Common use of Claim Procedure Clause in Contracts

Claim Procedure. (i) Each Party, on behalf of itself and its respective BioMarin Indemnitees or Merck Serono Indemnitees (each such Person, an “Indemnitee”), agrees to provide the indemnifying Party prompt written notice of any Proceeding for which such Indemnitee intends to assert a right to indemnification under this Agreement (a “Claim”); provided, however, that failure to give such notification shall not affect each applicable Indemnitee’s entitlement to indemnification (or the corresponding indemnifying Party’s indemnification obligations) hereunder except to the extent that the indemnifying Party shall have been prejudiced as a result of such failure. The indemnifying Party shall have the initial right (but not obligation) to defend, settle or otherwise dispose of any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated in the preceding sentence if, and for so long as, the indemnifying Party has recognized in a written notice to the Indemnitee provided within [*] days of such written notice its obligation to indemnify the Indemnitee for any Losses to which such Indemnitee may become subject, including reasonable fees and disbursements of counsel and expenses of reasonable investigation relating to such Claim; provided, however, that if the indemnifying Party assumes control of the defense, settlement or disposition of a Claim, the indemnifying Party shall obtain the written consent of each applicable Indemnitee prior to ceasing to defend, settling or otherwise disposing of the Claim. If the indemnifying Party fails to state in a written notice during such [*] day period its willingness to assume the defense of such a Claim, the BioMarin Indemnitee(s) or Merck Serono Indemnitee(s), as the case may be, shall have the right to defend, settle or otherwise dispose of such Claim, subject to the applicable provides. If there is a disagreement concerning the obligations of a Party hereunder, either the Indemnitee or the indemnifying Party may initiate litigation in a court of competent jurisdiction pursuant to the applicable provisions of Article XI for purposes of having the matter settled in accordance with the terms of this Agreement.

Claim Procedure. Each party entitled to indemnification under this Article VII (ithe “Indemnified Party”) Each Party, on behalf of itself and its respective BioMarin Indemnitees or Merck Serono Indemnitees (each such Person, an “Indemnitee”), agrees shall give written notice to the party required to provide indemnification (the indemnifying “Indemnifying Party”) promptly after such Indemnified Party prompt has received written notice of any Proceeding claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that the counsel for which the Indemnifying Party who is to conduct the defense of such Indemnitee intends claim or litigation is reasonably satisfactory to assert a right to indemnification under this Agreement the Indemnified Party (a “Claim”whose approval shall not be unreasonably withheld or delayed). The Indemnified Party may participate in such defense at such Indemnified Party’s expense; provided, however, that failure the Indemnifying Party shall bear the expense of such defense of the Indemnified Party if (i) the Indemnifying Party has agreed in writing to give pay such notification shall not affect each applicable Indemnitee’s entitlement to indemnification expenses, (or ii) the corresponding indemnifying Party’s indemnification obligations) hereunder except to the extent that the indemnifying Indemnifying Party shall have been prejudiced as a result failed to assume the defense of such failure. The indemnifying Party shall have claim or to employ counsel reasonably satisfactory to the initial right Indemnified Party, or (but not obligationiii) to defend, settle or otherwise dispose of any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated in the preceding sentence ifreasonable judgment of the Indemnified Party, and for so long as, based upon the indemnifying Party has recognized in a written notice to the Indemnitee provided within [*] days advice of such written notice its obligation Indemnified Party’s counsel, representation of both parties by the same counsel would be inappropriate due to indemnify the Indemnitee for any Losses to which such Indemnitee may become subject, including reasonable fees and disbursements actual or potential conflicts of counsel and expenses of reasonable investigation relating to such Claiminterest; provided, however, that if in no event shall the indemnifying Indemnifying Party assumes control be liable for the fees and expenses of more than one counsel (excluding one local counsel per jurisdiction as necessary) for all Indemnified Parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the defensesame event, settlement allegations or disposition of a Claim, the indemnifying circumstances. The Indemnified Party shall obtain not make any settlement without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. The failure of any Indemnified Party to give notice as provided herein shall relieve the Indemnifying Party of its obligations under this Article VII only to the extent that such failure to give notice shall materially prejudice the Indemnifying Party in the defense of any such claim or any such litigation. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the prior written consent of each applicable Indemnitee prior Indemnified Party, consent to ceasing entry of any judgment or enter into any settlement (a) that does not include as an unconditional term thereof the giving by the claimant or plaintiff to defend, settling or otherwise disposing of the Claim. If the indemnifying such Indemnified Party fails to state in a written notice during such [*] day period its willingness to assume the defense of such a Claim, the BioMarin Indemnitee(s) or Merck Serono Indemnitee(s), as the case may be, shall have the right to defend, settle or otherwise dispose of such Claim, subject to the applicable provides. If there is a disagreement concerning the obligations of a Party hereunder, either the Indemnitee release from all liability in respect to such claim or the indemnifying Party may initiate litigation in form and substance reasonably satisfactory to such Indemnified Party or (b) that includes an admission of fault, culpability or a court failure to act, by or on behalf of competent jurisdiction pursuant to the applicable provisions of Article XI for purposes of having the matter settled in accordance with the terms of this Agreementany Indemnified Party.

Claim Procedure. (a) Procedure for Indemnification with Respect to Third-Party Claims. ---------------------------------------------------------------- If any indemnified party hereunder determines to seek indemnification under this Article VII with respect to Losses resulting from the assertion of liability by third parties, such indemnified party shall give notice to the indemnifying party hereunder within 30 days of such indemnified party becoming aware of any such Losses or of facts upon which any claim for such Losses will be based; the notice shall set forth such material information with respect thereto as is then reasonably available to such indemnified party. In case any such liability is asserted against such indemnified party, and such indemnified party notifies the indemnifying party thereof, the indemnifying party will be entitled, if it so elects by written notice delivered to such indemnified party within 10 days after receiving such indemnified party's notice, to assume the defense thereof with counsel satisfactory to such indemnified party, in which case, the indemnifying party will not be liable to the indemnified party under this Section 7.4 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) Each Party, on behalf of itself and its respective BioMarin Indemnitees the indemnified party shall have employed separate counsel in accordance with the following sentence or Merck Serono Indemnitees (each such Person, an “Indemnitee”), agrees to provide ii) the indemnifying Party prompt written party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action, in each of which cases the fees and expenses of counsel shall be at the expense of the indemnifying party. Notwithstanding the foregoing, (i) such indemnified party shall also have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless such indemnified party shall reasonably determine that there is a conflict of interest between or among such indemnified party and the indemnifying party with respect to such claim, in which case the fees and expenses of such counsel will be borne by the indemnifying party, (ii) such indemnified party shall not have any obligation to give any notice of any Proceeding for which assertion of liability by a third party unless such Indemnitee intends assertion is in writing, (iii) the rights of such indemnified party to assert a right to indemnification under this Agreement (a “Claim”); provided, however, be indemnified hereunder in respect of any Losses that may or do result from the assertion of liability by third parties shall not be adversely affected by its failure to give such notification shall not affect each applicable Indemnitee’s entitlement notice pursuant to indemnification (or the corresponding indemnifying Party’s indemnification obligations) hereunder except foregoing unless, and, if so, only to the extent that, the indemnifying party is materially prejudiced thereby, and (iv) the indemnifying party's obligations to such indemnified party under this Article VII shall not terminate until such indemnified party's claims have been finally satisfied to such indemnified party's sole satisfaction. In the event that the indemnifying Party shall have been prejudiced as a result of such failure. The indemnifying Party shall have the initial right (but not obligation) to defendparty, settle or otherwise dispose of any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated in the preceding sentence if, and for so long as, the indemnifying Party has recognized in a written notice to the Indemnitee provided within [*] 10 days of such written notice its obligation to indemnify the Indemnitee for any Losses to which such Indemnitee may become subject, including reasonable fees and disbursements of counsel and expenses of reasonable investigation relating to such Claim; provided, however, that if the indemnifying Party assumes control after receipt of the defense, settlement or disposition aforesaid notice of a Claimclaim hereunder, the indemnifying Party shall obtain the written consent of each applicable Indemnitee prior to ceasing to defend, settling or otherwise disposing of the Claim. If the indemnifying Party fails to state in a written notice during such [*] day period its willingness to assume the defense of such a Claimindemnified party against such claim, the BioMarin Indemnitee(s) or Merck Serono Indemnitee(s), as the case may be, such indemnified party shall have the right to defendundertake the defense, compromise, or settlement of such action on behalf of and for the account, expense, and risk of the indemnifying party. Notwithstanding anything in this Article VII to the contrary, (i) if there is a reasonable probability that a claim may materially adversely affect such indemnified party, such indemnified party shall have the right to participate in such defense, compromise, or settlement and the indemnifying party shall not, without such indemnified party's written consent (which consent shall not be unreasonably withheld), settle or otherwise dispose compromise any of such Claimclaims, subject or consent to entry of any judgment in respect thereof unless such settlement, compromise, or consent includes as an unconditional term thereof the applicable providesgiving by the claimant or the plaintiff to such indemnified party a release from all liability in respect of such claim. If there is With respect to any assertion of liability by a disagreement concerning the obligations of a Party third party that results in any claim for indemnification hereunder, either the Indemnitee or parties hereto shall make available to each other all relevant information in their possession material to any such assertion. Each Investor acknowledges, and each Additional Investor acknowledges, that a third-party claim may also result in losses to other holders of Preferred Stock of the indemnifying Party may initiate litigation Company who hold similar indemnification rights and rights to assume their defense. The Investors and the Additional Investors shall act in a court of competent jurisdiction pursuant good faith in such circumstances to the applicable provisions of Article XI for purposes of having the matter settled in accordance coordinate such defense with the terms of this Agreementsuch holders requesting such coordination.

