Common use of Procedure Clause in Contracts

Procedure. If an Indemnified Party intends to claim indemnification under Article 10, the Indemnified Party shall notify the Indemnifying Party of any Loss in respect of which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Party.

Procedure. If an Any Indemnified Party intends seeking indemnification under this Article VII shall give written notice (a “Claim Notice”) to the Indemnifying Party. The Claim Notice shall include a description in reasonable detail of (i) the basis for, and nature of, such claim, including the facts constituting the basis for such claim, and (ii) the estimated amount of Indemnifiable Losses that have been or reasonably will be sustained by the Indemnified Party in connection with such claim. In the event of any claim, demand, action or proceeding asserted against any Indemnified Party by a third party with respect to which such Indemnified Party may claim indemnification under Article 10Section 7.1 (a “Third Party Claim”), the Indemnified Party shall notify give the Indemnifying Party written notice within ten Business Days of any Loss in respect receiving written notice of which such Third Party Claim. If the Indemnified Party intends fails to claim provide each such indemnificationnotice within such time period, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and will not be subject obligated to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to indemnify the Indemnified Party under Article 10 only with respect to such Third Party Claim to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve is prejudiced by such failure of the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by notify the Indemnified Party in establishing its claim for indemnity. Except within thirty (30) days after receipt of such notice as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of whether the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to will assume the defense of such Loss or fails to notify Indemnified Third Party that is assuming such Claim. If the Indemnifying Party assume the defense, (x) the Indemnified Party shall have the right to assume participate in such defense and to engage separate counsel of its own choosing at its own cost and expense and (y) the defense, Indemnifying Party shall not agree to any compromise or settlement to which the Indemnified Party has not consented to in writing (which consent shall not be unreasonably withheld, conditioned or delayed) unless such settlement or compromise includes only the payment of monetary damages which shall be paid by the Indemnifying Party and includes a release of the Indemnified Party from all Liability in respect of such Loss Third Party Claim. If requested by the Indemnifying Party, the Indemnified Party will, at the risk cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in defending such Third Party Claim. If the Indemnifying Party elects not to assume the defense of such Third Party Claim, the Indemnified Party may assume the defense thereof at the expense of the Indemnifying Party, provided that the Indemnified Party shall not agree to any compromise or settlement to which the Indemnifying Party has not consented in writing (which consent shall not be unreasonably withheld, conditioned or delayed).

Procedure. If (a) As between the Parties, Licensee will have the first right to pursue any Infringement Action against an Indemnified infringing Third Party intends at its own expense. If, within fifteen (15) days after the notice, pursuant to claim indemnification under Article 10Section 8.1, of any suspected infringement or Infringement Action, Licensee has elected not to initiate, defend, or otherwise resolve such Infringement Action, then Mount Sinai shall have the right, but not the obligation, to initiate, control, pursue, and/or defend such Infringement Action at its own expense. (b) The Party controlling any Infringement Action shall use reasonable efforts to: (i) inform the other Party of the status of such Infringement Action on a regular basis or as requested by the Party without primary control of the Infringement Action; (ii) provide to the other Party copies of any documents relating to the Infringement Action promptly upon receipt from any Third Party and/or, if practicable, prior to filing such documents; (iii) consult with the other Party regarding the advisability of any contemplated course of action; and (iv) consider any comments from the other Party regarding the Infringement Action. The Party without control of an Infringement Action shall cooperate, at controlling Party’s expense (including reasonable fees and other expenses for the non-controlling Party’s attorney), with the Party controlling such Infringement Action to the extent reasonably possible, including joining the Infringement Action if necessary or desirable, the Indemnified Non-controlling Party’s expenses to be paid by controlling Party within thirty (30) days of invoice. (c) Licensee shall notify the Indemnifying Party not enter into a settlement of any Loss Infringement Action that (i) restricts the scope of, (ii) adversely affects the enforceability of, (iii) grants a license to, or (iv) provides any other settlement action that adversely affects the value of this Agreement or any Exclusively Licensed Technical Information or related Licensed Product, or includes admission of fault or wrongdoing on behalf of Mount Sinai, without the prior written consent of Mount Sinai. For clarity, if the settlement of any Infringement Action includes granting a Sublicense, Licensee shall pay to Mount Sinai royalties on any Net Sales by such Sublicensee and a percentage of Sublicense Income, if applicable, in respect accordance with Article 4 in addition to any other share of which recoveries due to Mount Sinai under this Section. For the Indemnified Party intends to claim such indemnificationpurposes of settling an Infringement Action, a license granted as a non-revenue cross license shall be considered as a Sublicense, and must comply with all Sublicensing requirement herein, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense Fair Market Value of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party cross license shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Partybe considered Sublicense Income.

Procedure. If an The Party seeking indemnification under Sections 10.1 or 10.2 (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing of all matters which may give rise to the right to indemnification hereunder; provided, however, that failure to promptly give the notice provided in this Section 10.3 shall not be a defense to the liability of the Indemnifying Party for such claim, unless the Indemnifying Party is prejudiced thereby. The Indemnified Party intends to claim indemnification under shall not admit any liability with respect to, or settle, compromise or discharge any such matter covered by this Article 10. The Indemnifying Party shall have the right, with the consent of the Indemnified Party shall notify to settle all indemnifiable matters under this Article 10 related to claims by Third Parties which are susceptible to being settled, provided that no such consent of the Indemnified Party is required if the Indemnified Party is not required to make any admission of liability or is not financially compromised as a result of the settlement. In connection with any claim giving rise to indemnity under this Article 10 resulting from or arising out of any claim or legal proceeding by a Person other than the Indemnified Party, the Indemnifying Party of any Loss in respect of which at its sole cost and expense may, upon written notice to the Indemnified Party intends to and an acknowledgement of its indemnity obligations hereunder, assume the defense of any such claim or legal proceeding. If the Indemnifying Party assumes the defense of any such indemnificationclaim or legal proceeding, and the Indemnifying Party shall assume select counsel to conduct the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights claims or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representativesproceedings and, at the Indemnifying Party’s sole cost and expense (which costs and expenses shall not be applied against any indemnity limitation herein), shall take all steps necessary in the defense or settlement thereof. The Indemnified Party shall be entitled to participate in (but not control) the defense of any such action, with its own counsel and at its own expense, in and shall be entitled to any and all information and documentation relating thereto. If the investigation Indemnifying Party does not assume (or continue to diligently and competently prosecute) the defense of any action, such claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay litigation resulting therefrom in accordance with the reasonable legal costs and attorneys’ fees incurred by terms hereof, the Indemnified Party may, at the Indemnifying Party’s reasonable expense, defend against such claim or litigation in establishing its such manner as it may deem appropriate, but may not settle such claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected or litigation without the consent of the Indemnifying Party. The Indemnified Party will cooperate reasonably with the Indemnifying Party in its efforts to conduct or resolve such matters, which consent shall not be withheld unreasonably or delayedincluding by making available to the Indemnifying Party relevant documents and witnesses. The Indemnified Party and the Indemnifying Party shall not, without keep each other informed of all settlement negotiations with Third Parties and of the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry progress of any judgment litigation with respect to any Loss (a) that does not release Third Parties. The Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which and the Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days shall permit each other reasonable access to books and records and shall otherwise cooperate with all reasonable requests of receiving notice of each other in connection with any indemnifiable matter resulting from a Loss or such shorter period as may be necessary for submitting or filing claim by a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Third Party.

Procedure. If Each Party will promptly notify the other Party in writing in the event it becomes aware of a Third Party claim, action or suit for which indemnification may be sought hereunder (provided that the failure to give such notice promptly will not prejudice the rights of an Indemnified Party, except to the extent that the failure to give such prompt notice materially adversely affects the ability of the Indemnifying Party intends to claim indemnification under defend the claim, action or suit). In the event that any Third Party claim, action or suit is instituted against a Party in respect of which indemnity may be sought pursuant to this Article 1012, promptly after such Party (the “Indemnified Party”) notifies the other Party (the “Indemnifying Party”) in writing, the Indemnifying Party and the Indemnified Party shall meet to discuss how to respond to such claim, action or suit. The Indemnifying Party shall control the defense of such claim, action or suit. The Indemnified Party shall cooperate with the Indemnifying Party in the defense of such claim, action or suit, at the expense of the Indemnifying Party. In any such proceeding, the Indemnified Party shall notify also have the Indemnifying Party of any Loss in respect of which the Indemnified Party intends right to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with retain its own counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and at its legal representatives, at the Indemnifying Party’s own expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally not be liable for Losses or Third Party liabilities with respect to pay the reasonable legal costs and attorneys’ fees incurred a claim, action or suit settled or compromised by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party’s prior written consent. No offer of settlement, settlement or compromise by the Indemnifying Party shall be binding on an Indemnified Party without the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld unreasonably or delayed. Indemnifying ), unless such settlement fully releases the Indemnified Party shall notwithout any liability, without the written consent of loss, cost or obligation to such Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Party.

Procedure. If an Indemnified Party intends any claim or proceeding covered by the foregoing agreements to claim indemnification under Article 10indemnify and hold harmless shall arise, the party who seeks indemnification (the "Indemnified Party Party") shall notify the Indemnifying Party of any Loss in respect of which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense given written notice thereof with counsel mutually satisfactory to the Partiesother party (the "Indemnitor") promptly (but in no event more than ten (10) days) after it learns of the existence of such claim or proceeding. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a Any claim for indemnification hereunder shall be accompanied by Alimeraevidence demonstrating the Indemnified Party's right or possible right to indemnification, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel including a copy of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representationall supporting documents relevant thereto. The failure Indemnitor shall have the right to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability employ counsel reasonably acceptable to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend against any such claim or actionproceeding, but or to compromise, settle or otherwise dispose of the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability same; provided, however, that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 no settlement or compromise shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Indemnified Party, which consent shall not be withheld unreasonably or delayedwithheld, and provided further that in the event the Indemnified Party does not consent to a bona fide offer of settlement made by a third party and the settlement involves only the payment of money, then the Indemnitor may, in lieu of payment of such settlement to such third party, pay such amount to the Indemnified Party. Indemnifying Party shall not, without After the written consent of payment to the Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all Indemnitor shall have no further liability with respect to such Loss claim or (b) which may materially adversely affect proceeding and the Indemnified Party or under which shall assume full responsibility to defend the same. After notice from the Indemnitor to the Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails its election to assume the defense of such Loss claim or fails proceeding, the Indemnitor shall not be liable to notify the Indemnified Party under this paragraph for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that is assuming such defense, the Indemnified Party shall have the right to assume employ counsel to represent it if, in the defenseIndemnified Party's reasonable judgment, compromise or settlement it is advisable for the Indemnified Party to be represented by separate counsel, and in that event the fees and expenses of such Loss separate counsel shall be paid by the Indemnified Party. The parties will fully cooperate in any such action, making available to each other books or records for the defense of any such claim or proceeding. If the Indemnitor fails to acknowledge in writing its obligation to defend against or settle such claim or proceeding within ten (10) days after receiving notice of the claim or proceeding from the Indemnified Party (or such shorter time specified in the notice as the circumstances of the matter may dictate), the Indemnified Party shall be free to dispose of the matter, at the risk and expense of Indemnifying Partythe Indemnitor (but subject to the Indemnitor's right subsequently to contest through appropriate proceedings its obligation to provide indemnification), in any way which the Indemnified Party deems in its best interest.

Procedure. If an Each Party will notify the other in the event it becomes aware of a claim for which indemnification may be sought hereunder or for which Liability is shared pursuant to this Section 9. In case any proceeding (including any governmental investigation) is instituted involving any Party in respect of which indemnity may be sought pursuant to this Section 9, such Party (the “Indemnified Party”) will promptly notify the other Party (the “Indemnifying Party”) in writing and the Indemnifying Party and Indemnified Party intends will meet to claim indemnification under Article 10discuss how to respond to any claims that are the subject matter of such proceeding. The Indemnifying Party, upon request of the Indemnified Party, will retain counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party and will pay the fees and expenses of such counsel related to such proceeding. In any such proceeding, the Indemnified Party shall notify will have the right to retain its own counsel, but the fees and expenses of such counsel will be at the expense of the Indemnified Party unless (i) the Indemnifying Party and the Indemnified Party will have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. All such fees and expenses incurred pursuant to Section 9.1 or 9.2 will be reimbursed as they are incurred. The Indemnifying Party will not be liable for any settlement of any Loss proceeding unless effected with its written consent. The Indemnifying Party will not, without the written consent of the Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which the Indemnified Party intends to claim such indemnificationis, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account or arising out of the common representation. The failure to deliver notice to the Indemnifying Party within same set of facts could have been, a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may party and indemnity could have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred been sought hereunder by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3Party, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if unless such settlement is effected without the consent includes an unconditional release of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability on claims to which the indemnity relates that are the subject matter of such proceeding. Notwithstanding anything to the contrary in the foregoing, with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party claim that is assuming such defense, Indemnified Party subject to the IP Indemnity Astellas shall have the right to assume control the defense, compromise or settlement defense of such Loss at claim. In no event shall Ironwood settle any claim that is subject to the risk and expense of Indemnifying PartyIP Indemnity without Astellas’s prior written consent.

Procedure. If an Each Party will notify the other Party in writing in the event it becomes aware of a claim for which indemnification may be sought hereunder. In case any proceeding (including any governmental investigation) will be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 10 (Indemnification), such Party (the “Indemnified Party”) will promptly notify the other Party (the “Indemnifying Party”) in writing and the Indemnifying Party and Indemnified Party intends will meet to claim indemnification under Article 10discuss how to respond to any claims that are the subject matter of such proceeding. The Indemnified Party will cooperate fully with the Indemnifying Party in defense of such matter. In any such proceeding, the Indemnified Party shall notify will have the right to retain its own counsel, but the fees and expenses of such counsel will be at the expense of the Indemnified Party unless (a) the Indemnifying Party and the Indemnified Party will have agreed to the retention of such counsel or (b) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. All such fees and expenses will be reimbursed as they are incurred. The Indemnifying Party will not be liable for any settlement of any Loss proceeding effected without its written consent, but, if settled with such consent or if there is a final judgment for the plaintiff, then the Indemnifying Party agrees to indemnify the Indemnified Party from and against any Liability by reason of such settlement or judgment. The Indemnifying Party will not, without the written consent of the Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which the Indemnified Party intends to claim such indemnificationis, or could have been, a party and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they indemnity could have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred been sought hereunder by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3Party, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if unless such settlement is effected without the consent includes an unconditional release of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume on claims that are the defense subject matter of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Partyproceeding.

Procedure. If an Indemnified Party intends A Person entitled to claim indemnification under Article 10, the this Section 7.1 (an “Indemnified Party Party”) shall notify the Indemnifying Party of any Loss in respect of which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory give prompt written notification to the Parties. Notwithstanding Party from whom indemnification is sought (the prior sentence, if CDS is the “Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel Party”) of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve suit or proceeding relating to a Third Party claim for which indemnification may be sought or, if earlier, upon the assertion of any such Indemnifying claim by a Third Party of liability to (it being understood and agreed, however, that the failure by an Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such give notice of a Third Party claim or action, but the failure so to deliver notice to the Indemnifying Party will as provided in this subsection shall not relieve the Indemnifying Party of any liability its indemnification obligation under this Agreement except and only to the extent that it may have such Indemnifying Party is actually prejudiced as a result of such failure to any give notice). Within thirty (30) days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party otherwise shall control such defense. The Party not controlling such defense may participate therein at its own expense; provided that if the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim, the Indemnifying Party shall be responsible for the reasonable fees and expenses of counsel to the Indemnified Party solely in connection therewith; provided further, however, that in no event shall the Indemnifying Party be responsible for the fees and expenses of more than under Article 10one counsel in any one jurisdiction for all Indemnified Parties. The Party controlling such defense shall keep the other Party advised of the status of such action, suit, proceeding or claim and the defense thereof and shall consider recommendations made by the other Party with respect thereto. The Indemnified Party under Article 10 shall provide reasonable assistance not agree to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation any settlement of any such action, suit, proceeding or claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the prior written consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayedwithheld. The Indemnifying Party shall notnot agree to any settlement of such action, without the written consent of Indemnified Partysuit, settle proceeding or compromise any Loss claim or consent to the entry of any judgment with in respect to any Loss (a) thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect to such Loss thereto or (b) which may materially adversely affect that imposes any liability or obligation on the Indemnified Party or under which without the prior written consent of the Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Party.

Procedure. If an Indemnified In the event of a claim by a Third Party intends against any Person entitled to claim indemnification under Article 10this Agreement, the Party claiming indemnification (in such capacity, the “Indemnified Party”) shall promptly notify the other Party (in such capacity, the “Indemnifying Party”) in writing of the claim (it being understood that the failure by the Indemnified Party to give prompt notice of a Third Party claim as provided in this Section 13.3 shall notify the Indemnifying Party of any Loss in respect of which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability its indemnification obligation under this Agreement except and only to the extent that it may have such Indemnifying Party is actually prejudiced as a result of such failure to any give prompt notice). Within *** after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, undertake and solely manage and control, at its sole expense and with counsel reasonably satisfactory to the Indemnified Party, the defense of the claim. If the Indemnifying Party does not undertake such defense, the Indemnified Party otherwise than under Article 10shall control such defense. The Party not controlling such defense shall cooperate with the other Party and may, at its option and expense, participate in such defense with counsel of its choice; provided, that, if the Indemnifying Party assumes control of such defense and the Indemnified Party under Article 10 shall provide reasonable assistance to in good faith concludes, based on advice from counsel, that the Indemnifying Party and its legal representativesthe Indemnified Party (or the relevant MacroGenics Indemnitee or Servier Indemnitee seeking indemnification) have conflicting interests with respect to such action, at suit, proceeding or claim, the Indemnifying Indemnified Party’s expense, counsels may fully participate in such defense and the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be responsible for the reasonable fees and expenses of one counsel to the indemnified Persons solely in connection therewith. The Party controlling such defense shall keep the other Party advised of the status of such action, suit, proceeding or claim and the defense thereof and shall consider recommendations made by the other Party with respect thereto. Except if the Indemnifying Party did not undertake defense of the claim or if the Indemnifying Party and the Indemnified Party (or the relevant MacroGenics Indemnitee or Servier Indemnitee seeking indemnification) have conflicting interests with respect to such action, suit, proceeding or claim and the Indemnified Party engages separate counsel, as provided above, the Indemnifying Party shall not be liable to pay the reasonable legal for any litigation costs and attorneys’ fees or expenses incurred by the Indemnified Party in establishing its claim for indemnitywithout the Indemnifying Party’s written consent. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 The Indemnified Party shall not apply to amounts paid in settlement of settle any Loss if such settlement is effected action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent shall not be withheld unreasonably withheld, delayed or delayedconditioned. The Indemnifying Party shall notnot settle, without the prior written consent of the Indemnified Party, settle any such action, suit, proceeding or compromise any Loss claim, or consent to the entry of any judgment with in respect to any Loss (a) thereof, that does not include a complete and unconditional release of the Indemnified Party from all liability with respect to such Loss thereto, that imposes any liability or (b) which may materially adversely affect obligation on the Indemnified Party or under which that acknowledges fault by the Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Party.

Procedure. If an Indemnified Party intends (a) The person intending to claim indemnification under Article 10, the this Section 10 (an “Indemnified Party Party”) shall promptly notify the other party (the “Indemnifying Party Party”) of any Loss Claim in respect of which the Indemnified Party intends to claim such indemnification, and a reasonable explanation of the basis for the Claim and the amount of alleged Losses to the extent of the facts then known by the Indemnified Party. (Notwithstanding the foregoing, no delay or deficiency on the part of the Indemnified Party in so notifying the Indemnifying Party will relieve the Indemnifying Party of any liability or obligation under this Agreement except to the extent the Indemnifying Party has suffered actual prejudice directly caused by the delay or other deficiency.) The Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentencewhether or not such Claim is rightfully brought; provided, however, that if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to assumes the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosingdefense, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the sole cost and expense of the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them. And provided further that, if the Indemnifying Party shall fail to assume the defense of and reasonably defend such Claim, the Indemnified Party shall have the right to retain or assume control of such defense and the Indemnifying Party shall pay (as incurred and on demand) the fees and expenses of counsel retained by the Indemnified Party. (b) The Indemnifying Party shall not be liable for the indemnification of any Claim settled (or resolved by consent to the entry of judgment) without the written consent of the Indemnifying Party. Also, if the Indemnifying Party shall control the defense of any such Claim, the Indemnifying Party shall have the right to settle such Claim; provided, that the Indemnifying Party shall obtain the prior written consent (which shall not be unreasonably withheld or delayed) of the Indemnified Party before entering into any settlement of (or resolving by consent to the entry of judgment upon) such Claim unless (i) there is no finding or admission of any violation of law or any violation of the lights of any Person by an Indemnified Party, no requirement that the Indemnified Party admit fault or culpability, and no adverse effect on any other claims that may be made by or against the Indemnified Party and (ii) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party and such settlement does not require the Indemnified Party to take (or refrain from taking) any action. (c) Regardless of who controls the defense, compromise or settlement the other party hereto shall reasonably cooperate m the defense as may be requested. Without limitation, the Indemnified Party, and its directors, officers, advisers, agents and employees, shall cooperate fully with the Indemnifying Party and its legal representatives in the investigations of such Loss at the risk and expense of Indemnifying Partyany Claim.

Procedure. If (a) In order for an Indemnified Party intends under this Article 8 (an “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement, the Indemnified Party will, within a reasonable period of time following the discovery of the matters giving rise to any Losses, notify its applicable insurer and the indemnifying party under this Article 8 (the “Indemnifying Party”) in writing of its claim for indemnification under Article 10for such Losses, specifying in reasonable detail the nature of the Losses and the amount of the liability estimated to accrue therefrom; provided, however, that failure to give notification will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been actually prejudiced as a result of the failure. Thereafter, the Indemnified Party will deliver to the Indemnifying Party, within a reasonable period of time after the Indemnified Party’s receipt of such request, all information, records and documentation reasonably requested by the Indemnifying Party with respect to such Losses. The Indemnifying Party shall control all litigation reflecting to the indemnification. Without limiting the foregoing, the Indemnified Party shall notify control choice of counsel, staffing, and all decisions to be made with the litigation. (b) If the indemnification sought pursuant hereto involves a claim made by a non-party against the Indemnified Party (a “Non-Party Claim”), the Indemnifying Party will be entitled to participate in the defense of any Loss in respect such Non-Party Claim and, if it so chooses, to assume the defense of which such Non-Party Claim with counsel selected by the Indemnified Party intends to claim such indemnification, and Indemnifying Party. Should the Indemnifying Party shall so elect to assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentenceof a Non-Party Claim, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable Indemnified Party for any legal costs and attorneys’ fees expenses subsequently incurred by the Indemnified Party in establishing its claim connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnifying Party will control such defense. The Indemnifying Party will be liable for indemnity. Except the reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof (other than during any period in which the Indemnified Party will have failed to give notice of the Non-Party Claim as provided above). If the Indemnifying Party chooses to defend or prosecute a Non-Party Claim, all of the parties hereto will cooperate in the last sentence of this Section 10.3, defense or prosecution thereof. Such cooperation will include the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information, which consent shall are reasonably relevant to such Non-Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the Indemnifying Party chooses to defend or prosecute any Non-Party Claim, the Indemnifying Party will seek the approval of the Indemnified Party (not to be withheld unreasonably withheld) to any settlement, compromise or delayeddischarge of such Non-Party Claim the Indemnifying Party may recommend and which by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Non-Party Claim. Whether or not the Indemnifying Party will have assumed the defense of a Non-Party Claim, the Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, such Non-Party Claim without the Indemnifying Party’s prior written consent). The Indemnifying Party shall notreimburse upon demand, without all reasonable costs and expenses incurred by the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability in cooperation with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense or prosecution of such Loss or fails to notify Indemnified the Non-Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying PartyClaim.

Procedure. If an Indemnified Party intends to claim A party claiming indemnification under this Article 10VIII (the “Asserting Party”) must promptly notify in writing the party from which indemnification is sought (the “Defending Party”) of the nature and basis of such claim for indemnification. If such claim relates to a claim, the Indemnified litigation or other action by a third-party against Asserting Party, (“Third-Party shall notify the Indemnifying Claim”), Defending Party of any Loss in respect of which the Indemnified Party intends may elect to claim such indemnification, and the Indemnifying Party shall assume the defense thereof of the Third-Party Claim promptly after receipt of the notice referred to above at its own expense with counsel mutually selected by Defending Party and reasonably satisfactory to Asserting Party; provided, however, that the Parties. Notwithstanding Defending Party may not assume the prior sentence, if CDS is defense of such Third Party Claim unless (i) the Indemnifying Defending Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver gives written notice to the Indemnifying Asserting Party within a reasonable time after fifteen (15) days of receipt of the commencement claim notice that the Defending Party will indemnify the Asserting Party from and against the entirety of any and all Losses the Asserting Party ultimately suffers resulting from, arising out of, relating to, in the nature of, or caused by the Third Party Claim, (ii) the Third Party Claim involves only claims for monetary damages and does not seek an injunction or other equitable relief against the Asserting Party, (iii) the Asserting Party reasonably concludes, based upon advice of counsel that a conflict does not exist between the Asserting Party and the Defending Party in connection with the defense of the Third Party Claim, (iv) the Third Party Claim does not relate to or otherwise arise in connection with taxes, any criminal or regulatory enforcement action or otherwise involve a claim by a governmental authority, (v) settlement of, an adverse judgment with respect to or the Defending Party’s conduct of the defense of the Third Party Claim is not, in the good faith judgment of the Asserting Party, likely to be adverse to the Asserting Party’s reputation or continuing business interests (including the Asserting Party’s relationships with current or potential customers, suppliers, payors, Tenant or other parties material to the conduct of the business of the Asserting Party) and (vi) the Defending Party conducts the defense of the Third Party Claim actively and diligently and in good faith. If Defending Party assumes the defense of the Third-Party Claim and diligently defends such actionThird-Party Claim, Defending Party shall relieve such Indemnifying not be liable for any fees and expenses of counsel for Asserting Party incurred thereafter in connection with the Third-Party Claim. To the extent required by applicable law, the Asserting Party shall act reasonably and in good faith in an effort to mitigate any Loss for which it is entitled to indemnification. Failure of the Asserting Party to promptly notify the Defending Party of liability a claim hereunder shall not waive the rights of the Asserting Party to the Indemnified Party under Article 10 only indemnification hereunder, except to the extent that the delay adversely affects Indemnifying Party’s rights Defending Party can demonstrate actual material loss or ability to defend prejudice as a result of such claim failure or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10delay. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Defending Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified not settle any Third Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected Claim without the written consent of the Indemnifying Asserting Party, which consent shall not be withheld unreasonably withheld, conditioned, or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Party.

Procedure. If an Indemnified Party intends A Person entitled to claim indemnification under Article 10, the this Section 9.1 (an “Indemnified Party Party”) shall notify the Indemnifying Party of any Loss in respect of which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory give prompt written notification to the Parties. Notwithstanding Party from whom indemnification is sought (the prior sentence, if CDS is the “Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel Party”) of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve suit or proceeding relating to a Third Party claim for which indemnification may be sought or, if earlier, upon the assertion of any such Indemnifying claim by a Third Party of liability to (it being understood and agreed, however, that the failure by an Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such give notice of a Third Party claim or action, but the failure so to deliver notice to the Indemnifying Party will as provided in this subsection shall not relieve the Indemnifying Party of any liability its indemnification obligation under this Agreement except and only to the extent that it may have such Indemnifying Party is actually prejudiced as a result of such failure to any give notice). Within thirty (30) days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party otherwise shall control such defense. The Party not controlling such defense may participate therein at its own expense; provided that if the Indemnifying Party assumes control of such defense and the Indemnified Party reasonably concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim, the Indemnifying Party shall be responsible for the reasonable fees and expenses of counsel to the Indemnified Party solely in connection therewith; provided further, however, that in no event shall the Indemnifying Party be responsible for the fees and expenses of more than under Article 10one counsel in any one jurisdiction for all Indemnified Parties. The Party controlling such defense shall keep the other Party advised of the status of such action, suit, proceeding or claim and the defense thereof and shall consider recommendations made by the other Party with respect thereto. The Indemnified Party under Article 10 shall provide reasonable assistance not agree to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation any settlement of any such action, suit, proceeding or claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the prior written consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayedwithheld. The Indemnifying Party shall notnot agree to any settlement of such action, without the written consent of Indemnified Partysuit, settle proceeding or compromise any Loss claim or consent to the entry of any judgment with in respect to any Loss (a) thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect to such Loss thereto or (b) which may materially adversely affect that imposes any liability or obligation on the Indemnified Party or under which without the prior written consent of the Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Party.

