors of the Company and its Subsidiaries (a“D&O Indemnified Parties”) From and after the Merger Effective Time, the Surviving Corporation shall indemnify the individuals who against any Damages incurred in connection with any claim or Proceeding arising out of or pertaining to matters existing or occurring at or prior to the Merger Effective Time were directors Time, whether asserted or officers of BellRingclaimed prior to, SpinCo at or Merger Sub (each, a “D&O Indemnified Person”) with respect to all Losses arising from acts or omissions by them in their capacities as such at any time prior to after the Merger Effective Time, to the fullest extent (i) required permitted by law, to the BellRing Charter Documentsextent such Damages have not been paid for by insurance, SpinCo Charter Documents or SpinCo Subsidiary Charter Documents) as and shall, in effect on the date connection with defending against any action for which indemnification is available hereunder, promptly reimburse such D&O Indemnified Parties from time to time for any reasonable costs and expenses reasonably incurred by such D&O Indemnified Parties; provided that such reimbursement shall be conditioned upon such D&O Indemnified Parties’ agreement promptly to return such amounts if a court of this Agreement, (ii) required competent jurisdiction shall ultimately determine that indemnification of such D&O Indemnified Parties is prohibited by applicable law. The foregoing rights shall be in addition to any indemnification agreement between BellRing, SpinCo or Merger Sub and rights to which any such director or officer as in effect on the date hereof or as D&O Indemnified Party may be entitled by reason of the Merger Effective Time or (iii) permitted under applicable Law (the “D&O Indemnified Losses”). Without limiting the generality Organizational Documents of the foregoingCompany or any of its Subsidiaries, the D&O Indemnified Losses shall include reasonable costs of prosecuting a claim under this Section 8.12any contract and/or any applicable law. For six a period of four years after the Merger Effective TimeClosing, ATS will not, and will not permit the Surviving Corporation shall periodically advance Company or reimburse each any of its Subsidiaries to, amend, repeal or modify any provision in the Company’s or any of its Subsidiaries’ Organizational Documents relating to the exculpation, indemnification or advancement of expenses of any D&O Indemnified Person for Parties (unless required by law), it being the intent of the parties that all reasonable fees and expenses constituting D&O Indemnified Losses as such fees and expenses are incurred; provided that, as a condition Parties will continue to be entitled to such exculpation, indemnification and advancement or reimbursement, such of expenses to the full extent of the law and as may be set forth in any agreement with any D&O Indemnified Person executes an undertaking pursuant Party relating to which such D&O Indemnified Person shall agree to promptly repay to the Surviving Corporation the amount indemnification and advancement of any such reimbursement if it shall be judicially determined by judgment or order not subject to further appeal or discretionary review that such D&O Indemnified Person is not entitled to be indemnified by the Surviving Corporation in connection with such matter. In the event that the Surviving Corporation sells, transfers or leases all of or substantially all of its assets or is not a surviving corporation in any merger, consolidation or other business combination in which it may enter with any Person, the Surviving Corporation shall, as a condition to any such transaction, cause such purchaser or such surviving corporation, as the case may be, to assume the Surviving Corporation’s obligations under this Section 8.12 upon the consummation of such transaction (unless such obligations are assumed by operation of Law (including by operation of Law in a merger))expenses.

Director and Officer Indemnification. The Merger Agreement provides for indemnification rights in favor of the Company’s and its subsidiaries’ current and former directors and officers (a) From who we refer to as “indemnitees”). Specifically, from and after the Merger Effective Time, Parent will cause the Surviving Corporation shall indemnify to fulfill and honor in all respects the individuals who at obligations of the Company and its subsidiaries pursuant to (i) each indemnification agreement that is in effect between the Company or any of its subsidiaries and any of the indemnitees that was publicly available on the XXXXX website or was provided to Parent prior to the Merger Effective Time were directors or officers execution of BellRing, SpinCo or Merger Sub (each, a “D&O Indemnified Person”) with respect to all Losses arising from acts or omissions by them in their capacities as such at any time prior to the Merger Effective TimeAgreement, to and (ii) any indemnification provision and any exculpation provision set forth in the fullest extent (i) required by certificate of incorporation or bylaws of the BellRing Charter Documents, SpinCo Charter Documents or SpinCo Subsidiary Charter Documents) Company as in effect on the date of this the Merger Agreement. In addition, for a period of six (ii6) years following the Effective Time, the certificate of incorporation and bylaws of the Surviving Corporation will be required to contain provisions with respect to indemnification, advancement of expenses or exculpation no less favorable than those in the equivalent organizational documents of the Company on the date of the Merger Agreement. Prior to the closing of the Merger, the Company is required to use its reasonable best efforts to purchase (in consultation with Parent) a “tail” or “runoff” officers’ and directors’ liability insurance policy in respect of acts or omissions occurring prior to the Effective Time covering each person