Claim Procedure. If a claim for Losses (a “Claim”) is to be made by an indemnified party, such indemnified party shall give written notice (a “Claim Notice”) to (i) Each PartySeller, on behalf in the case of itself indemnification pursuant to Section 7.02(A), and its respective BioMarin Indemnitees or Merck Serono Indemnitees (each ii) Purchaser, in the case of indemnification pursuant to Section 7.02(B) (the recipient of such Person, an notice referred to below as the “Indemniteeindemnifying party”), agrees to provide the indemnifying Party prompt written notice in either case promptly after such indemnified party becomes aware of any Proceeding fact, condition or event which may give rise to Losses for which such Indemnitee intends indemnification may be sought under this Section 7.02. If any lawsuit or other action is filed or instituted against any indemnified party with respect to assert a right matter subject to indemnification under indemnity hereunder, including any pending 45 or threatened Tax audit or assessment for which the indemnified party may have liability pursuant to this Agreement (a “Tax Claim”); provided, however, that notice thereof (a “Third Party Notice”) shall be given to the indemnifying party as promptly as reasonably practicable. The failure of any indemnified party to give such notification timely notice hereunder shall not affect each applicable Indemniteesuch indemnified party’s entitlement rights to indemnification (or the corresponding indemnifying Party’s indemnification obligations) hereunder hereunder, except to the extent that such delay or failure materially prejudices the indemnifying party’s ability to defend such Claim or mitigate any Losses resulting therefrom. After receipt of a Third Party shall have been prejudiced as a result of such failure. The Notice, the indemnifying Party party shall have the initial right (but not obligation) to defend, settle or otherwise dispose of any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated in the preceding sentence if, and for so long as, the indemnifying Party has recognized in a by providing written notice to the Indemnitee provided within [*] days of acknowledging such written notice its indemnifying party’s obligation to indemnify the Indemnitee indemnified party (subject to the limitations contained in this Agreement) to (i) take control of the defense and investigation of such lawsuit or action, (ii) employ and engage attorneys of its own choice (subject to the approval of the indemnified party, such approval not to be unreasonably withheld) to handle and defend the same, at the indemnifying party’s sole cost, risk and expense, and (iii) compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the indemnified party, such consent not to be unreasonably withheld; provided, that such consent will not be required if such settlement includes an unconditional release of the indemnified party and otherwise provides solely for payment of monetary damages for which the indemnified party will be indemnified in full. In determining whether consent is unreasonably withheld or conditioned with respect to any proposed settlement by either party under this subsection, the merits of the matters at issue shall be considered (and thus it shall not be reasonable for a party to withhold consent if, for example, the merits clearly favor the settlement position for which consent is requested), as well as the relative amount of Losses at issue. The indemnified party shall, at the expense of the indemnifying party, cooperate in all reasonable respects with the indemnifying party and such attorneys in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom; and the indemnified party may, at its sole cost and expense, further participate in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom, with such participation including with respect to which any Tax Claim, the indemnified party having an opportunity to comment on any written materials prepared in connection with such Indemnitee may become subjectTax Claim and attending any proceedings, including reasonable fees conferences and disbursements meetings with representatives of counsel and expenses of reasonable investigation any Governmental Authority relating to any such Tax Claim; provided, however, that if the indemnifying Party assumes control party shall bear the reasonable fees, costs and expenses of one separate counsel for the indemnified party in each jurisdiction (and shall pay such fees, costs and expenses at least quarterly) if, but only if, the indemnified party shall have reasonably concluded that (x) there may be a conflict of interest (including one or more legal defenses or counterclaims available to it or to other indemnified parties which are different from or additional to those available to the indemnifying party) that would make it inappropriate in the reasonable judgment of the defense, settlement or disposition indemnified party (upon and in conformity with the advice of a Claim, counsel) for the same counsel to represent both the indemnified party and the indemnifying Party shall obtain party or (y) the written consent of each applicable Indemnitee prior to ceasing to defendclaim seeks non-monetary relief which, settling if granted, could adversely affect the indemnified party or otherwise disposing of the Claimits Affiliates. If the indemnifying Party party fails to state in a written notice during such [*] day period its willingness to assume the defense of such a Claimclaim within thirty (30) days after receipt of the Third Party Notice (or such earlier date, if the failure to assume the defense on such earlier date would materially impair the ability of such indemnified party to defend such claim), the BioMarin Indemnitee(sindemnified party against which such claim has been asserted will (upon delivering notice to such effect to the indemnifying party) have the right to undertake the defense, compromise or Merck Serono Indemnitee(s), as settlement of such claim (the case may be, costs and expenses of which defense shall be paid by the indemnifying party) and the indemnifying party shall have the right to defendparticipate therein at its own cost; provided, settle or otherwise dispose of such Claimhowever, subject that, prior to the applicable provides. If there is a disagreement concerning time that the obligations of a Party indemnifying party assumes the defense hereunder, either the Indemnitee or the indemnifying Party indemnified party may initiate litigation in a court of competent jurisdiction pursuant take such actions as are necessary so that its ability to the applicable provisions of Article XI for purposes of having the matter settled in accordance with the terms of this Agreementdefend such claim is not materially impaired.

Claim Procedure. A person entitled to indemnification hereunder (i"Indemnified Party") Each shall promptly give the indemnifying party (an "Indemnifying Party") written notice of any matter which such Indemnified Party has determined has given rise to a right of indemnification under this Agreement, on behalf stating the amount of itself the Claim, if known, and its respective BioMarin Indemnitees method of computation thereof, all with reasonable particularity (subject to the last sentence of this paragraph). The obligations and liabilities of any party under this Article IX with respect to Claims arising from claims, assertions, events or Merck Serono Indemnitees proceedings of any third party (each such Personincluding, an “Indemnitee”without limitation, claims by any assignee or successor of the Indemnified Party or any governmental agency), agrees which are subject to provide the indemnifying indemnification provided for in this Article IX ("Third Party Claims") shall be governed by and be subject to the following additional terms and conditions: if any Indemnified Party shall receive written notice of any Third Party Claim, the Indemnified Party shall give the Indemnifying Party prompt written notice of such Third Party Claim (subject to the last sentence of this paragraph) and shall permit the Indemnifying Party, at its option, to participate in the defense of such Third Party Claim by counsel of its own choosing and at its expense. Furthermore, if the Indemnifying Party acknowledges in writing its obligation to indemnify the Indemnified Party hereunder against any Proceeding loss (without limitation) that may result from such Third Party Claim, then the Indemnifying Party shall be entitled, at its option, to assume and control the defense against such Third Party Claim at its expense and through counsel of its choice if it gives prompt written notice of its intention to do so to the Indemnified Party unless, in the reasonable opinion of counsel for the Indemnified Party, there is a conflict or a potential conflict of interests between the Indemnified Party and the Indemnifying Party in such action, suit or proceeding, in which event the Indemnified Party shall be entitled to direct the defense with respect to, but only with respect to, those issues with respect to which such conflict exists. In the event the Indemnifying Party exercises its right to undertake the defense against any such Third Party Claim as provided above, the Indemnified Party shall, and it shall cause its affiliates to, cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all pertinent records, materials and information in their possession or under their control relating thereto as is required by the Indemnifying Party. No such Third Party Claim, except the settlement thereof which involves (i) the payment of money only for which any Indemnifying Party is totally indemnified (without limitation) by the Indemnifying Party and (ii) the unconditional release from all related liability of the Indemnified Party, may be settled by the Indemnifying Party without the written consent of the Indemnified Party. Any settlement of a Third Party Claim by an Indemnified Party without the written consent of the Indemnifying Party shall discharge the Indemnifying Party from all liability hereunder with respect to the subject matter of such Indemnitee intends Third Party Claim. The foregoing notwithstanding, the failure of any Indemnified Party to assert a give any notice required to be given hereunder shall not affect such Indemnified Party's right to indemnification under this Agreement (a “Claim”); provided, however, that failure to give such notification shall not affect each applicable Indemnitee’s entitlement to indemnification (or the corresponding indemnifying Party’s indemnification obligations) hereunder except to the extent that the indemnifying Indemnifying Party from whom such indemnity is sought shall have been actually and materially prejudiced as a result in its ability to defend the claim or action for which such indemnification is sought by reason of such failure. The indemnifying Party shall have the initial right (but not obligation) to defend, settle or otherwise dispose of any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated in the preceding sentence if, and for so long as, the indemnifying Party has recognized in a written notice to the Indemnitee provided within [*] days of such written notice its obligation to indemnify the Indemnitee for any Losses to which such Indemnitee may become subject, including reasonable fees and disbursements of counsel and expenses of reasonable investigation relating to such Claim; provided, however, that if the indemnifying Party assumes control of the defense, settlement or disposition of a Claim, the indemnifying Party shall obtain the written consent of each applicable Indemnitee prior to ceasing to defend, settling or otherwise disposing of the Claim. If the indemnifying Party fails to state in a written notice during such [*] day period its willingness to assume the defense of such a Claim, the BioMarin Indemnitee(s) or Merck Serono Indemnitee(s), as the case may be, shall have the right to defend, settle or otherwise dispose of such Claim, subject to the applicable provides. If there is a disagreement concerning the obligations of a Party hereunder, either the Indemnitee or the indemnifying Party may initiate litigation in a court of competent jurisdiction pursuant to the applicable provisions of Article XI for purposes of having the matter settled in accordance with the terms of this Agreement.

Claim Procedure. (ia) Each To make an indemnification claim pursuant to Section 10.1, a Purchaser Indemnified Party must deliver a Claim Notice to the Purchaser in accordance with Section 8.3(a) (such Claim Notice, when delivered pursuant to this Section 10.4, an “Environmental Claim Notice”). Except as specifically set forth in this Article 10, any Environmental Claim will be otherwise subject to the Third Party Claim procedure set forth in Section 8.3, including with respect to interactions with any Governmental Authorities and other third parties. In any such case, the Seller will be deemed to constitute the “Indemnifying Party” for purposes of Section 8.3. Notwithstanding anything to the contrary contained in this Agreement (including Section 8.3), if at any time in the course of defending against, or seeking the resolution of, an Environmental Claim, any amount is due and payable by the Purchaser Indemnified Parties with respect to which the Purchaser Indemnified Parties would be entitled to indemnification from the Seller under Sections 10.1(a) or (c), whether pursuant to any aspect of a Proceeding, Judgment, settlement or otherwise, the Seller or its designee will satisfy any such amount directly on behalf of itself and its respective BioMarin Indemnitees or Merck Serono Indemnitees (each such Person, an “Indemnitee”), agrees to provide the indemnifying Party prompt Purchaser Indemnified Parties within 30 days of receipt by the Seller of reasonable written notice instructions from the Purchaser concerning the payment of any Proceeding for which such Indemnitee intends to assert a right to indemnification under this Agreement (a “Claim”); provided, however, that failure to give such notification shall not affect each applicable Indemnitee’s entitlement to indemnification (or the corresponding indemnifying Party’s indemnification obligations) hereunder except to the extent that the indemnifying Party shall have been prejudiced as a result of such failure. The indemnifying Party shall have the initial right (but not obligation) to defend, settle or otherwise dispose of any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated in the preceding sentence if, and for so long as, the indemnifying Party has recognized in a written notice to the Indemnitee provided within [*] days of such written notice its obligation to indemnify the Indemnitee for any Losses to which such Indemnitee may become subject, including reasonable fees and disbursements of counsel and expenses of reasonable investigation relating to such Claim; provided, however, that if the indemnifying Party assumes control of the defense, settlement or disposition of a Claim, the indemnifying Party shall obtain the written consent of each applicable Indemnitee prior to ceasing to defend, settling or otherwise disposing of the Claim. If the indemnifying Party fails to state in a written notice during such [*] day period its willingness to assume the defense of such a Claim, the BioMarin Indemnitee(s) or Merck Serono Indemnitee(s), as the case may be, shall have the right to defend, settle or otherwise dispose of such Claimamount, subject to the applicable provides. If there is rights of the Seller hereunder to (a) appeal, object to or otherwise challenge or (b) require the Purchaser and the Acquired Companies to appeal, object to or otherwise challenge, in each case, any such amount vis-à-vis a disagreement concerning Governmental Authority or other third party, in which case, the obligations Seller will only be required hereunder to pay any such amount upon the issuance of a Party hereunderfinal, either non-appealable Judgment or entry into a final and binding settlement with respect thereto. To the Indemnitee extent an Environmental Claim results in the issuance of a Remediation Order with respect to any Environmental Site or the indemnifying Party may initiate litigation in as part of any final, non-appealable Judgment or settlement a court of competent jurisdiction pursuant binding agreement is reached with respect to the applicable provisions of Article XI for purposes of having the matter settled Remediation at any Environmental Site, any required Remediation will be conducted in accordance with the terms of this AgreementSection 10.7.