Procedure. If (a) Any Person to seeking indemnification provided for under this ARTICLE XI (an “Indemnified Party”) in respect of, arising out of or involving a claim made by any Person (other than a party hereto) against an Indemnified Party intends (a “Third Party Claim”), shall promptly notify the indemnifying Party in writing of the Third Party Claim stating the amount of the Loss claimed, if known, and method of computation thereof, the facts and circumstances giving rise to such claim in reasonable detail, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification under Article is claimed to arise within ten (10) Business Days after receipt by such Indemnified Party of written notice of the Third Party Claim (or sooner, to the extent the nature of the Third Party Claim requires a response in a shorter period of time); provided, that failure to give such notice shall not affect the right to indemnification provided hereunder except to the extent the indemnifying Party shall have been actually and materially prejudiced as a result of such failure. Thereafter, the Indemnified Party shall notify deliver to the Indemnifying indemnifying Party, as promptly as reasonably practicable following such Indemnified Party’s receipt thereof, copies of all written notices and documents (including any court papers) received by such Indemnified Party relating to the Third Party Claim. (b) If a Third Party Claim is made against an Indemnified Party, the indemnifying Party shall be entitled at its election and its cost to assume the defense of such Third Party Claim with counsel selected by the indemnifying Party; provided, that, should, following any such election, the indemnifying Party determine that it will contest its obligation to indemnify the Indemnified Party, it may do so only if the cessation of its control of the defense can be effected in a manner that does not materially prejudice the Indemnified Party’s ability to conduct a defense of such matter. If the indemnifying Party assumes such defense, the Indemnified Party shall ​ ​ nonetheless have the right to employ counsel separate from the counsel employed by the indemnifying Party; provided, that the indemnifying Party shall not be liable to such Indemnified Party for any fees of such separate counsel with respect to the defense of such Third Party Claim, unless the employment and reimbursement of such separate counsel is authorized by the indemnifying Party in writing. If the indemnifying Party does not assume such defense, and for any period during which the indemnifying Party has not assumed such defense, the indemnifying Party shall be liable for the reasonable fees and expenses of one (1) single counsel (in addition to reasonable fees and expenses of local counsel required in jurisdictions not central to the Third Party Claim) employed (and reasonably acceptable to the indemnifying Party) by such Indemnified Party (which reasonable fees and expenses shall be considered Losses for purposes of this Agreement). If the indemnifying Party chooses to defend a Third Party Claim or prosecute a claim in connection therewith, each Indemnified Party shall provide all cooperation as is reasonably requested by the indemnifying Party in such defense or prosecution. (c) Notwithstanding anything to the contrary in this Section 11.5, no party may settle, compromise or discharge (and in doing so, make any reasonable admission of liability with respect to) such Third Party Claim other than for money damages only without the prior written consent of the other party, subject to such party paying or causing to be paid all amounts arising out of such settlement or obtaining and delivering to such other party, prior to the execution of such settlement, a general release prepared and executed by all Persons bringing such Third Party Claim. (d) An indemnifying Party shall not be entitled to assume or continue control of the defense of any Loss Third Party Claim if the Third Party Claim (A) relates to or arises in connection with any criminal proceeding, (B) seeks an injunction or other equitable relief against any Indemnified Party, or (C) if unsuccessful, would reasonably be expected to exceed the cap applicable to such a claim in Section 11.4(c) of this Agreement. (e) In the event an Indemnified Party has a claim against an indemnifying Party under Sections 11.2 or 11.3 that does not involve a Third Party Claim, such Indemnified Party shall deliver notice of such claim to the indemnifying Party stating the amount of the Loss, if known, and method of computation thereof, the facts and circumstances giving rise to such claim in reasonable detail and containing a reference to the provisions of this Agreement in respect of which the Indemnified Party intends such right of indemnification is claimed to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Partyarise, within ten (10) days Business Days of receiving becoming aware of the facts or circumstances giving rise to such claim; provided, that failure to give such notice shall not affect the indemnification provided hereunder except to the extent the indemnifying Party shall have been actually prejudiced as a result of such failure. The Indemnified Party and the indemnifying Party shall, for a period of not less than twenty (20) Business Days following receipt by the indemnifying Party of the notice of a Loss or such shorter period as may be necessary for submitting or filing a responseclaim, fails negotiate, in good faith, to assume resolve the defense of claim, and such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have not commence Proceedings with respect to such claim prior to the right to assume the defense, compromise or settlement end of such Loss at the risk and expense of Indemnifying Party.period. ​ ​

Procedure. If an Indemnified Promptly after the discovery by the Party intends to claim seeking indemnification under Article 10Section 6.2 or 6.3 herein (the “Indemnified Party”) of any Loss, claim or breach, including any claim by a Third Party (a “Third Party Claim”) that would reasonably be expected to give rise to a claim for indemnification hereunder, the Indemnified Party shall notify give written notice to the Party against whom indemnity is sought (the “Indemnifying Party Party”); provided that, no delay on the part of any Loss in respect of which the Indemnified Party intends to claim such indemnification, and in notifying the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability or obligation hereunder, except to the extent that it may have the Indemnifying Party has been prejudiced thereby, and then only to any such extent. The Indemnifying Party, upon request of the Indemnified Party, shall assume the defense of the Third Party Claim and retain counsel reasonably satisfactory to the Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to represent the Indemnifying Party and the Indemnifying Party shall pay the fees and expenses of such counsel related to such proceeding. In any such proceeding, the Indemnified Party shall have the right to retain its legal representativesown counsel, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (a) the Parties shall have mutually agreed to the retention of such counsel, (b) the named parties to any such proceeding (including any impleaded parties) include the Parties and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them or (c) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently defend a Third Party Claim it has assumed per the Indemnified Party’s expense, in request. All such fees and expenses incurred pursuant to this Section 6.5 shall be reimbursed as they are incurred. In the investigation event that the Indemnified Party assumes the defense of any actionThird Party Claim, claim or liability covered the Indemnified Party’s right to indemnification for a Third Party Claim shall not be adversely affected by this indemnificationassuming the defense of such Third Party Claim. The Indemnifying Party shall additionally not be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in any settlement of any Loss if such settlement is effected without the proceeding unless affected with its written consent of the Indemnifying Party, (which consent shall not be withheld unreasonably withheld, conditioned or delayed). The Indemnifying Party shall not, without the written consent of the Indemnified PartyParty (which shall not be unreasonably withheld, settle conditioned or compromise delayed), effect any Loss or consent to the entry settlement of any judgment with respect to any Loss Third Party Claim unless (a) that does not such settlement includes an unconditional release of the Indemnified Party from all liability on claims to which the indemnity relates that are the subject matter of such proceeding and (b) it would not result in (i) the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party or any of its Affiliates with respect to such Loss the Compound, Product, or any of the Purchased Assets, (bii) which may materially adversely affect a finding or admission of a violation of Applicable Law or violation of the rights of any Person by the Indemnified Party or under which any of its Affiliates or (iii) any monetary liability of the Indemnified Party would incur any obligation arising from such Third Party Claim that shall not be promptly paid or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If reimbursed by the Indemnifying Party. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED AS TO CERTAIN PORTIONS OF THIS DOCUMENT. EACH SUCH PORTION, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a responseWHICH HAS BEEN OMITTED HEREIN AND REPLACED WITH AN ASTERISK ***, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Party.HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION

Procedure. If an A Party (the "Indemnified Party Party") which intends to claim indemnification under this Article 1012, the Indemnified Party shall promptly notify the other Party (the "Indemnifying Party Party") of any Loss in Claim with respect of to which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable have the right to pay assume the reasonable legal costs and attorneys’ fees incurred defense of such Claim with counsel selected by the Indemnifying Party; PROVIDED, HOWEVER, that the Indemnified Party shall have the right to retain its own counsel and the fees and expenses shall be paid by the Indemnifying Party only if representation of the Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in establishing its claim for indemnitysuch proceedings. Except as provided in the last sentence of this Section 10.3, the The indemnity agreement in obligations under this Article 10 12 shall not apply to amounts paid in settlement of any Loss Liability if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayedunreasonably. The failure of the Indemnified Party to promptly notify the Indemnifying Party of a potential Claim shall notnot constitute a waiver of, or result in the loss of, such Party's right to indemnification under this Section 12.3, except to the extent that the Indemnifying Party's rights and/or its ability to defend such Claim is prejudiced by the Indemnified Party's failure to notify the Indemnifying Party of such Claim within a reasonable time after the commencement of any action. The Indemnifying Party may not settle the action or otherwise consent to an adverse judgment in such action that diminishes the rights or interests of the Indemnified Party without the express written consent of the Indemnified Party, settle or compromise any Loss or which consent to shall not be withheld unreasonably. The Indemnified Party, its employees and agents, shall cooperate fully with the entry Indemnified Party and its legal representatives in the investigation of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying PartyClaim covered by this indemnification.

Procedure. If (a) As between the Parties, Licensee will have the first right to pursue any Infringement Action against an Indemnified infringing Third Party intends at its own expense. If, within fifteen (15) days after the notice, pursuant to claim indemnification under Article 10Section 9.1, of any suspected infringement or Infringement Action, Licensee has elected not to initiate, defend, or otherwise resolve such Infringement Action, then Mount Sinai shall have the Indemnified right, but not the obligation, to initiate, control, pursue, and/or defend such Infringement Action at its own expense. (b) The Party controlling any Infringement Action shall notify use reasonable efforts to: (i) inform the Indemnifying other Party of the status of such Infringement Action on a regular basis or as requested by the Party without primary control of the Infringement Action; (ii) provide to the other Party copies of any Loss documents relating to the Infringement Action promptly upon receipt from any Third Party and/or, if practicable, prior to filing such documents; (iii) consult with the other Party regarding the advisability of any contemplated course of action; and (iv) consider any comments from the other Party regarding the Infringement Action. The Party without control of an Infringement Action shall cooperate, at controlling Party’s expense (including reasonable fees and other expenses for the non-controlling Party’s attorney), with the Party controlling such Infringement Action to the extent reasonably possible, including joining the Infringement Action if necessary or desirable. Non-controlling Party’s expenses to be paid by controlling Party within thirty (30) days of invoice. (c) Licensee shall not enter into a settlement of any Infringement Action that (i) restricts the scope of, (ii) adversely affects the enforceability of, (iii) grants a license to, or (iv) provides any other settlement action that adversely affects the value of this Agreement or any Patents related to a Licensed Product, or includes admission of fault or wrongdoing on behalf of Mount Sinai, without the prior written consent of Mount Sinai. For clarity, if the settlement of any Infringement Action includes granting a Sublicense, Licensee shall pay to Mount Sinai royalties on any Net Sales by such Sublicensee and a percentage of Sublicense Income, if applicable, in respect accordance with Article 4 in addition to any other share of which recoveries due to Mount Sinai under this Section. For the Indemnified Party intends to claim such indemnificationpurposes of settling an Infringement Action, a license granted as a non-revenue cross license shall be considered as a Sublicense, and must comply with all Sublicensing requirement herein, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense Fair Market Value of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party cross license shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Partybe considered Sublicense Income.

Procedure. If (a) In order for an indemnified party under this Article 7 (an “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement, such Indemnified Party intends shall, promptly following the discovery of the matters giving rise to any Loss, notify the indemnifying party under this Article 7 (the “Indemnifying Party”) in writing of its claim for indemnification under Article 10for such Loss, specifying in reasonable detail the nature of such Loss and the amount of the liability estimated to accrue therefrom; provided, however, that failure to give such prompt notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnified Party failed to give such notice). Thereafter, the Indemnified Party shall notify deliver to the Indemnifying Party, within five Business Days after the Indemnified Party’s receipt of such request, all information and documentation reasonably requested by the Indemnifying Party of any Loss in with respect of which to such Loss. (b) If the indemnification sought pursuant hereto involves a claim made by a third party against the Indemnified Party intends to claim such indemnification(a “Third Party Claim”), and the Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim and, if it so chooses, to assume the defense thereof of such Third Party Claim with counsel mutually satisfactory to selected by the PartiesIndemnifying Party. Notwithstanding the prior sentence, if CDS is Should the Indemnifying Party based on so elect to assume the defense of a claim for indemnification by AlimeraThird Party Claim, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability not be liable to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of for any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees expenses subsequently incurred by the Indemnified Party in establishing its claim for indemnityconnection with the defense thereof. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of If the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming assumes such defense, the Indemnified Party shall have the right to assume participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof (other than during any period in which the Indemnified Party shall have failed to give notice of the Third Party Claim as provided above). If the Indemnifying Party chooses to defend or prosecute a Third Party Claim, all of the parties hereto shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the Indemnifying Party chooses to defend or prosecute any Third Party Claim, the Indemnified Party will agree to any settlement, compromise or settlement discharge of such Loss at Third Party Claim which the risk Indemnifying Party may recommend and expense which by its terms (i) obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim, (ii) includes a full release in favor of the Indemnified Party with respect to the Third Party Claim, does not include any admission of liability and contains reasonable provisions maintaining the confidentiality of the settlement, compromise or discharge, and (iii) does not impair the rights of the Indemnified Party. Whether or not the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent, which will not be unreasonably withheld or delayed.

Procedure. If an The Party seeking indemnification (individually, the “Indemnified Party”), shall promptly notify the other Party (the “Indemnifying Party”) in writing of the Claim. Such Claim for indemnity shall indicate the nature of the Claim and the basis therefor. Promptly after a Claim is made for which the Indemnified Party intends to claim indemnification under Article 10seeks indemnity, the Indemnified Party shall notify permit the Indemnifying Party, at its option and expense, to assume the complete defense of such Claim, provided that (i) the Indemnified Party will have the right to participate in the defense of any such Claim at its own cost and expense, (ii) the Indemnifying Party of any Loss in respect of which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume will conduct the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party Claim with due regard for the business interests and potential related liabilities of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to and (iii) the Indemnifying Party will not relieve agree to any settlement that would admit liability on the part of the Indemnified Party or involve relief other than payment of money, without the approval of the Indemnified Party, not to be unreasonably withheld or delayed; and provided, further, that if it is reasonably likely that the Parties may have conflicting interests or if it is otherwise not advisable under applicable legal and ethical requirements for the Indemnifying Party’s defense counsel to represent both Parties, separate independent counsel shall be retained for each Party of any liability that it may have to any Indemnified Party otherwise than under Article 10at its own expense. The Indemnified Party under Article 10 shall provide reasonable assistance have the right, at its election, to release and hold harmless the Indemnifying Party from its obligations hereunder with respect to such Claim and its legal representatives, at assume the complete defense of the same in return for payment by the Indemnifying Party to the Indemnified Party of the amount of the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnificationsettlement offer. The Indemnifying Party will not, in defense of any such Claim, except with the consent of the Indemnified Party, consent to the entry of any judgment or enter into any settlement which does not include, as an unconditional term thereof, the giving by the claimant or plaintiff to the Indemnified Party of a release from all liability in respect thereof. After notice to the Indemnified Party of the Indemnifying Party’s election to assume the defense of such Claim, the Indemnifying Party shall additionally be liable to pay the reasonable Indemnified Party for such legal costs and attorneys’ fees or other expenses subsequently incurred by the Indemnified Party in establishing its claim for indemnityconnection with the defense thereof at the request of the Indemnifying Party. Except as provided in As to those Claims with respect to which the last sentence Indemnifying Party does not elect to assume control of this Section 10.3the defense, the indemnity agreement Indemnified Party will afford the Indemnifying Party an opportunity to participate in this Article 10 shall such defense at the Indemnifying Party’s own cost and expense, and will not apply to amounts paid in settlement settle or otherwise dispose of any Loss if such settlement is effected of the same without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Party.

Procedure. If an Indemnified The Party intends intending to claim indemnification under this Article 10, the IX (an “Indemnified Party Party”) shall promptly notify the other party (the “Indemnifying Party Party”) of any Loss Claim in respect of which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with using defense counsel mutually satisfactory reasonably acceptable to the Parties. Notwithstanding the prior sentenceIndemnified Party; provided, however, that if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to assumes the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosingdefense, the common Indemnified Party shall have the right to employ counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to separate from counsel employed by the Indemnifying Party within a reasonable time after the commencement of in any such actionaction and to participate in the defense thereof, shall relieve but the fees and expenses of such Indemnifying Party of liability to counsel employed by the Indemnified Party under Article 10 only shall be at the sole cost and expense of the Indemnified Party unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the extent that actual or potential differing interests between them. (Notwithstanding the foregoing, no delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but deficiency on the failure part of the Indemnified Party in so to deliver notice to notifying the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have or obligation under this Agreement except to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the extent the Indemnifying Party and its legal representatives, at has suffered actual prejudice directly caused by the Indemnifying Party’s expense, in delay or other deficiency.) If the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails fail to assume the defense of and reasonably defend such Loss or fails to notify Indemnified Party that is assuming such defenseClaim, the Indemnified Party shall have the right to retain or assume control of such defense and the Indemnifying Party shall pay (as incurred and on demand) the fees and expenses of counsel retained by the Indemnified Party. The Indemnifying Party shall have the right to settle such Claim; provided, that the Indemnifying Party shall obtain the prior written consent (which shall not be unreasonably withheld or delayed) of the Indemnified Party before entering into any settlement of (or resolving by consent to the entry of judgment upon) such Claim unless (a) there is no finding or admission of any violation of law or any violation of the rights of any Person by an Indemnified Party, no requirement that the Indemnified Party admit negligence, fault or culpability, no requirement that the Indemnified Party take (or refrain from taking) any action and no adverse effect on any other claims that may be made by or against the Indemnified Party and (b) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party. Regardless of who controls the defense, compromise or settlement the other Party shall reasonably cooperate in the defense as may be requested. Without limitation, the Indemnified Party, and its directors, officers, advisers, agents and employees, shall cooperate fully with the Indemnifying Party and its legal representatives in the investigation and defense of such Loss at the risk and expense of Indemnifying Partyany Claim.

Procedure. (a) Following the discovery of any facts or conditions which could reasonably be expected to give rise to either Buyer’s Damages or the Sellers’ Damages, the party seeking indemnification under this Section 14 (the “Indemnified Party”) shall, within thirty (30) days thereafter, provide written notice to the party from whom indemnification is sought (the “Indemnifying Party”), specifying the factual basis of the claim in reasonable detail to the extent then known by the party seeking indemnification (“Indemnification Notice”); provided that the failure to give such notice in such time period shall not relieve the Indemnifying Party of its obligations except to the extent it can show prejudice from such failure. (b) If an any Indemnified Party intends receives notice of any matter involving a third party which, if sustained, could give rise to a claim for indemnification under Article 10hereunder (a “Third Party Claim”), the Indemnified Party shall notify within the time specified in Section 14.05(a) above, provide written notice to the Indemnifying Party of any Loss in respect of such matter setting forth with reasonable specificity the facts and circumstances as to which such party has received notice; provided, however, that the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver in any event give written notice to the Indemnifying Party within a reasonable such period of time after as shall be reasonably necessary to allow the commencement of any such action, shall relieve such Indemnifying Party to respond to any pleading or other document for which a timely response is required; provided further, however, that no delay on the part of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to in notifying the Indemnifying Party will not shall relieve the Indemnifying Party of from any liability that it may have obligation hereunder unless (and then solely to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the extent) the Indemnifying Party and its legal representativesis thereby prejudiced. (c) Within ninety (90) days after the notice described in Section 14.05(b) above is received from the Indemnified Party, at or such shorter period as is required to avoid prejudice in any claim, suit or proceeding, the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable have the right to pay assume and thereafter conduct the reasonable legal costs and attorneys’ fees incurred by defense of the Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party; provided, however, that the Indemnifying Party must conduct the defense of the Third Party Claim actively and diligently thereafter in establishing order to preserve its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement rights in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of regard; provided further, however, that the Indemnifying Party, which consent shall Party may not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment or enter into any settlement with respect to any Loss the Third Party Claim without the prior written consent of the Indemnified Party (awhich consent shall not be unreasonably withheld or delayed) that unless the judgment or proposed settlement involves only the payment of money damages, resolves the claim entirely, and does not release impose an injunction or other equitable relief upon the Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Party. The Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a responseat its option and expense, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume participate in any defense undertaken by the Indemnifying Party with legal counsel of its own selection. (d) Unless and until the Indemnifying Party assumes the defense of the Third Party Claim as provided in Section 14.05(c) above, the Indemnified Party may defend against the Third Party Claim in any manner it reasonably deems appropriate. (e) In no event shall the Indemnified Party consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed). (f) The Indemnified Party and the Indemnifying Party may agree in writing, at any time, as to the existence and amount of a Third Party Claim, and, upon the execution of such agreement, such Third Party Claim shall be deemed established. (g) The Indemnified Party shall provide all information and assistance reasonably requested by the Indemnifying Party in order to evaluate any Third Party Claim and affect any defense, compromise or settlement thereof. (h) The provisions of such Loss at this Section 14.05 shall apply to the risk and expense conduct of Indemnifying Partyany Tax Contest only to the extent they do not conflict with the provisions set forth in Section 11.03.

Procedure. If an Indemnified In the event of a claim by a Third Party intends against any Person entitled to claim indemnification under Article 10this Agreement (in such capacity, the “Indemnified Party”), the Indemnified Party shall promptly notify the other Party (or the Foundation) (in such capacity, the “Indemnifying Party Party”) in writing of any Loss in respect of which the claim (it being understood that the failure by the Indemnified Party intends to give prompt notice of a Third Party claim such indemnification, and the Indemnifying Party as provided in this Section 17.3 shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability its indemnification obligation under this Agreement except and only to the extent that it may have such Indemnifying Party is actually prejudiced as a result of such failure to any give prompt notice). Within [**] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, undertake and solely manage and control, at its sole expense and with counsel reasonably satisfactory to the Indemnified Party, the defense of the claim. If the Indemnifying Party does not undertake such defense, the Indemnified Party otherwise than under Article 10shall control such defense. The Party (or the Foundation, as applicable) not controlling such defense shall cooperate with the other Party (or the Foundation, as applicable) and may, at its option and expense, participate in such defense; provided that if the Indemnifying Party assumes control of such defense and the Indemnified Party under Article 10 shall provide reasonable assistance to in good faith concludes, based on advice from counsel, that the Indemnifying Party and its legal representativesthe Indemnified Party have conflicting interests with respect to such action, at suit, proceeding or claim, the Indemnifying Party’s expenseParty shall be responsible for the reasonable fees and expenses of counsel to the Indemnified Party solely in connection therewith. The Party (or the Foundation, in if applicable) controlling such defense shall keep the investigation other Party (or the Foundation, as applicable) advised of any the status of such action, suit, proceeding or claim and the defense thereof and shall consider recommendations made by the other Party (or liability covered by this indemnificationthe Foundation, as applicable) with respect thereto. The Indemnifying Party shall additionally not be liable to pay the reasonable legal for any litigation costs and attorneys’ fees or expenses incurred by the Indemnified Party in establishing its claim for indemnitywithout the Indemnifying Party’s written consent. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 The Indemnified Party shall not apply to amounts paid in settlement of settle any Loss if such settlement is effected action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent shall not be withheld unreasonably withheld, delayed or delayedconditioned. Without the prior written consent of the Indemnified Party, the Indemnifying Party shall notnot settle any such action, without the written consent of Indemnified Partysuit, settle proceeding or compromise any Loss claim, or consent to the entry of any judgment with in respect to any Loss (a) thereof, that does not include a complete and unconditional release of the Indemnified Party from all liability with respect to such Loss thereto, that imposes any liability or (b) which may materially adversely affect obligation on the Indemnified Party or under which that acknowledges fault by the Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Party.

Procedure. (a) If an any party shall seek indemnification with respect to any Loss or potential Loss arising from a claim asserted by a third party (including a notice of Tax audit or request to waive or extend a statute of limitations applicable to any Tax) for which such party seeking indemnification (the "Indemnified Party") is entitled to indemnification under this Article VIII, then the Indemnified Party intends shall promptly notify the other party (the "Indemnifying Party") in writing; provided, however, that no delay on the part of the Indemnified Party in notifying the Indemnifying Party (except to the extent notice is not delivered prior to the expiration of the applicable expiration provision contained in Section 8.1) shall relieve the Indemnifying Party from any obligation hereunder unless (and then solely to the extent that) the Indemnifying Party is prejudiced thereby. (b) An Indemnifying Party will have the right to defend the Indemnified Party against the claim with counsel of its choice, reasonably satisfactory to the Indemnified Party, so long as (i) the Indemnifying Party notifies the Indemnified Party in writing, within ten (10) days after the Indemnified Party has given notice of the claim, that the Indemnifying Party will satisfy its indemnification obligations to the extent required under this Article 10VIII, (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the claim and to fulfill its indemnification obligations hereunder, (iii) the claim involves only money damages and does not seek injunctive or other equitable relief, (iv) settlement of, or an adverse judgment with respect to, the claim is not, in the reasonable and good faith judgment of the Indemnified Party, likely to establish a precedential custom or practice or result in an outcome that is materially adverse to the continuing business interests of the Indemnified Party and (v) the Indemnifying Party conducts the defense of the claim actively, diligently and completely. So long as the Indemnifying Party is conducting the defense of the claim in accordance with this Section 8.5(b), (x) the Indemnified Party may participate in the defense of the claim through separate co-counsel, but the retention of any such separate counsel shall be at the sole cost and expense of the Indemnified Party; provided, however, if the named Persons to a lawsuit or other legal action include both the Indemnifying Party and the Indemnified Party and the Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to the Indemnifying Party, the Indemnified Party shall notify the Indemnifying Party of any Loss in respect of which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representativesentitled, at the Indemnifying Party’s 's cost, risk and expense, in the investigation to separate counsel of any actionits own choosing, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by (y) the Indemnified Party in establishing its claim for indemnity. Except as provided in will not consent to the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement entry of any Loss if such judgment or enter into any settlement is effected with respect to the claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld unreasonably or delayed. delayed and (z) the Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or will not consent to the entry of any judgment or enter into any settlement with respect to the claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed. (c) In the event any Loss of the conditions of Section 8.5(b) above is or becomes unsatisfied, however, (ai) that does not release the Indemnified Party from all liability may defend against, and consent to the entry of any judgment or enter into any settlement with respect to such Loss or to, the claim in any manner it may deem appropriate (b) which may materially adversely affect and the Indemnified Party need not consult with, or under which obtain any consent from, any Indemnifying Party in connection therewith), (ii) subject to Section 8.4, the Indemnifying Party will reimburse the Indemnified Party would incur any obligation or liabilitypromptly and periodically for the costs of defending against the claim (including attorneys' fees and expenses reasonably incurred), other than one as to which and (iii) the Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten will remain responsible to indemnify the Indemnified Party to the extent required under this Article VIII. (10d) days The parties to this Agreement shall execute such powers of receiving notice of a Loss or such shorter period attorney as may be necessary for submitting or filing a responseappropriate to permit participation of counsel selected by any party hereto and, fails as may be reasonably related to assume any such claim, shall provide access to the defense counsel, accountants, and other Representatives of each party during normal business hours and with prior notice to all properties, personnel, books, tax records, Contracts, commitments and all other business records of such Loss or fails other party and will furnish to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement other party at such other party's sole expense copies of such Loss at the risk and expense of Indemnifying Partyall documents as may reasonably be requested (certified if requested).

Procedure. If an Indemnified Upon the threat or filing of any Third Party intends to claim indemnification under Article 10Claim, the Indemnified Party shall promptly notify the Indemnifying Party thereof and shall give information and reasonable assistance in the defense or settlement of any Loss in respect of which the Indemnified such Third Party intends to claim such indemnificationClaim, and the Indemnifying Party shall assume have the right to, at its own cost, handle and control the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentenceof such Third Party Claim, except as expressly provided herein; provided, however, that if CDS is the Indemnifying Party based on exercises its right to, at its own cost, handle and control the defense of a claim for indemnification by AlimeraThird Party Claim, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend may, at its own expense, retain such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that additional attorneys as it may have to any Indemnified Party otherwise than under Article 10deem necessary. The Indemnified Party under Article 10 shall provide reasonable assistance to Party’s attorneys will be permitted by the Indemnifying Party and its legal representativestheir attorneys to reasonably observe the defense of such Third Party Claim, at and the Indemnifying Party’s expense, Party shall keep such Indemnified Party informed of actions taken in the investigation of any action, claim or liability covered by this indemnificationrespect thereof. The Indemnifying Party shall additionally have the right, after consultation with the Indemnified Party, to resolve and settle any such Third Party Claim; provided that, in no event may the Indemnifying Party compromise or settle any such Third Party Claim in a manner which admits fault or negligence on the part of any Indemnified Party or includes injunctive relief or includes the payment of money or other property by any Indemnified Party or diminishes or has a material adverse effect on the rights or interests of any Indemnified Party without the prior written consent of each such Indemnified Party. If a settlement contains an absolute waiver of liability for the Indemnified Party, then the Indemnified Party’s consent shall be liable deemed given. Notwithstanding anything to pay the reasonable legal costs contrary, in the event that Receptos is the Indemnifying Party and attorneys’ fees incurred by AbbVie is the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss a given Third Party Claim for which the reasonably foreseeable Losses exceed the resources of Receptos and its Affiliates (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liabilityan “Exceptional Claim”), other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume then AbbVie shall handle and control the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party Exceptional Claim and shall have the right to assume resolve and settle such Exceptional Claim on terms acceptable to AbbVie and with the defenseconsent of Receptos. Receptos shall remain the Indemnifying Party for an Exceptional Claim in all other respects, compromise including but not limited to with regard to liability for Losses; provided, however, that AbbVie shall have the right, but not the obligation, at its sole discretion, to elect to pay some, all, or settlement none of such Loss at the risk and expense of Indemnifying PartyLosses incurred or rendered in connection with an Exceptional Claim.