currently covered by any indemnification agreement between BellRingthe Company’s officers’ and directors’ liability insurance policy on terms with respect to coverage, SpinCo or Merger Sub deductibles and any amounts no less favorable than those of such director or officer as policy in effect on the date hereof or as of the Merger Effective Time or Agreement for the six (iii6) permitted under applicable Law year period following the Closing and at a price not to exceed 300% of the amount per annum the Company paid in its last full fiscal year prior to the date of the Merger Agreement (which we refer to as the “D&O Indemnified LossesCurrent Premium”). Without limiting If the generality of Company or Parent obtains such a prepaid “tail” or “runoff” policy prior to the foregoing, the D&O Indemnified Losses shall include reasonable costs of prosecuting a claim under this Section 8.12. For six years after the Merger Effective Time, the Surviving Corporation shall periodically advance or reimburse each D&O Indemnified Person for all reasonable fees is required to, and expenses constituting D&O Indemnified Losses as such fees and expenses are incurred; provided that, as a condition Parent is required to such advancement or reimbursement, such D&O Indemnified Person executes an undertaking pursuant to which such D&O Indemnified Person shall agree to promptly repay to cause the Surviving Corporation to, maintain such policies in full force and effect for their full term, and continue to honor the amount obligations thereunder. If the Company fails to purchase such “tail” or “runoff” policy prior to Closing, then either (i) Parent may purchase such “tail” or “runoff” policy on behalf of any such reimbursement if it shall be judicially determined by judgment the Company or order not subject to further appeal or discretionary review that such D&O Indemnified Person is not entitled to be indemnified by the Surviving Corporation in connection with such matter. In the event that or (ii) the Surviving Corporation sellsis required to, transfers or leases all of or substantially all of its assets or and Parent is not a surviving corporation in any merger, consolidation or other business combination in which it may enter with any Person, required to cause the Surviving Corporation shallto, maintain an officers’ and directors’ liability insurance policy in respect of acts or omissions occurring prior to the Effective Time covering each such person currently covered by the Company’s officers’ and directors’ liability insurance policy on terms with respect to coverage and amount no less favorable than those of such policy in effect as of the date of the Merger Agreement for a condition period of six (6) years after the Effective Time. In satisfying its obligations to any provide such transactioninsurance, cause such purchaser or such surviving corporation, as the case may be, to assume neither Parent nor the Surviving Corporation’s obligations under this Section 8.12 upon Corporation will be obligated to pay annual premiums in excess of 300% of the consummation Current Premium, and if such premiums would at any time exceed 300% of such transaction (unless such obligations are assumed by operation the Current Premium, Parent or the Surviving Corporation is required to maintain insurance policies that, in its good faith judgment, provide the maximum coverage available at an annual premium equal to 300% of Law (including by operation of Law in a merger)the Current Premium).

Director and Officer Indemnification. (a) From Buyer agrees that all rights to exculpation, indemnification and after advancement of expenses pursuant to the Merger Effective Time, Organizational Documents of the Surviving Corporation shall indemnify the individuals who at Acquired Companies or any indemnification agreement to which any D&O Indemnified Person is party for acts or omissions occurring on or prior to the Merger Effective Time were directors Closing Date, whether (i) asserted or officers claimed prior to, on or after the Closing Date (including in respect of BellRingany matters arising in connection with this Agreement and the transactions contemplated hereby), SpinCo (ii) now existing or Merger Sub (iii) arising prior to Closing, in favor of each Person who is now, or who has been at any time prior to the Original Agreement Date, or who becomes prior to the Closing, a director or officer of an Acquired Company (each, a “D&O Indemnified Person”) shall survive the Closing Date and the consummation of the transactions contemplated hereby and remain in full force and effect. For a period of at least six (6) years after the Closing Date, (A) Buyer shall not, and shall not permit any Acquired Company to, amend, repeal or modify any provision in any Acquired Company’s Organizational Documents relating to the exculpation, indemnification or advancement of expenses with respect to all Losses arising from any D&O Indemnified Person in connection with acts or omissions by them in their capacities as such at any time occurring on or prior to the Merger Effective TimeClosing Date, whether asserted or claimed prior to, on or after the Closing Date (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby), unless, and only to the extent, required by applicable Law, it being the intent of the Parties that all such D&O Indemnified Persons shall continue to be entitled to such exculpation, indemnification and advancement of expenses to the fullest extent (i) required permitted by the BellRing Charter Documentsapplicable Law, SpinCo Charter Documents and that no change, modification or SpinCo Subsidiary Charter Documents) as in effect on the date amendment of this Agreement, (ii) required by such documents or arrangements may be made that will adversely affect any indemnification agreement between BellRing, SpinCo or Merger Sub and any such director or officer as in effect on the date hereof or as of the