Claim Procedure. (a) Procedure for Indemnification with Respect to Third-Party Claims. ---------------------------------------------------------------- If any indemnified party hereunder determines to seek indemnification under this Article VII with respect to Losses resulting from the assertion of liability by third parties, such indemnified party shall give notice to the indemnifying party hereunder within 30 days of such indemnified party becoming aware of any such Losses or of facts upon which any claim for such Losses will be based; the notice shall set forth such material information with respect thereto as is then reasonably available to such indemnified party. In case any such liability is asserted against such indemnified party, and such indemnified party notifies the indemnifying party thereof, the indemnifying party will be entitled, if it so elects by written notice delivered to such indemnified party within 10 days after receiving such indemnified party's notice, to assume the defense thereof with counsel satisfactory to such indemnified party, in which case, the indemnifying party will not be liable to the indemnified party under this Section 7.4 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) Each Party, on behalf of itself and its respective BioMarin Indemnitees the indemnified party shall have employed separate counsel in accordance with the following sentence or Merck Serono Indemnitees (each such Person, an “Indemnitee”), agrees to provide ii) the indemnifying Party prompt written party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action, in each of which cases the fees and expenses of counsel shall be at the expense of the indemnifying party. Notwithstanding the foregoing, (i) such indemnified party shall also have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless such indemnified party shall reasonably determine that there is a conflict of interest between or among such indemnified party and the indemnifying party with respect to such claim, in which case the fees and expenses of such counsel will be borne by the indemnifying party, (ii) such indemnified party shall not have any obligation to give any notice of any Proceeding for which assertion of liability by a third party unless such Indemnitee intends assertion is in writing, (iii) the rights of such indemnified party to assert a right to indemnification under this Agreement (a “Claim”); provided, however, be indemnified hereunder in respect of any Losses that may or do result from the assertion of liability by third parties shall not be adversely affected by its failure to give such notification shall not affect each applicable Indemnitee’s entitlement notice pursuant to indemnification (or the corresponding indemnifying Party’s indemnification obligations) hereunder except foregoing unless, and, if so, only to the extent that, the indemnifying party is materially prejudiced thereby, and (iv) the indemnifying party's obligations to such indemnified party under this Article VII shall not terminate until such indemnified party's claims have been finally satisfied to such indemnified party's sole satisfaction. In the event that the indemnifying Party shall have been prejudiced as a result of such failure. The indemnifying Party shall have the initial right (but not obligation) to defendparty, settle or otherwise dispose of any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated in the preceding sentence if, and for so long as, the indemnifying Party has recognized in a written notice to the Indemnitee provided within [*] 10 days of such written notice its obligation to indemnify the Indemnitee for any Losses to which such Indemnitee may become subject, including reasonable fees and disbursements of counsel and expenses of reasonable investigation relating to such Claim; provided, however, that if the indemnifying Party assumes control after receipt of the defense, settlement or disposition aforesaid notice of a Claimclaim hereunder, the indemnifying Party shall obtain the written consent of each applicable Indemnitee prior to ceasing to defend, settling or otherwise disposing of the Claim. If the indemnifying Party fails to state in a written notice during such [*] day period its willingness to assume the defense of such a Claimindemnified party against such claim, the BioMarin Indemnitee(s) or Merck Serono Indemnitee(s), as the case may be, such indemnified party shall have the right to defendundertake the defense, compromise, or settlement of such action on behalf of and for the account, expense, and risk of the indemnifying party. Notwithstanding anything in this Article VII to the contrary, (i) if there is a reasonable 50 probability that a claim may materially adversely affect such indemnified party, such indemnified party shall have the right to participate in such defense, compromise, or settlement and the indemnifying party shall not, without such indemnified party's written consent (which consent shall not be unreasonably withheld), settle or otherwise dispose compromise any of such Claimclaims, subject or consent to entry of any judgment in respect thereof unless such settlement, compromise, or consent includes as an unconditional term thereof the applicable providesgiving by the claimant or the plaintiff to such indemnified party a release from all liability in respect of such claim. If there is With respect to any assertion of liability by a disagreement concerning the obligations of a Party third party that results in any claim for indemnification hereunder, either the Indemnitee or the indemnifying Party may initiate litigation parties hereto shall make available to each other all relevant information in a court of competent jurisdiction pursuant their possession material to the applicable provisions of Article XI for purposes of having the matter settled in accordance with the terms of this Agreementany such assertion.

Claim Procedure. In order for any Indemnified Party to be entitled to make a claim for indemnification under this Article IX, Purchaser (i) Each Party, on behalf of itself and its respective BioMarin Indemnitees such Indemnified Party to the extent it is a Purchaser Indemnified Party) or Merck Serono Indemnitees Seller (each on behalf of such Person, Indemnified Party to the extent it is a Seller Indemnified Party) shall deliver a written notice (an “IndemniteeIndemnification Claim Notice”)) to the applicable Indemnifying Party, agrees to provide the indemnifying Party prompt written notice promptly after it acquires knowledge of any Proceeding fact, event or circumstance that may give rise to a claim for Losses pursuant to this Article IX. Each Indemnification Claim Notice shall specify in reasonable detail the nature of, the facts, circumstances and the amount or a good faith estimate (only to the extent ascertainable) of the potential Losses against which such Indemnitee intends to assert a right to Indemnified Party seeks indemnification under for, such claim asserted, and the provisions of this Agreement (a “Claim”)upon which such claim for indemnification is made; provided, however, that any failure by Purchaser or Seller (as applicable, on behalf of such Indemnified Party) to give such notification prompt Indemnification Claim Notice shall not affect each applicable Indemnitee’s entitlement to indemnification (or relieve the corresponding indemnifying Party’s Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party is actually materially prejudiced thereby. After delivery of an Indemnification Claim Notice to the Indemnifying Party, (i) hereunder the Indemnified Party on behalf of which Purchaser or Seller, as applicable, has provided such Indemnification Claim Notice shall, upon written request from the Indemnifying Party, make available to the Indemnifying Party and its Representatives all relevant information and all notices and documents (including court papers) received by the Indemnified Party in its or its Affiliates’ possession or under its control relating to the claim reasonably requested by the Indemnifying Party (except to the extent that the indemnifying such action would result in a loss of attorney-client privilege; provided, that such Indemnified Party shall have been prejudiced as a use its commercially reasonable efforts to provide such information in such format to the Indemnifying Party, or on an outside counsel only basis or in such other manner which would not result in the loss of such failure. The indemnifying attorney-client privilege) and (ii) the Indemnified Party shall, and shall use commercially reasonable efforts to cause its Representatives, to, (A) be reasonably available to the Indemnifying Party and its Representatives during normal business hours to discuss such claim and (B) provide reasonable access to such properties, facilities, books, records, accountant work papers and other documents or information in their possession or under their control upon the Indemnifying Party and/or its Representatives may reasonably request (at the Indemnifying Party’s cost and expense) (provided, that the accountants of the Indemnified Party shall have the initial right (but not obligation) be obligated to defend, settle or otherwise dispose of make any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated in the preceding sentence if, and for so long as, the indemnifying Party has recognized in a written notice working papers available to the Indemnitee provided within [*] days of Indemnifying Party or its Representatives unless and until such written notice its obligation to indemnify the Indemnitee for any Losses to which party or such Indemnitee may become subjectRepresentative, including reasonable fees as applicable, has signed a customary confidentiality and disbursements of counsel and expenses of reasonable investigation hold harmless agreement relating to such Claim; provided, however, that if the indemnifying Party assumes control of the defense, settlement or disposition of a Claim, the indemnifying Party shall obtain the written consent of each applicable Indemnitee prior access to ceasing working papers in form and substance reasonably acceptable to defend, settling or otherwise disposing of the Claimsuch accountants). If the indemnifying Party fails to state in a written notice during such [*] day period its willingness to assume the defense of such a Claim, the BioMarin Indemnitee(s) or Merck Serono Indemnitee(s), as the case may be, shall have the right to defend, settle or otherwise dispose of such Claim, subject to the applicable provides. If there is a disagreement concerning the obligations of a Party hereunder, either the Indemnitee or the indemnifying Party may initiate litigation in a court of competent jurisdiction pursuant to the applicable provisions of Article XI for purposes of having the matter settled in accordance with the terms of this Agreement.95

Claim Procedure. Any Person entitled to indemnification hereunder shall (i) Each Party, on behalf of itself and its respective BioMarin Indemnitees or Merck Serono Indemnitees (each such Person, an “Indemnitee”), agrees to provide the indemnifying Party give prompt written notice to the indemnifying party of any Proceeding for claim with respect to which such Indemnitee intends it seeks indemnification (provided that the failure to assert a give prompt notice shall impair any Person’s right to indemnification under this Agreement hereunder only to the extent such failure has materially prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a “Claim”)conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the control and defense of such claim, at its own cost, with counsel reasonably satisfactory to the indemnified party; provided, however, that failure to give such notification the indemnifying party shall not affect each applicable Indemniteebe entitled to control (but shall be entitled to participate at its own expense in the defense of) and the indemnified party shall be entitled to have control over, at the indemnifying party’s entitlement sole expense, the control and defense of any third party claim (A) if the indemnifying party shall have failed to acknowledge its indemnification obligations hereunder, (or B) if the corresponding indemnifying Party’s indemnification obligationsparty fails to actively assume the control and defense in a timely manner, (C) hereunder except if the indemnified party, based on advice of counsel to the extent indemnified party, shall have concluded that there are defenses available to the indemnified party that are different from or additional to those available to the indemnifying Party party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without such indemnifying party’s consent (but such consent shall not be unreasonably withheld, conditioned or delayed). An indemnifying party who is not entitled to, or elects not to, assume the control and defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel, in addition to any local counsel, for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. In such instance, the conflicted indemnified parties shall have been prejudiced as a result of such failure. The indemnifying Party shall have the initial right (but not obligation) to defend, settle or otherwise dispose of any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated retain one separate counsel, in addition to any local counsel, chosen by the preceding sentence ifHolder if such Holder is an indemnified party, and for so long as, at the expense of the indemnifying Party has recognized in a written notice to the Indemnitee provided within [*] days of such written notice its obligation to indemnify the Indemnitee for any Losses to which such Indemnitee may become subject, including reasonable fees and disbursements of counsel and expenses of reasonable investigation relating to such Claim; provided, however, that if the indemnifying Party assumes control of the defense, settlement or disposition of a Claim, the indemnifying Party shall obtain the written consent of each applicable Indemnitee prior to ceasing to defend, settling or otherwise disposing of the Claim. If the indemnifying Party fails to state in a written notice during such [*] day period its willingness to assume the defense of such a Claim, the BioMarin Indemnitee(s) or Merck Serono Indemnitee(s), as the case may be, shall have the right to defend, settle or otherwise dispose of such Claim, subject to the applicable provides. If there is a disagreement concerning the obligations of a Party hereunder, either the Indemnitee or the indemnifying Party may initiate litigation in a court of competent jurisdiction pursuant to the applicable provisions of Article XI for purposes of having the matter settled in accordance with the terms of this Agreementparty.

