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Case 1:20-bk-12043 Doc 107-3 Filed 07/27/20 Entered 07/27/20 15:07:21 Desc <br /> Exhibit C - Engagement Letter Page 8 of 9 <br /> addition to those available to the Indemnifying Party and in the reasonable judgment of such counsel it is advisable for <br /> the Indemnified Person to employ separate counsel (in which case the Indemnifying Party shall not have the right to <br /> assume the defense of such action on behalf of the Indemnified Person), (iii) the use of counsel chosen by the <br /> Indemnifying Party to represent the Indemnified Person would, in the reasonable judgment of the Indemnified Person, <br /> present such counsel with a conflict of interest, or(iv)the Indemnifying Party has failed to assume the defense of such <br /> action and employ counsel reasonably satisfactory to the Indemnified Person, it being understood, however, that the <br /> Indemnifying Party shall not, in connection with any one such action or separate but substantially similar or related <br /> actions in the same jurisdiction arising out of the same general allegations or circumstances,be liable for the reasonable <br /> fees and expenses of more than one separate firm of attorneys at any time for all such Indemnified Persons. The <br /> Indemnifying Party shall not settle or compromise or consent to the entry of any judgment in or otherwise seek to <br /> terminate any pending or threatened action or claim in which any Indemnified Person is or could be a party and as to <br /> which indemnification or contribution has or could have been sought by such Indemnified Person pursuant to this <br /> Schedule I,unless such Indemnified Person has given its prior written consent to the settlement,compromise,consent or <br /> termination or such settlement, compromise, consent or termination includes an express complete and unconditional <br /> release of such Indemnified Person. <br /> In order to provide for just and equitable contribution,if any claim for indemnification with respect to claims, <br /> liabilities, losses, damages, expenses or actions in respect thereof covered by this Schedule 1 is found to be <br /> unenforceable in a final judgment(not subject to further appeal) by a court of competent jurisdiction or is otherwise <br /> unavailable or insufficient to hold harmless an Indemnified Person(except directly due to the fraud,willful misconduct <br /> or gross negligence of the Indemnified Person), then the Indemnifying Party shall, in lieu of indemnifying such <br /> Indemnified Person, contribute to the amount paid or payable by such Indemnified Person as a result of such claims, <br /> liabilities, losses, damages, expenses or actions in respect thereof, in such proportion as shall be appropriate to reflect <br /> the relative benefits received and relative fault of the Indemnifying Party on the one hand and the Indemnified Person <br /> on the other,as well as any other relevant equitable considerations.The relative fault shall be determined by reference <br /> to, among other things, whether any untrue or alleged untrue statement of a material fact or the omission or alleged <br /> omission to state a material fact relates to information supplied by the Indemnifying Party or by the Indemnified Person <br /> and the parties' relative intent,knowledge, access to information and opportunity to correct or prevent such statement <br /> or omission. The Indemnifying Party agrees that it would not be just and equitable if contributions pursuant to this <br /> Schedule I were to be determined by pro rata allocation or by any other method of allocation that does not take into <br /> account the equitable considerations referred to herein. No person found liable for a fraudulent misrepresentation or <br /> omission shall be entitled to contribution from any person who is not also found liable for such fraudulent <br /> misrepresentation or omission. Notwithstanding the foregoing, the aggregate contribution of all Indemnified Persons <br /> with respect to such claims, liabilities, losses, damages, expenses or actions in respect thereof shall not exceed the <br /> amount of fees actually received by Cambio for its services pursuant to the Agreement. <br /> The foregoing indemnity,contribution and expense reimbursement provisions are not exclusive and shall be <br /> in addition to any liability which the Indemnifying Party might otherwise have and shall not limit any rights or <br /> remedies which may otherwise be available at law or in equity to the Indemnified Persons. These indemnification <br /> provisions shall (i) remain operative and in full force and effect regardless of any termination or expiration of the <br /> Agreement; (ii) inure to the benefit of any successors, assigns, heirs or personal representative of any Indemnified <br /> Person;(iii)shall remain operative and in full force and effect regardless of any investigation made by or on behalf of <br /> any Indemnified Person, and(iv) shall be binding on any successor or assign of the Indemnifying Party and each of <br /> its successors or assigns. <br /> In addition to the above indemnification provisions regarding advancement of fees and expenses,the CRO and <br /> any other Indemnified Person serving as a director or officer of the Company or its affiliates will receive the benefit of <br /> the most favorable indemnification and advancement provisions provided by the Company to its directors,officers and <br /> any equivalently placed employees,whether under the Company's organizational documents,by contract or otherwise. <br /> The Company shall specifically include and cover every Indemnified Person serving as a director or officer of the <br /> Company or its affiliates from time to time with direct coverage under the Company's policy for liability insurance <br /> covering its directors, officers and any equivalently placed employees (the "D&O Policy"). Prior to any Indemnified <br /> Person accepting any director or officer position with the Company or its affiliates,the Company shall,at the request of <br /> Cambio,provide Cambio a copy of its current D&O Policy,a certificate of insurance evidencing that the policy is in full <br /> force and effect, and a copy of the signed board resolutions and any other document that Cambio may reasonably <br /> request evidencing the appointment and coverage of such Indemnified Persons. The Company shall maintain such <br />