Merger Effective Time or (iii) permitted under applicable Law (the “D&O Indemnified Losses”). Without limiting the generality of the foregoing, the D&O Indemnified Losses shall include reasonable costs of prosecuting a claim under this Section 8.12. For six years after the Merger Effective Time, the Surviving Corporation shall periodically advance or reimburse each D&O Indemnified Person for all reasonable fees and expenses constituting D&O Indemnified Losses as such fees and expenses are incurred; provided that, as a condition to such advancement or reimbursement, such D&O Indemnified Person executes an undertaking pursuant to which Person’s rights thereto without the prior written consent of such D&O Indemnified Person Person, and (B) Buyer shall, and shall agree to promptly repay to cause the Surviving Corporation the amount Acquired Companies to, maintain in full force and effect any indemnification agreements of any such reimbursement if it shall be judicially determined by judgment or order not subject to further appeal or discretionary review that such Acquired Company with any D&O Indemnified Person is not entitled to be indemnified by the Surviving Corporation in connection with such matter. In the event that the Surviving Corporation sells, transfers or leases all of or substantially all of its assets or is not a surviving corporation in any merger, consolidation or other business combination in which it may enter with any Person, the Surviving Corporation shall, as a condition to any such transaction, cause such purchaser or such surviving corporation, as the case may be, to assume the Surviving Corporation’s obligations under this Section 8.12 upon the consummation of such transaction (unless such obligations are assumed by operation of Law (including by operation of Law in a merger)).

Director and Officer Indemnification. (a) From Buyer agrees that all rights to exculpation, indemnification and after advancement of expenses pursuant to the Merger Effective Time, Organizational Documents of the Surviving Corporation shall indemnify the individuals who at Acquired Companies for acts or omissions occurring on or prior to the Merger Effective Time were directors Closing Date, whether (i) asserted or officers claimed prior to, on or after the Closing Date (including in respect of BellRingany matters arising in connection with this Agreement and the transactions contemplated hereby), SpinCo (ii) now existing or Merger Sub (iii) arising prior to Closing, in favor of each Person who is now, or who has been at any time prior to the date hereof, or who becomes prior to the Closing, a director, officer, employee or other fiduciary of an Acquired Company (each, a “D&O Indemnified Person”) shall survive the Closing Date and the consummation of the transactions contemplated hereby and remain in full force and effect. For a period of at least six (6) years after the Closing Date, Buyer shall not, and shall not permit any Acquired Company to, in any manner that would adversely affect any D&O Indemnified Person, amend, repeal or modify any provision in any Acquired Company’s Organizational Documents relating to the exculpation, indemnification or advancement of expenses with respect to all Losses arising from any D&O Indemnified Person in connection with acts or omissions by them in their capacities as such at any time occurring on or prior to the Merger Effective TimeClosing Date, whether asserted or claimed prior to, on or after the Closing Date (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby), unless, and only to the extent, required by applicable Law, it being the intent of the Parties that all such D&O Indemnified Persons shall continue to be entitled to such exculpation, indemnification and advancement of expenses to the fullest extent (i) required permitted by the BellRing Charter Documentsapplicable Law, SpinCo Charter Documents and that no change, modification or SpinCo Subsidiary Charter Documents) as in effect on the date amendment of this Agreement, (ii) required by such documents or arrangements may be made that will adversely affect any indemnification agreement between BellRing, SpinCo or Merger Sub and any such director or officer as in effect on the date hereof or as of the Merger Effective Time or (iii) permitted under applicable Law (the “D&O Indemnified Losses”). Without limiting the generality of the foregoing, the D&O Indemnified Losses shall include reasonable costs of prosecuting a claim under this Section 8.12. For six years after the Merger Effective Time, the Surviving Corporation shall periodically advance or reimburse each D&O Indemnified Person for all reasonable fees and expenses constituting D&O Indemnified Losses as such fees and expenses are incurred; provided that, as a condition to such advancement or reimbursement, such D&O Indemnified Person executes an undertaking pursuant to which Person’s rights thereto without the prior written consent of such D&O Indemnified Person shall agree to promptly repay to the Surviving Corporation the amount of any such reimbursement if it shall be judicially determined by judgment or order not subject to further appeal or discretionary review that such D&O Indemnified Person is not entitled to be indemnified by the Surviving Corporation in connection with such matter. In the event that the Surviving Corporation sells, transfers or leases all of or substantially all of its assets or is not a surviving corporation in any merger, consolidation or other business combination in which it may enter with any Person, the Surviving Corporation shall, as a condition to any such transaction, cause such purchaser or such surviving corporation, as the case may be, to assume the Surviving Corporation’s obligations under this Section 8.12 upon the consummation of such transaction (unless such obligations are assumed by operation of Law (including by operation of Law in a merger)).