Claim Procedure. (ia) Each If a Seller Indemnified Party or a Purchaser Indemnified Party (the "Indemnified Party") is threatened in writing with any claim, or any claim is presented in writing to or any action or proceeding formally commenced against such Party, on behalf which may give rise to the right of itself and its respective BioMarin Indemnitees or Merck Serono Indemnitees (each such Personindemnification hereunder, an “Indemnitee”), agrees to provide the indemnifying Indemnified Party prompt will promptly give written notice thereof (specifying in reasonable detail the basis for the claim and, to the extent known, the amount thereof) to the Party subject to such rights of any Proceeding for which such Indemnitee intends to assert a right to indemnification under this Agreement (a “Claim”the "Indemnifying Party"); provided, however, that the failure of any Indemnified Party to give such notification notice as provided in this Section 12.2 shall not affect each applicable Indemnitee’s entitlement to indemnification (or relieve the corresponding indemnifying Party’s indemnification obligations) hereunder Indemnifying Party of its obligations under this Section 12.2, except to the extent that the indemnifying Indemnifying Party shall have been is actually prejudiced as a result of by such failurefailure to give notice. The indemnifying Indemnifying Party shall have the initial right (but not obligation) to defend, settle or otherwise dispose of any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated in the preceding sentence if, and for so long as, the indemnifying Party has recognized in a written notice to the Indemnitee provided within [*] days of such written notice its obligation to indemnify the Indemnitee for any Losses to which such Indemnitee may become subject, including reasonable fees and disbursements of counsel and expenses of reasonable investigation relating to such Claim; provided, however, that if the indemnifying Party assumes control of the defense, settlement or disposition of a Claim, the indemnifying Party shall obtain the written consent of each applicable Indemnitee prior to ceasing to defend, settling or otherwise disposing of the Claim. If the indemnifying Party fails to state in a written notice during such [*] day period its willingness to assume the defense of such a Claim, the BioMarin Indemnitee(s) or Merck Serono Indemnitee(s), as the case may be, shall have the right to defend, settle or otherwise dispose participate in the defense of such Claimclaim, subject action or proceeding, and, to the applicable providesextent the Indemnifying Party so desires and notifies the Indemnifying Party of such election within ten (10) business days after receiving notice of such claim (or sooner, if the nature of such claim so requires), jointly with any other Indemnifying Party similarly notified, to assume the defense thereof with counsel mutually satisfactory to the parties, such determination to be made on a reasonable basis. Pending notice and assumption of defense by the Indemnifying Party, an Indemnified Party may take such steps to defend against such claim as, in such Indemnified Party's good faith judgment, are appropriate to protect its and the Indemnifying Party's interests. If there is a disagreement concerning the obligations Indemnified Party requests in writing that such action, claim or proceeding not be contested, then it shall not be contested but shall not be covered by the indemnities provided herein. The Indemnifying Party may settle an indemnifiable matter which it has duly elected to contest without the consent of the Indemnified Party, so long as such settlement includes as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnified Party of a written release from all liability in respect of such claim, unless (i) such settlement includes injunctive relief or other equitable remedies against the Indemnified Party, (ii) the amount of such settlement exceeds the limits on indemnification set forth in this Section 12 or (iii) such settlement otherwise could reasonably be expected to have an adverse effect upon the Indemnified Party, in which case such matter shall be settled only with the consent of the Indemnified Party. In the event an Indemnified Party unreasonably declines to consent to such settlement, then the Indemnified Party shall have no right to indemnification beyond the amount of the proposed settlement that the Indemnifying Party and the claimant shall have tentatively agreed to. The Indemnified Party shall cooperate with the Indemnifying Party in the defense of any indemnified claim (it being understood the costs incurred in such cooperation shall be Covered Liabilities). In the event an Indemnified Party fails to follow the claim procedure specified in this section with respect to a claim by any third party against such Indemnified Party, then such Indemnified Party shall have no right to recover from the Indemnifying Party on such claim based on a breach of warranty or a right to indemnification hereunder, either the Indemnitee or the indemnifying Party may initiate litigation in a court of competent jurisdiction pursuant but only to the applicable provisions extent the Indemnifying Party was actually prejudiced by such failure. Notwithstanding anything to the contrary contained herein, any amounts owing from an Indemnifying Party shall be reduced to the extent any tax benefit derived by the Indemnified Party or any of Article XI for purposes its affiliates from the accrual of having the matter settled in accordance with the terms of this Agreementsuch claim.

Claim Procedure. (i) Each Party, on behalf of itself and its respective BioMarin Indemnitees or Merck Serono Indemnitees (each such Person, an “Indemnitee”), agrees to provide the indemnifying Party prompt written notice of any Proceeding If a claim for which such Indemnitee intends to assert a right to indemnification under this Agreement Losses (a “Claim”) is to be made by an indemnified party, such indemnified party shall give written notice (a “Claim Notice”) to (i) Seller, on behalf of the Sunstone Parties, in the case of indemnification pursuant to Section 8.2(a) and (ii) Interstate, in the case of indemnification pursuant to Section 8.2(b) (the recipient of such notice referred to below as the “indemnifying party”); provided, howeverin either case promptly after such indemnified party becomes aware of any fact, that condition or event which may give rise to Losses for which indemnification may be sought under this Section 8.2. Upon the receipt of any Claim Notice, subject to Section 8.2(e), the indemnifying party shall act promptly and in good faith to remedy any Losses incurred by the indemnified party and to make advances and payments as may be necessary to avoid the indemnified party having to incur additional Losses. If any lawsuit or other action is filed or instituted against any indemnified party with respect to a matter subject to indemnity hereunder, notice thereof (a “Third Party Notice”) shall be given to the indemnifying party as promptly as reasonably practicable. The failure of any indemnified party to give such notification timely notice hereunder shall not affect each applicable Indemniteesuch indemnified party’s entitlement rights to indemnification (or the corresponding indemnifying Party’s indemnification obligations) hereunder hereunder, except to the extent that such delay or failure materially prejudices the indemnifying Party shall have been prejudiced as a result of party’s ability to defend such failureClaim or actually mitigate any Losses resulting therefrom. The If the indemnifying Party party elects to compromise or defend, the indemnifying party shall have the initial absolute right (but not obligation) after the receipt of the Third Party Notice, at its option and at its own expense, to defendbe represented by counsel of its choice reasonably acceptable to the indemnified party, and to defend against, negotiate, settle or otherwise dispose of deal with any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated in the preceding sentence if, and for so long as, the indemnifying Party has recognized in a written notice to the Indemnitee provided within [*] days of such written notice its obligation to indemnify the Indemnitee for any Losses to which such Indemnitee may become subject, including reasonable fees and disbursements of counsel and expenses of reasonable investigation relating to such Claim; provided, however, that if the indemnified party may participate in any such proceeding with counsel of its choice reasonably acceptable to the indemnifying Party assumes control party and at the indemnified party’s expense and the indemnifying party shall not settle any such Claim unless the indemnified party is fully released without any admission of liability. The Parties agree to cooperate fully with each other in connection with the defense, negotiation or settlement of any such Claim, including providing access to information and assistance in accordance with Section 5.3. To the extent the indemnifying party elects not to defend such Claim, and the indemnified party defends against or disposition of a otherwise deals with any such Claim, the indemnifying Party shall obtain indemnified party may retain counsel of its choice, at the written consent of each applicable Indemnitee prior to ceasing to defend, settling or otherwise disposing expense of the indemnifying party, and control the defense of such Claim. If the indemnified party shall settle any such Claim without the consent of the indemnifying Party fails to state in a written notice during such [*] day period its willingness to assume the defense of such a Claimparty, the BioMarin Indemnitee(s) or Merck Serono Indemnitee(s), as the case may be, indemnified party shall thereafter have the right to defend, settle or otherwise dispose of such Claim, subject to the applicable provides. If there is a disagreement concerning the obligations of a Party hereunder, either the Indemnitee or no claim against the indemnifying Party may initiate litigation in a court of competent jurisdiction pursuant party with respect to the applicable provisions of Article XI for purposes of having the matter settled in accordance with the terms of this Agreementany loss, liability, claim, obligation, damage and expense occasioned by such settlement.

Claim Procedure. If an Indemnified Party learns of an actual or potential indemnity claim (iother than a claim by a third Person) Each Party, on behalf of itself and its respective BioMarin Indemnitees or Merck Serono Indemnitees (each such Person, an “Indemnitee”), agrees to provide the indemnifying Party prompt written notice of any Proceeding for which such Indemnitee intends to assert a right to Indemnified Party may seek indemnification under Section 7.1, such Indemnified Party shall, reasonably promptly after becoming aware of such claim, notify the Indemnitor thereof in writing, specifying the nature of and specific basis for such claim and the actual or, if reasonably Portions of this Agreement Exhibit, indicated by the xxxx “[***],” were omitted and have been filed separately with the Secretary of the Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934. practicable, the estimated amount of such claim to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such indemnity claim) (such notice, a “ClaimClaim Notice”); provided, however, that the failure of an Indemnified Party to give such notification timely notice shall not affect each applicable Indemnitee’s entitlement its rights to indemnification (or the corresponding indemnifying Party’s indemnification obligations) hereunder under Section 7.1, except to the extent that the indemnifying Indemnitor has been actually and materially prejudiced by such failure. Within ten (10) days following receipt of the applicable Claim Notice, the Indemnitor shall notify such Indemnified Party in writing if the Indemnitor disputes that all or a portion of such indemnity claim is subject to indemnification hereunder, specifying the amount, if applicable, so disputed, and otherwise the Indemnitor shall be deemed to have agreed that any undisputed portion of such indemnity claim is subject to indemnification hereunder. Any such indemnity claim that the Indemnitor has agreed, or has been deemed to have agreed, is subject to indemnification hereunder shall be paid in accordance with Section 7.2.2. With respect to any disputed indemnity claim, after final judgment or award shall have been prejudiced as rendered by a result of such failure. The indemnifying Party shall have the initial right (but not obligation) to defendcourt, settle arbitration board or otherwise dispose of any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated in the preceding sentence if, and for so long as, the indemnifying Party has recognized in a written notice to the Indemnitee provided within [*] days of such written notice its obligation to indemnify the Indemnitee for any Losses to which such Indemnitee may become subject, including reasonable fees and disbursements of counsel and expenses of reasonable investigation relating to such Claim; provided, however, that if the indemnifying Party assumes control of the defense, settlement or disposition of a Claim, the indemnifying Party shall obtain the written consent of each applicable Indemnitee prior to ceasing to defend, settling or otherwise disposing of the Claim. If the indemnifying Party fails to state in a written notice during such [*] day period its willingness to assume the defense of such a Claim, the BioMarin Indemnitee(s) or Merck Serono Indemnitee(s), as the case may be, shall have the right to defend, settle or otherwise dispose of such Claim, subject to the applicable provides. If there is a disagreement concerning the obligations of a Party hereunder, either the Indemnitee or the indemnifying Party may initiate litigation in a court administrative agency of competent jurisdiction pursuant and the expiration of the time in which to appeal therefrom, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall have arrived at a mutually binding agreement with respect to each separate matter indemnified by the Indemnitor, the Indemnified Party shall forward to the applicable provisions Indemnitor notice of Article XI for purposes of having any sums due and owing by the matter settled Indemnitor with respect to such matter, and such amount shall be paid as provided in accordance with the terms of this AgreementSection 7.2.2.