Procedure. If an Any Indemnified Party intends seeking indemnification under this Article VIII shall give written notice (a “Claim Notice”) to the Indemnifying Party. The Claim Notice shall include a description in reasonable detail of (i) the basis for, and nature of, such claim, including the facts constituting the basis for such claim, and (ii) the estimated amount of Indemnifiable Losses that have been or reasonably will be sustained by the Indemnified Party in connection with such claim. In the event of any claim, demand, action or proceeding asserted against any Indemnified Party by a third party with respect to which such Indemnified Party may claim indemnification under Article 10Section 8.1 (a “Third Party Claim”), the Indemnified Party shall notify give the Indemnifying Party written notice within ten (10) Business Days of any Loss in respect receiving written notice of which such Third Party Claim. If the Indemnified Party intends fails to claim provide each such indemnificationnotice within such time period, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and will not be subject obligated to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to indemnify the Indemnified Party under Article 10 only with respect to such Third Party Claim to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve is prejudiced by such failure of the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by notify the Indemnified Party in establishing its claim for indemnity. Except within thirty (30) days after receipt of such notice as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of whether the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to will assume the defense of such Loss or fails to notify Indemnified Third Party that is assuming such Claim. If the Indemnifying Party assume the defense, (x) the Indemnified Party shall have the right to assume participate in such defense and to engage separate counsel of its own choosing at its own cost and expense and (y) the defense, Indemnifying Party shall not agree to any compromise or settlement to which the Indemnified Party has not consented to in writing (which consent shall not be unreasonably withheld, conditioned or delayed) unless such settlement or compromise includes only the payment of monetary damages which shall be paid by the Indemnifying Party and includes a release of the Indemnified Party from all Liability in respect of such Loss Third Party Claim. If requested by the Indemnifying Party, the Indemnified Party will, at the risk cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in defending such Third Party Claim. If the Indemnifying Party elects not to assume the defense of such Third Party Claim, the Indemnified Party may assume the defense thereof at the expense of the Indemnifying Party, provided that the Indemnified Party shall not agree to any compromise or settlement to which the Indemnifying Party has not consented in writing (which consent shall not be unreasonably withheld, conditioned or delayed).

Procedure. If an Indemnified Party intends (a) A Person entitled to claim indemnification under this Article 10, the 14 (an “Indemnified Party Party”) shall notify the Indemnifying Party of any Loss in respect of which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory give prompt written notification to the Parties. Notwithstanding Person from whom indemnification is sought (the prior sentence, if CDS is the “Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel Party”) of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve suit or proceeding relating to a Third Party claim for which indemnification may be sought or, if earlier, upon the assertion of any such Indemnifying claim by a Third Party of liability to (it being understood and agreed, however, that the failure by an Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such give notice of a Third-Party claim or action, but the failure so to deliver notice to the Indemnifying Party will as provided in this Section 14.3 shall not relieve the Indemnifying Party of any liability its indemnification obligation under this Agreement except and only to the extent that it may have such Indemnifying Party is actually damaged as a result of such failure to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to give notice). (b) Within [**] after delivery of such notification, the Indemnifying Party and its legal representativesmay, at upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. (c) If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense and, without limiting the Indemnifying Party’s expenseindemnification obligations, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay reimburse the reasonable legal Indemnified Party for all costs and attorneys’ fees expenses, including reasonable attorney’s fees, incurred by the Indemnified Party in establishing defending itself within [**] after receipt of any invoice therefor from the Indemnified Party. (d) The Party not controlling such defense may participate therein at its claim own expense; provided that, if the Indemnifying Party assumes control of such defense and the Indemnified Party in good faith concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim, the Indemnifying Party shall be responsible for indemnity. Except as provided the reasonable fees and expenses of counsel to the Indemnified Party in connection with its participation in the last sentence defense action. (e) The Party controlling such defense shall keep the other Party advised of this Section 10.3the status of such action, suit, proceeding or claim and the indemnity agreement in this Article 10 defense thereof and shall consider recommendations made by the other Party with respect thereto. (f) The Indemnified Party shall not apply agree to amounts paid in any settlement of any Loss if such settlement is effected action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent shall not be withheld unreasonably withheld, delayed or delayedconditioned. The Indemnifying Party shall notnot agree to any settlement of such action, without the written consent of Indemnified Partysuit, settle proceeding or compromise any Loss claim or consent to the entry of any judgment with in respect to any Loss (a) thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect to such Loss thereto, that imposes any liability or (b) which may materially adversely affect obligation on the Indemnified Party or under which that acknowledges fault by the Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days without the prior written consent of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Party.

Procedure. (i) Following the discovery of any facts or conditions which could reasonably be expected to give rise to either DGI’s Damages or the Shareholders’ Damages, the party seeking indemnification under this Agreement (the “Indemnified Party”) shall, within 60 days thereafter, provide written notice to the party from whom indemnification under this Agreement is sought (the “Indemnifying Party”), specifying the factual basis of the claim in reasonable detail to the extent then known by the party seeking indemnification; provided that the failure to give such notice in such time period shall not relieve the Indemnifying Party of its obligations except to the extent it can show prejudice from such failure. (ii) If an any Indemnified Party intends receives notice of any matter involving a third party which, if sustained, could give rise to a claim for indemnification under Article 10hereunder (a “Third Party Claim”), the Indemnified Party shall notify within the time specified in Section 10(d)(i), provide written notice to the Indemnifying Party of any Loss in respect of such matter setting forth with reasonable specificity the facts and circumstances as to which such party has received notice; provided, however, that the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver in any event give written notice to the Indemnifying Party within a reasonable such period of time after as shall be reasonably necessary to allow the commencement of any such action, shall relieve such Indemnifying Party to respond to any pleading or other document for which a timely response is required; provided further, however, that no delay on the part of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to in notifying the Indemnifying Party will not shall relieve the Indemnifying Party from any obligation hereunder unless, and then solely to the extent, the Indemnifying Party is thereby prejudiced. (iii) Within 90 days after the Indemnifying Party has received the notice described in Section 10(d)(ii) from the Indemnified Party, or such shorter period as is required to avoid prejudice in any claim, suit or proceeding, the Indemnifying Party shall have the right to assume and thereafter conduct the defense of the Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party; provided, however, that the Indemnifying Party must conduct the defense of the Third Party Claim actively and diligently thereafter in order to preserve its rights in this regard; provided further, however, that the Indemnifying Party may not consent to the entry of any liability that it may have judgment or enter into any settlement with respect to any the Third Party Claim without the prior written consent of the Indemnified Party otherwise than under Article 10Party, which consent shall not be unreasonably withheld or delayed, unless the judgment or proposed settlement involves only the payment of money damages, resolves the claim entirely, and does not impose an injunction or other equitable relief upon the Indemnified Party. The Indemnified Party under Article 10 Party, at its option and expense, shall provide reasonable assistance have the right to participate in any defense undertaken by the Indemnifying Party with legal counsel of its own selection. (iv) Unless and its legal representatives, at until the Indemnifying Party’s expenseParty assumes the defense of the Third Party Claim as provided in Section 10(d)(iii), in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party may defend against the Third Party Claim in establishing its claim for indemnity. Except as provided in any manner it reasonably deems appropriate. (v) In no event shall the last sentence of this Section 10.3, Indemnified Party consent to the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement entry of any Loss if such judgment or enter into any settlement is effected with respect to the Third Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld unreasonably or delayed. . (vi) The Indemnified Party and the Indemnifying Party shall notmay agree in writing, without the written consent of Indemnified Partyat any time, settle or compromise any Loss or consent as to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice existence and amount of a Loss or such shorter period as may be necessary for submitting or filing a responseThird Party Claim, fails to assume and, upon the defense execution of such Loss or fails to notify Indemnified agreement, such Third Party that is assuming such defense, Claim shall be deemed established. (vii) The Indemnified Party shall have provide all information and assistance reasonably requested by the right Indemnifying Party in order to assume the evaluate any Third Party Claim and affect any defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Partythereof.

Procedure. If an Indemnified Party intends to claim indemnification under Article 10In the event of any such liability, the Indemnified indemnifying Party will select counsel reasonably acceptable to the indemnified Party (such consent not to be unreasonably conditioned, withheld or delayed), and all costs of such counsel will be borne by the indemnifying Party. The indemnified Party may at its sole option and at its own expense engage its own separate counsel to act as co-counsel on its behalf. The exercise by the indemnified Party of its option to select co-counsel will in no way limit or modify the indemnifying Party’s obligations set forth in this Section. Each Party reserves the right to provide a defense of any action subject to a reservation of rights, including the right to obtain contribution or indemnity from the other Party (including for attorney’s fees and costs) to the extent it is determined that such other Party is wholly or partially responsible for the loss or damage giving rise to the claims asserted in such action. Upon notice of an alleged infringement or if in the indemnifying Party’s opinion such a claim is likely, or alternatively, if the indemnified Party’s rights hereunder are restricted by the indemnifying Party or a valid court order, then the indemnifying Party shall notify at its option and sole expense: (i) procure the Indemnifying right for the indemnified Party of any Loss to continue using the alleged infringing material; or (ii) replace the material with non-infringing material which is equivalent in respect of which features, functionality and quality; or (iii) modify the Indemnified material to make it non-infringing while retaining all original features, functionality and quality; or (iv) refund the indemnified Party intends to claim such indemnification, and fees paid for the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Partiesinfringing material based on a depreciated value over 3 years. Notwithstanding the prior sentenceforegoing, if CDS WolfePak will not indemnify, defend, or hold harmless the Customer for Customer’s use of the Solution or WolfePak Software that is in or purportedly in violation of any law, whether local, State/Provincial, or Federal, of the United States or any other country. As WolfePak cannot predict every possible circumstance of how the Customer will use the Solution or WolfePak Software, it is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees Customer’s responsibility to ensure its use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel is not in violation of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Partylaw.

Procedure. If All claims for indemnification shall be asserted and resolved as follows: (a) An Indemnitee shall promptly give the Indemnitor notice of any matter that an Indemnified Party intends Indemnitee has determined has given or could give rise to claim a right of indemnification under Article 10this Agreement, stating the Indemnified Party shall notify amount of the Indemnifying Party of any Loss in respect of which the Indemnified Party intends to claim such indemnificationDamages, if known, and method of computation thereof, all with reasonable particularity, and stating with particularity the Indemnifying Party nature of such matter. Failure to provide such notice shall assume not affect the defense thereof with counsel mutually satisfactory right of an Indemnitee to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel except to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they such failure shall have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of resulted in liability to the Indemnified Party under Article 10 only Indemnitor that actually could have been avoided had such notice been provided within the required time period. (b) The obligations and liabilities of an Indemnitor with respect to Damages arising from claims of any third party that are subject to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim indemnification provided for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 VI ("THIRD PARTY CLAIMS") shall be governed by and contingent upon the following additional terms and conditions: if an Indemnitee receives notice of any Third Party Claim, the Indemnitee shall give the Indemnitor prompt notice of such Third Party Claim and the Indemnitor may, at its option, assume and control the defense of such Third Party Claim at the Indemnitor's expense and through counsel of the Indemnitor's choice reasonably acceptable to the Indemnitee. If the Indemnitor assumes the defense against any such Third Party Claim as provided above, the Indemnitee shall have the right to participate at its own expense in the defense of such asserted liability, shall cooperate with the Indemnitor in such defense and will use commercially reasonable efforts to make available on a reasonable basis to the Indemnitor all witnesses, pertinent records, materials and information in its possession or under its control relating thereto as reasonably required by the Indemnitor. If the Indemnitor does not apply elect to amounts paid conduct the defense against any such Third Party Claim, the Indemnitor shall pay all reasonable costs and expenses of such defense as incurred and shall cooperate with the Indemnitee (and be entitled to participate) in such defense and will use commercially reasonable efforts to make available to it on a reasonable basis all such witnesses, records, materials and information in its possession or under its control relating thereto as reasonably required by the Indemnitee. Except for the settlement of any Loss if such settlement a Third Party Claim that involves the payment of money only and for which the Indemnitee is effected without totally indemnified by the consent of the Indemnifying PartyIndemnitor, which consent shall not no Third Party Claim may be withheld unreasonably or delayed. Indemnifying Party shall not, settled without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying PartyIndemnitee.

Procedure. If an Indemnified Promptly after the discovery by the Party intends to claim seeking indemnification under Article 10Section 6.2 or Section 6.3 herein (the “Indemnified Party”) of any Loss, claim or breach, including any claim by a Third Party (a “Third Party Claim”) that would reasonably be expected to give rise to a claim for indemnification hereunder, the Indemnified Party shall notify give written notice to the Party against whom indemnity is sought (the “Indemnifying Party Party”); provided that, no delay on the part of any Loss in respect of which the Indemnified Party intends to claim such indemnification, and in notifying the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability or obligation hereunder, except to the extent that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party has been prejudiced thereby, and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnificationthen only to such extent. The Indemnifying Party shall additionally be liable assume the defense of the Third Party Claim and retain reputable counsel reasonably satisfactory to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing to represent the Indemnifying Party and the Indemnifying Party shall pay the fees and expenses of such counsel related to such proceeding. In any such proceeding, the Indemnified Party shall have the right to retain its claim for indemnityown counsel, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless (a) the Parties shall have mutually agreed to the retention of such counsel, (b) the named parties to any such proceeding (including any impleaded parties) include the Parties and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them or (c) the Indemnified Party assumes the defense of a Third Party Claim after the Indemnifying Party has failed to diligently defend a Third Party Claim it has assumed per the Indemnified Party’s request. Except as provided in the last sentence of All such fees and expenses incurred pursuant to this Section 10.36.5 shall be reimbursed as they are incurred. In the event that the Indemnified Party assumes the defense of any Third Party Claim, the indemnity agreement in this Article 10 Indemnified Party’s right to indemnification for a Third Party Claim shall not apply to amounts paid in be adversely affected by assuming the defense of such Third Party Claim. The Indemnifying Party shall not be liable for any settlement of any Loss if such settlement is effected proceeding without the its prior written consent of the Indemnifying Party, (which consent shall not be withheld unreasonably withheld, conditioned or delayed). The Indemnifying Party shall not, without the written consent of the Indemnified Party, settle or compromise effect any Loss or consent to the entry settlement of any judgment with respect to any Loss Third Party Claim unless (a) that does not such settlement includes an unconditional release of the Indemnified Party from all liability with respect on claims to which the indemnity relates that are the subject matter of such Loss or proceeding and (b) which may materially adversely affect it would not result in (i) the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party or under which any of its Affiliates, (ii) a finding or admission of a violation of Applicable Law or violation of the rights of any Person by the Indemnified Party would incur or any obligation of its Affiliates or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10iii) days any monetary liability of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party arising from such Third Party Claim that is assuming such defense, Indemnified Party shall have not be promptly paid or reimbursed by the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Party.

Procedure. If an Indemnified Each Party’s indemnification obligations under Section 14.1 and Section 14.2 are conditioned upon the Party intends seeking indemnification (the “Indemnitee”) delivering a written notice to claim indemnification under Article 10, the Indemnified other Party shall notify (the Indemnifying Party “Indemnitor”) of any Loss applicable Third Party Claim subject to indemnification hereunder promptly after the Indemnitee becomes aware of such Third Party Claim. The Indemnitor will have no indemnification obligations hereunder to the extent materially prejudiced by any delay by the Indemnitee in respect providing such notice. The Indemnitor will have the sole right to defend or settle (subject to the remainder of which this Section 14.3) any Third Party Claim (using counsel reasonably satisfactory to the Indemnified Party intends to claim such indemnificationIndemnitee). The Indemnitee will cooperate fully with Indemnitor in connection therewith, and at the Indemnifying Party shall assume Indemnitor’s expense. The Indemnitee may participate in (but not control) the defense thereof with counsel mutually satisfactory to at its sole cost and expense. The Indemnitor shall keep the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account Indemnitee advised of the common representationstatus of the Third Party Claim and the defense thereof and shall reasonably consider recommendations made by the Indemnitee with respect thereto. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, Indemnitee shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have agree to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected Third Party Claim without the prior written consent of the Indemnifying PartyIndemnitee, which consent shall not be withheld unreasonably withheld, delayed or delayedconditioned. Indemnifying The Indemnitor shall not agree to any settlement of any Third Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss Claim or consent to the entry of any judgment with in respect to any Loss (a) thereof that does not include a complete and unconditional release Indemnified Party of the Indemnitee from all liability with respect to such Loss thereto or (b) that imposes any liability or obligation on the Indemnitee without the prior written consent of the Indemnitee, which may materially adversely affect Indemnified Party shall not be unreasonably withheld, delayed or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Partyconditioned.

Procedure. 10.4.1 Any party seeking indemnification under this Article 10 (the "Indemnified Party") will promptly notify the party required to provide indemnity hereunder (the "Indemnifying Party") in accordance with Section 12.15. Notwithstanding the foregoing, failure to give or delay in giving notice will not release the Indemnifying Party from liability except to the extent that the Indemnifying Party is materially prejudiced thereby. 10.4.2 If an the Indemnifiable Loss arises from any claim, demand or liability is asserted by any third party against the Indemnified Party intends to claim indemnification under Article 10(a "Third-Party Claim"), the Indemnified Party shall will, upon notice of the claim or demand, promptly notify the Indemnifying Party of any Loss in respect of which the Indemnified Party intends to claim such indemnificationParty, and the Indemnifying Party shall assume will defend and/or settle any actions or proceedings brought against the defense thereof Indemnified Party in respect of matters embraced by the indemnity with counsel mutually reasonably satisfactory to the PartiesIndemnified Party. Notwithstanding the prior sentence, if CDS is If the Indemnifying Party based on a does not promptly defend or settle any such claims, the Indemnified Party will have the right to control any defense or settlement, at the expense of the Indemnifying Party. No claim for indemnification will be settled or compromised without the prior written consent of each party to be affected by Alimerasuch settlement or compromise, then Alimera agrees such consent not to use CDS’ counsel as common counsel be unreasonably withheld. The Indemnified Party will at all times also have the right to participate fully in the extent the Parties’ interests are aligneddefense at its own expense; provided Indemnifying Party will pay legal fees of one counsel for Indemnified Party if (a) under applicable standards of conduct, a conflict on any significant issue exists between any two or more Indemnified Parties, or (b) the Third Party Claim is made both against an Indemnifying Party and an Indemnified Party and the Indemnified Party has been advised by counsel that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue there are legal defenses available to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice such Indemnified Party that are materially different from those available to the Indemnifying Party. The parties will cooperate in the defense of all Third-Party within a reasonable time after Claims that may give rise to Indemnifiable Claims hereunder. In connection with the commencement defense of any claim, each party will make available to the party controlling such actiondefense, shall relieve any books, records or other documents within its control that are necessary or appropriate for such Indemnifying Party of liability to defense. 10.4.3 If the Indemnified Party under Article 10 only has a claim against the Indemnifying Party that does not involve a Third-Party Claim (an "Inter-Party Claim", and together with a Third-Party Claim, an "Indemnifiable Claim"), the Indemnified Party will notify the Indemnifying Party with reasonable promptness of the claim, specifying the nature, estimated amount and the specific basis for the claim. The Indemnifying Party will respond within 45 days of receipt of the notice of an Inter-Party Claim. If the Indemnifying Party fails to respond, the extent that estimated amount of the delay adversely affects claim specified by the Indemnified Party will be conclusively deemed a liability of the Indemnifying Party’s rights or ability to defend such claim or action. If the Indemnifying Party timely disputes the claim, but the failure so to deliver notice to Indemnified and the Indemnifying Party will negotiate in good faith to resolve the dispute, and if not relieve the Indemnifying Party of any liability that it may have resolved, will be submitted for resolution pursuant to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Party11.

Procedure. If an Indemnified The foregoing indemnity obligations shall be conditioned upon (a) the indemnified Party intends (“Indemnitee”) promptly notifying the indemnifying Party (“Indemnitor”) in writing of the assertion or the commencement of the relevant Third Party Claim, provided, however, that any failure or delay to claim indemnification under Article 10notify shall not excuse any obligation of the Indemnitor, the Indemnified Party shall notify the Indemnifying Party of any Loss in respect of which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel except to the extent the Parties’ interests are aligned; provided that if Indemnitor is actually prejudiced thereby, (b) the Parties’ interests diverge after they have used common counsel of CDS’ choosing, Indemnitee granting the common counsel may continue to represent CDS Indemnitor sole management and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representativescontrol, at the Indemnifying PartyIndemnitor’s sole expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss Third Party Claim and its settlement, provided, however, that the Indemnitor shall not settle any such Third Party Claim without the prior written consent of the Indemnitee if such settlement does not include a complete release from liability or fails if such settlement would involve the Indemnitee undertaking an obligation (including the payment of money by the Indemnitee), would bind or impair the Indemnitee, or includes any admission of wrongdoing by the Indemnitee or that any intellectual property or proprietary right of Indemnitee or this Agreement is invalid, narrowed in scope or unenforceable, and (c) the Indemnitee reasonably cooperating with the Indemnitor, at the Indemnitor’s expense. The Indemnitee shall have the right, at its own expense, to notify Indemnified Party that is assuming such defensebe present in person or through counsel at all legal proceedings giving rise to the right of indemnification. Notwithstanding the foregoing, Indemnified Party shall the Indemnitee will have the right to assume the defense, compromise or settlement of such Loss employ separate counsel at the risk Indemnitee’s expense and expense to control its own defense of Indemnifying Partythe applicable Third Party Claim only if: (i) there are or may be legal defenses available to the Indemnitee that are different from or additional to those available to the Indemnitor or (ii) in the reasonable opinion of counsel to the Indemnitee, a conflict or potential conflict exists between the Indemnitee and the Indemnitor that would make such separate representation advisable. The Indemnitee shall not settle or compromise such Third Party claim without the prior written consent of the Indemnitor, such consent not to be unreasonably withheld, conditioned or delayed.

Procedure. If an Indemnified Party intends to claim (a) Any party seeking indemnification under Article 10, the Indemnified Party shall notify the Indemnifying Party of any Loss in respect of which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (athe "INDEMNIFIED PARTY") that does not release will promptly notify the party required to provide indemnity hereunder (the "INDEMNIFYING PARTY") in accordance with Section 10.11. Notwithstanding the foregoing, the failure of any Indemnified Party from all liability with respect to give timely notice hereunder shall not affect rights to indemnification hereunder, except and to the extent that the Indemnifying Party has been prejudiced thereby in defending against such Loss or claim. (b) which may materially adversely affect If any claim, demand or liability is asserted by any third party against any Indemnified Party or under which (other than a claim for Taxes addressed in Section 6.1(e)(i)) (a "THIRD-PARTY CLAIM"), the Indemnified Party would incur any obligation will, upon notice of the claim or liabilitydemand, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If promptly notify the Indemnifying Party, within ten (10) days and the Indemnifying Party will defend and/or settle any actions or proceedings brought against the Indemnified Party in respect of receiving notice matters embraced by the indemnity with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not promptly defend or settle any such claims, the Indemnified Party will have the right to control any defense or settlement, at the expense of a Loss the Indemnifying Party. No claim will be settled or compromised without the prior written consent of each party to be affected by such shorter period as may settlement or compromise, with such consent not being unreasonably withheld. The Indemnified Party will at all times also have the right to participate fully in the defense. Such participation shall be necessary for submitting or filing a response, fails to assume at the defense of such Loss or fails to notify the Indemnified Party that is assuming such defense, unless the Indemnified Party shall have been advised by counsel retained by the right Indemnifying Party that representation of the Indemnified Party by counsel provided by the Indemnifying Party would be inappropriate due to assume actual conflicting interests between the Indemnifying Party and the Indemnified Party, including situations in which there are one or more substantial legal defenses available to the Indemnified Party that are different from or additional to those available to the Indemnifying Party. The parties will cooperate in the defense of all Third-Party Claims that may give rise to Indemnifiable Claims hereunder. In connection with the defense of any claim, each party will make available to the party controlling such defense, compromise any books, records or settlement other documents within its control that are reasonably requested in the course of such Loss at defense. (c) [Reserved] (d) If the risk Indemnified Party has a claim against the Indemnifying Party that does not involve a Third-Party Claim (an "INTER-PARTY CLAIM"; and expense together with a Third-Party Claim, an "INDEMNIFIABLE CLAIM"), the Indemnified Party will notify the Indemnifying Party with reasonable promptness of the claim, specifying the nature, estimated amount and the specific basis for the claim. The Indemnifying Party will respond within 45 days of receipt of the notice of an Inter-Party Claim. If the Indemnifying Party fails to respond, the estimated ▇▇▇▇▇▇ 60 EXECUTION amount of the claim specified by the Indemnified Party will be conclusively deemed a liability of the Indemnifying Party. If the Indemnifying Party timely disputes the claim, the Indemnified and the Indemnifying Party will negotiate in good faith to resolve the dispute, and if not resolved, either party may pursue whatever remedies it may have. (e) If any Loss is covered by insurance, the Indemnified Party will use good faith efforts to exhaust claims against the applicable policies. The provisions of this Article IX are subject to the rights of any Indemnified Party's insurer that may be defending any such claim. If the Indemnifying Party makes any payment hereunder of a Loss, the Indemnifying Party will be subrogated, to the extent of the payment, to the rights of the Indemnified Party against any insurer or third party with respect to the Loss. The Indemnifying Party shall pay all costs and expenses for pursuing any claims hereunder. Notwithstanding the foregoing, Buyer and Seller acknowledge and agree that, with respect to Indemnifiable Claims, the Indemnified Party may seek payment directly against the Indemnifying Party, without having first to pursue its claims against an insurer, if such Loss is (and following receipt of a payment from such insurer, the Indemnified Party will remain) covered by the Indemnified Party's insurance. If an Indemnifying Party pays the Loss directly to the Indemnified Party, the Indemnified Party will use commercially reasonable efforts to assist the Indemnifying Party in pursuing any claims against the applicable policies.

Procedure. Each Party will notify the other Party in writing if it becomes aware of a claim for which such Party may seek indemnification hereunder. If an any Proceeding is instituted against a Party (or another Company Indemnified Party intends to claim indemnification under Article 10, in the case of Company or another Vertex Indemnified Party shall notify in the case of Vertex) with respect to which indemnity may be sought pursuant to Section 9.1.1 or 9.1.2, as applicable, such Party (the “Indemnified Party”) will give prompt written notice of the indemnity claim to the other Party (the “Indemnifying Party”) and provide the Indemnifying Party with a copy of any Loss in respect of which complaint, summons or other written notice that the Company Indemnified Party intends to claim or Vertex Indemnified Party, as applicable, receives in connection with any such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Partiesclaim. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The An Indemnified Party’s failure to deliver such written notice to will relieve the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Company Indemnified Party or Vertex Indemnified Party under Article 10 Section 9.1.1 or 9.1.2, as applicable, only to the extent that such delay is prejudicial to the delay adversely affects Indemnifying Party’s rights or ability to defend such claim; provided that the Indemnifying Party is not contesting the indemnity obligation, the Company Indemnified Party or Vertex Indemnified Party, as applicable, will permit the Indemnifying Party to control any litigation relating to such claim and the disposition of such claim by negotiated settlement or actionotherwise (subject to this Section 9.1) and any failure to contest such obligation prior to assuming control will be deemed to be an admission of the obligation to indemnify. The Indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claim and will not settle or otherwise resolve such claim without the prior written consent of the Company Indemnified Party or Vertex Indemnified Party, but as applicable, which will not be unreasonably withheld, conditioned or delayed; provided that such consent will not be required with respect to any settlement involving only the failure so to deliver notice to payment of monetary awards for which the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10be fully responsible. The Indemnified Party under Article 10 shall provide reasonable assistance to will cooperate with the Indemnifying Party and its legal representativesin the Indemnifying Party’s defense of any claim for which indemnity is sought under this Agreement, at the Indemnifying Party’s cost and expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Party.

Procedure. If an Indemnified In the event of a claim by a Third Party intends against any Person entitled to claim indemnification under Article 10this Agreement, the Party claiming indemnification (in such capacity, the “Indemnified Party”) shall promptly notify the other Party (in such capacity, the “Indemnifying Party”) in writing of the claim (it being understood that the failure by the Indemnified Party to give prompt notice of a Third Party claim as provided in this Section 10.3 shall notify the Indemnifying Party of any Loss in respect of which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability its indemnification obligation under this Agreement except and only to the extent that it may have such Indemnifying Party is actually prejudiced as a result of such failure to any give prompt notice). Within [**] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, undertake and solely manage and control, at its sole expense and with counsel reasonably satisfactory to the Indemnified Party, the defense of the claim. If the Indemnifying Party does not undertake such defense in accordance with the preceding sentence, the Indemnified Party otherwise than under Article 10shall control such defense. The Party not controlling such defense shall cooperate with the other Party and may, at its option and expense, participate in such defense with counsel of its choice; provided, however, that if the Indemnifying Party assumes control of such defense as set forth above and the Indemnified Party under Article 10 shall provide reasonable assistance to in good faith concludes, based on advice from counsel, that the Indemnifying Party and its legal representativesthe Indemnified Party (or the relevant MedImmune Indemnitee or Kolltan Indemnitee seeking indemnification) have conflicting interests with respect to such action, at suit, proceeding or claim, the Indemnifying Indemnified Party’s expense, counsel may fully participate in such defense and the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be responsible for the reasonable fees and expenses of one counsel to the indemnified Persons solely in connection therewith. The Party controlling such defense shall keep the other Party advised of the status of such action, suit, proceeding or claim and the defense thereof, shall provide the other Party copies of material documents and filings related to such action, suit, proceeding or claim and shall consider recommendations made by the other Party with respect thereto. Except if the Indemnifying Party did not undertake defense of the claim as set forth above, or if the Indemnifying Party and the Indemnified Party (or the relevant MedImmune Indemnitee or Kolltan Indemnitee seeking indemnification) have conflicting interests with respect to such action, suit, proceeding or claim and the Indemnified Party engages separate counsel, as provided above, the Indemnifying Party shall not be liable to pay the reasonable legal for any litigation costs and attorneys’ fees or expenses incurred by the Indemnified Party in establishing its claim for indemnitywithout the Indemnifying Party’s written consent. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 The Indemnified Party shall not apply to amounts paid in settlement of settle any Loss if such settlement is effected action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent shall not be withheld unreasonably withheld, delayed or delayedconditioned. The Indemnifying Party shall notnot settle, without the prior written consent of the Indemnified Party, settle any such action, suit, proceeding or compromise any Loss claim, or consent to the entry of any judgment with in respect to any Loss (a) thereof, that does not include a complete and unconditional release of the Indemnified Party from all liability with respect to such Loss thereto, that imposes any liability or (b) which may materially adversely affect obligation on the Indemnified Party or under which that acknowledges fault by the Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Party.