Claim Procedure. If an Indemnified Party learns of an actual or potential indemnity claim (iother than a claim by a third Person) Each Party, on behalf of itself and its respective BioMarin Indemnitees or Merck Serono Indemnitees (each such Person, an “Indemnitee”), agrees to provide the indemnifying Party prompt written notice of any Proceeding for which such Indemnitee intends to assert a right to Indemnified Party may seek indemnification under Section 7.1, such Indemnified Party shall, reasonably promptly after becoming aware of such claim, notify the Indemnitor thereof in writing, specifying the nature of and specific basis for such claim and the actual or, if reasonably 39 Portions of this Agreement Exhibit, indicated by the xxxx “[***],” were omitted and have been filed separately with the Secretary of the Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934. practicable, the estimated amount of such claim to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such indemnity claim) (such notice, a “ClaimClaim Notice”); provided, however, that the failure of an Indemnified Party to give such notification timely notice shall not affect each applicable Indemnitee’s entitlement its rights to indemnification (or the corresponding indemnifying Party’s indemnification obligations) hereunder under Section 7.1, except to the extent that the indemnifying Indemnitor has been actually and materially prejudiced by such failure. Within ten (10) days following receipt of the applicable Claim Notice, the Indemnitor shall notify such Indemnified Party in writing if the Indemnitor disputes that all or a portion of such indemnity claim is subject to indemnification hereunder, specifying the amount, if applicable, so disputed, and otherwise the Indemnitor shall be deemed to have agreed that any undisputed portion of such indemnity claim is subject to indemnification hereunder. Any such indemnity claim that the Indemnitor has agreed, or has been deemed to have agreed, is subject to indemnification hereunder shall be paid in accordance with Section 7.2.2. With respect to any disputed indemnity claim, after final judgment or award shall have been prejudiced as rendered by a result of such failure. The indemnifying Party shall have the initial right (but not obligation) to defendcourt, settle arbitration board or otherwise dispose of any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated in the preceding sentence if, and for so long as, the indemnifying Party has recognized in a written notice to the Indemnitee provided within [*] days of such written notice its obligation to indemnify the Indemnitee for any Losses to which such Indemnitee may become subject, including reasonable fees and disbursements of counsel and expenses of reasonable investigation relating to such Claim; provided, however, that if the indemnifying Party assumes control of the defense, settlement or disposition of a Claim, the indemnifying Party shall obtain the written consent of each applicable Indemnitee prior to ceasing to defend, settling or otherwise disposing of the Claim. If the indemnifying Party fails to state in a written notice during such [*] day period its willingness to assume the defense of such a Claim, the BioMarin Indemnitee(s) or Merck Serono Indemnitee(s), as the case may be, shall have the right to defend, settle or otherwise dispose of such Claim, subject to the applicable provides. If there is a disagreement concerning the obligations of a Party hereunder, either the Indemnitee or the indemnifying Party may initiate litigation in a court administrative agency of competent jurisdiction pursuant and the expiration of the time in which to appeal therefrom, or a settlement shall have been consummated, or the Indemnified Party and the Indemnitor shall have arrived at a mutually binding agreement with respect to each separate matter indemnified by the Indemnitor, the Indemnified Party shall forward to the applicable provisions Indemnitor notice of Article XI for purposes of having any sums due and owing by the matter settled Indemnitor with respect to such matter, and such amount shall be paid as provided in accordance with the terms of this AgreementSection 7.2.2.

Claim Procedure. (i) Each Party, on behalf of itself and its respective BioMarin Indemnitees or Merck Serono Indemnitees (each such Person, an “Indemnitee”), agrees to provide the indemnifying Party prompt written notice of any Proceeding If a claim for which such Indemnitee intends to assert a right to indemnification under this Agreement Losses (a “Claim”) is to be made by any Purchaser Indemnified Person or Seller Indemnified Person (an “indemnified party”) pursuant to Section 7.2 or Section 7.3, respectively, such indemnified party shall give written notice (a “Claim Notice”) to (i) Seller, in the case of indemnification pursuant to Section 7.2, and (ii) Purchaser, in the case of indemnification pursuant to Section 7.3 (the recipient of such notice referred to below as the “indemnifying party”); provided, howeverin either case reasonably promptly after such indemnified party becomes aware of any fact, that condition or event which may give rise to Losses for which indemnification may be sought under Section 7.2 or Section 7.3, as the case may be. If any claim, action, litigation, suit or proceeding (an “Action”) is filed or instituted against any indemnified party with respect to a matter subject to indemnity hereunder, notice thereof (a “Third Party Notice”) shall promptly be given to the indemnifying party. The failure of any indemnified party to give such notification timely notice hereunder shall not affect each applicable Indemniteesuch indemnified party’s entitlement rights to indemnification (or the corresponding indemnifying Party’s indemnification obligations) hereunder hereunder, except to the extent that such delay or failure prejudices the indemnifying party’s ability to defend such Claim or Action or mitigate any Losses resulting therefrom. After receipt of a Third Party shall have been prejudiced as a result of such failure. The Notice, the indemnifying Party party shall have the initial right (but not obligation) to defendright, settle or otherwise dispose of any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated in the preceding sentence if, and for so long as, the indemnifying Party has recognized in a by providing written notice to the Indemnitee provided within [*] days of acknowledging such written notice its indemnifying party’s obligation to indemnify the Indemnitee indemnified party pursuant to Section 7.2 or 7.3, as applicable, to (i) take control of the defense and investigation of such Action, (ii) employ and engage attorneys of its own choice (subject to the approval of the indemnified party, such approval not to be unreasonably withheld or delayed) to handle and defend the same, at the indemnifying party’s sole cost, risk and expense, and (iii) compromise or settle such claim, which compromise or settlement shall be made only with the written consent of the indemnified party; provided that such consent will not be required if such settlement includes an unconditional release of the indemnified party and otherwise provides solely for payment of monetary damages for which the indemnified party will be indemnified in full. The indemnified party shall, at the expense of the indemnifying party, cooperate in all reasonable respects with the indemnifying party and its attorneys in the investigation, trial and defense of such Action and any Losses to which appeal arising therefrom, and the indemnified party may, at its own cost, further participate in the investigation, trial and defense of such Indemnitee may become subject, including reasonable fees Action and disbursements of counsel and expenses of reasonable investigation relating to such Claimany appeal arising therefrom; provided, however, that if the indemnifying Party assumes control party elects not to assume such defense and investigation or does not acknowledge in writing within twenty (20) days after receipt of the defenseThird Party Notice (or such earlier date, settlement or disposition if the failure to assume the defense on such earlier date would materially impair the ability of a Claimsuch indemnified party to defend such claim) its obligation to indemnify the indemnified party against any Losses arising from such Action, the indemnified party may (upon delivering notice to such effect to the indemnifying Party shall obtain the written consent of each applicable Indemnitee prior to ceasing to party) retain separate counsel and defend, settling or otherwise disposing compromise and settle such Action (all at the cost and expense of the Claim. If indemnifying party), and the indemnifying Party fails party shall have the right to state in a written notice during such [*] day period participate therein at its willingness own cost. Notwithstanding the indemnifying party’s election to assume the defense of such a ClaimAction, the BioMarin Indemnitee(s) or Merck Serono Indemnitee(s)indemnified party shall have, as upon giving prior written notice to the case may beindemnifying party, shall have the right to defend, settle or otherwise dispose employ separate counsel and to participate in the defense of such ClaimAction, subject and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel for the indemnified party in each jurisdiction if, but only if, the indemnified party shall have reasonably concluded in good faith that (x) an actual or potential conflict of interest (including one or more legal defenses or counterclaims available to it or to other indemnified parties which are different from or additional to those available to the applicable provides. If there is a disagreement concerning indemnifying party) makes it inappropriate in the obligations reasonable good-faith judgment of a Party hereunder, either the Indemnitee or indemnified party (upon and in conformity with the advice of counsel) for the same counsel to represent both the indemnified party and the indemnifying Party may initiate litigation in a court of competent jurisdiction pursuant to party or (y) the applicable provisions of Article XI for purposes of having claim seeks nonmonetary relief which, if granted, could materially and adversely affect the matter settled in accordance with the terms of this Agreementindemnified party or its Affiliates.

Claim Procedure. (i) Each Party, on behalf of itself and its respective BioMarin Indemnitees or Merck Serono Indemnitees (each such Person, an “Indemnitee”), agrees to provide the indemnifying Party prompt written notice of any Proceeding If a claim for which such Indemnitee intends to assert a right to indemnification under this Agreement Losses (a “Claim”) is to be made by an indemnified party, such indemnified party shall give written notice (a “Claim Notice”) to (i) the Stockholders’ Representative and DLJ, in the case of indemnification pursuant to Section 8.2(a); provided, howeverand (ii) MCC, that in the case of indemnification pursuant to Section 8.2(b) (the recipient of such notice referred to below as the “indemnifying party”), in either case promptly after such indemnified party becomes aware of any fact, condition or event which may give rise to Losses for which indemnification may be sought under this Section 8.2, specifying with reasonable detail the amount of such Losses, a description in reasonable detail of the facts giving raise to such Losses and the basis of the indemnifying party’s responsibility thereof (including the particular representation, warranty, agreement or covenant in this Agreement under which such indemnified party believes such liability arises). If any lawsuit or other action is filed or instituted against any indemnified party with respect to a matter subject to indemnity hereunder, notice thereof (a “Third Party Notice”) shall be given to the indemnifying party as promptly as reasonably practicable. The failure of any indemnified party to give such notification timely notice hereunder shall not affect each applicable Indemniteesuch indemnified party’s entitlement rights to indemnification (or the corresponding indemnifying Party’s indemnification obligations) hereunder hereunder, except to the extent that such delay or failure materially prejudices the indemnifying party’s ability to defend such Claim or mitigate any Losses resulting therefrom. After receipt of a Third Party shall have been prejudiced as a result of such failure. The Notice, the indemnifying Party party shall have the initial right (but not obligation) to defendright, settle or otherwise dispose of any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated in the preceding sentence if, and for so long as, the indemnifying Party has recognized in a by providing written notice to the Indemnitee provided within [*] days of such written notice its obligation indemnified party, to indemnify the Indemnitee for any Losses to which such Indemnitee may become subject, including reasonable fees and disbursements of counsel and expenses of reasonable investigation relating to such Claim; provided, however, that if the indemnifying Party assumes (i) take control of the defensedefense and investigation of such lawsuit or action, settlement or disposition (ii) employ and engage attorneys of a Claimits own choice (subject to the approval of the indemnified party, such approval not to be unreasonably withheld) to handle and defend the same, at the indemnifying Party party’s sole cost, risk and expense, and (iii) compromise or settle such claim, which compromise or settlement shall obtain be made only with the written consent of each applicable Indemnitee prior to ceasing to defend, settling or otherwise disposing the indemnified party (which shall not be unreasonably withheld); provided that such consent will not be required if such settlement includes an unconditional release of the Claimindemnified party and otherwise provides solely for payment of monetary damages for which the indemnified party will be indemnified in full. The indemnified party shall, at the expense of the indemnifying party, cooperate in all reasonable respects with the indemnifying party and such attorneys in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom; and the indemnified party may, at its own cost, further participate in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. If the indemnifying Party party fails to state in a written notice during such [*] day period its willingness to assume the defense of such a Claimclaim within thirty (30) days after receipt of the Third Party Notice (or such earlier date, if the failure to assume the defense on such earlier date would materially impair the ability of such indemnified party to defend such claim), the BioMarin Indemnitee(sindemnified party against which such claim has been asserted will (upon delivering notice to such effect to the indemnifying party) have the right to undertake the defense, compromise or Merck Serono Indemnitee(s), as settlement of such claim and the case may be, indemnifying party shall have the right to defendparticipate therein at its own cost; provided, however, that, prior to the time that the indemnifying party assumes the defense hereunder, the indemnified party may take such actions as are necessary so that its ability to defend such claim is not materially impaired. The indemnified party shall not compromise or settle any claim for which it is seeking indemnification from the indemnifying party or otherwise dispose admit to any liability with respect to such claim or demand without the prior written consent of the indemnifying party. Notwithstanding anything to the contrary in this Article VIII (including Section 8.2), no indemnifying party shall have any liability under this Article VIII for any Losses arising out of or in connection with any third party claim that is settled or compromised by an indemnified party without the consent of such Claim, subject to indemnifying party. The parties agree and acknowledge that the applicable provides. If there is a disagreement concerning Stockholders’ Representatives shall exercise all the obligations rights of a Party hereunder, either the Indemnitee Company Stockholders and DLJ as indemnifying parties or the indemnifying Party may initiate litigation in a court of competent jurisdiction pursuant to the applicable provisions of Article XI for purposes of having the matter settled in accordance with the terms of indemnified parties under this AgreementSection 8.2(c).

Claim Procedure. (i) Each PartyIf an Indemnified Person shall have any claim against Forte and/or the Forte Shareholders pursuant to this Agreement for which it seeks remedy under this Article VII, on behalf of itself and its respective BioMarin Indemnitees or Merck Serono Indemnitees (each such Person, an “Indemnitee”), agrees to provide the indemnifying Party prompt it shall promptly give written notice thereof to the Holders' Agent and the Escrow Agent including in such notice a brief description of any Proceeding for the facts upon which such Indemnitee intends claim is based and, to assert a right to indemnification under this Agreement (a “Claim”)the extent known, the amount thereof; provided, however, that the failure to promptly give any such notification notice in accordance with -------- the terms specified in this Agreement shall not affect each applicable Indemnitee’s entitlement the Indemnified Person's right to indemnification (or the corresponding indemnifying Party’s indemnification obligations) hereunder except obtain indemnity therefor to the extent that the indemnifying Party such failure does not materially prejudice Forte; and, provided, that, in each case, notice of such -------- claim shall have been prejudiced as a result given before the date provided in Section 7.1(a). If, after the amount of such failure. The indemnifying Party shall have the initial right (but not obligation) to defend, settle or otherwise dispose of any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated in claim is specified by the preceding sentence if, and for so long asIndemnified Person, the indemnifying Party has recognized in a Holders' Agent objects to any such claim, it may give written notice to the Indemnitee provided Indemnified Person and the Escrow Agent within [*] thirty (30) days of such written notice its obligation to indemnify the Indemnitee for any Losses to which such Indemnitee may become subject, including reasonable fees and disbursements later of counsel and expenses of reasonable investigation relating to such Claim; provided, however, that if the indemnifying Party assumes control receipt of the defenseIndemnified Person's notice of claim or the specification by the Indemnified Person of the amount of the claim, settlement or disposition advising the Indemnified Person of a Claimits objection. If no such notice is timely received from the Holders' Agent by the Indemnified Person, the indemnifying Party shall obtain Indemnified Person will be entitled to payment from the written consent of each applicable Indemnitee prior Escrow Funds pursuant to ceasing to defendSection 7.2, settling or otherwise disposing in the amount of the ClaimLoss arising out of the claim specified in its notice of claim. If the indemnifying Party fails to state in a written notice during Holders' Agent advises the Indemnified Person within such [*] thirty-day period its willingness that it objects to assume the defense of such a Claimclaim, the BioMarin Indemnitee(s) or Merck Serono Indemnitee(s), as Indemnified Person and the case may be, Holders' Agent shall have promptly meet and use their best efforts to settle the right dispute in writing. If the Indemnified Person and the Holders' Agent are unable to defend, settle or otherwise dispose of such Claim, subject reach agreement within thirty days after the Holders' Agent objects to the applicable provides. If there is a disagreement concerning claim, then the obligations disputed portion of a Party hereunder, either the Indemnitee or the indemnifying Party may initiate litigation in a court of competent jurisdiction pursuant claim shall be submitted to the applicable provisions of Article XI for purposes of having the matter settled arbitration in accordance with Section 10.9. If the terms of this AgreementArbitrator shall determine that the Indemnified Person is entitled to indemnification with respect to the dispute submitted, the Indemnified Person will be entitled to obtain payment from the Escrow Funds pursuant to Section 7, in the amount determined by the arbitrator.

Claim Procedure. (i) Each Upon receipt by the party seeking indemnification (the "Indemnified Party") from a third party of notice of any action, suit, proceeding, claim, demand or assessment against such Indemnified Party which might give rise to a claim for Losses under Section 1(a) or Section 1(b) (a "Claim Notice"), the Indemnified Party (or the Purchaser or the PPB Sub, as applicable, on behalf of itself and its respective BioMarin Indemnitees or Merck Serono Indemnitees (each such Person, an “Indemnitee”), agrees to provide the indemnifying Party prompt Indemnified Party) shall promptly give written notice thereof to the party from which indemnification is sought (the "Indemnifying Party") indicating in reasonable detail the nature of such claim and the basis therefor, along with copies of any Proceeding for which notice and documents related to such Indemnitee intends to assert a right to indemnification under this Agreement (a “Claim”)claim; provided, however, that the failure to give such notification notice shall not affect each applicable Indemnitee’s entitlement to the indemnification (or the corresponding indemnifying Party’s indemnification obligations) provided hereunder except to the extent that the indemnifying Indemnifying Party shall have actually been materially prejudiced as a result of such failure. The indemnifying Indemnifying Party shall have the initial right (but not obligation) to defend, settle or otherwise dispose of any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated participate in the preceding sentence ifdefense of and (subject to Section 1(c)(ii) below), at its option, to assume the defense of, at its own expense and for so long asby its own counsel, any such matter in respect of which a Claim Notice has been provided as to which either (x) the indemnifying Indemnifying Party has recognized in a written notice to the Indemnitee provided within [*] days of such written notice shall have acknowledged its obligation to indemnify the Indemnitee for any Indemnified Party in respect of all Losses associated therewith or (y) the Indemnifying Party shall have agreed to which such Indemnitee may become subjectpay the reasonable fees, including reasonable fees and disbursements of counsel costs and expenses of reasonable investigation relating one separate counsel in each applicable jurisdiction to the Indemnified Party, who shall be entitled to participate in the defense of such Claimmatter pursuant to this Section 1(c). If the Indemnifying Party shall, in accordance with the preceding sentence, assume the defense of any such matter, it shall promptly notify the Indemnified Party of its intention to do so, and the Indemnified Party shall, at the expense of the Indemnifying Party, agree to cooperate fully with the Indemnifying Party and its counsel in the defense of such matter; provided, however, that if the indemnifying Indemnifying Party's counsel shall be reasonably satisfactory to the Indemnified Party assumes control of and the defense, settlement or disposition of a Claim, the indemnifying Indemnifying Party shall obtain not settle or consent to any judgment relating to any such matter without the prior written consent of each applicable Indemnitee prior to ceasing to defendthe Indemnified Party (which consent shall not be unreasonably withheld); provided, settling or otherwise disposing of further, however, that the Claim. If the indemnifying Party fails to state immediately preceding proviso shall not apply in a written notice during such [*] day period its willingness to assume the defense of such a Claim, the BioMarin Indemnitee(s) or Merck Serono Indemnitee(s), as the case may be, shall have of any settlement that unconditionally releases the right to defend, settle or otherwise dispose Indemnified Party completely in connection with such matter and that provides relief solely of such Claim, subject to money damages borne by the applicable provides. If there is a disagreement concerning the obligations of a Party hereunder, either the Indemnitee or the indemnifying Party may initiate litigation in a court of competent jurisdiction pursuant to the applicable provisions of Article XI for purposes of having the matter settled in accordance with the terms of this AgreementIndemnifying Party.

Claim Procedure. (i) Each PartyIn the event that, on behalf of itself and its respective BioMarin Indemnitees at any time or Merck Serono Indemnitees (each such Personfrom time to time after the Closing Date, an “Indemnitee”), agrees to provide the indemnifying Party prompt written notice of any Proceeding for Indemnitee shall sustain a Loss against which such Indemnitee intends to assert a right is entitled to indemnification under this Agreement (a “Claim”); providedAgreement, however, that failure such Indemnitee shall notify the party hereto obligated to give provide such notification shall not affect each applicable Indemnitee’s entitlement to indemnification (or the corresponding indemnifying Party’s indemnification obligations"Indemnitor") hereunder except of any such Loss so sustained. Indemnitor shall pay to such Indemnitee the amount of such Loss so sustained, subject to the extent that right to contest any claim which has not yet resulted in a Loss, as provided herein and under the indemnifying Party shall have been prejudiced as a result of such failureEscrow Agreement. The indemnifying Party Indemnitee shall have promptly notify the initial right (but not obligation) to defend, settle or otherwise dispose Indemnitor of the existence of any Claim for claim, demand, or other matter involving liabilities to third parties to which an Indemnitee intends the Indemnitor's indemnification obligations would apply and shall give the Indemnitor a reasonable opportunity to assert a right defend the same or prosecute such action to indemnification under this Agreement as contemplated in the preceding sentence if, and for so long as, the indemnifying Party has recognized in a written notice conclusion or settlement satisfactory to the Indemnitee at Indemnitor's own expense and with counsel of Indemnitor's selection (who shall be approved by Indemnitee, which approval shall not be unreasonably withheld); provided within [*] days of such written notice its obligation to indemnify that the Indemnitee for any Losses to which such Indemnitee may become subject, including reasonable fees and disbursements of counsel and expenses of reasonable investigation relating to such Claim; provided, however, that if the indemnifying Party assumes control of the defense, settlement or disposition of a Claim, the indemnifying Party shall obtain the written consent of each applicable Indemnitee prior to ceasing to defend, settling or otherwise disposing of the Claim. If the indemnifying Party fails to state in a written notice during such [*] day period its willingness to assume the defense of such a Claim, the BioMarin Indemnitee(s) or Merck Serono Indemnitee(s), as the case may be, 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 Indemnitee shall have the right, but not the obligation, to undertake the defense of, and to compromise or settle (exercising reasonable business judgment) the claim or otherwise dispose other matter on behalf, for the account, and at the risk and expense, of such ClaimIndemnitor. Except as provided in the preceding sentence, subject to the applicable providesIndemnitee shall not compromise or settle the claim or other matter without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld. If there the claim is a disagreement concerning one that cannot by its nature be defended solely by the obligations of a Party hereunderIndemnitor, either the Indemnitee shall make available all information and assistance that the Indemnitee may reasonably request; provided that any associated expenses shall be paid by the Indemnitor. Challenge By Indemnitor. If Indemnitor contests or the indemnifying challenges any claim or action against an Indemnified Party may initiate litigation referred to in a court of competent jurisdiction pursuant to the applicable provisions of Article XI for purposes of having the matter settled in accordance with the terms of this AgreementArticle, it shall (i) do so at its own cost and expense, holding such Indemnified Party harmless from all costs, fees, expenses, debts, liabilities and changes, (ii) diligently defend against any such claim, and (iii) hold such Indemnified Party's business and assets free and harmless from any attachment, execution, judgment, lien or other legal process.