Procedure. If an Each Party shall notify the other in the event it becomes aware of a claim for which indemnification may be sought hereunder or for which Liability is shared pursuant to this Article 15. In case any proceeding (including any governmental investigation) shall be instituted involving either Party in respect of which indemnity may be sought pursuant to this Article 15, such Party (the “Indemnified Party”) shall promptly notify the Party obligated to indemnify such Party pursuant to Section 15.1 or Section 15.2 (the “Indemnifying Party”) in writing and the Indemnifying Party and Indemnified Party intends shall meet to claim indemnification under Article 10discuss how to respond to any claims that are the subject matter of such proceeding, provided that any delay in providing such notification shall only limit the Indemnifying Party’s obligation to the extent of the actual prejudice caused to the Indemnifying Party by such delay. The Indemnifying Party, upon request of the Indemnified Party, shall retain counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party and shall pay the fees and expenses of such counsel related to such proceeding. If the Indemnifying Party assumes the defense of the Liability, it shall keep the Indemnified Party advised of the status of such Liability and the defense thereof and shall consider recommendations made by the Indemnified Party with respect thereto. In any such proceeding, the Indemnified Party shall notify have the Indemnifying Party right to retain its own counsel, but the fees and expenses of any Loss in respect such counsel shall be at the expense of which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to unless (a) the Indemnifying Party and its legal representatives, at the Indemnified Party shall have mutually agreed to the retention of such counsel or (b) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party’s expense, in Party and the investigation Indemnified Party and representation of any action, claim both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to actual or liability covered by this indemnificationpotential differing interests between them. All such fees and expenses incurred pursuant to Section 15.1 or Section 15.2 shall be reimbursed as they are incurred. The Indemnifying Party shall additionally not be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in any settlement of any Loss if such settlement is proceeding unless effected without the consent of the Indemnifying Partywith its written consent, which consent shall not be withheld unreasonably or delayedwithheld. The Indemnifying Party shall not, without the written consent of the Indemnified Party, settle or compromise effect any Loss or consent to the entry settlement of any judgment with pending or threatened proceeding in respect to any Loss (a) that does not of which the Indemnified Party is, or arising out of the same set of facts could have been, a party and indemnity could have been sought hereunder by the Indemnified Party, unless such settlement includes an unconditional release of the Indemnified Party from all liability with respect on claims to which the indemnity relates that are the subject matter of such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one proceeding. If the Parties cannot agree as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Partythe application of Section 15.1 and Section 15.2 to any particular claim, within ten (10) days of receiving notice of a Loss or such shorter period as the Parties may be necessary for submitting or filing a response, fails to assume the defense conduct separate defenses of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have claim and reserve the right to assume claim indemnity from the defense, compromise or settlement other Party in accordance with Section 15.1 and Section 15.2 above in accordance with Section 16.3 upon resolution of such Loss at the risk and expense of Indemnifying Partyunderlying claim.

Procedure. If an a Party (the “Indemnified Party intends to claim Party”) seeks indemnification under Article 10Section 11.1 or 11.2, the Indemnified Party shall notify shall: (a) inform the other Party (the “Indemnifying Party Party”) of any Loss in respect a claim as soon as reasonably practicable after it receives notice of which the claim (it being understood and agreed, however, that the failure by an Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on give notice of a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, in this Section 11.3 shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability its indemnification obligation under this Agreement except and only to the extent that it may have such Indemnifying Party is actually and materially damaged as a result of such failure to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to give notice); (b) permit the Indemnifying Party to assume direction and its legal representativescontrol of the defense of the claim (including the right to settle the claim solely for monetary consideration) using counsel reasonably satisfactory to the Indemnified Party so long as (I) such claim solely involves monetary consideration and (II) the Indemnifying Party agrees (as between the Parties) to assume sole responsibility for such claim; and (c) cooperate as requested (at the expense of the Indemnifying Party) in the defense of the claim. If the Indemnifying Party does not assume control of such defense within fifteen (15) days after receiving notice of the claim from the Indemnified Party, at the Indemnified Party shall control such defense and, without limiting the Indemnifying Party’s expenseindemnification obligations, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay reimburse the Indemnified Party for all costs, including reasonable legal costs and attorneys’ fees attorney fees, incurred by the Indemnified Party in establishing defending itself within thirty (30) days after receipt of any invoice therefor from the Indemnified Party. The Party not controlling such defense may participate therein at its own expense. The Party controlling such defense shall keep the other Party advised of the status of such action, suit, proceeding or claim for indemnityand the defense thereof and shall consider recommendations made by the other Party with respect thereto. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 The Indemnified Party shall not apply agree to amounts paid in any settlement of any Loss if such settlement is effected action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent shall not be withheld unreasonably withheld, delayed or delayedconditioned. The Indemnifying Party shall notnot agree to any settlement of such action, without the written consent of Indemnified Partysuit, settle proceeding or compromise any Loss claim or consent to the entry of any judgment with in respect to any Loss (a) thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect to such Loss thereto, that imposes any liability or (b) which may materially adversely affect obligation on the Indemnified Party or under which that acknowledges fault by the Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days without the prior written consent of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Party.

Procedure. If an Each Party shall notify the other Party in writing in the event it becomes aware of a claim for which indemnification may be sought hereunder or for which Liability is shared pursuant to this Article 14. In case any proceeding (including any governmental investigation) shall be instituted involving either Party in respect of which indemnity may be sought pursuant to this Article 14, such Party (the “Indemnified Party”) shall promptly notify in writing the Party obligated to indemnify such Party pursuant to Section 14.1 or Section 14.2 (the “Indemnifying Party”) in writing and the Indemnifying Party and Indemnified Party intends shall meet to claim indemnification under Article 10discuss how to respond to any claims that are the subject matter of such proceeding, provided that any delay in providing such notification shall only limit the Indemnifying Party’s obligation to the extent of the actual prejudice caused to the Indemnifying Party by such delay. The Indemnifying Party, upon request of the Indemnified Party, shall retain counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party and shall pay the fees and expenses of such counsel related to such proceeding. If the Indemnifying Party assumes the defense of the Liability, it shall keep the Indemnified Party advised of the status of such Liability and the defense thereof and shall consider recommendations made by the Indemnified Party with respect thereto. In any such proceeding, the Indemnified Party shall notify have the Indemnifying Party right to retain its own counsel, but the fees and expenses of any Loss in respect such counsel shall be at the expense of which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to unless (a) the Indemnifying Party and its legal representatives, at the Indemnified Party shall have mutually agreed to the retention of such counsel or (b) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party’s expense, in Party and the investigation Indemnified Party and representation of any action, claim both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to actual or liability covered by this indemnificationpotential differing interests between them. All such fees and expenses incurred pursuant to Section 14.1 or Section 14.2 shall be reimbursed as they are incurred. The Indemnifying Party shall additionally not be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in any settlement of any Loss if such settlement is proceeding unless effected without the consent of the Indemnifying Partywith its written consent, which consent shall not be withheld unreasonably or delayedwithheld. The Indemnifying Party shall not, without the written consent of the Indemnified Party, settle or compromise effect any Loss or consent to the entry settlement of any judgment with pending or threatened proceeding in respect to any Loss (a) that does not of which the Indemnified Party is, or arising out of the same set of facts could have been, a party and indemnity could have been sought hereunder by the Indemnified Party, unless such settlement includes an unconditional release of the Indemnified Party from all liability with respect on claims to which the indemnity relates that are the subject matter of such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one proceeding. If the Parties cannot agree as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Partythe application of Section 14.1 or Section 14.2 to any particular claim, within ten (10) days of receiving notice of a Loss or such shorter period as the Parties may be necessary for submitting or filing a response, fails to assume the defense conduct separate defenses of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have claim and reserve the right to assume claim indemnity from the defense, compromise other Party in accordance with Section 14.1 or settlement Section 14.2 above in accordance with Section 15.3 upon resolution of such Loss at the risk and expense of Indemnifying Partyunderlying claim.

Procedure. If an Indemnified A Party that intends to claim indemnification under this Article 10, 11 (the Indemnified Party “Indemnitee”) shall promptly notify the Indemnifying indemnifying Party (the “Indemnitor”) in writing of any Loss Third Party Claim, in respect of which the Indemnified Party Indemnitee intends to claim such indemnification, and . The Indemnified Party shall provide the Indemnifying Party shall assume with reasonable assistance, at the Indemnifying Party’s expense, in connection with the defense thereof of the Third Party Claim for which indemnity is being sought. The Indemnitee may participate in and monitor such defense with counsel mutually satisfactory of its own choosing at its sole expense; provided, however, the Indemnitor shall have the right to assume and conduct the defense of the Third Party Claim with counsel of its choice. The Indemnitor shall not settle any Third Party Claim without the prior written consent of the Indemnified Party, not to be unreasonably withheld, unless the settlement involves only the payment of money. So long as the Indemnitor is actively defending the Third Party Claim in good faith, the Indemnitee shall not settle any such Third Party Claim without the prior written consent of the Indemnifying Party. If the Indemnitor does not assume and conduct the defense of the Third Party Claim as provided above, (a) the Indemnitee may defend against, and consent to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel entry of any judgment or enter into any settlement with respect to the extent Third Party Claim in any manner the Parties’ interests are aligned; provided that if Indemnitee may deem reasonably appropriate (and the Parties’ interests diverge after they have used common counsel of CDS’ choosingIndemnitee need not consult with, or obtain any consent from, the common counsel may continue Indemnitor in connection therewith), and (b) the Indemnitor will remain responsible to represent CDS and not be subject to disqualification on account of indemnify the common representationIndemnitee as provided in this Article 11. The failure to deliver written notice to the Indemnifying Party Indemnitor within a reasonable time after the commencement of any such action, action with respect to a Third Party Claim shall only relieve such Indemnifying Party the Indemnitor of liability to the Indemnified Party its indemnification obligations under this Article 10 only 11 if and to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement Indemnitor is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Partyactually prejudiced thereby.

Procedure. (a) A party claiming indemnification pursuant to this Article IX (an “Indemnified Party”) shall, promptly following the discovery of the matters giving rise to any Loss, notify the indemnifying party under this Article IX (the “Indemnifying Party”) in writing of its claim for indemnification for such Loss, specifying in reasonable detail the nature of such Loss and, to the extent known, the amount of the liability estimated to accrue therefrom (the “Indemnification Claim Notice”); provided, however, that failure to give such prompt notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party is actually prejudiced as a result of such failure. (b) If an Indemnified Party intends to the indemnification sought pursuant hereto involves a claim indemnification under Article 10, made by a third party against the Indemnified Party (a “Third Party Claim”), the Indemnifying Party shall notify be entitled to assume the defense of such Third Party Claim with counsel selected by the Indemnifying Party (which counsel shall be reasonably satisfactory to the Indemnified Party) by providing written notice thereof to the Indemnified Party within thirty (30) days following receipt of the Indemnification Claim Notice; provided, however, that if the Indemnifying Party's assumption of the defense of any Third Party Claim would result in a conflict of interest arising out of the joint representation by legal counsel selected by the Indemnifying Party of any Loss in respect the interests of which both the Indemnifying Party and the Indemnified Party intends to claim such indemnificationParty, and the Indemnifying Party shall assume be entitled to engage separate legal counsel to represent the defense thereof with Indemnified Party (which counsel mutually shall be reasonably satisfactory to the Parties. Notwithstanding Indemnified Party) at the prior sentenceIndemnifying Party's sole cost and expense and, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees fails to use CDS’ counsel as common counsel do so during the thirty (30) day period referred to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosingabove, the common counsel may continue to represent CDS and Indemnifying Party shall not be subject entitled to disqualification on account assume the Indemnified Party's defense of the common representationsuch Third Party Claim. The failure to deliver notice Prior to the Indemnifying Party within a reasonable time after the commencement assuming control of any such action, defense it shall relieve such Indemnifying Party of liability first verify to the Indemnified Party under Article 10 only in writing that such Indemnifying Party shall be fully responsible for all liabilities and obligations relating to such Third Party Claim and that it will provide full indemnification to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified with respect to such Third Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnificationClaim. The Indemnifying Party shall additionally not be liable entitled to pay assume control of such defense if (A) the reasonable legal costs Third Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; (B) the Third Party Claim primarily seeks an injunction or other equitable relief against the Indemnified Party; (C) upon petition by the Indemnified Party, the appropriate court rules that the Indemnifying Party failed or is failing to vigorously prosecute or defend such Third Party Claim; or (D) the Indemnified Party reasonably believes that the Loss relating to such Third Party Claim could be materially adverse to the Purchased Assets or Product Business or exceed the maximum amount that such Indemnified Party could then be entitled to recover under the applicable provisions of this Article IX. Any Indemnified Party shall have the right to employ separate counsel in any such defense and attorneys’ to participate therein, but the fees incurred and expenses of such counsel shall not be at the expense of the Indemnifying Party unless (i) the Indemnifying Party shall have not, within the time after having been notified by the Indemnified Party in establishing its claim for indemnity. Except of the existence of the Third Party Claim as provided in the last first sentence of this Section 10.39.4(b), assumed the indemnity agreement defense of such Third Party Claim, or (ii) in this Article 10 shall not apply the event of a conflict of interest situation, failed to amounts paid in settlement of any Loss if such settlement is effected without engage separate legal counsel to represent the consent of Indemnified Party. (c) If the Indemnifying PartyParty assumes the defense of a Third Party Claim, which consent shall not be withheld unreasonably it will take all steps necessary to defend, prosecute or delayedsettle such claim. The Indemnifying Party shall notconduct the defense of the Third Party Claim actively and diligently, without and the written consent Indemnified Party will provide reasonable cooperation in the defense of Indemnified Party, settle or compromise any Loss or the Third Party Claim. The Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified Party (not to be unreasonably withheld or delayed), unless (A) there is no finding or admission of any violation of Governmental Rules or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnified party, and (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; and (C) the Indemnified Party will have no liability with respect to any Loss compromise or settlement of such claims effected without its consent. (ad) In the event that does not release (i) an Indemnified Party from all liability with respect gives an Indemnification Claim Notice to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which the Indemnifying Party has an indemnity obligation hereunder. If and the Indemnifying Party, within ten (10) days of receiving notice of a Loss Party fails or such shorter period as may be necessary for submitting or filing a response, fails elects not to assume the defense of such Loss Third Party claim that the Indemnifying Party had the right to assume under this Section 9.4 or fails (ii) the Indemnifying Party is not entitled to notify Indemnified assume the defense of the Third Party that is assuming such defenseClaim pursuant to this Section 9.4, the Indemnified Party shall have the right right, with counsel of its choice, to assume defend, conduct and control the defense of the Third Party Claim and/or to settle or consent to the entry of judgment with respect to such Third Party Claim, at the sole cost and expense of the Indemnifying Party. In each case, the Indemnified Party shall conduct the defense of the Third Party Claim actively and diligently, and the Indemnifying Party will provide reasonable cooperation in the defense of the Third Party Claim. The Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim without the prior written consent of the Indemnifying Party. In connection with any Third Party Claim in the United States, the Indemnifying Party hereby consents to the nonexclusive jurisdiction of any court in which a Third Party Claim is brought against any Indemnified Party for purposes of any claim that the Indemnified Party may have under this Article IX with respect to such Third Party Claim or the matters alleged therein and agrees that process may be served on the Indemnifying Party with respect to such a claim anywhere in the United States. (e) Each party to this Agreement shall use its commercially reasonable efforts to cooperate and to cause its employees to cooperate with and assist the Indemnified Party or the Indemnifying Party, as the case may be, in connection with the defense of any Third Party Claim, including attending conferences, discovery proceedings, hearings, trials and appeals and furnishing records, information and testimony, as may reasonably be requested; provided, that each party shall use its commercially reasonable efforts, in respect of any Third Party Claim of which it has assumed the defense, compromise or settlement to preserve the confidentiality of such Loss at all confidential information and the risk attorney client and expense of Indemnifying Partywork product privileges.

Procedure. If an Indemnified Party intends (a) The person intending to claim indemnification under Article 10, the this Section 7 (an “Indemnified Party Party”) shall promptly notify the other party (the “Indemnifying Party Party”) of any Loss Claim in respect of which the Indemnified Party intends to claim such indemnification, and a reasonable explanation of the basis for the Claim and the amount of alleged Losses to the extent of the facts then known by the Indemnified Party. (Notwithstanding the foregoing, no delay or deficiency on the part of the Indemnified Party in so notifying the Indemnifying Party will relieve the Indemnifying Party of any liability or obligation under this Agreement except to the extent the Indemnifying Party has suffered actual prejudice directly caused by the delay or other deficiency.) The Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentencewhether or not such Claim is rightfully brought; provided, however, that if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to assumes the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosingdefense, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to employ counsel separate from counsel employed by the Indemnifying Party in any such action and to participate in the defense thereof, but the fees and expenses of such counsel employed by the Indemnified Party shall be at the sole cost and expense of the Indemnified Party unless the Indemnifying Party consents to the retention of such counsel or unless the named parties to any action or proceeding include both the Indemnifying Party and the Indemnified Party and a representation of both the Indemnifying Party and the Indemnified Party by the same counsel would be inappropriate due to the actual or potential differing interests between them. And provided further that, if the Indemnifying Party shall fail to assume the defense of and reasonably defend such Claim, the Indemnified Party shall have the right to retain or assume control of such defense and the Indemnifying Party shall pay (as incurred and on demand) the fees and expenses of counsel retained by the Indemnified Party. (b) The Indemnifying Party shall not be liable for the indemnification of any Claim settled (or resolved by consent to the entry of judgment) without the written consent of the Indemnifying Party. Also, if the Indemnifying Party shall control the defense of any such Claim, the Indemnifying Party shall have the right to settle such Claim; provided, that the Indemnifying Party shall obtain the prior written consent (which shall not be unreasonably withheld or delayed) of the Indemnified Party before entering into any settlement of (or resolving by consent to the entry of judgment upon) such Claim unless (A) there is no finding or admission of any violation of law or any violation of the rights of any Person by an Indemnified Party, no requirement that the Indemnified Party admit fault or culpability, and no adverse effect on any other claims that may be made by or against the Indemnified Party and (B) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party and such settlement does not require the Indemnified Party to take (or refrain from taking) any action. (c) Regardless of who controls the defense, compromise or settlement the other party hereto shall reasonably cooperate in the defense as may be requested. Without limitation, the Indemnified Party, and its directors, officers, advisers, agents and employees, shall cooperate fully with the Indemnifying Party and its legal representatives in the investigations of such Loss at the risk and expense of Indemnifying Partyany Claim.

Procedure. Each Party will notify the other Party in writing if it becomes aware of a claim for which such Party may seek indemnification hereunder. If an any Procedure is instituted against a Party with respect to which indemnity may be sought pursuant to Section 8.1.1 or 8.1.2, as applicable, such Party (the “Indemnified Party”) will give prompt written notice of the indemnity claim to the other Party intends to claim indemnification under Article 10(the “Indemnifying Party”) and provide the Indemnifying Party with a copy of any complaint, summons or other written notice that the Indemnified Party shall notify the Indemnifying Party of receives in connection with any Loss in respect of which the such claim. An Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The Party’s failure to deliver such written notice to will relieve the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 Section 8.1.1 or 8.1.2, as applicable, only to the extent that such delay is prejudicial to the delay adversely affects Indemnifying Party’s rights or ability to defend such claim. Provided that the Indemnifying Party is not contesting the indemnity obligation, the Indemnified Party will permit the Indemnifying Party to control any litigation relating to such claim and the disposition of such claim by negotiated settlement or actionotherwise (subject to this Section 8.1) and any failure to contest such obligation prior to assuming control will be deemed to be an admission of the obligation to indemnify. The Indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claim and will not settle or otherwise resolve such claim without the Indemnified Party’s prior written consent, but which will not be unreasonably withheld, conditioned or delayed; provided that such consent will not be required with respect to any settlement involving only the failure so to deliver notice to payment of monetary awards for which the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10be fully-responsible. The Indemnified Party under Article 10 shall provide reasonable assistance to will cooperate with the Indemnifying Party and its legal representativesin the Indemnifying Party’s defense of any claim for which indemnity is sought under this Agreement, at the Indemnifying Party’s cost and expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Party.

Procedure. If an Each Party will notify the other Party in writing if it becomes aware of a claim for which indemnification may be sought hereunder. In case any proceeding (including any governmental investigation) will be instituted involving any Indemnified Party, such Indemnified Party intends will give prompt written notice of the indemnity claim to claim indemnification under Article 10, the Indemnified Indemnifying Party shall notify and provide a copy to the Indemnifying Party of any Loss in respect of which complaint, summons or other written or verbal notice that the Indemnified Party intends to claim receives in connection with any such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Partiesclaim. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The An Indemnified Party’s failure to deliver written notice to will relieve the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 this ARTICLE 16 only to the extent that such delay is prejudicial to the delay adversely affects Indemnifying Party’s rights or ability to defend such claim. Provided that the Indemnifying Party is not contesting the indemnity obligation, the Indemnified Party will permit the Indemnifying Party to control any litigation relating to such claim and the disposition of such claim by negotiated settlement or actionotherwise and any failure to contest prior to assuming control will be deemed to be an admission of the obligation to indemnify. The Indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claim and will not settle or otherwise resolve such claim without the Indemnified Party’s prior written consent, but which will not be withheld, delayed or conditioned unreasonably, other than settlements only involving the failure so to deliver notice to payment of monetary awards for which the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10be fully-responsible. The Indemnified Party under Article 10 shall provide reasonable assistance to will cooperate with the Indemnifying Party and its legal representativesin such Party’s defense of any claim for which indemnity is sought under this Agreement, at the Indemnifying Party’s sole cost and expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Party.

Procedure. If (a) In order for an Indemnified Party intends to be entitled to any indemnification provided for under this Agreement, such Indemnified Party will, within a reasonable period of time following the discovery of the matters giving rise to any Losses, notify the indemnifying party under this Article XII (the “Indemnifying Party”) in writing of its claim for indemnification under Article 10for such Losses, specifying in reasonable detail the nature of such Losses and the amount of the liability estimated to accrue therefrom; provided, however, that failure to give such notification will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been prejudiced as a result of such failure. Thereafter, the Indemnified Party will deliver to the Indemnifying Party, within a reasonable period of time after the Indemnified Party’s receipt of such request, all information and documentation reasonably requested by the Indemnifying Party with respect to such Losses. (b) If the indemnification sought pursuant hereto involves a claim made by a third party against the Indemnified Party (a “Third Party Claim”), the Indemnifying Party will be entitled to assume the defense of such Third Party Claim at its own expense with counsel selected by the Indemnifying Party. Should the Indemnifying Party so elect to assume the [****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions. defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnified Party will have the right to participate in the defense thereof and to employ counsel, at its own expense (which expense shall notify not constitute a Loss), separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party will control such defense. The Indemnifying Party will be liable for the reasonable and documented fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof (other than during any period in which the Indemnified Party will have failed to give notice of the Third Party Claim as provided above). If the Indemnifying Party chooses to defend or prosecute a Third Party Claim, all of the parties hereto will cooperate in the defense or prosecution thereof. Such cooperation will include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any Loss in respect of which material provided hereunder. If the Indemnified Indemnifying Party intends chooses to claim such indemnificationdefend or prosecute any Third Party Claim, it will defend or prosecute it diligently and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding will obtain the prior sentencewritten consent of the Indemnified Party (not to be unreasonably withheld) before entering into any settlement, compromise or discharge of such Third Party Claim if CDS is (i) such settlement, compromise or discharge does not relate solely to monetary damages, (ii) such settlement, compromise or discharge does not expressly unconditionally and completely release the Indemnified Party from all Losses and liabilities with respect to such Third Party Claim and (iii) the Indemnifying Party based on is not directly paying the full amount of the Losses in connection with such Third Party Claim. Whether or not the Indemnifying Party will have assumed the defense of a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosingThird Party Claim, the common counsel may continue Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (not to represent CDS be unreasonably withheld). (c) If an indemnification payment is received by Buyer Indemnified Party or Seller Indemnified Party, as applicable, and not be subject to disqualification on account such Indemnified Party later receives insurance proceeds in respect of the common representation. The failure to deliver notice related Losses or other recoveries under section 12.4(a)(ii) above that were not previously credited against such indemnification payment when made, such Indemnified Party shall promptly pay to the Indemnifying Party within a reasonable time after Party, an amount equal to the commencement lesser of any (A) such actioninsurance proceeds or other recoveries, shall relieve with respect to such Losses and (B) the net indemnification payment previously paid by such Indemnifying Party with respect to such Losses. Each Indemnified Party shall use reasonable and good faith efforts to collect amounts available under available insurance coverage and promptly and diligently pursue such claims relating to any Losses for which it is seeking indemnification. (d) Each Indemnified Party shall take, and shall cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of liability any event or circumstance that would reasonably be expected to, or such Indemnified Party believes does, give rise thereto, including incurring costs only to the Indemnified minimum extent necessary to remedy the breach that gives rise to such Loss; provided, that such failure to use such efforts in accordance with the - 42- [****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Confidential treatment has been requested with respect to the omitted portions. foregoing shall not relieve the Indemnifying Party of its indemnification obligations under this Article 10 XII except and only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Partyprejudiced thereby.

Procedure. If an Indemnified In the event of a claim by a Third Party intends against any Person entitled to claim indemnification under Article 10this Agreement, the Party claiming indemnification on behalf of such Person (in such capacity, the “Indemnified Party”) shall promptly notify the other Party (in such capacity, the “Indemnifying Party”) in writing of the claim (it being understood that the failure by the Indemnified Party to give prompt notice of a Third Party claim as provided in this Section 10.3 shall notify the Indemnifying Party of any Loss in respect of which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability its indemnification obligation under this Agreement except and only to the extent that it may have such Indemnifying Party is actually prejudiced as a result of such failure to any give prompt notice). Within [**] days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, undertake and solely manage and control, at its sole expense and with counsel reasonably satisfactory to the Indemnified Party, the defense of the claim. If the Indemnifying Party does not undertake such defense, the Indemnified Party otherwise than under Article 10may control such defense but shall not be entitled to indemnification hereunder if it does not then control such defense. The Party not controlling such defense shall cooperate with the other Party and may, at its option and expense, participate in such defense; provided, that if the Indemnifying Party assumes control of such defense and the Indemnified Party under Article 10 shall provide reasonable assistance to in good faith concludes, based on advice from counsel, that the Indemnifying Party and its legal representativesthe Indemnified Party (or the relevant INFI Indemnitee or Licensee Indemnitee seeking indemnification) have conflicting interests with respect to such action, at suit, proceeding or claim, the Indemnifying Indemnified Party’s expense, counsel may fully participate in such defense and the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be responsible for the reasonable fees and expenses of counsel to the indemnified Persons solely in connection therewith. The Party controlling such defense shall keep the other Party advised of the status of such action, suit, proceeding or claim and the defense thereof and shall consider recommendations made by the other Party with respect thereto. Except if the Indemnifying Party did not undertake defense of the claim or if the Indemnifying Party and the Indemnified Party (or the relevant INFI Indemnitee or Licensee Indemnitee seeking indemnification) have conflicting interests with respect to such action, suit, proceeding or claim and the Indemnified Party engages separate counsel, as provided above, the Indemnifying Party shall not be liable to pay the reasonable legal for any litigation costs and attorneys’ fees or expenses incurred by the Indemnified Party in establishing its claim for indemnity(or the relevant INFI Indemnitee or Licensee Indemnitee seeking indemnification) without the Indemnifying Party’s written consent. Except as provided in the last sentence of The Indemnified Party and any Person seeking indemnification under this Section 10.3, the indemnity agreement in this Article 10 Agreement shall not apply to amounts paid in settlement of settle any Loss if such settlement is effected action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent shall not be withheld unreasonably withheld, delayed or delayedconditioned. The Indemnifying Party shall notnot settle, without the prior written consent of the Indemnified Party, settle any such action, suit, proceeding or compromise any Loss claim, or consent to the entry of any judgment with in respect to any Loss thereof, that (a) that does not include a complete and unconditional release of the Indemnified Party (and the relevant INFI Indemnitees or Licensee Indemnitees seeking indemnification) from all liability with respect to such Loss or thereto, (b) which may materially adversely affect imposes any liability or obligation on the Indemnified Party (or under which any relevant INFI Indemnitee or Licensee Indemnitee seeking indemnification), (c) permits any injunction, declaratory judgment, other order or other non-monetary relief to be entered, directly or indirectly against the Indemnified Party would incur (or any obligation relevant INFI Indemnitee or liabilityLicensee Indemnitee seeking indemnification), other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten or (10d) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume acknowledges fault by the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise (or settlement of such Loss at the risk and expense of Indemnifying Partyany relevant INFI Indemnitee or Licensee Indemnitee seeking indemnification).

Procedure. If an Each Party will notify the other Party in writing if it becomes aware of a claim for which indemnification may be sought hereunder. In case any proceeding (including any governmental investigation) will be instituted involving any Indemnified Party, such Indemnified Party intends will give prompt written notice of the indemnity claim to claim indemnification under Article 10, the Indemnified Indemnifying Party shall notify and provide a copy to the Indemnifying Party of any Loss in respect of which complaint, summons or other written or verbal notice that the Indemnified Party intends to claim receives in connection with any such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Partiesclaim. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The An Indemnified Party’s failure to deliver written notice to will relieve the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 this ARTICLE 13 only to the extent that such delay is prejudicial to the delay adversely affects Indemnifying Party’s rights or ability to defend such claim. Provided that the Indemnifying Party is not contesting the indemnity obligation, the Indemnified Party will permit the Indemnifying Party to control any litigation relating to such claim and the disposition of such claim by [***] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Table of Contents negotiated settlement or actionotherwise and any failure to contest prior to assuming control will be deemed to be an admission of the obligation to indemnify. The Indemnifying Party will act reasonably and in good faith with respect to all matters relating to such claim and will not settle or otherwise resolve such claim without the Indemnified Party’s prior written consent, but which will not be withheld, delayed or conditioned unreasonably, other than settlements only involving the failure so to deliver notice to payment of monetary awards for which the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10be fully-responsible. The Indemnified Party under Article 10 shall provide reasonable assistance to will cooperate with the Indemnifying Party and its legal representativesin such Party’s defense of any claim for which indemnity is sought under this Agreement, at the Indemnifying Party’s sole cost and expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Party.

Procedure. If an In the event that a Party (the “Indemnified Party intends to claim Party”) seeks indemnification under Article 10Section 12.1 or 12.2, the Indemnified Party shall notify shall: (a) inform the other Party (the “Indemnifying Party Party”) of any Loss in respect a Claim as soon as reasonably practicable after it receives notice of which the Claim (it being understood and agreed, however, that the failure by an Indemnified Party intends to claim such indemnification, and the Indemnifying Party give notice of a Claim as provided in this Section 12.3 shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability its indemnification obligation under this Agreement except and only to the extent that it may have such Indemnifying Party is actually damaged as a result of such failure to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to give notice); (b) permit the Indemnifying Party to assume direction and its legal representativescontrol of the defense of the Claim (including the right to settle the Claim solely for monetary consideration); and (c) cooperate as requested (at the expense of the Indemnifying Party) in the defense of the Claim. If the Indemnifying Party does not assume control of such defense within 15 days after receiving notice of the Claim from the Indemnified Party, at the Indemnified Party may control such defense and, without limiting the Indemnifying Party’s expenseindemnification obligations, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay reimburse the Indemnified Party for all reasonable legal costs and attorneys’ fees documented costs, including reasonable attorney fees, incurred by the Indemnified Party in establishing defending itself within 30 days after receipt of any invoice therefor from the Indemnified Party. The Party not controlling such defense may participate therein at its claim for indemnityown expense. Except as provided in The Party controlling such defense shall keep the last sentence other Party advised of this Section 10.3, the indemnity agreement in this Article 10 status of such Claim and the defense thereof and shall consider recommendations made by the other Party with respect thereto. The Indemnified Party shall not apply agree to amounts paid in any settlement of any Loss if such settlement is effected Claim without the prior written consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. The Indemnifying Party shall not, without the written consent not agree to any settlement of Indemnified Party, settle or compromise any Loss such Claim or consent to the entry of any judgment with in respect to any Loss (a) thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect to such Loss thereto, that imposes any liability or (b) which may materially adversely affect obligation on the Indemnified Party or under which that acknowledges fault by the Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days without the prior written consent of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Party.

Procedure. If an 21.3.1. In the event of a Third Party Claim, then the Indemnified Party intends shall promptly notify the Indemnifying Party thereof in writing after becoming aware of such Third Party Claim; provided, however, that no delay on the part of the Indemnified Party in notifying the Indemnifying Party shall relieve the Indemnifying Party from any obligation hereunder unless (and then only to the extent that) the Indemnifying Party is actually and materially prejudiced thereby. Such notice shall set out in reasonable detail the basis of the claim indemnification (including, if applicable, the representation, warranty or covenant alleged to have been breached), and, if estimable, the amount of such claim. 21.3.2. The Indemnifying Party shall have the right, exercisable by written notice to the Indemnified Party within [***] of receipt of notice from the Indemnified Party of the commencement of or assertion of any Third Party Claim, to assume the defense of such Third Party Claim to the extent that it involves (and continues to involve) monetary damages; provided, however, that: (i) the Indemnifying Party expressly agrees in such notice that, as between the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be solely obligated to satisfy and discharge the Third Party Claim; (ii) the defense of such Third Party Claim by the counsel representing the Indemnifying Party does not, in the reasonable judgment of the Indemnified Party, constitute a conflict of interest under Article 10the applicable canons or rules of legal professional ethics; and (iii) the Indemnifying Party makes reasonably adequate provision to ensure the Indemnified Party of the ability of the Indemnifying Party to satisfy the full amount of any adverse monetary judgment that would reasonably be expected to result therefrom. (the conditions set out in clauses (i), (ii) and (iii) above are collectively referred to as the “Litigation Conditions”). 21.3.3. In no event shall the Indemnifying Party have the right to control any Third Party Claim to the extent such Third Party Claim covers injunctive, criminal or other equitable relief that, if granted, would adversely affect the Indemnified Party. 21.3.4. Within [***] after the Indemnifying Party has given notice to the Indemnified Party of its intended exercise of its right to defend a Third Party Claim, the Indemnified Party shall notify give notice to the Indemnifying Party of any Loss in respect of which objection thereto based upon the Litigation Conditions. If the Indemnified Party intends so objects, the Indemnified Party shall continue to claim defend the Third Party Claim at the expense of the Indemnifying Party until such indemnificationtime as such objection is withdrawn. If no such notice is given, and or if any such objection is withdrawn, the Indemnifying Party shall be entitled, at its sole cost and expense, to assume and conduct such defense, with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party, until such time as the Indemnified Party shall give notice that any of the Litigation Conditions, in its reasonable judgment, are no longer satisfied. 21.3.5. During such time as the Indemnifying Party is controlling the defense of such Third Party Claim, the Indemnified Party shall cooperate, and cause its Affiliates and agents to cooperate, to the extent commercially reasonable, upon request of the Indemnifying Party in the defense or prosecution of the Third Party Claim, including by furnishing such records, information and testimony and attending such conferences, discovery proceedings, hearings, trials or appeals as may reasonably be requested by the Indemnifying Party. 21.3.6. In the event that the Indemnifying Party fails to satisfy the Litigation Conditions or does not notify the Indemnified Party in writing of the Indemnifying Party’s intent to defend any Third Party Claim within [***] days after notice thereof, the Indemnified Party may (without further notice to the Indemnifying Party) undertake the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS its choice and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation expense (including attorneys’ fees and costs and expenses of any action, claim enforcement or liability covered by this indemnificationdefense). 21.3.7. The Indemnifying Party or the Indemnified Party, as the case may be, shall additionally be liable have the right to pay join in (including the reasonable legal costs right to conduct discovery, interview and attorneys’ fees incurred by examine witnesses and participate in all settlement conferences), but not control, at its own cost and expense, the defense of any Third Party Claim that the other party is defending as provided in this Agreement. 21.3.8. The Indemnifying Party, if it shall have assumed the defense of any Third Party Claim as provided in this Agreement, shall not consent to a settlement of, or the entry of any judgment arising from, any such Third Party Claim without the prior written consent of the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 (which consent shall not apply to amounts paid in settlement of any Loss if such settlement is effected be unreasonably withheld or delayed), provided, however, that the Indemnifying Party may settle claims involving solely monetary damages without the consent of the Indemnified Party if a full release of the Indemnifying Party, which consent shall not be withheld unreasonably or delayedParty is obtained with respect to such claims. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle not to be unreasonably withheld, enter into any compromise or compromise any Loss or consent to settlement which commits the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss take, or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur to forbear to take, any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunderaction. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, The Indemnified Party shall have the right to assume settle any Third Party Claim, on such terms and conditions as it deems reasonably appropriate, to the defenseextent such Third Party Claim involves equitable or other non-monetary relief; provided, however, the Indemnified Party shall not, without the prior written consent of the Indemnifying Party (which consent shall not to be unreasonably withheld, conditioned or delayed) enter into any compromise or settlement of such Loss at that would adversely affect the risk and expense of Indemnifying Party. The Indemnifying Party’s indemnity obligation shall be reduced by the any amounts the Indemnified Party receives or shall receive from any third party, including an insurance carrier, for the Losses.

Procedure. If an Indemnified Party intends A party or parties hereto agreeing to claim indemnification under Article 10, be responsible for or to indemnify against any matter pursuant to this Agreement is referred to herein as the Indemnified Party shall notify the "Indemnifying Party of any Loss in respect of which the Indemnified Party intends to claim such indemnification, Party" and the Indemnifying Party shall assume other party or parties claiming indemnity is referred to as the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the "Indemnified Party." An Indemnified Party under Article 10 only this Agreement shall, with respect to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend claims asserted against such claim or actionparty by any third party, but the failure so to deliver give written notice to the Indemnifying Party will not relieve the each Indemnifying Party of any liability that it may have which must give rise to a claim for indemnity under this Agreement promptly (and in any event within sixty (60) business days) upon the receipt of any written claim from any such third party, and with respect to other matters for which the Indemnified Party otherwise than under Article 10. The may seek indemnification, give prompt written notice to each Indemnifying Party of any liability or loss which might give rise to a claim for indemnity; provided, however that any failure to give such notice on a timely basis will not waive any rights of the Indemnified Party under Article 10 shall provide reasonable assistance except to the extent the rights of the Indemnifying Party and its legal representativesare materially prejudiced. As to any claim, at action, suit or proceeding by a third party, the Indemnifying Party’s expenseParty may assume the defense of such matter, in including the investigation employment of any action, claim or liability covered by this indemnificationcounsel satisfactory to the Indemnified Party and the payment of all expenses relating thereto. The Indemnifying Party shall additionally be liable give written notice to pay each Indemnified Party of its assumption of the reasonable legal costs and attorneys’ fees incurred by defense of any action, suit or proceeding within thirty (30) days of receipt of notice from the Indemnified Party with respect to such matter. The Indemnified Party shall have the right to employ its or their own counsel in establishing its claim for indemnity. Except as provided in any such matter, but the last sentence fees and expenses of this Section 10.3, such counsel shall be the indemnity agreement in this Article 10 responsibility of such Indemnified Party unless (i) the Indemnifying Party shall not apply have reasonably promptly employed counsel satisfactory to amounts paid such Indemnified Party or (ii) the Indemnified Party shall have reasonably concluded that the conduct of such proceeding by the Indemnifying Party and counsel of its choosing will prejudice the rights of the Indemnified Party. The Indemnified Party shall provide such cooperation and such access to its books, records and properties as the Indemnifying Party shall reasonably request with respect to such matter; and the parties hereto agree to cooperate with each other in order to ensure the proper and adequate defense thereof. An Indemnifying Party shall not make any settlement of any Loss if such settlement is effected claim without the written consent of the Indemnifying Indemnified Party, which consent shall not be withheld unreasonably withheld. Without limiting the generality of the foregoing, it shall not be deemed unreasonable to withhold consent to a settlement involving consideration or delayedrelief other than the payment of money. After settlement and payment thereof, the Indemnifying Party shall nothave no right to dispute or object to the amount of the settlement or a claim for indemnification based thereon. With regard to claims of third parties for such indemnification is payable hereunder, without such indemnification shall be paid by the written consent of Indemnified Party, settle or compromise any Loss or consent Indemnifying Party upon the earlier to occur of: (i) the entry of a judgment against the Indemnified Party and the expiration of any applicable appeal period, or if earlier, five days prior to the date that the judgment creditor has the right to execute the judgment; (ii) the entry of an unappealable judgment or final appellate decision against the Indemnified Party; (iii) a settlement of the claim; or (iv) with respect to indemnities for liabilities relating to Taxes, upon the issuance of any Loss (a) resolution by a taxation authority. Notwithstanding the foregoing, provided that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one there is no dispute as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Partythe applicability of indemnification, within ten (10) days expenses of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails counsel to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have be reimbursed on a current basis by the right to assume Indemnifying Party if such expenses are a liability of the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Party. With regard to other claims of which identification is payable hereunder, such indemnification shall be paid promptly by the Indemnifying Party upon demand by the Indemnified Party.

Procedure. If an Indemnified Party intends to claim indemnification under Article 10, the Indemnified Party (a) An indemnified party shall notify the Indemnifying Party give written notice of any Loss Indemnification Claim under this Section 14 to the party or parties required to indemnify ("INDEMNIFYING PARTY") as promptly as practicable, but in any event (i) with respect to any Indemnification Claim arising out of the indemnifying party's breach of representations and warranties under this Agreement, prior to the expiration of the survival period provided in Section 14.1 above and (ii) (A) if such Indemnification Claim relates to the assertion against the indemnified party of any claim or dispute by a third party (a "THIRD PARTY CLAIM"), within 20 days after the assertion of such Third Party Claim, or (B) if such Indemnification Claim is not in respect of a Third Party Claim, within 30 days after the discovery by the indemnified party of the facts on which such Indemnification Claim is to be based. Any such notice shall describe the Indemnified Party intends to claim such indemnificationnature of the Indemnification Claim, the amount thereof if then ascertainable and, if not then ascertainable, the estimated maximum amount thereof, and the Indemnifying provision or provisions of this Agreement on which the Indemnification Claim is based. (i) The indemnifying party shall have the right, upon written notice given to the indemnified party at any time after receipt of the notice from the indemnified party of any Third Party shall Claim, to assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying or handling of such Third Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representativesClaim, at the Indemnifying Party’s such indemnifying party's sole expense, in which case the investigation provisions of any action, claim Section 14.5(b)(ii) below shall govern. (ii) The indemnifying party shall select counsel to conduct the defense or liability covered by this indemnificationhandling of such Third Party Claim. The Indemnifying indemnifying party shall defend or handle such Third Party Claim in consultation with the indemnified party and shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent keep each indemnified party timely apprised of the Indemnifying Party, which consent shall not be withheld unreasonably or delayedstatus of such Third Party Claim. Indemnifying Party The indemnifying party shall not, without the prior written consent of Indemnified Partyeach indemnified party, settle or compromise any Loss or consent agree to the entry a settlement of any judgment Third Party Claim, unless the settlement (A) provides an unconditional release and discharge of such indemnified party, (B) imposes no material liabilities or obligations on such indemnified party and (C) with respect to any Loss non-monetary provisions of such settlement, could not have a material adverse effect on such indemnified party. The indemnified party shall cooperate with the indemnifying party and shall be entitled to participate in the defense or handling of such Third Party Claim with its own counsel and at its own expense. An indemnified party shall not, without the prior written consent of the indemnifying party(s), agree to a settlement of any Third Party Claim, unless the indemnified party shall also waive any right to indemnification for the applicable Indemnification Claim. Notwithstanding any other provision of this Agreement, any violation of the terms of the foregoing sentence shall relieve any indemnifying party from any liability to indemnify in respect of the subject matter of the Third Party Claim so settled. (ai) that If the indemnifying party does not release Indemnified Party from all liability with respect give written notice to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Partythe indemnified party, within ten (10) 30 days after receipt of receiving the notice from the indemnified party of a Loss or such shorter period as may be necessary for submitting or filing a responseThird Party Claim, fails that the indemnifying party has elected to assume the defense or handling of such Loss Third Party Claim, the provisions of Section 14.5(c)(ii) shall govern. (ii) The indemnified party may select counsel in connection with conducting the defense or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement handling of such Loss Third Party Claim and defend or handle such Third Party Claim in such manner as is reasonable under the circumstances; provided, however, that the indemnified party shall keep the indemnifying party timely apprised of the status of such Third Party Claim and shall not settle such Third Party Claim without the prior written consent of the indemnifying party. Notwithstanding any other provision of this Agreement, any violation of the terms of the foregoing sentence shall relieve any indemnifying party from any liability to indemnify in respect of the subject matter of the Third Party Claim so settled. If the indemnified party defends or handles such Third Party Claim, the indemnifying party shall cooperate with the indemnified party and shall be entitled to participate in the defense or handling of such Third Party Claim with its or their own counsel and at the risk and expense of Indemnifying Partyits or their own expense.

Procedure. If (a) Any Person seeking indemnification provided for under this Article VIII (an “Indemnified Party”) in respect of, arising out of or involving a claim made by any Person (other than a party hereto) against an Indemnified Party intends (a “Third Party Claim”), shall promptly notify the indemnifying party in writing of the Third Party Claim; provided, that failure to claim give such notice shall not affect the right to indemnification under Article 10provided hereunder except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. Thereafter, the Indemnified Party shall notify deliver to the Indemnifying indemnifying party, as promptly as reasonably practicable following such Indemnified Party’s receipt thereof, copies of all written notices and documents (including any court papers) received by such Indemnified Party relating to the Third Party Claim. (b) If a Third Party Claim is made against an Indemnified Party, the indemnifying party shall be entitled at its election and its cost to assume the defense of such Third Party Claim with counsel selected by the indemnifying party. If the indemnifying party assumes such defense, the Indemnified Party shall nonetheless have the right to employ counsel separate from the counsel employed by the indemnifying party; provided, that the indemnifying party shall not be liable to such Indemnified Party for any fees of such separate counsel with respect to the defense of such Third Party Claim, unless the employment and reimbursement of such separate counsel is authorized by the indemnifying party in writing. If the indemnifying party does not assume such defense, and for any period during which the indemnifying party has not assumed such defense, the indemnifying party shall be liable for the reasonable fees and expenses of one single counsel (in addition to reasonable fees and expenses of local counsel required in jurisdictions not central to the Third Party Claim) employed (and reasonably acceptable to the indemnifying party) by such Indemnified Party (which reasonable fees and expenses shall be considered Losses for purposes of this Agreement). If the indemnifying party chooses to defend a Third Party Claim or prosecute a claim in connection therewith, each Indemnified Party shall provide all cooperation as is reasonably requested by the indemnifying party in such defense or prosecution. (c) Notwithstanding anything to the contrary in this Section 8.5, no party may settle, compromise or discharge (and in doing so, make any reasonable admission of liability with respect to) such Third Party Claim other than for money damages only without the prior written consent of the other party, subject to such party paying or causing to be paid all amounts arising out of such settlement or obtaining and delivering to such other party, prior to the execution of such settlement, a general release prepared and executed by all Persons bringing such Third Party Claim. (d) An indemnifying party shall not be entitled to assume or continue control of the defense of any Third Party Claim if the Third Party Claim (A) relates to or arises in connection with any criminal proceeding, or (B) seeks an injunction or other equitable relief against any Indemnified Party, or (C) if unsuccessful, (i) would set a precedent that would materially interfere with, or have a material adverse effect on, the business or financial condition of the Indemnified Party (provided that, if the Indemnified Party assumes or continues control of the defense of any such Third Party Claim pursuant to this clause (i), then such Third Party Claim shall no longer be indemnifiable by the indemnifying party) or (ii) would reasonably be expected to exceed the cap applicable to such a claim in Section 8.4(b) of this Agreement. (e) In the event an Indemnified Party has a claim against an indemnifying party under Section 8.2 or 8.3 that does not involve a Third Party Claim, such Indemnified Party shall deliver notice of such claim to the indemnifying party stating the amount of the Loss, if known, and method of computation thereof, reasonable supporting documentation relating to such Loss and containing a reference to the provisions of this Agreement in respect of which the Indemnified Party intends such right of indemnification is claimed to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Partyarise, within ten (10) Business Days of becoming aware of the facts or circumstances giving rise to such claim; provided, that failure to give such notice shall not affect the indemnification provided hereunder except to the extent the indemnifying party shall have been actually and materially prejudiced as a result of such failure. The Indemnified Party and the indemnifying party shall, for a period of not less than sixty (60) days following receipt by the indemnifying party of receiving the notice of a Loss or such shorter period as may be necessary for submitting or filing a responseclaim, fails negotiate, in good faith, to assume resolve the defense of claim, and such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have not commence Proceedings with respect to such claim prior to the right to assume the defense, compromise or settlement end of such Loss at the risk and expense of Indemnifying Partyperiod.

Procedure. If (a) In order for an Indemnified Party intends to be entitled to any indemnification provided for under this Agreement, such Indemnified Party will, within a reasonable period of time following the discovery of the matters giving rise to any Losses, notify the indemnifying party under this Article XII (the “Indemnifying Party”) in writing of its claim for indemnification under Article 10for such Losses, specifying in reasonable detail the nature of such Losses and the amount of the liability estimated to accrue therefrom; provided, however, that failure to give such notification will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been prejudiced as a result of such failure. Thereafter, the Indemnified Party shall notify will deliver to the Indemnifying Party, within a reasonable period of time after the Indemnified Party’s receipt of such request, all information and documentation reasonably requested by the Indemnifying Party of any Loss in with respect of which to such Losses. (b) If the indemnification sought pursuant hereto involves a claim made by a third party against the Indemnified Party intends to claim such indemnification(a “Third Party Claim”), and the Indemnifying Party shall will be entitled to assume the defense thereof of such Third Party Claim at its own expense with counsel mutually satisfactory to selected by the PartiesIndemnifying Party. Notwithstanding the prior sentence, if CDS is Should the Indemnifying Party based on so elect to assume the defense of a claim for indemnification by AlimeraThird Party Claim, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable Indemnified Party for any legal costs and attorneys’ fees expenses subsequently incurred by the Indemnified Party in establishing its claim for indemnityconnection with the defense thereof. Except as provided If the Indemnifying Party assumes such defense, the Indemnified Party will have the right to participate in the last sentence of this Section 10.3defense thereof and to employ counsel, the indemnity agreement in this Article 10 at its own expense (which expense shall not apply to amounts paid in settlement of any Loss if such settlement is effected without constitute a Loss), separate from the consent of counsel employed by the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. it being understood that the Indemnifying Party shall notwill control such defense. The Indemnifying Party will be liable for the reasonable and documented fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof (other than during any period in which the Indemnified Party will have failed to give notice of the Third Party Claim as provided above). If the Indemnifying Party chooses to defend or prosecute a Third Party Claim, without all of the written consent parties hereto will cooperate in the defense or prosecution [****] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of Indemnified Partythe Securities Exchange Act of 1934, settle or compromise any Loss or consent to the entry of any judgment as amended. Confidential treatment has been requested with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Partyomitted portions.

Procedure. If an Indemnified (i) A Party intends believing that it is entitled to claim indemnification under Article 10, the Section 6.1 (an “Indemnified Party Party”) shall notify the Indemnifying Party of any Loss in respect of which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory give prompt written notification to the Parties. Notwithstanding other Party (the prior sentence, if CDS is the “Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel Party”) of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any Claim by a Third Party for which indemnification may be sought or, if earlier, upon the assertion of any such actionClaim by a Third Party (it being understood and agreed, shall relieve such Indemnifying Party of liability to however, that the failure by an Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver give notice to the Indemnifying of a Third Party will Claim as provided in this Section 6.1(c) shall not relieve the Indemnifying Party of any liability its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually materially prejudiced as a result of such failure to give notice). Within thirty (30) days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such Claim with counsel reasonably satisfactory to the Indemnified Party. If a Party believes that a Claim presented to it may have for indemnification is one as to any which the Party seeking indemnification is not entitled to indemnification under Section 6.1, it shall so notify the Party seeking indemnification. (ii) If the Indemnifying Party elects to assume the defense of such Claim, the Indemnified Party otherwise than under Article 10. The may participate in such defense at its own expense; provided that if the Indemnified Party under Article 10 shall provide reasonable assistance to reasonably concludes, based on advice from counsel, that the Indemnifying Party and its legal representativesthe Indemnified Party have conflicting interests with respect to such Claim, at the Indemnifying Party’s expense, Party shall be responsible for the reasonable fees and expenses of counsel to the Indemnified Party solely in the investigation of any action, claim or liability covered by this indemnification. connection therewith. (iii) The Indemnifying Party shall additionally be liable to pay keep the reasonable legal costs Indemnified Party advised of the status of such Claim and attorneys’ fees incurred the defense thereof and shall consider recommendations made by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 with respect thereto. (iv) The Indemnified Party shall not apply agree to amounts paid in any settlement of any Loss if such settlement is effected Claim without the prior written consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayedwithheld. The Indemnifying Party shall not, without the written consent not agree to any settlement of Indemnified Party, settle or compromise any Loss such Claim or consent to the entry of any judgment with in respect to any Loss (a) thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect to such Loss thereto or (b) which may materially adversely affect that imposes any liability or obligation on the Indemnified Party or under which adversely affects the Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying without the prior written consent of the Indemnified Party, within ten (10) days of receiving notice of a Loss or such shorter period as may which shall not be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Partyunreasonably withheld.

Procedure. If an This Section 10.3 describes the procedure for indemnification of Losses for the Third-Party claims. With respect to Losses relating to the claim of a Party hereto, the procedures provided in Article 10 shall govern. The Party seeking indemnification for third party claims under Sections 10.1 or 10.2 (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing of all matters which may give rise to the right to indemnification hereunder; provided, however, that failure to promptly give the notice provided in this Section 10.3 shall not be a defense to the liability of the Indemnifying Party for such claim, but the Indemnifying Party may recover any actual Losses arising from the Indemnified Party’s failure to give such prompt notice. The Indemnified Party intends to claim indemnification under shall not admit any liability with respect to, or settle, compromise or discharge any such matter covered by this Article 1010 without the Indemnifying Party’s prior written consent (which shall not be unreasonably withheld). The Indemnifying Party shall have the right, with the consent of the Indemnified Party (which shall notify not be unreasonably withheld), to settle all indemnifiable matters under this Article 10 related to claims by Third Parties. In connection with any claim giving rise to indemnity under this Article 10 resulting from or arising out of any claim or legal proceeding by a Person other than the Indemnified Party, the Indemnifying Party of any Loss in respect of which at its sole cost and expense may, upon written notice to the Indemnified Party intends to and an acknowledgement of its indemnity obligations hereunder, assume the defense of any such claim or legal proceeding. If the Indemnifying Party assumes the defense of any such indemnificationclaim or legal proceeding, and the Indemnifying Party shall assume select counsel reasonably acceptable to the Indemnified Party to conduct the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentenceof such claims or legal proceedings and, if CDS is at the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS Party’s sole cost and expense (which costs and expenses shall not be subject to disqualification on account of applied against any indemnity limitation herein), shall take all steps necessary in the common representationdefense or settlement thereof. The failure Indemnified Party shall be entitled to deliver notice to participate in (but not control) the Indemnifying Party within a reasonable time after the commencement defense of any such action, with its own counsel and at its own expense, and shall relieve such be entitled to any and all information and documentation relating thereto. If the Indemnifying Party does not assume (or continue to diligently and competently prosecute) the defense of liability to any such claim or litigation resulting therefrom in accordance with the terms hereof, the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representativesmay, at the Indemnifying Party’s expense, in the investigation of any action, defend against such claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party litigation in establishing its such manner as it may deem appropriate, but may not settle such claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected or litigation without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably withheld. The Indemnified Party will cooperate reasonably with the Indemnifying Party in its efforts to conduct or delayedresolve such matters, including by making available to the Indemnifying Party relevant documents and witnesses. The Indemnified Party and the Indemnifying Party shall not, without keep each other informed of all settlement negotiations with Third Parties and of the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry progress of any judgment litigation with respect to any Loss (a) that does not release Third Parties. The Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which and the Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days shall permit each other reasonable access to books and records and shall otherwise cooperate with all reasonable requests of receiving notice of each other in connection with any indemnifiable matter resulting from a Loss or such shorter period as may be necessary for submitting or filing claim by a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Third Party.

Procedure. If an Indemnified Party intends to claim indemnification under Article 10, the Indemnified Each Party shall notify the Indemnifying other in the event it becomes aware of a claim for which indemnification may be sought hereunder or for which Liability is shared pursuant to this Section 11. In case any proceeding (including any governmental investigation) shall be instituted involving any Party of any Loss in respect of which indemnity may be sought pursuant to this Section 11, such Party (the “Indemnified Party”) shall provide the other Party (the “Indemnifying Party”) with prompt written notice of such proceeding (the “Indemnification Claim Notice”). Promptly after the Indemnifying Party receives the Indemnification Claim Notice, the Indemnifying Party and Indemnified Party shall meet to [**] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 11.3 by giving written notice to the Indemnified Party intends within thirty (30) days (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than seventy (70) days, provided that the Indemnified Party makes all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, provided that (a) the claim such indemnificationsolely seeks monetary damages and (b) the Indemnifying Party expressly agrees in writing that as between the Indemnifying Party and the Indemnified Party, and the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (a) and (b), the “Litigation Conditions”). The Indemnifying Party may, at any time, assume all such defense if the Litigation Conditions are not satisfied at any time. Upon assuming the defense thereof of a Third Party claim in accordance with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentencethis Section 11.3, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees shall be entitled to use CDS’ appoint lead counsel as common counsel to in the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account defense of the common representationThird Party claim. The failure to deliver notice to Should the Indemnifying Party within assume and continue the defense of a reasonable time after the commencement of any such actionThird Party claim, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or actionexcept as otherwise set forth in this Section 11.3, but the failure so to deliver notice to the Indemnifying Party will not relieve be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party in connection with the analysis, defense or settlement of the Third Party claim. Without limiting this Section 11.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to employ counsel of its choice for such purpose; provided, however, that such employment will be at the Indemnified Party’s own expense unless (i) the employment thereof has been specifically authorized by the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to in writing, (ii) the Indemnifying Party has failed to assume and its legal representatives, at actively further the defense and employ counsel in accordance with this Section 11.3 (in which case the Indemnified Party will control the defense) or (iii) the Indemnifying Party no longer satisfies the Litigation Conditions. With respect to any Liability relating solely to the payment of money damages in connection with a Third Party claim that will not result in the Indemnified Party’s expense, in becoming subject to injunctive or other relief or otherwise adversely affect the investigation business of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except any manner, and as provided to which the Indemnifying Party will have acknowledged in writing the last sentence of this Section 10.3obligation to indemnify the Indemnified Party hereunder, and subject to the Litigation Conditions being satisfied, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without will have the written consent of Indemnified Party, settle or compromise any Loss or sole right to consent to the entry of any judgment with respect to judgment, enter into any Loss settlement or otherwise dispose of such Liability, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (a) provided that does not such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to such Loss or (b) which may materially adversely affect the Indemnified Party or under all amounts which said Indemnified Party would incur any obligation or liabilitywill be liable to pay prior to the time of the entry of judgment. With respect to all other Liabilities in connection with Third Party claims, other than one as to which where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 11.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Liability provided that it obtains the prior written consent of the Indemnified Party (which consent will be at the Indemnified Party’s reasonable discretion). The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 11.3 will not be liable for any settlement or other disposition of a Liability by an indemnity obligation hereunderIndemnified Party (but in no event to include any court judgment or judicial or administrative order or [**] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. If disposition) that is reached without the written consent of such Indemnifying Party. No Indemnified Party will admit any liability with respect to, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting settle, compromise or filing a responsedischarge, fails any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of such Loss the Third Party claim in accordance with this Section 11.3. If the Indemnifying Party chooses to defend or fails to notify prosecute any Third Party claim, the Indemnified Party that is assuming will cooperate in the defense or prosecution thereof and will furnish such defenserecords, information and testimony, provide such witnesses and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party shall have of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder, and the right to assume Indemnifying Party will reimburse the defense, compromise or settlement of Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such Loss at the risk and expense of Indemnifying Partycooperation.