Claim Procedure. The Purchaser may give written notice of an indemnification claim under this Article 9, whether for its own Losses or for Losses incurred by any other Purchaser Indemnified Party (each such claim, an "Indemnification Claim"), and Purchaser will give written notice of such Indemnification Claim executed by an officer of the Purchaser (a "Claim Notice") to the Stockholder Representative (with a copy to the Escrow Agent if such Indemnification Claim involves recovery against the Escrow Fund) containing (i) Each Partya description and, on behalf if known, the maximum potential amount of itself and its respective BioMarin Indemnitees Losses for which the Purchaser or Merck Serono Indemnitees (each such Personany Purchaser Indemnified Party may be liable, an “Indemnitee”), agrees to provide including the indemnifying Party prompt written notice amount of any Proceeding Losses that may already have been incurred, paid, reserved or accrued (ii) a reasonable summary explanation of the basis for the Claim Notice to the extent of the facts then known by the Purchaser Indemnified Party and (iii) a demand for payment of those Losses or potential Losses. Within thirty (30) days after delivery of a Claim Notice, the Stockholder Representative will deliver to the Purchaser Indemnified Party (with a copy to the Escrow Agent) a written response in which such Indemnitee intends the Stockholder Representative will either: agree that the Purchaser Indemnified Party is entitled to assert a right to indemnification under this Agreement (a “Claim”)receive all of the Losses at issue in the Claim Notice; provided, however, that failure to give such notification shall not affect each applicable Indemnitee’s or dispute the Purchaser Indemnified Party's entitlement to indemnification (or the corresponding indemnifying Party’s indemnification obligations) hereunder except including, if applicable, a dispute as to the extent that determination of the indemnifying Party shall have been prejudiced as a result of such failure. The indemnifying Party shall have the initial right (but not obligation) to defend, settle or otherwise dispose amount of any Claim for which an Indemnitee intends Reserved Escrow Fund Funds, if applicable) by delivering to assert a right to indemnification under this Agreement as contemplated in the preceding sentence if, and for so long as, the indemnifying Purchaser Indemnified Party has recognized in a written notice to the Indemnitee provided within [*] days of such written notice its obligation to indemnify the Indemnitee for any Losses to which such Indemnitee may become subject, including (an "Objection Notice") setting forth in reasonable fees and disbursements of counsel and expenses of reasonable investigation relating to such Claim; provided, however, that if the indemnifying Party assumes control of the defense, settlement or disposition of a Claimdetail each disputed item, the indemnifying Party shall obtain the written consent of basis for each applicable Indemnitee prior to ceasing to defend, settling or otherwise disposing of the Claimsuch disputed item and certifying that all such disputed items are being disputed in good faith. If the indemnifying Party Stockholder Representative fails to state take either of the foregoing actions within thirty (30) days after delivery of the Claim Notice, then the Stockholder Representative will be deemed to have irrevocably accepted the Claim Notice and the Stockholder Representative will be deemed to have irrevocably agreed to pay the Losses at issue in the Claim Notice. If the Stockholder Representative delivers an Objection Notice to the Purchaser Indemnified Party (with a copy to the Escrow Agent) with respect to all or any portion of a Claim Notice (a "Contested Claim") within thirty (30) days after delivery of the Claim Notice, then the dispute shall be resolved by a written notice during such [*] day period its willingness settlement agreement executed by the Purchaser and the Stockholder Representative (a copy of which shall be furnished to assume the defense Escrow Agent) or in the absence of such a Claimwritten settlement agreement being reached within sixty (60) days after receipt by the Purchaser Indemnified Party of the Objection Notice, by any legally available means consistent with the provisions of Section 11.11 or, at either the Purchaser's or the Stockholder Representative's option and discretion, by binding arbitration pursuant to Section 9.2(e). Notwithstanding anything herein to the contrary, the BioMarin Indemnitee(s) parties agree that, at either the Purchaser's or Merck Serono Indemnitee(sthe Stockholder Representative's option and discretion, any Contested Claim will be submitted to mandatory, final and binding arbitration before J.A.M.S./ENDISPUTE or its successor ("J.A.M.S."), as governed by the case United States Arbitration Act, 9 U.S.C., Section 1 et seq. and that any such arbitration will be conducted in Santa Xxxxx County, California. Either the Purchaser or the Stockholder Representative may be, shall have commence the right to defend, settle or otherwise dispose arbitration process called for by this Agreement by filing a written demand for arbitration with J.A.M.S. and giving a copy of such Claimdemand to each of the other parties to this Agreement. The arbitration will be conducted in accordance with the provisions of J.A.M.S.'s Streamlined Arbitration Rules and Procedures in effect at the time of filing of the demand for arbitration, subject to the applicable providesprovisions of this Section 9.2(e). If there is The arbitration of such Contested Claim shall be conducted by a disagreement concerning single arbitrator mutually agreed on by the obligations Purchaser and the Stockholder Representative and selected from J.A.M.S.'s panel of a Party hereunderneutrals. The parties will cooperate with J.A.M.S. and with each other in promptly selecting the arbitrator (or arbitrators, either as applicable) from J.A.M.S.'s panel of neutrals, and in scheduling the Indemnitee or arbitration proceedings in order to fulfill the indemnifying Party provisions, purposes and intent of this Agreement. The parties covenant that they will participate in the arbitration in good faith, and that the parties to the arbitration will bear the expense of deposits and advances required by the arbitrator in equal proportions. The provisions of this Section 9.2(e) may initiate litigation in a be enforced by any court of competent jurisdiction pursuant jurisdiction, and the party seeking enforcement will be entitled to an award of all costs, fees and expenses, including attorneys' fees, to be paid by the applicable provisions of Article XI party against whom enforcement is ordered. Judgment upon the award rendered by the arbitrator may be entered in any court having competent jurisdiction. If for purposes of having any reason J.A.M.S. or its successor no longer is in business, then the matter settled arbitration shall be conducted in accordance with the terms commercial arbitration rules of this Agreementthe American Arbitration Association. Upon the conclusion of any arbitration proceedings hereunder, the arbitrator will render findings of fact and conclusions of law and a final written arbitration award setting forth the basis and reasons for any decision reached (the "Final Award") and will promptly deliver such documents to Escrow Agent, the Stockholder Representative and the Purchaser, together with a copy of the Final Award signed by the arbitrator. The foregoing indemnification payments will be made within five (5) Business Days after the date on which (i) the amount of such payments are determined by mutual settlement agreement of the parties, (ii) the amount of such payments are determined pursuant to Section 9.3(c) if an Objection Notice has not been timely delivered in accordance with Section 9.3(b) or (iii) both such amount and the Series G Holders' obligation to pay such amount have been determined by a final Judgment of a court having jurisdiction over such proceeding as permitted by Section 11.11 or by binding arbitration in accordance with Section 9.2(e), if in either case an Objection Notice has been timely delivered in accordance with Section 9.3(b) (the "Settlement Date").

Claim Procedure. (i) Each Party, on behalf of itself and its respective BioMarin Indemnitees or Merck Serono Indemnitees (each such Person, an “Indemnitee”), agrees to provide the indemnifying Party prompt written notice of any Proceeding for which such Indemnitee intends to assert a right to indemnification under this Agreement (a “Claim”); provided, however, that failure to give such notification shall not affect each applicable Indemnitee’s entitlement to indemnification (or the corresponding indemnifying Party’s indemnification obligations) hereunder except to the extent that the indemnifying Party shall have been prejudiced as a result of such failure. The indemnifying Party shall have the initial right (but not obligation) to defend, settle or otherwise dispose of any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated in the preceding sentence if, and for so long as, the indemnifying Party has recognized in a written notice to the Indemnitee provided within [*] days of such written notice its obligation to indemnify the Indemnitee for any Losses to which such Indemnitee may become subject, [*] = 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 under the Securities Exchange Act of 1934, as amended. including reasonable fees and disbursements of counsel and expenses of reasonable investigation relating to such Claim; provided, however, that if the indemnifying Party assumes control of the defense, settlement or disposition of a Claim, the indemnifying Party shall obtain the written consent of each applicable Indemnitee prior to ceasing to defend, settling or otherwise disposing of the Claim. If the indemnifying Party fails to state in a written notice during such [*] day period its willingness to assume the defense of such a Claim, the BioMarin Indemnitee(s) or Merck Serono Indemnitee(s), as the case may be, shall have the right to defend, settle or otherwise dispose of such Claim, subject to the applicable provides. If there is a disagreement concerning the obligations of a Party hereunder, either the Indemnitee or the indemnifying Party may initiate litigation in a court of competent jurisdiction pursuant to the applicable provisions of Article XI for purposes of having the matter settled in accordance with the terms of this Agreement.

Claim Procedure. (i) Each Party, on behalf of itself and its respective BioMarin Indemnitees or Merck Serono Indemnitees (each such Person, an “Indemnitee”), agrees to provide the indemnifying Party prompt written notice of any Proceeding If either Member believes it has suffered a Material Loss for which the other Member or the Company is obligated to indemnify it under this Section 3.5.2 or otherwise under this Agreement, or if any claim or demand is asserted by a third party against an Indemnified Party in respect of which such Indemnitee intends to assert a right Indemnified Party may be entitled to indemnification under this Agreement (a “Claim”); providedAgreement, howeverwritten notice of such belief, that claim or demand shall promptly be given to the Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party’s failure to give such notification provide prompt notice shall not affect each applicable Indemnitee’s entitlement be deemed to relieve the Indemnifying Party from any of its indemnification (obligations under this Agreement unless the Indemnifying Party is materially prejudiced thereby. With respect to any third party claim or demand, the corresponding indemnifying Party’s indemnification obligations) hereunder except to the extent that the indemnifying Party shall have been prejudiced as a result of such failure. The indemnifying Indemnifying Party shall have the initial right (right, but not the obligation, by notifying the Indemnified Party within thirty (30) days after its receipt of the notice from the Indemnified Party, to assume the entire control of (subject to the right of the Indemnified Party to participate, at the Indemnified Party’s expense and with counsel of the Indemnified Party’s choice), the defense, compromise, or settlement of the matter, including, at the Indemnifying Party’s expense, employment of counsel of the Indemnifying Party’s choice. Until the Indemnifying Party has agreed to defend any third party claim or demand, the Indemnified Party may file any notice, answer or other pleading or take such other actions as are reasonably appropriate to protect its interests, those of the Company, the Assets or the Business, or those of the Indemnifying Party. Any damages to the assets or business of the Indemnified Party or the Company caused by a failure by the Indemnifying Party to defend, compromise, or settle a claim or otherwise dispose of any Claim for which an Indemnitee intends to assert demand in a right to indemnification under this Agreement as contemplated in reasonable and expeditious manner requested by the preceding sentence ifIndemnified Party, and for so long as, after the indemnifying Indemnifying Party has recognized in a written given notice to the Indemnitee provided within [*] days of such written notice its obligation to indemnify the Indemnitee for any Losses to which such Indemnitee may become subject, including reasonable fees and disbursements of counsel and expenses of reasonable investigation relating to such Claim; provided, however, that if the indemnifying Party assumes it will assume control of the defense, compromise, or settlement of the matter, shall be included in the damages for which the Indemnifying Party shall be obligated to indemnify the Indemnified Party. Any settlement or disposition compromise of a Claim, matter by the indemnifying Indemnifying Party shall obtain include a full release of claims against the Indemnified Party which have arisen from the indemnified claim or demand, and may not include the payment or provision of any consideration by or any restriction whatsoever on the Indemnified Party (other than a reciprocal release by the Indemnified Party), or else may not be made without the express prior written consent of each applicable Indemnitee prior to ceasing to defendthe Indemnified Party, settling which may not be unreasonably withheld or otherwise disposing of the Claim. If the indemnifying Party fails to state in a written notice during such [*] day period its willingness to assume the defense of such a Claim, the BioMarin Indemnitee(s) or Merck Serono Indemnitee(s), as the case may be, shall have the right to defend, settle or otherwise dispose of such Claim, subject to the applicable provides. If there is a disagreement concerning the obligations of a Party hereunder, either the Indemnitee or the indemnifying Party may initiate litigation in a court of competent jurisdiction pursuant to the applicable provisions of Article XI for purposes of having the matter settled in accordance with the terms of this Agreementdelayed.