Procedure. If an Indemnified Party intends to claim indemnification under Article 10, the (i) Each Indemnified Party shall notify the Indemnifying Party of any Loss in respect of which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver give notice to the Indemnifying Party within a reasonable time promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought and shall permit the commencement Indemnifying Party to assume the defense of any such actionclaim and any litigation resulting therefrom, provided that counsel for the Indemnifying Party who conducts the defense of such claim or any litigation resulting therefrom shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party’s expense, and provided further that the failure of any Indemnified Party to give notice as provided herein shall not relieve such the Indemnifying Party of liability to the Indemnified Party its obligations under Article 10 this Section 7 unless and only to the extent that the delay adversely affects Indemnifying Party’s rights or ability Party is materially prejudiced thereby. Notwithstanding the foregoing sentence, the Indemnified Party may retain its own counsel to defend conduct the defense of any such claim or actionlitigation, but the failure so and shall be entitled to deliver notice to be reimbursed by the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees for expenses incurred by the Indemnified Party in establishing its defense of such claim for indemnity. Except as provided or litigation, in the last sentence event that the Indemnifying Party does not assume the defense of this Section 10.3such claim or litigation within 60 days after the Indemnifying Party receives notice thereof from the Indemnified Party. Further, the indemnity agreement in this Article 10 any Indemnifying Party shall not apply to be liable for amounts paid in settlement of any Loss such claim or obligation only if the Indemnifying Party consents in writing to such settlement is effected without the consent of the Indemnifying Party, (which consent shall not be withheld unreasonably withheld). No Indemnifying Party, in the defense of any such claim or delayed. Indemnifying Party litigation, shall not, without (except with the written consent of each Indemnified Party, settle or compromise any Loss or ) consent to the entry of any judgment with respect to or enter into any Loss (a) settlement that does not release include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability with in respect to such Loss claim or (b) which may materially adversely affect litigation. Each Indemnified Party shall furnish such information regarding itself or under which Indemnified Party would incur any obligation or liability, other than one the claim in question as to which an Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period may reasonably request in writing and as may shall be necessary for submitting or filing a response, fails to assume reasonably required in connection with the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk claim and expense of Indemnifying Partylitigation resulting therefrom.

Procedure. If an Indemnified i. A Party intends believing that it is entitled to claim indemnification under Article 10, the Sections 11(a)-(b) (an “Indemnified Party Party”) shall notify the Indemnifying Party of any Loss in respect of which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory give prompt written notification to the Parties. Notwithstanding other Party (the prior sentence, if CDS is the “Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel Party”) of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any Claim by a Third Party for which indemnification may be sought or, if earlier, upon the assertion of any such actionClaim by a third party (it being understood and agreed, shall relieve such Indemnifying Party of liability to however, that the failure by an Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver give notice to the Indemnifying Party will of a third party Claim as provided in this Section 11(c)(i) shall not relieve the Indemnifying Party of any liability its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually materially prejudiced as a result of such failure to give notice). Within thirty (30) days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such Claim with counsel reasonably satisfactory to the Indemnified Party. If a Party believes that a Claim presented to it may have for indemnification is one as to any which the Party seeking indemnification is not entitled to indemnification under Sections 11(a)-(b), it shall so notify the Party seeking indemnification. ii. If the Indemnifying Party elects to assume the defense of such Claim, the Indemnified Party otherwise than under Article 10. The may participate in such defense at its own expense; provided that if the Indemnified Party under Article 10 shall provide reasonable assistance to reasonably concludes, based on advice from counsel, that the Indemnifying Party and its legal representativesthe Indemnified Party have conflicting interests with respect to such Claim, at the Indemnifying Party’s expense, Party shall be responsible for the reasonable fees and expenses of counsel to the Indemnified Party solely in the investigation of any action, claim or liability covered by this indemnificationconnection therewith iii. The Indemnifying Party shall additionally be liable to pay keep the reasonable legal costs Indemnified Party advised of the status of such Claim and attorneys’ fees incurred the defense thereof and shall consider recommendations made by the Indemnified Party in establishing its claim for indemnitywith respect thereto. iv. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 The Indemnified Party shall not apply agree to amounts paid in any settlement of any Loss if such settlement is effected Claim without the prior written consent of the Indemnifying Party, which consent shall not be withheld unreasonably withheld, conditioned or delayed. The Indemnifying Party shall not, without the written consent not agree to any settlement of Indemnified Party, settle or compromise any Loss such Claim or consent to the entry of any judgment with in respect to any Loss (a) thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect to such Loss thereto or (b) which may materially adversely affect that imposes any liability or obligation on the Indemnified Party or under which adversely affects the Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying without the prior written consent of the Indemnified Party, within ten (10) days of receiving notice of a Loss which shall not be unreasonably withheld, conditioned or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Partydelayed.

Procedure. If an Indemnified A Party intends to claim seeking indemnification under Article 10, the this ARTICLE 10 (“Indemnified Party Party”) shall notify the Indemnifying Party of any Loss in respect of which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory give prompt written notification to the Parties. Notwithstanding the prior sentence, if CDS is the other Party (“Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account Party”) of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such actionClaim for which indemnification may be sought (it being understood and agreed, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent however, that the delay adversely affects Indemnifying Party’s rights or ability failure by a Party to defend give notice of such claim or action, but the failure so to deliver notice to the Indemnifying Party will Claim as provided in this Section 10.3 shall not relieve the Indemnifying Party of any liability its indemnification obligation under this License Agreement except and then only to the extent that it may have such Indemnifying Party is actually prejudiced as a result of such failure to any give notice). Within [*] after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such Claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party otherwise than under Article 10shall control such defense. The Party not controlling such defense may participate therein at its own expense; provided that if the Indemnifying Party assumes control of such defense and the Indemnified Party under Article 10 shall provide reasonable assistance to in good faith concludes, based on written advice from outside counsel, that the Indemnifying Party and its legal representativesthe Indemnified Party have conflicting interests with respect to such Claim sufficiently adverse to make unadvisable the representation by the same counsel of both Parties under Applicable Law, at ethical rules or equitable principles, the Indemnifying Party’s expense, Party shall be responsible for the reasonable fees and expenses of a single counsel to the Indemnified Party in connection therewith. The Party controlling such defense shall keep the investigation other Party advised of any action, claim or liability covered the status of such Claim and the defense thereof and shall consider recommendations made by this indemnificationthe other Party with respect thereto. The Indemnifying Party shall additionally be liable not agree to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in any settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss Claim or consent to the entry of any judgment with in respect to any Loss (a) thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect to such Loss thereto, that imposes any liability or (b) which may materially adversely affect obligation on the Indemnified Party or under which that acknowledges fault by the Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days without the prior written consent of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Party.

Procedure. If an any Proceeding arises as to which a right of indemnification provided in this Article XII applies, the Person seeking indemnification (the "Indemnified Party intends Party"), shall within twenty (20) days notify the party obligated under this Article XII to claim indemnification under Article 10, indemnify the Indemnified Party shall notify (the "Indemnifying Party of any Loss Party"), thereof in respect of which the Indemnified Party intends to claim such indemnificationwriting, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only except to the extent that such failure to notify within 20 days does not prejudice the delay adversely affects Indemnifying Party’s rights or 's ability to defend or contest any such claim or actionProceeding, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to and allow the Indemnifying Party and its legal representativesinsurers to assume direction and control of the defense against such Proceeding, at its sole expense, including the settlement thereof at the sole option of the Indemnifying Party or its insurers; provided, however, that the Indemnifying Party may not enter into any compromise or settlement without the prior written consent of the Indemnified Party unless such compromise or settlement includes as an unconditional term thereof the giving by each plaintiff or claimant to the Indemnified Party of a release from all liability in respect of such claim and only if such compromise or settlement does not include any admission of legal wrongdoing on the part of the Indemnified Party. The Indemnified Party shall fully cooperate with the Indemnifying Party and its insurer in the disposition of any such matter and the Indemnified Party will have the right and option to participate in (but not control) the defense of any Proceeding as to which this Article VI applies, with separate counsel at its election and cost. If the Indemnifying Party fails or declines to assume the defense of any such Proceeding within thirty (30) days after notice thereof, the Indemnified Party may assume the defense thereof for the account and at the risk of the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable pay promptly to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, any Damages to which the indemnity agreement in under this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying PartyXII applies, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Partyincurred.

Procedure. If an Indemnified Party intends (a) A Person entitled to claim indemnification under this Article 10, the XIV (an “Indemnified Party Party”) shall notify the Indemnifying Party of any Loss in respect of which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory give prompt written notification to the Parties. Notwithstanding Person from whom indemnification is sought (the prior sentence, if CDS is the “Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel Party”) of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve suit or proceeding relating to a Third Party claim for which indemnification may be sought or, if earlier, upon the assertion of any such Indemnifying claim by a Third Party of liability to (it being understood and agreed, however, that the failure by an Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such give notice of a Third-Party claim or action, but the failure so to deliver notice to the Indemnifying Party will as provided in this Section 14.3 shall not relieve the Indemnifying Party of any liability its indemnification obligation under this Agreement except and only to the extent that it may have such Indemnifying Party is actually damaged as a result of such failure to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to give notice). (b) Within twenty (20) days after delivery of such notification, the Indemnifying Party and its legal representativesmay, at upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. (c) If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense and, without limiting the Indemnifying Party’s expenseindemnification obligations, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay reimburse the reasonable legal Indemnified Party for all costs and attorneys’ fees expenses, including reasonable attorney’s fees, incurred by the Indemnified Party in establishing defending itself within thirty (30) days after receipt of any invoice therefor from the Indemnified Party. (d) The Party not controlling such defense may participate therein at its claim own expense; provided that, if the Indemnifying Party assumes control of such defense and the Indemnified Party in good faith concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim, the Indemnifying Party shall be responsible for indemnity. Except as provided the reasonable fees and expenses of counsel to the Indemnified Party in connection with its participation in the last sentence defense action. (e) The Party controlling such defense shall keep the other Party advised of this Section 10.3the status of such action, suit, proceeding or claim and the indemnity agreement in this Article 10 defense thereof and shall consider recommendations made by the other Party with respect thereto. (f) The Indemnified Party shall not apply agree to amounts paid in any settlement of any Loss if such settlement is effected action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent shall not be withheld unreasonably withheld, delayed or delayedconditioned. The Indemnifying Party shall notnot agree to any settlement of such action, without the written consent of Indemnified Partysuit, settle proceeding or compromise any Loss claim or consent to the entry of any judgment with in respect to any Loss (a) thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect to such Loss thereto, that imposes any liability or (b) which may materially adversely affect obligation on the Indemnified Party or under which that acknowledges fault by the Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days without the prior written consent of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Party.

Procedure. If In the event that any third party claim, action or suit is instituted against an Indemnified Party intends Indemnitee in respect of which indemnity may be sought pursuant to claim indemnification under Article 10Section 10.1, the Indemnified Party shall Indemnitee will promptly notify the Indemnifying Party of any Loss in respect of which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; writing (provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver give such notice to promptly will not prejudice the Indemnifying Party within a reasonable time after the commencement rights of any such actionan Indemnitee, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only except † DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION to the extent that the delay failure to give such prompt notice materially adversely affects Indemnifying Party’s rights or the ability to defend such claim or action, but the failure so to deliver notice to of the Indemnifying Party will not relieve to defend the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10claim, action or suit). The Indemnified Party under Article 10 shall provide reasonable assistance to Promptly after the Indemnitee gives such written notice, the Indemnifying Party and its legal representativesthe Indemnitee shall meet to discuss how to respond to such claim, at the Indemnifying Party’s expense, in the investigation of any action, claim action or liability covered by this indemnificationsuit. The Indemnifying Party shall additionally be liable to pay control the reasonable legal costs and attorneys’ fees incurred by defense of such claim, action or suit. The Indemnitee shall cooperate with the Indemnified Indemnifying Party in establishing its claim for indemnity. Except as provided in the last sentence defense of this Section 10.3such claim, action or suit, at the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent expense of the Indemnifying Party. In any such proceeding, the Indemnitee shall also have the right to retain its own counsel at its own expense. The Indemnifying Party shall not be liable for damages with respect to a claim, action or suit settled or compromised by the Indemnitee without the Indemnifying Party’s prior written consent. No offer of settlement, settlement or compromise by the Indemnifying Party shall be binding on an Indemnitee without the Indemnitee’s prior written consent (which consent shall not be withheld unreasonably withheld, conditioned or delayed. ), unless such settlement fully releases the Indemnitee without any liability, loss, cost or obligation to such Indemnitee, provided, however, that the Indemnifying Party shall not, have no authority to take any action as part of any such defense or settlement that invalidates or otherwise compromises or renders unenforceable any of the Indemnitees’ Intellectual Property Rights without the Indemnitees’ express prior written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Partyconsent.

Procedure. If (a) A Fulcrum Indemnitee or a GSK Indemnitee seeking indemnification pursuant to this Article VIII (an “Indemnified Party”) shall give prompt written notice to the Party from whom indemnification is sought (the “Indemnifying Party”) of the commencement or assertion of any Third Party Claim for which indemnification may be sought (it being understood and agreed, however, that the failure by an Indemnified Party intends to claim indemnification under Article 10, the Indemnified give notice of a Third Party Claim as provided in this Section 8.3 shall notify the Indemnifying Party of any Loss in respect of which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability its indemnification obligation under this Agreement except and only to the extent that it may have such Indemnifying Party is actually prejudiced as a result of such failure to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to give notice). (b) Within [**] after delivery of such notification, the Indemnifying Party and its legal representativesmay, at upon written notice thereof to the Indemnified Party, assume control of the defense of such Third Party Claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense and, without limiting the Indemnifying Party’s expenseindemnification obligations, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay reimburse the reasonable legal Indemnified Party for all costs and expenses, including reasonable attorneys’ fees and disbursements, incurred by the Indemnified Party in establishing defending itself within [**] after receipt of any invoice therefor from the Indemnified Party. The Party not controlling such defense may participate therein at its claim for indemnity. Except as provided own expense; provided, however, that, if the Indemnifying Party assumes control of such defense and the Indemnified Party in good faith concludes, based on written advice from outside counsel, that the last sentence Indemnifying Party and the Indemnified Party have conflicting interests with respect to such Third Party Claim sufficiently adverse to make unadvisable the representation by the same counsel of this Section 10.3both Parties under Law, ethical rules or equitable principles, the indemnity agreement Indemnifying Party shall be responsible for the reasonable fees and expenses of a single counsel to the Indemnified Party in this Article 10 connection therewith. The Party controlling such defense shall keep the other Party advised of the status of such Third Party Claim and the defense thereof and shall consider recommendations made by the other Party with respect thereto. (c) The Indemnified Party shall not apply agree to amounts paid in any settlement of any Loss if such settlement is effected Third Party Claim without the prior written consent of the Indemnifying Party, which consent shall not be withheld unreasonably withheld, delayed or delayedconditioned; provided, that, if the Indemnifying Party does not assume the defense of such Third Party Claim in accordance with Section 8.3(b), the Indemnified Party may thereafter agree to a settlement of such Third Party Claim that does not impose obligations on the Indemnifying Party that are more burdensome than the Indemnifying Party’s indemnification obligations under this Agreement. The Indemnifying Party shall not, without the written consent not agree to any settlement of Indemnified Party, settle or compromise any Loss such Third Party Claim or consent to the entry of any judgment with in respect to any Loss (a) thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect to such Loss thereto, that imposes any liability or (b) which may materially adversely affect obligation on the Indemnified Party or under which that acknowledges fault by the Indemnified Party, without the prior written consent of the Indemnified Party. (d) Any indemnification hereunder for a Third Party Claim shall be made net of any insurance proceeds actually recovered by the Indemnified Party would incur any obligation or liability, other than one as from unaffiliated Third Parties for such Third Party Claim to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or the extent that such shorter period as may be necessary for submitting or filing a response, fails to assume insurance proceeds actually reduce the defense amount of such Loss or fails Third Party Claim; provided, however, that if, following the indemnification payment to notify the Indemnified Party that is assuming of any amount under this Article VIII, such defenseIndemnified Party recovers any such insurance proceeds in respect of the Third Party Claim for which such indemnification payment was made, the Indemnified Party shall promptly pay the Indemnifying Party an amount equal to the excess of the indemnification payment received over the amount of the indemnification payment that would have been due if the right insurance proceeds had been received, realized or recovered before the indemnification payment was made. (e) The Parties agree and acknowledge that the provisions of this Article VIII represent any Indemnified Party’s exclusive recourse with respect to assume the defense, compromise or settlement of any Losses for which indemnification is provided to such Loss at the risk and expense of Indemnifying PartyIndemnified Party under this Article VIII.

Procedure. If (a) In order for an Indemnified Party intends to be entitled to any indemnification provided for under this Agreement, such Indemnified Party will, within a reasonable period of time following the discovery of the matters giving rise to any Losses, notify the indemnifying party under this Article XII (the “Indemnifying Party”) in writing of its claim for indemnification under Article 10for such Losses, specifying in reasonable detail the nature of such Losses and the amount of the liability estimated to accrue therefrom; provided, however, that failure to give such notification will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been actually prejudiced as a result of such failure. Thereafter, the Indemnified Party will deliver to the Indemnifying Party, within a reasonable period of time after the Indemnified Party’s receipt of such request, all information and documentation reasonably requested by the Indemnifying Party with respect to such Losses. (b) If the indemnification sought pursuant hereto involves a claim made by a third party against the Indemnified Party (a “Third Party Claim”), the Indemnifying Party will be entitled to assume the defense of such Third Party Claim at its own expense with counsel selected by the Indemnifying Party. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnified Party will have the right to participate in the defense thereof and to employ counsel, at its own expense (which expense shall notify not constitute a Loss), separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party will control such defense (provided, that, if in the reasonable opinion of counsel of the Indemnified Party, (A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party, or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party). The Indemnifying Party will be liable for the reasonable and documented fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof (other than during any period in which the Indemnified Party will have failed to give notice of the Third Party Claim as provided above). If the Indemnifying Party chooses to defend or prosecute a Third Party Claim, all of the parties hereto will cooperate in the defense or prosecution thereof. Such cooperation will include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any Loss in respect of which material provided hereunder. If the Indemnified Indemnifying Party intends chooses to claim such indemnificationdefend or prosecute any Third Party Claim, it will defend or prosecute it diligently and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding will obtain the prior sentencewritten consent of the Indemnified Party (not to be unreasonably withheld) before entering into any settlement, compromise or discharge of such Third Party Claim if CDS is (i) such settlement, compromise or discharge does not relate solely to monetary damages, (ii) such settlement, compromise or discharge does not expressly, unconditionally and completely release the Indemnified Party from all Losses and liabilities with respect to such Third Party Claim and (iii) the Indemnifying Party based on is not directly paying the full amount of the Losses in connection with such Third Party Claim. Whether or not the Indemnifying Party will have assumed the defense of a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosingThird Party Claim, the common counsel may continue Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (not to represent CDS be unreasonably withheld). (c) If an indemnification payment is received by Buyer Indemnified Party or Seller Indemnified Party, as applicable, and not be subject to disqualification on account such Indemnified Party later receives insurance proceeds in respect of the common representation. The failure to deliver notice related Losses or other recoveries under Section 12.4(a)(ii) above that were not previously credited against such indemnification payment when made, such Indemnified Party shall promptly pay to the Indemnifying Party within a reasonable time after Party, an amount equal to the commencement lesser of any (A) such actioninsurance proceeds or other recoveries, shall relieve with respect to such Losses and (B) the net indemnification payment previously paid by such Indemnifying Party with respect to such Losses. Each Indemnified Party shall use commercially reasonable efforts to collect amounts available under available insurance coverage and promptly and diligently pursue such claims relating to any Losses for which it is seeking indemnification. (d) Each Indemnified Party shall take, and shall cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of liability any event or circumstance that would reasonably be expected to, or such Indemnified Party believes does, give rise thereto, including incurring costs only to the Indemnified minimum extent necessary to remedy the breach that gives rise to such Loss; provided, that such failure to use such efforts in accordance with the foregoing shall not relieve the Indemnifying Party of its indemnification obligations under this Article 10 XII except and only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Partyactually prejudiced thereby.

Procedure. If an Indemnified Party intends to claim (a) Any party hereto or any of its Affiliates seeking indemnification under Article 10hereunder (in this context, the Indemnified Party “indemnified party”) shall notify the Indemnifying Party other party (in this context, the “indemnifying party”) in writing reasonably promptly after the assertion against the indemnified party of any Loss Claim by a third party (a “Third-Party Claim”) in respect of which the Indemnified Party indemnified party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on base a claim Claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or actionhereunder, but the failure or delay so to deliver notice to notify the Indemnifying Party will indemnifying party shall not relieve the Indemnifying Party it of any obligation or liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance the indemnified party except to the Indemnifying extent that the indemnifying party demonstrates that its ability to defend or resolve such Third Party Claim is adversely affected thereby. (1) Subject to the provisions of Sections 13.5(d) and its legal representatives13.5(g) below, the indemnifying party shall have the right, upon written notice given to the indemnified party within 30 days after receipt of the notice from the indemnified party of any Third Party Claim, to assume the defense or handling of such Third Party Claim, at the Indemnifying Partyindemnifying party’s sole expense, in which case the investigation provisions of any actionSection 13.5(b)(2) below shall govern. (2) The indemnifying party shall select counsel reasonably acceptable to the indemnified party in connection with conducting the defense or handling of such Third Party Claim, claim and the indemnifying party shall defend or liability covered by this indemnification. The Indemnifying handle the same in consultation with the indemnified party, shall keep the indemnified party timely apprised of the status of such Third Party Claim, and shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3not, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the prior written consent of the Indemnifying Partyindemnified party, directly or indirectly assume any position or take any action that would impose any obligation of any kind on or restrict the actions of the indemnified party. The indemnifying party shall not, without the prior written consent of the indemnified party, which consent shall not be withheld unreasonably withheld, conditioned or delayed, agree to a settlement of any Third Party Claim that could directly or indirectly lead to liability or create any financial or other obligation on the part of the indemnified party for which the indemnified party is not entitled to indemnification hereunder. Indemnifying The indemnified party shall cooperate with the indemnifying party and shall be entitled to participate in the defense or handling of such Third Party Claim with its own counsel and at its own expense. Notwithstanding the foregoing, in the event the indemnifying party fails to conduct the defense or handling of any Third Party Claim in good faith after having assumed such defense or handling, then the provisions of Section 13.5(c)(2) below shall not, without govern. (1) If the indemnifying party does not give written consent of Indemnified Party, settle or compromise any Loss or consent notice to the entry indemnified party, within 30 days after receipt of the notice from the indemnified party of any judgment with respect to any Loss (a) that does not release Indemnified Third Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liabilityClaim, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails the indemnifying party’s election to assume the defense or handling of such Loss Third Party Claim, the provisions of Section 13.5(c)(2) below shall govern. (2) The indemnified party may, at the indemnifying party’s expense, select counsel in connection with conducting the defense or fails to notify Indemnified handling of such Third Party Claim and defend or handle such Third Party Claim in such manner as it may deem appropriate, provided, however, that is assuming the indemnified party shall keep the indemnifying party timely apprised of the status of such defense, Indemnified Third Party Claim and shall have the right to assume the defensenot settle, compromise or settlement discharge such Third Party Claim without the prior written consent of the indemnifying party, which consent shall not be unreasonably withheld, conditioned or delayed. If the indemnified party defends or handles such Third Party Claim, the indemnifying party shall cooperate with the indemnified party and shall be entitled to participate in the defense or handling of such Loss Third Party Claim with its own counsel and at its own expense. (d) In the risk case of any Third Party Claim that is brought by any customer or supplier with respect to the Business acquired hereunder and expense that Buyer or its Affiliates intend to base a Claim for indemnification hereunder, notwithstanding anything in Section 13.5(b) to the contrary, Buyer or its Affiliates may, at Seller’s expense, select counsel reasonably satisfactory to Seller, and defend or handle such Third Party Claim in accordance with Section 13.5(c)(2) and the provisions of Indemnifying Party.Section 13.5(c)(2) shall govern (except as provided herein), including but not limited to the requirements of 13.5(c)

Procedure. If an Indemnified (i) In order for a party (the "indemnified party") to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim made by any third person or entity against the indemnified party (a "Third Party intends Claim"), such indemnified party must notify the indemnifying party in writing of the Third Party Claim within twenty (20) business days after receipt by such indemnified party of written notice of the Third Party Claim; provided, however, that failure to claim give such notification shall not affect the indemnification under Article 10provided hereunder except to the extent the indemnifying party can demonstrate actual monetary prejudice as a direct or indirect result of such failure. Thereafter, the Indemnified indemnified party shall deliver to the indemnifying party, within five (5) business days' time after the indemnified party's receipt thereof, copies of all notices and documents (including court papers) received by the indemnified party relating to the Third Party shall notify Claim. (ii) If a Third Party Claim is made against an indemnified party, the Indemnifying Party of any Loss indemnifying party will be entitled to participate in respect of which the Indemnified Party intends defense thereof and, if it so chooses, to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually selected by the indemnifying party but reasonably satisfactory to the Partiesindemnified party. Notwithstanding Should the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure indemnifying party so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails elect to assume the defense of a Third Party Claim which is not based upon a theory of successor liability, the indemnifying party will not be liable to the indemnified party for any legal expenses subsequently incurred by the indemnified party in connection with the defense thereof. In the case of a Third Party Claim which is based upon a theory of successor liability and in which the indemnified party is a co-defendant with the indemnifying party, the indemnified party shall be entitled to be compensated for its reasonable expense in defending such Loss or fails claim regardless of the offer to notify Indemnified Party that is assuming assume such defense if the indemnified and indemnifying parties have adverse positions in the matter. If the indemnifying party assumes such defense, Indemnified Party the indemnified party shall have the right to assume participate in the defense thereof and to employ counsel, which shall be at its own expense, unless the parties are co-defendants and have adverse positions in the matter, in which case the indemnifying party shall bear such expense separate from the counsel employed by the indemnifying party, it being understood that the indemnifying party shall control such defense. The indemnifying party shall be liable for the reasonable fees and expenses of counsel employed by the indemnified party for any period during which the indemnifying party has not assumed the defense thereof (other than after the twenty (20)-business day period described in Paragraph 15(e)(i) if the indemnified party shall have failed to give notice of the Third Party Claim). If the indemnifying party chooses to defend or prosecute a Third Party Claim, compromise all the parties hereto shall cooperate in the defense or settlement prosecution thereof. Such cooperation shall include the retention after reasonable notice of the need therefor and (upon the indemnifying party's request) the provision to the indemnifying party of records and information which are reasonably relevant to such Loss at the risk Third Party Claim, and expense making employees available on a mutually convenient basis to provide additional information and explanation of Indemnifying Partyany material provided hereunder.

Procedure. If Any Gilead Indemnitee or Company Indemnitee shall notify Company or Gilead (the “Indemnifying Party”), as the case may be, promptly in writing of an Indemnified indemnifiable claim or cause of action under Section 7.1 above upon receiving notice or being informed of the existence thereof. The Indemnifying Party intends to claim indemnification under Article 10shall assume, at its cost and expense, the Indemnified Party shall notify sole defense of such claim or cause of action through counsel selected by the Indemnifying Party and reasonably acceptable to the other Party, such acceptance not to be unreasonably withheld, delayed or conditioned. The Indemnifying Party shall maintain control of such defense, including any Loss in respect of which the Indemnified Party intends decision as to claim such indemnificationsettlement; provided that, and if the Indemnifying Party shall assume the has failed to conduct such defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimeratimely basis, then Alimera agrees then, without prejudice to use CDS’ counsel as common counsel any other rights and remedies available to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosingother Party under this Agreement, the common counsel other Party may continue to represent CDS and not be subject to disqualification on account give written notice of the common representation. The such failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such actionand, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to if the Indemnifying Party will has not relieve cured such failure within sixty (60) days after receipt of such notice, the Indemnifying other Party may take over such defense with counsel of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representativeschoosing, at the Indemnifying Party’s cost and expense. The other Party may, at its option and expense, participate in the investigation of Indemnifying Party’s defense at the other Party’s sole expense, and if the other Party so participates, the Parties shall cooperate with one another in such defense. Gilead shall have the right to extend the right to participate in and control, as applicable, any actionsuch defense to its Affiliates and UTC, claim or liability covered by this indemnificationas Gilead in its sole discretion deems necessary to satisfy its obligations under the URC License Agreement. The Indemnifying Party shall additionally be liable to pay bear the reasonable legal total costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise court award or settlement of such Loss at claim or cause of action and all other costs, fees and expenses related to the risk and expense of resolution thereof (including reasonable attorneys’ fees except for attorneys’ fees for which the other Party is responsible if the other Party participates in the Indemnifying Party’s defense of such claim or cause of action). In the event that the Parties cannot agree as to the application of Sections 7.1(a) and (b) to any Gilead Claim or Company Claim, as the case may be, the Parties may conduct separate defenses of such claim. In such case, each Party further reserves the right to claim indemnity from the other in accordance with Sections 7.1(a) and (b) upon resolution of such underlying claim.

Procedure. If an Indemnified Party intends As a condition to claim a Party’s right to receive indemnification under Article 10Section 9.1 or Section 9.2, the Indemnified Party shall notify the Indemnifying Party of any Loss it shall: (a) promptly deliver notice in respect of which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory writing (a “Claim Notice”) to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying other Party based on as soon as it becomes aware of a claim or suit for which indemnification by Alimera, then Alimera agrees may be sought pursuant to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; Section 9.1 or Section 9.2 (provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to give a Claim Notice promptly shall not prejudice the Indemnifying rights of an indemnified Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only except to the extent that the delay failure to give prompt notice materially adversely affects Indemnifying the ability of the indemnifying Party to defend the claim or suit); (b) cooperate with the indemnifying Party in the defense of such claim or suit, at the expense of the indemnifying Party’s rights or ability ; and (c) if the indemnifying Party confirms in writing to the indemnified Party its intention to defend such claim or actionsuit within [* * *] after receipt of the Claim Notice, but permit the failure so indemnifying Party to deliver control the defense of such claim or suit, including without limitation the right to select defense counsel; provided that, if the indemnifying Party fails to (i) provide such confirmation in writing within such [* * *] period or (ii) after providing such confirmation, diligently and reasonably defend such suit or claim at any time, the indemnifying Party’s right to defend the claim or suit shall terminate immediately in the case of (i) and otherwise upon [* * *] written notice by the indemnified Party to the Indemnifying indemnifying Party, and the indemnified Party will not relieve may assume the Indemnifying Party defense of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, such claim or suit at the Indemnifying Party’s expense, in sole expense of the investigation of any action, indemnifying Party but may not settle or compromise such claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected suit without the consent of the Indemnifying indemnifying Party, which consent shall not to be unreasonably withheld unreasonably or delayed. Indemnifying In no event, however, may the indemnifying Party shall not, compromise or settle any claim or suit in a manner which admits fault or negligence on the part of any indemnified Party or that otherwise materially affects such indemnified Party’s rights under this Agreement or requires any payment by an indemnified Party without the prior written consent of Indemnified such indemnified Party. Except as expressly provided above, settle or compromise any Loss or consent to the entry of any judgment indemnifying Party will have no liability under this ARTICLE 9 with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss claims or (b) which may materially adversely affect Indemnified Party suits settled or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Partycompromised without its prior written consent.

Procedure. If an Any Indemnified Party intends seeking indemnification under this Section 8 shall give notice to the Indemnifying Parties. In the event of any claim, demand, action or proceeding asserted against any Indemnified Party by a third party with respect to which such Indemnified Party may claim indemnification under Article 10Section 8.1 (a “Third Party Claim”), the Indemnified Party shall notify give the Indemnifying Parties written notice within twenty (20) Business Days of receiving written notice of such Third Party of any Loss in respect of which Claim. If the Indemnified Party intends fails to claim provide such indemnificationnotice within such time period, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and Parties will not be subject obligated to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to indemnify the Indemnified Party under Article 10 only with respect to such Third Party Claim to the extent that the delay adversely affects Indemnifying Party’s rights or Parties’ ability to defend is prejudiced by such claim or action, but failure of the failure so Indemnified Party. The Indemnifying Parties shall notify the Indemnified Party within thirty (30) days after receipt of such notice as to deliver notice to the whether any Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Third Party that is assuming such Claim. If any Indemnifying Party assumes the defense, (i) the Indemnified Party shall have the right to assume the defense, participate in such defense and to engage separate counsel of its own choosing at its own cost and expense and (ii) such Indemnifying Party shall not agree to any compromise or settlement to which the Indemnified Party has not consented to in writing (which consent shall not be unreasonably withheld or delayed). Notwithstanding the foregoing, if counsel for the Indemnified Party reasonably determines that there is a conflict between the positions of the Indemnifying Parties and the Indemnified Party in conducting the defense of such Loss Third Party Claim, then the reasonable fees of such separate counsel shall be paid by the Indemnifying Party. If requested by any Indemnifying Party, the Indemnified Party will, at the risk cost and expense of such Indemnifying Party, provide reasonable cooperation to such Indemnifying Party in defending such Third Party Claim. If no Indemnifying Party elects to assume the defense of such Third Party Claim, the Indemnified Party may assume the defense thereof at the expense of the Indemnifying Parties, provided that the Indemnified Party shall not agree to any compromise or settlement to which the Indemnifying Parties have not consented in writing (which consent shall not be unreasonably withheld or delayed).

Procedure. If an Indemnified Party intends (a) A Person entitled to claim indemnification under this Article 10, the XV (an “Indemnified Party Party”) shall notify the Indemnifying Party of any Loss in respect of which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory give prompt written notification to the Parties. Notwithstanding Person from whom indemnification is sought (the prior sentence, if CDS is the “Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel Party”) of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve suit or proceeding relating to a Third Party Claim for which indemnification may be sought or, if earlier, upon the assertion of any such Indemnifying Claim by a Third Party of liability to (it being understood and agreed, however, that the failure by an Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver give notice to the Indemnifying of a Third-Party will Claim as provided in this Section 15.3 shall not relieve the Indemnifying Party of any liability its indemnification obligation under this Agreement except and only to the extent that it may have such Indemnifying Party is actually damaged as a result of such failure to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to give notice). (b) Within twenty (20) days after delivery of such notification, the Indemnifying Party and its legal representativesmay, at upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. (c) If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense and, without limiting the Indemnifying Party’s expenseindemnification obligations, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay reimburse the reasonable legal Indemnified Party for all costs and attorneys’ fees expenses, including reasonable attorney’s fees, incurred by the Indemnified Party in establishing defending itself within thirty (30) days after receipt of any invoice therefor from the Indemnified Party. (d) The Party not controlling such defense may participate therein at its claim own expense; provided that, if the Indemnifying Party assumes control of such defense and the Indemnified Party in good faith concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim, the Indemnifying Party shall be responsible for indemnity. Except as provided the reasonable fees and expenses of counsel to the Indemnified Party in connection with its participation in the last sentence defense action. (e) The Party controlling such defense shall keep the other Party advised of this Section 10.3the status of such action, suit, proceeding or claim and the indemnity agreement in this Article 10 defense thereof and shall consider recommendations made by the other Party with respect thereto. (f) The Indemnified Party shall not apply agree to amounts paid in any settlement of any Loss if such settlement is effected action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent shall not be withheld unreasonably withheld, delayed or delayedconditioned. The Indemnifying Party shall notnot agree to any settlement of such action, without the written consent of Indemnified Partysuit, settle proceeding or compromise any Loss claim or consent to the entry of any judgment with in respect to any Loss (a) thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect to such Loss thereto, that imposes any liability or (b) which may materially adversely affect obligation on the Indemnified Party or under which that acknowledges fault by the Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days without the prior written consent of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Party.

Procedure. If an (a) Any Indemnified Party intends to claim Person seeking indemnification under Article 10, this Section 9 shall give notice to a party obligated to provide indemnity hereunder (the Indemnified Party shall notify “Indemnifying Party”). If the Indemnifying Party of any Loss in respect of which does not notify the Indemnified Person in writing within ten (10) Business Days from receipt of such claim that the Indemnifying Party intends to claim disputes such indemnificationclaim, and the Indemnifying Party shall be deemed to have accepted and agreed with such claim. In the event of any Action asserted against an Indemnified Person by a third party upon which the Indemnified Person may claim indemnification, the Indemnified Person shall give the Indemnifying Party(ies) notice in writing within ten (10) Business Days of receiving written notice of such asserted Action and, thereafter the Indemnifying Party shall give written notice to the Indemnified Person within ten (10) Business Days after receipt from the Indemnified Person of such notice of claim or demand, indicating whether the Indemnifying Party intends to assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentenceof such claim or demand, and if CDS is the Indemnifying Party based on a intends to assume the defense of such claim for indemnification by Alimeraor demand, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such actionshall acknowledge that it has, and shall relieve such Indemnifying Party of liability be deemed to the Indemnified Party under Article 10 only have, accepted and agreed to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend its indemnification obligations for such claim or action, but the failure so to deliver notice to demand. If the Indemnifying Party will not relieve assumes the defense, (i) the Indemnified Person shall have the right to participate in any such defense and to employ separate counsel of its choosing at its cost and expense; provided, however, if there is a potential conflict of interest between the interest of the Indemnified Person and the Indemnifying Party, the reasonable fees and expenses of such separate counsel shall be paid by the Indemnifying Party, (ii) the Indemnifying Party shall promptly keep the Indemnified Person reasonably informed of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to material developments in such claim or demand at all stages thereof and (iii) the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of may not agree to any action, claim compromise or liability covered by this indemnification. The Indemnifying Party shall additionally be liable settlement to pay the reasonable legal costs and attorneys’ fees incurred by which the Indemnified Party Person has not consented in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Partywriting, which consent shall not be withheld unreasonably or delayedwithheld. If the Indemnifying Party shall not, without elects not to assume the written consent of Indemnified Party, settle defense or compromise any Loss or consent fails to make such an election within the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss Business Day period, or such shorter period as may be necessary for submitting or filing a response, otherwise fails to continue the defense of the Indemnified Person reasonably and in good faith, the Indemnified Person may assume the defense thereof at the expense of the Indemnifying Party, and a recovery against the Indemnified Person suffered by it in good faith shall be conclusive in its favor against the Indemnifying Party. (b) Notwithstanding the provisions of Section 9.3(a), in the case of any indemnification under this Agreement in respect of any withholding Tax obligation of an Indemnified Person, the applicable Indemnified Person shall control the relevant audit or other proceeding in respect of such Loss withholding Tax obligation, shall keep the Indemnifying Party reasonably informed of such audit or fails proceeding, and such Indemnified Person may agree to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, any compromise or settlement in such respect, which shall be conclusive in such Indemnified Person’s favor against the Indemnifying Party unless the Indemnifying Party reasonably objected to such compromise or settlement following notice of such Loss at Indemnified Person’s intention to make such a compromise and/or settlement in such respect (provided, however, that any final determination in respect of any withholding Tax obligation of an Indemnified Person by the risk and expense competent PRC State Administration of Taxation shall nonetheless be conclusive in such Indemnified Person’s favor against the Indemnifying Party).

Procedure. If an any Momenta Indemnified Party intends to or any Sandoz Indemnified Party (in each case, an "INDEMNIFIED PARTY") receives any written claim indemnification under Article 10or demand which such Indemnified Party believes is the subject of indemnity hereunder by Sandoz or Momenta as the case may be (in each case, an "INDEMNIFYING PARTY"), the Indemnified Party shall notify shall, as soon as reasonably practicable after forming such belief, give notice thereof to the Indemnifying Party; PROVIDED THAT the failure to give timely notice to the Indemnifying Party of as contemplated hereby shall not release the Indemnifying Party from any Loss in respect of which liability to the Indemnified Party intends unless the Indemnifying Party demonstrates that the defense of such claim is materially prejudiced by such failure. The Indemnifying Party shall assume and diligently pursue the defense of such claim, at its cost, with counsel reasonably satisfactory to the Indemnified Party. The Indemnifying Party shall have absolute control of the conduct of the litigation; PROVIDED, HOWEVER, THAT 12.3.1 the Indemnified Party may, nevertheless, participate therein through counsel of its choice and at its cost, and shall be permitted to effectively associate with the Indemnifying Party in the defense, the prosecution and the negotiation of any settlement of the claim or demand; 12.3.2 the Indemnifying Party shall keep the Indemnified Party informed, through the JSC, of the status of the litigation; EXECUTION COPY 12.3.3 the Indemnifying Party shall provide the Indemnified Party with a reasonable opportunity to review and comment on all pleadings, motions and other papers exchanged with the opposing party or filed with any court by the Indemnifying Party with respect to such indemnificationclaim or demand (collectively, the "PLEADINGS") and the Indemnifying Party shall assume consider in good faith any input provided by the Indemnified Party with respect to the Pleadings; and 12.3.4 if the suit includes a defense of Momenta IP or an Invalidity Claim with respect to Momenta IP or the Joint Collaboration IP (in the event Momenta is the Indemnified Party), then the Indemnifying Party's conduct of the litigation with respect to such claim(s) shall be subject to: a. the approval of Momenta and/or b. any contractual obligations to, or restrictions imposed by, the relevant Third Party licensor. The Party not assuming the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 demand shall provide render all reasonable assistance to the Indemnifying Party assuming such defense as requested by such defending Party, and its legal representatives, at all reasonable out-of-pocket costs of such assistance shall be for the account of the Indemnifying Party’s expense, in the investigation of any action, . No such claim or liability covered by this indemnification. The Indemnifying Party demand shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred settled other than by the Indemnified Party in establishing its claim for indemnity. Except as provided in defending the last sentence of this Section 10.3same, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without and then only with the consent of the Indemnifying other Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without withheld; PROVIDED THAT the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right no obligation to assume the defense, compromise or consent to any settlement of any such Loss at claim which imposes on the risk Indemnified Party any liability or obligation which cannot be assumed and expense performed in full by the Indemnifying Party (subject, in the case of Indemnifying a Settlement, to the terms of Section 4.3) or which agrees that any element of any of Momenta IP or Joint Collaboration IP (in the event Momenta is the Indemnified Party) is invalid, not infringed or unenforceable.

Procedure. If an Indemnified A Party that intends to claim indemnification under Article 10, this Section 9.2 shall promptly inform the Indemnified indemnifying Party shall notify the Indemnifying Party in writing of any Loss Third Party Claim, in respect of which the Indemnified Party indemnitee intends to claim such indemnification. The indemnified Party shall provide the indemnifying Party with reasonable assistance, at the indemnifying Party’s expense, in connection with the defense of the Third Party Claim for which indemnity is being sought. The indemnitee may participate in and monitor such defense with counsel of its own choosing at its sole expense; provided, however, the indemnitor shall have the right to assume and conduct the defense of the Third Party Claim with counsel of its choice. The indemnitor shall not settle any Third Party Claim without the prior written consent of the indemnified Party, not to be unreasonably withheld or delayed, unless the settlement involves only the payment of money. So long as the indemnitor is actively defending the Third Party Claim in good faith, the indemnitee shall not settle any such Third Party Claim without the prior written consent of the indemnifying Party. If the indemnitor does not assume and conduct the defense of the Third Party Claim as provided above, (a) the indemnitee may defend against, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory consent to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel entry of any judgment or enter into any settlement with respect to the extent Third Party Claim in any manner the Parties’ interests are aligned; provided that if indemnitee may deem reasonably appropriate (and the Parties’ interests diverge after they have used common counsel of CDS’ choosingindemnitee need not consult with, or obtain any consent from, the common counsel may continue indemnitor in connection therewith), and (b) the indemnitor will remain responsible to represent CDS and not be subject to disqualification on account of indemnify the common representationindemnitee as provided in this Section 9.2. The failure to deliver written notice to the Indemnifying Party indemnitor within a reasonable time after the commencement of any such action, action with respect to a Third Party Claim shall only relieve such Indemnifying Party the indemnitor of liability to the Indemnified Party its indemnification obligations under Article 10 only this Section 9.2 if and to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement indemnitor is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Partyactually prejudiced thereby.

Procedure. If an Indemnified Party intends to claim (a) Any party seeking indemnification under Article 10, the Indemnified Party shall notify the Indemnifying Party of any Loss in respect of which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (athe "Indemnified Party") will promptly notify the party required to provide indemnity hereunder (the "Indemnifying Party") in accordance with Section 10.11, provided, that does the failure to give such notice shall not release affect the right of the Indemnified Party from all liability with respect to such Loss or indemnification except to the extent the failure to give notice prejudices the Indemnifying Party's ability to defend any claim. (b) which may materially adversely affect If any claim, demand or liability is asserted by any third party against any Indemnified Party or under which (a "Third Party Claim"), the Indemnified Party would incur any obligation will, upon notice of the claim or liabilitydemand, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If promptly notify the Indemnifying Party, within ten (10) days subject to the proviso of receiving notice of a Loss Section 9.4(a), and the Indemnifying Party will defend and/or settle any actions or such shorter period as may be necessary for submitting or filing a response, fails to assume proceedings brought against the defense of such Loss or fails to notify Indemnified Party that is assuming in respect of matters embraced by the indemnity with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not promptly defend or settle any such defenseclaims, the Indemnified Party shall will have the right to assume control any defense or settlement, at the expense of the Indemnifying Party. No claim will be settled or compromised without the prior written consent of each party to be affected, with such consent not being unreasonably withheld. The Indemnified Party will at all times also have the right to participate fully in the defense at its own expense unless there is, under applicable law, a conflict on any significant issue between Indemnifying Party and Indemnified Party, in which case the fees and expenses of one counsel in respect of such claim incurred by the Indemnified Party will be paid by Indemnifying Party. The parties will cooperate in the defense of all Third-Party Claims that may give rise to Indemnifiable Claims hereunder. In connection with the defense of any claim, each party will make available to the party controlling such defense, compromise any books, records or settlement other documents within its control that are reasonably requested in the course of such Loss at defense. (c) If the risk Indemnified Party has a claim against the Indemnifying Party that does not involve a Third Party Claim (an "Inter-Party Claim"; and expense together with a Third Party Claim, an "Indemnifiable Claim"), the Indemnified Party will notify the Indemnifying Party with reasonable promptness of the claim, and, to the extent known, specifying the nature, estimated amount and the specific basis for the claim. The Indemnifying Party will respond within thirty (30) days of receipt of the notice of an Inter-Party Claim. If the Indemnifying Party fails to respond, the claim specified by the Indemnified Party will be conclusively deemed a liability of the Indemnifying Party, subject only to proof of the amount of Loss. If the Indemnifying Party timely disputes the claim, the Indemnified and the Indemnifying Party will negotiate in good faith to resolve the dispute, and if not resolved, either party may pursue whatever remedies it may have. (d) If any Loss is covered by insurance, Indemnified Party will file claims against the applicable policies, but need not appeal the denial of any claim nor assign any rights to Indemnifying Party under the policy. The provisions of this Article IX are subject to the rights of any Indemnified Party's insurer that may be defending any such claim. If the Indemnifying Party makes any payment hereunder of a Loss, the Indemnifying Party will be subrogated, to the extent of the payment and permitted by the applicable policies, to the rights of the Indemnified Party against any insurer or third party with respect to the Loss. (e) All payments made pursuant to this Article IX (other than a payment based on an obligation arising under Section 5.7 [Non-Compete]) shall be treated as adjustments to the purchase price for the Purchased Assets.

Procedure. If an Indemnified To the extent reasonably feasible, the Party intends entitled to claim indemnification under Article 10, Section 12.1.1 or 12.1.2 above (the “Indemnified Party Party”) shall notify the other Party (the “Indemnifying Party Party”) in writing of any Loss Claim that, in respect of which the Indemnified Party intends Party’s reasonable judgment, is likely to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory lead to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay promptly assume the reasonable legal costs entire defense of such Claim following the Indemnified Party’s written notice and attorneys’ fees incurred by reimburse the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply all expenses incurred prior to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume ’s assuming the defense of such Loss or fails to notify Claim. The Indemnifying Party may settle a claim on terms which provide only for monetary relief, include a full release of the Indemnified Party that is assuming such defenseand do not include any admission of liability, wrongdoing, infringement or invalidity or unenforceability of patent rights owned or controlled by the Indemnified Party. Save as aforesaid, neither the Indemnifying Party nor the Indemnified Party shall have acknowledge the right to assume the defensevalidity of, compromise or settlement otherwise settle any claim without the prior written consent of such Loss the other Party, which shall not be unreasonably withheld or delayed. The Indemnified Party shall use cooperate with the Indemnifying Party in the defense of the Claim at the risk Indemnifying Party’s sole expense. The Indemnified Party may hire its own counsel, at its own expense, to monitor, but not control, the defense of any Claim. The Indemnified Party and expense of the Indemnifying Party may execute such mutually acceptable confidentiality and joint defense agreements to protect privileged materials as shall be usual and customary in such proceedings and as shall be reasonably requested in writing by either the Indemnified Party or the Indemnifying Party.

Procedure. If 10.3.1. Any Odyssey Indemnified Party or ▇▇▇▇▇▇▇ Indemnified Party seeking indemnification hereunder (each, an “Indemnified Party”) will notify the Party against whom indemnification is sought (the “Indemnifying Party”) in writing reasonably promptly after the assertion against the Indemnified Party of any Liability in respect of which such Indemnified Party intends to claim indemnification under Article 10, the Indemnified Party shall notify the Indemnifying Party of any Loss in respect of which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on base a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or actionhereunder, but the failure or delay to so to deliver notice to notify the Indemnifying Party will not relieve the such Indemnifying Party of any obligation or liability that it may have to any such Indemnified Party otherwise than under Article 10except to the extent that such Indemnifying Party demonstrates that its ability to defend or resolve such Liability is adversely affected thereby. 10.3.2. The Subject to the provisions of Section 10.3.3, such Indemnifying Party will have the right, upon providing notice to such Indemnified Party under Article 10 shall provide reasonable assistance of its intent to do so [***] after receipt of the Indemnifying notice from such Indemnified Party of such Liability, to assume the defense and its legal representativeshandling of such Liability, at the such Indemnifying Party’s sole cost and expense, in the investigation of any action, claim or liability covered by this indemnification. 10.3.3. The Such Indemnifying Party shall additionally be liable to pay will select competent counsel in connection with conducting such defense and handling of such Liability, and such Indemnifying Party will defend and handle the reasonable legal costs same in consultation with such Indemnified Party, and attorneys’ fees incurred by the will keep such Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent timely apprised of the Indemnifying Party, which consent shall not be withheld unreasonably or delayedstatus of such Liability. Such Indemnifying Party shall will not, without the prior written consent of such Indemnified Party, settle agree to a settlement of such Liability which could lead to liability or compromise create any Loss financial or consent to other obligation on the entry part of any judgment with respect to any Loss (a) that does not release such Indemnified Party from all liability with respect for which such Indemnified Party is not entitled to indemnification hereunder, or would involve any admission of wrongdoing on the part of such Loss or (b) which may materially adversely affect Indemnified Party or under which does not include a full release of claims. Such Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If will reasonably cooperate with such Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk request and cost and expense of such Indemnifying Party, and will be entitled to participate in the defense and handling of such Liability with its own counsel and at its own cost and expense.

Procedure. If an In the event that, from and after the Closing Date, a third party asserts any claim against any Company Indemnified Party intends or any Investor Indemnified Party with respect to claim indemnification under Article 10any matter to which the foregoing indemnities apply, the party against whom the claim is asserted (the "Indemnified Party Party") shall notify give prompt written notice to the indemnifying party (the "Indemnifying Party of any Loss in respect of which the Indemnified Party intends to claim such indemnificationParty"), and the Indemnifying Party shall assume have the right, at its election, to take over the defense thereof with counsel mutually satisfactory or settlement of such claim at its own expense by giving prompt written notice to the Parties. Notwithstanding the prior sentenceIndemnified Party; provided, however, that, if CDS is the Indemnifying Party based on a does not give such notice and does not proceed diligently to defend the claim within 30 days after receipt of such notice of the claim, the Indemnifying Party shall be bound by any defense or settlement that the Indemnified Party may make as to such claim and shall reimburse the Indemnified Party for indemnification by Alimeraany and all losses and expenses resulting therefrom. The Indemnified Party and the Indemnifying Party shall cooperate in defending any such third party's claim, then Alimera agrees to use CDS’ counsel as common counsel and the Indemnifying Party, to the extent the Parties’ interests Indemnifying Party elects to defend such claim, shall have reasonable access to records, information and personnel in the possession or control of any other party hereto which are aligned; provided that if applicable to the Parties’ interests diverge after they have used common counsel subject matter of CDS’ choosing, any claim or which are otherwise pertinent to the common counsel may continue to represent CDS defense of such claim and not be subject to disqualification on account of the common representation. The failure to deliver notice to Indemnified Party shall otherwise cooperate with the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnificationall respects in connection therewith. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by reimburse the Indemnified Party for all of the Indemnified Party's reasonable out-of-pocket costs incurred in establishing its claim for indemnity. Except as provided connection with the activities set forth in the last immediately preceding sentence and in enforcing this indemnification. Each party hereto shall have an obligation to retain all relevant records until the period ending on December 31 of this Section 10.3the seventh full calendar year following the Closing Date unless such records relate to actions, claims or proceedings known to such party to be pending at the time such records are scheduled not to be retained or unless such records are required to be maintained for longer periods of time under applicable laws, rules or regulations or unless such records relate to taxes, in which case each party hereto shall have an obligation to retain such records for the term of the applicable statute of limitations, as the same may be extended or tolled. Notwithstanding the foregoing, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, not settle or compromise any Loss such claim without the prior written consent of the Indemnified Party, (such consent not to be unreasonably withheld) unless, after consultation between such parties, the terms of such settlement or consent to the entry of any judgment with respect to any Loss (a) that does not compromise release such Indemnified Party from any and all liability with respect to such Loss or (b) which may materially claim and do not in any manner adversely affect Indemnified Party the future operations or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense activities of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Party.

Procedure. If In the event that, at any time or from time to time after the Effective Time, a person indemnified under Section 10.1 or 10.3 (an "Indemnified Party") shall sustain a loss of any nature whatsoever against which such Indemnified Party intends is indemnified under this Agreement, such Indemnified Party shall notify the party hereto obligated to claim provide such indemnification under Article 10(the "Indemnitor") of any such loss so sustained. If Indemnitor is Buyer, Indemnitor shall within thirty (30) days after transmittal of such notice pay to such Indemnified Party the amount of such loss so sustained, subject to the right to contest any claim. If Indemnitor is the Shareholders, payment shall be governed by the Escrow Agreement. The Indemnified Party shall promptly notify the Indemnitor of the existence of any claim, demand, or other matter involving liabilities to third parties to which the Indemnitor's indemnification obligations would apply and shall give the Indemnitor (acting through the Representative if Indemnitor is the Escrow Agent) a reasonable opportunity to defend the same or prosecute such action to conclusion or settlement satisfactory to the Indemnified Party at Indemnitor's own expense and with counsel of Indemnitor's selection (who shall be approved by Indemnified Party, which approval shall not be unreasonably withheld); provided that the Indemnified Party shall at all times also have the right to fully participate in the defense at its own expense. If the Indemnitor shall, within a reasonable time after said notice, fail to defend, the Indemnified Party shall notify have the Indemnifying Party of any Loss in respect of which right, but not the Indemnified Party intends obligation, to claim such indemnificationundertake the defense of, and to compromise or settle (exercising reasonable business judgment) the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or actionother matter on behalf, but for the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party account, and its legal representatives, at the Indemnifying Party’s expense, in the investigation risk and expense of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnityIndemnitor. Except as provided in the last sentence of this Section 10.3preceding sentence, the indemnity agreement in this Article 10 Indemnified Party shall not apply to amounts paid in settlement of any Loss if such settlement is effected compromise or settle the claim or other matter without the prior written consent of the Indemnifying PartyIndemnitor. If the claim is one that cannot by its nature be defended solely by the Indemnitor, the Indemnified Party shall make available all information and assistance that the Indemnitor may reasonably request; provided that any associated expenses shall be paid by the Indemnitor. If the Losses relate to a Loss or demand asserted by a third party, the Indemnified Party and Indemnitor shall jointly control the defense and settlement thereof and any settlement shall require the prior written consent of both parties, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Partywithheld.

Procedure. If (a) In order for an Indemnified Party intends to be entitled to any indemnification provided for under this Agreement, such Indemnified Party will, within a reasonable period of time following the discovery of the matters giving rise to any Losses, notify the indemnifying party under this Article XII (the “Indemnifying Party”) in writing of its claim for indemnification under Article 10for such Losses, specifying in reasonable detail the nature of such Losses and the amount of the liability estimated to accrue therefrom; provided, however, that failure to give such notification will not affect the indemnification provided hereunder, except to the extent the Indemnifying Party will have been prejudiced as a result of such failure. Thereafter, the Indemnified Party will deliver to the Indemnifying Party, within a reasonable period of time after the Indemnified Party’s receipt of such request, all information and documentation reasonably requested by the Indemnifying Party with respect to such Losses. (b) If the indemnification sought pursuant hereto involves a claim made by a third party against the Indemnified Party (a “Third Party Claim”), the Indemnifying Party will be entitled to assume the defense of such Third Party Claim at its own expense with counsel selected by the Indemnifying Party. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. If the Indemnifying Party assumes such defense, the Indemnified Party will have the right to participate in the defense thereof and to employ counsel, at its own expense (which expense shall notify not constitute a Loss), separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party will control such defense. The Indemnifying Party will be liable for the reasonable and documented fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof (other than during any period in which the Indemnified Party will have failed to give notice of the Third Party Claim as provided above). If the Indemnifying Party chooses to defend or prosecute a Third Party Claim, all of the parties hereto will cooperate in the defense or prosecution thereof. Such cooperation will include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any Loss in respect of which material provided hereunder. If the Indemnified Indemnifying Party intends chooses to claim such indemnificationdefend or prosecute any Third Party Claim, it will defend or prosecute it diligently and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding will obtain the prior sentencewritten consent of the Indemnified Party (not to be unreasonably withheld) before entering into any settlement, compromise or discharge of such Third Party Claim if CDS is (i) such settlement, compromise or discharge does not relate solely to monetary damages, (ii) such settlement, compromise or discharge does not expressly unconditionally and completely release the Indemnified Party from all Losses and liabilities with respect to such Third Party Claim, (iii) the Indemnifying Party based on is not directly paying the full amount of the Losses in connection with such Third Party Claim and (iv) such settlement, compromise or discharge does not contain any admission of liability by the Indemnified Party or its Affiliates. Whether or not the Indemnifying Party will have assumed the defense of a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosingThird Party Claim, the common counsel may continue Indemnified Party will not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent (not to represent CDS be unreasonably withheld). (c) If an indemnification payment is received by Buyer Indemnified Party or Seller Indemnified Party, as applicable, and not be subject to disqualification on account such Indemnified Party later receives insurance proceeds in respect of the common representation. The failure to deliver notice related Losses or other recoveries under section 12.4(a)(ii) above that were not previously credited against such indemnification payment when made, such Indemnified Party shall promptly pay to the Indemnifying Party within a reasonable time after Party, an amount equal to the commencement lesser of any (A) such actioninsurance proceeds or other recoveries, shall relieve with respect to such Losses and (B) the net indemnification payment previously paid by such Indemnifying Party with respect to such Losses. Each Indemnified Party shall use reasonable and good faith efforts to collect amounts available under available insurance coverage and promptly and diligently pursue such claims relating to any Losses for which it is seeking indemnification. (d) Each Indemnified Party shall take, and shall cause its Affiliates to take, all reasonable steps to mitigate any Loss upon becoming aware of liability any event or circumstance that would reasonably be expected to, or such Indemnified Party believes does, give rise thereto, including incurring costs only to the Indemnified minimum extent necessary to remedy the breach that gives rise to such Loss; provided, that such failure to use such efforts in accordance with the foregoing shall not relieve the Indemnifying Party of its indemnification obligations under this Article 10 XII except and only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Partyprejudiced thereby.

Procedure. If an Indemnified Party intends to claim indemnification under Article 10, the Indemnified Each Party shall notify the Indemnifying other in the event it becomes aware of a claim for which indemnification may be sought hereunder or for which Liability is shared pursuant to this Section 11. In case any proceeding (including any governmental investigation) shall be instituted involving any Party of any Loss in respect of which indemnity may be sought pursuant to this Section 11, such Party (the “Indemnified Party”) shall provide the other Party (the “Indemnifying Party”) with prompt written notice of such proceeding (the “Indemnification Claim Notice”). Promptly after the Indemnifying Party receives the Indemnification Claim Notice, the Indemnifying Party and Indemnified Party shall meet to discuss how to respond to any claims that are the subject matter of such proceeding. At its option, the Indemnifying Party may assume the defense of any Third Party claim subject to indemnification as provided for in this Section 11.3 by giving written notice to the Indemnified Party intends within thirty (30) days (or until such time provided in any applicable extension to appropriately answer any complaint, if any, but no longer than seventy (70) days, provided that the Indemnified Party makes all reasonable efforts to obtain any such extension) after the Indemnifying Party’s receipt of an Indemnification Claim Notice, provided that (a) the claim such indemnificationsolely seeks monetary damages and (b) the Indemnifying Party expressly agrees in writing that as between the Indemnifying Party and the Indemnified Party, and the Indemnifying Party shall be solely obligated to satisfy and discharge the claim in full (the matters described in (a) and (b), the “Litigation Conditions”). The Indemnifying Party may, at any time, assume all such defense if the Litigation Conditions are not satisfied at any time. Upon assuming the defense thereof of a Third Party claim in accordance with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentencethis Section 11.3, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees shall be entitled to use CDS’ appoint lead counsel as common counsel to in the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account defense of the common representationThird Party claim. The failure to deliver notice to Should the Indemnifying Party within assume and continue the defense of a reasonable time after the commencement of any such actionThird Party claim, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or actionexcept as otherwise set forth in this Section 11.3, but the failure so to deliver notice to the Indemnifying Party will not relieve be liable to the Indemnified Party for any legal expenses subsequently incurred by such Indemnified Party in connection with the analysis, defense or settlement of the Third Party claim. Without limiting this Section 11.3, any Indemnified Party will be entitled to participate in, but not control, the defense of a Third Party claim for which it has sought indemnification hereunder and to employ counsel of its choice for such purpose; provided, however, that such employment will be at the Indemnified Party’s own expense unless (i) the employment thereof has been specifically authorized by the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to in writing, (ii) the Indemnifying Party has failed to assume and its legal representatives, at actively further the defense and employ counsel in accordance with this Section 11.3 (in which case the Indemnified Party will control the defense) or (iii) the Indemnifying Party no longer satisfies the Litigation Conditions. With respect to any Liability relating solely to the payment of money damages in connection with a Third Party claim that will not result in the Indemnified Party’s expense, in becoming subject to injunctive or other relief or otherwise adversely affect the investigation business of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except any manner, and as provided to which the Indemnifying Party will have acknowledged in writing the last sentence of this Section 10.3obligation to indemnify the Indemnified Party hereunder, and subject to the Litigation Conditions being satisfied, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without will have the written consent of Indemnified Party, settle or compromise any Loss or sole right to consent to the entry of any judgment with respect to judgment, enter into any Loss settlement or otherwise dispose of such Liability, on such terms as the Indemnifying Party, in its reasonable discretion, will deem appropriate (a) provided that does not such terms shall include a complete and unconditional release of the Indemnified Party from all liability with respect thereto), and will transfer to such Loss or (b) which may materially adversely affect the Indemnified Party or under all amounts which said Indemnified Party would incur any obligation or liabilitywill be liable to pay prior to the time of the entry of judgment. With respect to all other Liabilities in connection with Third Party claims, other than one as to which where the Indemnifying Party has assumed the defense of the Third Party claim in accordance with this Section 11.3, the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Liability provided that it obtains the prior written consent of the Indemnified Party (which consent will be at the Indemnified Party’s reasonable discretion). The Indemnifying Party that has assumed the defense of the Third Party claim in accordance with this Section 11.3 will not be liable for any settlement or other disposition of a Liability by an indemnity obligation hereunder. If Indemnified Party (but in no event to include any court judgment or judicial or administrative order or disposition) that is reached without the written consent of such Indemnifying Party. No Indemnified Party will admit any liability with respect to, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting settle, compromise or filing a responsedischarge, fails any Third Party claim without first offering to the Indemnifying Party the opportunity to assume the defense of such Loss the Third Party claim in accordance with this Section 11.3. If the Indemnifying Party chooses to defend or fails to notify prosecute any Third Party claim, the Indemnified Party that is assuming will cooperate in the defense or prosecution thereof and will furnish such defenserecords, information and testimony, provide such witnesses and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with such Third Party claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party shall have of, records and information that are reasonably relevant to such Third Party claim, and making employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder, and the right to assume Indemnifying Party will reimburse the defense, compromise or settlement of Indemnified Party for all its reasonable out-of-pocket expenses incurred in connection with such Loss at the risk and expense of Indemnifying Partycooperation.

Procedure. If an Each Party will notify the other in the event it becomes aware of a claim for which indemnification may be sought hereunder or for which Liability is shared pursuant to this Article 8. In case any proceeding (including any governmental investigation) is instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 8, such Party (the “Indemnified Party”) will promptly notify the other Party (the “Indemnifying Party”) in writing and the Indemnifying Party and Indemnified Party intends will meet to claim indemnification under Article 10discuss how to respond to any claims that are the subject matter of such proceeding. The Indemnifying Party, upon request of the Indemnified Party, will retain counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party and will pay the fees and expenses of such counsel related to such proceeding. In any such proceeding, the Indemnified Party shall notify will have the right to retain its own counsel, but the fees and expenses of such counsel will be at the expense of the Indemnified Party unless (i) the Indemnifying Party and the Indemnified Party will have mutually agreed to the retention of such counsel and payment of fees and expenses or (ii) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. All such fees and expenses incurred pursuant to Section 8.1 or Section 8.2 will be reimbursed as they are incurred. The Indemnifying Party will not be liable for any settlement of any Loss proceeding unless effected with its written consent. The Indemnifying Party will not, without the written consent of the Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which the Indemnified Party intends to claim such indemnificationis, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account or arising out of the common representation. The failure to deliver notice to the Indemnifying Party within same set of facts could have been, a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may party and indemnity could have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred been sought hereunder by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3Party, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if unless such settlement is effected without the consent includes an unconditional release of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as on claims to which Indemnifying Party has an the indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume relates that are the defense subject matter of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Partyproceeding.

Procedure. If an Each Party will notify the other Party in writing in the event it becomes aware of a claim for which indemnification may be sought hereunder. In case any proceeding (including any governmental investigation) will be instituted involving any Party in respect of which indemnity may be sought pursuant to this Article 11 (Indemnification), such Party (the “Indemnified Party”) will promptly notify the other Party (the “Indemnifying Party”) in writing and the Indemnifying Party and Indemnified Party intends will meet to claim indemnification under Article 10discuss how to respond to any claims that are the subject matter of such proceeding. The Indemnified Party will cooperate fully with the Indemnifying Party in defense of such matter. In any such proceeding, the Indemnified Party shall notify will have the right to retain its own counsel, but the fees and expenses of such counsel will be at the expense of the Indemnified Party unless (a) the Indemnifying Party and the Indemnified Party will have agreed to the retention of such counsel or (b) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both Parties by the same counsel would be inappropriate due to actual or potential differing interests between them. All such fees and expenses will be reimbursed as they are incurred. The Indemnifying Party will not be liable for any settlement of any Loss proceeding effected without its written consent, but, if settled with such consent or if there is a final judgment for the plaintiff, then the Indemnifying Party agrees to indemnify the Indemnified Party from and against any Liability by reason of such settlement or judgment. The Indemnifying Party will not, without the written consent of the Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which the Indemnified Party intends to claim such indemnificationis, or could have been, a party and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they indemnity could have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred been sought hereunder by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3Party, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if unless such settlement is effected without the consent includes an unconditional release of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume on claims that are the defense subject matter of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Partyproceeding.

Procedure. If an any third party shall notify a Party hereto (the "Indemnified Party") with respect to any matter which may give rise to a claim for indemnification against the other Party intends to claim indemnification (the "Indemnifying Party") under Article 10this SECTION 26, then the Indemnified Party shall notify the Indemnifying Party in writing thereof promptly; provided, however, that no delay on the part of any Loss in respect of which the Indemnified Party intends in notifying any Indemnifying Party shall relieve the Indemnifying Party from any liability or obligation hereunder unless (and then solely to claim the extent) the Indemnifying Party experiences any prejudice in the ability to provide the indemnification required under this SECTION 26. If the Indemnifying Party acknowledges that this Agreement applies with respect to such indemnificationclaim, and then the Indemnifying Party shall assume be entitled to take control of the defense thereof and investigation of the claim. In the event any Indemnifying Party notifies the Indemnified Party that it is assuming the defense thereof, (A) the Indemnifying Party will defend the Indemnified Party against the matter with counsel mutually of the Indemnifying Party's choice reasonably satisfactory to the Parties. Notwithstanding Indemnified Party, (B) the prior sentence, if CDS is Indemnified Party may retain separate co-counsel at its sole cost and expense (except that the Indemnifying Party based on a claim will be responsible for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common the fees and expenses of the separate co-counsel to the extent the Parties’ interests are aligned; provided Indemnified Party concludes reasonably that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within has selected has a reasonable time after the commencement conflict of any such actioninterest), shall relieve such Indemnifying Party of liability to (C) the Indemnified Party under Article 10 only will not consent to the extent that entry of any judgment or enter into any settlement with respect to the delay adversely affects matter without the written consent of the Indemnifying Party’s rights Party which consent will not be withheld or ability to defend such claim or actiondelayed unreasonably, but the failure so to deliver notice to and (D) the Indemnifying Party will not relieve the Indemnifying Party of any liability that it may have to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to the matter, or enter into any Loss (a) that settlement which does not release include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect thereto, without the written consent of the Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss which consent will not be withheld or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Partydelayed unreasonably.

Procedure. If an Indemnified (a) A Party intends entitled to claim indemnification under this Article 10, the 8 (an “Indemnified Party Party”) shall notify the Indemnifying Party of any Loss in respect of which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory give prompt written notification to the Parties. Notwithstanding Party from whom indemnification is sought (the prior sentence, if CDS is the “Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel Party”) of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve suit or proceeding relating to a Third Party Claim for which indemnification may be sought or, if earlier, upon the assertion of any such Indemnifying Claim by a Third Party of liability to (it being understood and agreed, however, that the failure by an Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver give notice to the Indemnifying of a Third-Party will Claim as provided in this Section 8.3 shall not relieve the Indemnifying Party of any liability its indemnification obligation under this Agreement except and only to the extent that it may have such Indemnifying Party is actually damaged as a result of such failure to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to give notice). (b) Within [***] days after delivery of such notification, the Indemnifying Party and its legal representativesmay, at upon written notice hereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. (c) If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense and, without limiting the Indemnifying Party’s expenseindemnification obligations, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay reimburse the reasonable legal Indemnified Party for all documented costs and attorneys’ fees expenses, include reasonable attorney’s fees, incurred by the Indemnified Party in establishing defending itself within [***] days after receipt of any invoice therefor from the Indemnified Party. (d) The Party not controlling such defense may participate therein at its claim own expense; provided that, if the Indemnifying Party assumes control of such defense and the indemnified Party in good faith concludes, based on advice from counsel, that the Indemnifying Party and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim, the Indemnifying Party shall be responsible for indemnity. Except as provided the reasonable fees and expenses of counsel to the Indemnified Party in connection with its participation in the last sentence defense action. (e) The Party controlling such defense shall keep the other Party advised of this Section 10.3the status of such action, suit, proceeding or claim and the indemnity agreement in this Article 10 defense thereof and shall consider recommendations made by the other Party with respect thereto. (f) The Indemnified Party shall not apply agree to amounts paid in any settlement of any Loss if such settlement is effected action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent shall not be withheld unreasonably withheld, delayed or delayedconditioned. The Indemnifying Party shall notnot agree to any settlement of such action, without the written consent of Indemnified Partysuit, settle proceeding or compromise any Loss claim or consent to the entry of any judgment with in respect to any Loss (a) thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect to such Loss thereto, that imposes any liability or (b) which may materially adversely affect obligation on the Indemnified Party or under which that acknowledges fault by the Indemnified Party would incur any obligation or liabilitywithout the prior written consent of the Indemnified Party. CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying PartyAS AMENDED.

Procedure. If (a) In order for an indemnified party under this Article XII (an “Indemnified Party”) to be entitled to any indemnification provided for under this Agreement, such Indemnified Party intends will, promptly following the discovery of the matters giving rise to claim indemnification under Article 10any Loss, the Indemnified Party shall notify the indemnifying party under this Article XII (the “Indemnifying Party Party”) in writing of any Loss in respect of which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a its claim for indemnification by Alimerafor such Loss, then Alimera agrees specifying in reasonable detail the nature of such Loss and the amount of the liability estimated to use CDS’ counsel as common counsel accrue therefrom; provided, however, that failure to give such prompt notification will not affect the indemnification provided hereunder except to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within will have been actually prejudiced as a reasonable time after the commencement result of any such action, shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent failure (except that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve be liable for any expenses incurred during the period in which the Indemnified Party failed to give such notice). Thereafter, the Indemnified Party will deliver to the Indemnifying Party, within five Business Days after the Indemnified Party’s receipt of such request, all information and documentation reasonably requested by the Indemnifying Party of any liability that it may have with respect to any such Loss. (b) If the indemnification sought pursuant hereto involves a claim made by a third party against the Indemnified Party otherwise than under Article 10. The Indemnified (a “Third Party under Article 10 shall provide reasonable assistance to Claim”), the Indemnifying Party and its legal representativeswill be entitled to participate in the defense of such Third Party Claim and, at if it so chooses, to assume the defense of such Third Party Claim with counsel selected by the Indemnifying Party’s expense, in . Should the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally so elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to pay the reasonable Indemnified Party for any legal costs and attorneys’ fees expenses subsequently incurred by the Indemnified Party in establishing its claim for indemnityconnection with the defense thereof. Except as provided If the Indemnifying Party assumes such defense, the Indemnified Party will have the right to participate in the last sentence of this Section 10.3defense thereof and to employ counsel, at its own expense, separate from the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party will control such defense. The Indemnifying Party will be liable for the reasonable fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof (other than during any period in which the Indemnified Party will have failed to give notice of the Third Party Claim as provided above). If the Indemnifying Party chooses to defend or prosecute a Third Party Claim, all of the parties hereto will cooperate in the defense or prosecution thereof. Such cooperation will include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. If the Indemnifying Party chooses to defend or prosecute any Third Party Claim, the Indemnifying Party will not settle, compromise or discharge such Third Party Claim, to the extent that it involves any agreement, performance or observance by the Indemnified Party, without the Indemnified Party’s prior written consent (which shall not be withheld unreasonably withheld). Whether or delayed. not the Indemnifying Party shall notwill have assumed the defense of a Third Party Claim, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all will not admit any liability with respect to such Loss to, or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defensesettle, compromise or settlement of discharge, such Loss at Third Party Claim without the risk and expense of Indemnifying Party’s prior written consent (which shall not be unreasonably withheld).

Procedure. If any claim or demand by any Person is made against an --------- Indemnified Party, and if such Indemnified Party intends to seek indemnity with respect thereto under this Article VI, such Indemnified Party shall notify the indemnifying party in writing of such claim indemnification under Article 10or demand, provided that the failure to notify the indemnifying party shall not relieve the indemnifying party from any liability which it may have hereunder unless it is actually prejudiced thereby. The indemnifying party shall have 30 days after receipt of such notice to undertake, conduct and control, through counsel of its own choosing and at its own expense, the settlement or defense thereof, and the Indemnified Party shall cooperate with the indemnifying party in connection therewith; provided -------- that the Indemnified Party may participate at its own expense in such settlement or defense through counsel chosen by such Indemnified Party. So long as the indemnifying party is reasonably contesting any such claim in good faith, the Indemnified Party shall notify not pay or settle any such claim. Notwithstanding the Indemnifying Party of any Loss in respect of which foregoing, the Indemnified Party intends shall have the right to claim pay or settle any such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory to the Parties. Notwithstanding the prior sentence, if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are alignedclaim; provided that if in such event it shall waive any right to indemnity -------- therefor by the Parties’ interests diverge after they have used common counsel of CDS’ choosing, indemnifying party. If the common counsel may continue to represent CDS and indemnifying party does not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve such Indemnifying Party of liability to notify the Indemnified Party under Article 10 only to within 30 days after the extent that receipt of the delay adversely affects Indemnifying Indemnified Party’s rights or ability to defend such 's notice of a claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability indemnity hereunder that it may have elects to any Indemnified Party otherwise than under Article 10. The Indemnified Party under Article 10 shall provide reasonable assistance to undertake the Indemnifying Party and its legal representativesdefense thereof, at the Indemnifying Party’s expense, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party shall have the right to contest, settle or compromise the claim in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 sole discretion and shall not apply thereby waive any right to amounts paid in settlement of any Loss if such settlement is effected without indemnity therefor pursuant to this Agreement. The indemnifying party shall not, except with the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise enter into any Loss or consent to the entry of any judgment with respect to any Loss (a) settlement that does not include as an unconditional term thereof the giving by the Person or Persons asserting such claim to all Indemnified Parties an unconditional release Indemnified Party from all liability with respect to such Loss claim or consent to entry of any judgment. Notwithstanding the foregoing, following the Closing, each Indemnified Party will afford to an indemnifying party and its counsel, accountants and other authorized representatives reasonable access during normal business hours to relevant properties, books and records (b) and permit the indemnifying party and its counsel, accountants and other authorized representatives to make copies of such books and records at their own expense), to the extent that such access may be reasonably required to facilitate the investigation, litigation and final disposition of any claim which may materially adversely affect have been or may be made against any Indemnified Party relating to the Nassau System or under which the Acquired Assets or any of the transactions contemplated by this Agreement. The Water Authority Indemnified Party would incur Parties shall hold any obligation or liabilitysuch confidential information in confidence on the same terms and subject to the same conditions as set forth in Section 4.1(b) hereof, other than one as and the JWS Indemnified Parties shall hold any such confidential information in confidence on the same terms and subject to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10the same conditions applicable to the Water Authority in Section 4.1(b) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Partyhereof.

Procedure. If an Indemnified Party intends A Person entitled to claim indemnification under Article 10, the this ARTICLE 11 (an “Indemnified Party Party”) shall notify the Indemnifying Party of any Loss in respect of which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory give prompt written notification to the Parties. Notwithstanding Person from whom indemnification is sought (the prior sentence, if CDS is the “Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel Party”) of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve suit or proceeding relating to a Third Party claim for which indemnification may be sought or, if earlier, upon the assertion of any such Indemnifying claim by a Third Party of liability to (it being understood and agreed, however, that the failure by an Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such give notice of a Third-Party claim or action, but the failure so to deliver notice to the Indemnifying Party will as provided in this Section 11.3 shall not relieve the Indemnifying Party of any liability its indemnification obligation under this Agreement except and only to the extent that it may have such Indemnifying Party is actually damaged as a result of such failure to any Indemnified Party otherwise than under Article 10give notice). The Indemnified Party under Article 10 shall provide reasonable assistance to Within [**] days after delivery of such notification, the Indemnifying Party and its legal representativesmay, at upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense and, without limiting the Indemnifying Party’s expenseindemnification obligations, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay reimburse the reasonable legal Indemnified Party for all costs and attorneys’ fees expenses, including attorney fees, incurred by the Indemnified Party in establishing defending itself within [**] days after receipt of any invoice therefor from the Indemnified Party. The Party not controlling such defense may participate therein at its claim for indemnity. Except as own expense; provided that, except with respect to [**], if the Indemnifying Party assumes control of such defense and the Indemnified Party in good faith concludes, based on advice from counsel, that the last sentence of this Section 10.3Indemnifying Party and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim, the indemnity agreement Indemnifying Party shall be responsible for the reasonable fees and expenses of one counsel to the Indemnified Party in this Article 10 connection therewith. The Party controlling such defense shall keep the other Party advised of the status of such action, suit, proceeding or claim and the defense thereof and shall consider recommendations made by the other Party with respect thereto. The Indemnified Party shall not apply agree to amounts paid in any settlement of any Loss if such settlement is effected action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent shall not be withheld unreasonably withheld, delayed or delayedconditioned. The Indemnifying Party shall notnot agree to any settlement of such action, without the written consent of Indemnified Partysuit, settle proceeding or compromise any Loss claim or consent to the entry of any judgment with in respect to any Loss (a) thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect to such Loss thereto, that imposes any liability or (b) which may materially adversely affect obligation on the Indemnified Party or under which that acknowledges fault by the Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days without the prior written consent of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Party.

Procedure. If an Indemnified Party intends to claim A Person seeking indemnification under Article 10, Section 13.2 (the “Indemnified Party shall notify the Indemnifying Party of any Loss Party”) in respect of which the Indemnified a Third Party intends to claim Claim shall give written notice within thirty (30) days of first knowledge of such indemnification, and the Indemnifying Third Party shall assume the defense thereof with counsel mutually satisfactory Claim to the Parties. Notwithstanding Party from which recovery is sought (the prior sentence“Indemnifying Party”), if CDS is the Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The any failure to deliver provide notice to the Indemnifying Party within a reasonable such time after the commencement of any such action, period shall relieve such Indemnifying Party of liability to the Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such claim or action, but the failure so to deliver notice to the Indemnifying Party will not relieve the Indemnifying Party of any liability its obligations of indemnification with respect to such Third Party Claim unless and solely to the extent the Indemnifying Party is materially prejudiced by such delay, and shall permit the Indemnifying Party to assume direction and control of the defense of the Third Party Claim, provided that it may have the Indemnifying Party shall act reasonably and in good faith with respect to any the defense or settlement of such Third Party Claim as the defense or settlement relates to the Indemnified Party otherwise than under Article 10Party. The Indemnified Party under Article 10 Party, its employees and agents, shall provide reasonable assistance to reasonably cooperate with the Indemnifying Party and its legal representatives, at the Indemnifying Party’s expense, representatives in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay the reasonable legal costs and attorneys’ fees incurred by the Indemnified Party in establishing its claim for indemnity. Except as provided in the last sentence of this Section 10.3, the indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Loss if such settlement is effected without the consent of the Indemnifying Party, which consent shall not be withheld unreasonably or delayed. Indemnifying Party shall not, without the written consent of Indemnified Party, settle or compromise any Loss or consent to the entry of any judgment with respect to any Loss (a) that does not release Indemnified Party from all liability with respect to such Loss or (b) which may materially adversely affect Indemnified Party or under which Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Third Party that is assuming such defenseClaim. The foregoing notwithstanding, the Indemnified Party shall have the right to participate in, but not control, the defense of any Third Party Claim, and request separate counsel, with such attorneys’ fees and expenses or litigation to be paid by the Indemnified Party, unless (a) representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential conflicting interests between such Indemnified Party and any other Person represented by such counsel in such proceedings, or (b) the Indemnifying Party has failed to assume the defensedefense of the applicable Third Party Claim, compromise and in connection with either clause (a) or (b) above, such reasonable attorneys’ fees and expenses of litigation shall be paid by the Indemnifying Party. Neither the Indemnifying Party nor the Indemnified Party shall settle or otherwise resolve such Third Party Claim without the other’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed); provided that the Indemnifying Party may, without the Indemnified Party’s prior written consent, agree or consent to any settlement or other resolution of such Loss at Third Party Claim which requires solely money damages paid by the risk and expense of Indemnifying Party, and which includes as an unconditional term thereof the giving by such claimant or plaintiff to the Indemnified Party of a release from all liability in respect of such Third Party Claim.

Procedure. If an Indemnified Party intends A Person entitled to claim indemnification under this Article 10, the 11 (an “Indemnified Party Party”) shall notify the Indemnifying Party of any Loss in respect of which the Indemnified Party intends to claim such indemnification, and the Indemnifying Party shall assume the defense thereof with counsel mutually satisfactory give prompt written notification to the Parties. Notwithstanding Person from whom indemnification is sought (the prior sentence, if CDS is the “Indemnifying Party based on a claim for indemnification by Alimera, then Alimera agrees to use CDS’ counsel as common counsel to the extent the Parties’ interests are aligned; provided that if the Parties’ interests diverge after they have used common counsel Party”) of CDS’ choosing, the common counsel may continue to represent CDS and not be subject to disqualification on account of the common representation. The failure to deliver notice to the Indemnifying Party within a reasonable time after the commencement of any such action, shall relieve suit or proceeding relating to a Third Party claim for which indemnification may be sought or, if earlier, upon the assertion of any such Indemnifying claim by a Third Party of liability to (it being understood and agreed, however, that the failure by an Indemnified Party under Article 10 only to the extent that the delay adversely affects Indemnifying Party’s rights or ability to defend such give notice of a Third-Party claim or action, but the failure so to deliver notice to the Indemnifying Party will as provided in this Section 11.3 shall not relieve the Indemnifying Party of any liability its indemnification obligation under this Agreement except and only to the extent that it may have such Indemnifying Party is actually damaged as a result of such failure to any Indemnified Party otherwise than under Article 10give notice). The Indemnified Party under Article 10 shall provide reasonable assistance to Within twenty (20) days after delivery of such notification, the Indemnifying Party and its legal representativesmay, at upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense and, without limiting the Indemnifying Party’s expenseindemnification obligations, in the investigation of any action, claim or liability covered by this indemnification. The Indemnifying Party shall additionally be liable to pay reimburse the reasonable legal Indemnified Party for all costs and attorneys’ fees expenses, including attorney fees, incurred by the Indemnified Party in establishing defending itself within forty-five (45) days after receipt of any invoice therefor from the Indemnified Party. The Party not controlling such defense may participate therein at its claim own expense; provided that, except with respect to an indemnification obligation for indemnity. Except as provided an infringement Claim under Section 11.1.1(d), if the Indemnifying Party assumes control of such defense and the Indemnified Party in good faith concludes, based on advice from counsel, that the last sentence of this Section 10.3Indemnifying Party and the Indemnified Party have conflicting interests with respect to such action, suit, proceeding or claim, the indemnity agreement Indemnifying Party shall be responsible for the reasonable fees and expenses of one counsel to the Indemnified Party in this Article 10 connection therewith. The Party controlling such defense shall keep the other Party advised of the status of such action, suit, proceeding or claim and the defense thereof and shall consider recommendations made by the other Party with respect thereto. The Indemnified Party shall not apply agree to amounts paid in any settlement of any Loss if such settlement is effected action, suit, proceeding or claim without the prior written consent of the Indemnifying Party, which consent shall not be withheld unreasonably withheld, delayed or delayedconditioned. The Indemnifying Party shall notnot agree to any settlement of such action, without the written consent of Indemnified Partysuit, settle proceeding or compromise any Loss claim or consent to the entry of any judgment with in respect to any Loss (a) thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect to such Loss thereto, that imposes any liability or (b) which may materially adversely affect obligation on the Indemnified Party or under which that acknowledges fault by the Indemnified Party would incur any obligation or liability, other than one as to which Indemnifying Party has an indemnity obligation hereunder. If Indemnifying Party, within ten (10) days without the prior written consent of receiving notice of a Loss or such shorter period as may be necessary for submitting or filing a response, fails to assume the defense of such Loss or fails to notify Indemnified Party that is assuming such defense, Indemnified Party shall have the right to assume the defense, compromise or settlement of such Loss at the risk and expense of Indemnifying Party.