Claim Procedure. (i) Each Party, on behalf of itself and its respective BioMarin Indemnitees or Merck Serono Indemnitees (each such Person, an “Indemnitee”), agrees to provide the indemnifying Party BreitBurn shall give Quicksilver prompt written notice of any Proceeding for third party Action or other Damages claims which may give rise to any indemnity obligation under this Section 9.2, together with the estimated amount of such Indemnitee intends to assert a Action or Damages, and Quicksilver shall have the right to indemnification under this Agreement assume the defense of any such Action through counsel of its own choosing, by so notifying BreitBurn within sixty (a “Claim”)60) days of receipt of BreitBurn’s written notice; provided, however, that failure Quicksilver’s counsel shall be reasonably satisfactory to BreitBurn. Failure to give such notification prompt notice shall not affect each applicable Indemnitee’s entitlement the indemnification obligations hereunder in the absence of actual prejudice. If BreitBurn desires to indemnification (or the corresponding indemnifying Party’s indemnification obligations) hereunder except to the extent that the indemnifying Party shall have been prejudiced as a result of such failure. The indemnifying Party shall have the initial right (participate in, but not obligation) control, any such defense assumed by Quicksilver, it may do so at its sole cost and expense. If Quicksilver declines to defendassume any such defense, settle or otherwise dispose it shall be liable for all reasonable costs and expenses of any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated in the preceding sentence if, and for so long as, the indemnifying Party has recognized in a written notice to the Indemnitee provided within [*] days of defending such written notice its obligation to indemnify the Indemnitee for any Losses to which such Indemnitee may become subjectAction incurred by BreitBurn, including reasonable fees and disbursements of counsel and expenses of reasonable investigation relating to in the event it is ultimately determined that Quicksilver is liable for such Claim; provided, however, that if the indemnifying Party assumes control of the defense, settlement or disposition of a Claim, the indemnifying Party shall obtain the written consent of each applicable Indemnitee prior to ceasing to defend, settling or otherwise disposing of the Claim. If the indemnifying Party fails to state in a written notice during such [*] day period its willingness to assume the defense of such a Claim, the BioMarin Indemnitee(s) or Merck Serono Indemnitee(s), as the case may be, shall have the right to defend, settle or otherwise dispose of such Claim, subject to the applicable provides. If there is a disagreement concerning the obligations of a Party hereunder, either the Indemnitee or the indemnifying Party may initiate litigation in a court of competent jurisdiction Action pursuant to the applicable provisions of Article XI for purposes of having the matter settled in accordance with the terms of this Agreement. If Quicksilver has assumed any such defense, but thereafter Quicksilver has failed to diligently maintain such defense, then BreitBurn shall give Quicksilver written notice thereof and, if Quicksilver does not take reasonable action to remedy such failure within thirty (30) days after receipt, then BreitBurn may assume such defense and Quicksilver shall continue to be liable for all reasonable costs and expenses incurred in defending such actions, provided that BreitBurn thereafter diligently maintains such defense and is commercially reasonable (given the size and nature of the claim involved) in the manner of defense and the costs and expenses incurred. Quicksilver shall not, without the written consent of a BreitBurn Indemnified Party, settle any Action or claim against such BreitBurn Indemnified Party or consent to the entry of any judgment with respect thereto that (i) does not result in a final resolution of the BreitBurn Indemnified Party’s liability with respect to such Action or claim (including, in the case of a settlement, an unconditional written release of the BreitBurn Indemnified Party from all further liability in respect of such Action or claim) or (ii) would result in the imposition of a consent order, injunction or decree which would materially and adversely restrict the future activity or conduct of the BreitBurn Indemnified Party, other than conduct which violates a Law.

Claim Procedure. (i) Each Upon receipt by the party seeking indemnification (the “Indemnified Party”) from a third party of notice of any action, suit, proceeding, claim, demand or assessment against such Indemnified Party which might give rise to a claim for Losses under Section 1(a) or Section 1(b) (a “Claim Notice”), the Indemnified Party (or the Purchaser or the PPB Sub, as applicable, on behalf of itself and its respective BioMarin Indemnitees or Merck Serono Indemnitees (each such Person, an “Indemnitee”), agrees to provide the indemnifying Party prompt Indemnified Party) shall promptly give written notice thereof to the party from which indemnification is sought (the “Indemnifying Party”) indicating in reasonable detail the nature of such claim and the basis therefor, along with copies of any Proceeding for which notice and documents related to such Indemnitee intends to assert a right to indemnification under this Agreement (a “Claim”)claim; provided, however, that the failure to give such notification notice shall not affect each applicable Indemnitee’s entitlement to the indemnification (or the corresponding indemnifying Party’s indemnification obligations) provided hereunder except to the extent that the indemnifying Indemnifying Party shall have actually been materially prejudiced as a result of such failure. The indemnifying Indemnifying Party shall have the initial right (but not obligation) to defend, settle or otherwise dispose of any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated participate in the preceding sentence ifdefense of and (subject to Section 1(c)(ii) below), at its option, to assume the defense of, at its own expense and for so long asby its own counsel, any such matter in respect of which a Claim Notice has been provided as to which either (x) the indemnifying Indemnifying Party has recognized in a written notice to the Indemnitee provided within [*] days of such written notice shall have acknowledged its obligation to indemnify the Indemnitee for any Indemnified Party in respect of all Losses associated therewith or (y) the Indemnifying Party shall have agreed to which such Indemnitee may become subjectpay the reasonable fees, including reasonable fees and disbursements of counsel costs and expenses of reasonable investigation relating one separate counsel in each applicable jurisdiction to the Indemnified Party, who shall be entitled to participate in the defense of such Claimmatter pursuant to this Section 1(c). If the Indemnifying Party shall, in accordance with the preceding sentence, assume the defense of any such matter, it shall promptly notify the Indemnified Party of its intention to do so, and the Indemnified Party shall, at the expense of the Indemnifying Party, agree to cooperate fully with the Indemnifying Party and its counsel in the defense of such matter; provided, however, that if the indemnifying Indemnifying Party’s counsel shall be reasonably satisfactory to the Indemnified Party assumes control of and the defense, settlement or disposition of a Claim, the indemnifying Indemnifying Party shall obtain not settle or consent to any judgment relating to any such matter without the prior written consent of each applicable Indemnitee prior to ceasing to defendthe Indemnified Party (which consent shall not be unreasonably withheld); provided, settling or otherwise disposing of further, however, that the Claim. If the indemnifying Party fails to state immediately preceding proviso shall not apply in a written notice during such [*] day period its willingness to assume the defense of such a Claim, the BioMarin Indemnitee(s) or Merck Serono Indemnitee(s), as the case may be, shall have of any settlement that unconditionally releases the right to defend, settle or otherwise dispose Indemnified Party completely in connection with such matter and that provides relief solely of such Claim, subject to money damages borne by the applicable provides. If there is a disagreement concerning the obligations of a Party hereunder, either the Indemnitee or the indemnifying Party may initiate litigation in a court of competent jurisdiction pursuant to the applicable provisions of Article XI for purposes of having the matter settled in accordance with the terms of this AgreementIndemnifying Party.

Claim Procedure. (ia) Each Party, on behalf of itself and its respective BioMarin Indemnitees or Merck Serono Indemnitees A Party that seeks indemnity under this Article 8 (each such Person, an “IndemniteeIndemnified Party”), agrees to provide the indemnifying Party prompt ) will give written notice of in good faith (a “Claim Notice”) to the Party from whom indemnification is sought (an “Indemnifying Party”) promptly following the time at which the Indemnified Party discovered the claim or claims underlying any such Claim Notice, whether the Losses sought arise from matters solely between the Parties or from a claim or Proceeding for which such Indemnitee intends by another Person not a party to assert a right to indemnification under this Agreement (a “Third Party Claim”); provided. The Claim Notice must contain (i) a description and the estimated amount of any Losses incurred or reasonably expected to be incurred by the Indemnified Party, however(ii) a reasonable explanation, that accompanied by reasonable supporting documentation to the extent available, of the basis for the Claim Notice to the extent of the facts then known by the Indemnified Party and (iii) a demand for payment of those Losses. The failure of an Indemnified Party to give promptly provide a Claim Notice following such notification Indemnified Party’s discovery of the claim or claims underlying any such Claim Notice shall not affect each applicable Indemniteesuch Indemnified Party’s entitlement right to indemnification (or the corresponding indemnifying Party’s indemnification obligations) hereunder with respect to such Claim Notice, except to the extent that the indemnifying Indemnifying Party incurs additional expenses or shall have been prejudiced as a result of such failure. The indemnifying If a Claim Notice is delivered in connection with a Third Party shall have Claim, the initial right Claim Notice must also include (but not obligationi) to defend, settle or otherwise dispose a reasonably detailed description of the facts constituting the basis for the Third Party Claim and the amount of any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated Losses claimed by the third party, in the preceding sentence ifeach case, and for so long as, the indemnifying Party has recognized in a written notice to the Indemnitee provided within [*] days extent known to the Indemnified Party, (ii) copies of such written any supporting documentation with respect to the Third Party Claim submitted by the third party to the Indemnified Party and (iii) the assertion of the claim or the notice its obligation to indemnify of the Indemnitee for commencement of any Losses to which such Indemnitee may become subject, including reasonable fees and disbursements of counsel and expenses of reasonable investigation Proceeding relating to such Third Party Claim; provided, however, that if the indemnifying Party assumes control of the defense, settlement or disposition of a Claim, the indemnifying Party shall obtain the written consent of each applicable Indemnitee prior to ceasing to defend, settling or otherwise disposing of the Claim. If the indemnifying Party fails to state in a written notice during such [*] day period its willingness to assume the defense of such a Claim, the BioMarin Indemnitee(s) or Merck Serono Indemnitee(s), as the case may be, shall have the right to defend, settle or otherwise dispose of such Claim, subject to the applicable provides. If there is a disagreement concerning the obligations of a Party hereunder, either the Indemnitee or the indemnifying Party may initiate litigation in a court of competent jurisdiction pursuant to the applicable provisions of Article XI for purposes of having the matter settled in accordance with the terms of this Agreement.

Claim Procedure. (i) Each Party, on behalf of itself and its respective BioMarin Indemnitees If UTI or Merck Serono Indemnitees Buyer (each such Person, an “Indemnitee”"Indemnified Party"), agrees receives knowledge of any matter with respect to provide which the indemnifying other party (the "Indemnitor") is liable under the indemnification provisions of this Agreement whether through receipt of notice of any third-party action, proceeding, claim, demand, or assessment, or through knowledge of facts giving rise to liability to indemnify, the Indemnified Party prompt shall: (1) within ten days, give the Indemnitor written notice of any Proceeding for which such Indemnitee intends the assertion of the claim; (2) furnish the Indemnitor relevant information and copies of all pertinent documents relating to assert the claim within a right reasonable period of time after the Indemnified Party s receipt thereof or Indemnified Parties becoming aware of a claim. The failure of the Indemnified Party to give notice of the claim to the Indemnitor within the ten-day period described herein shall not affect the Indemnified Party s rights to indemnification under this Agreement hereunder, except if (a “Claim”); providedand then only to the extent that) the Indemnitor incurs additional expenses or the Indemnitor's defense of such claim is actually prejudiced by reason of such failure to give timely notice. In all events, however, that failure to give such notification shall not affect each notice of claim for indemnity must be given within the 36 months or other applicable Indemnitee’s entitlement to indemnification (or period for the corresponding indemnifying Party’s indemnification obligations) hereunder except to survival of the extent that the indemnifying Party shall have been prejudiced as a result warranties and representations upon receipt of such failurenotice. The indemnifying Party Indemnitor shall have thereupon undertake and continuously conduct the initial right (but not obligation) to defend, settle or otherwise dispose defense of any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated in the preceding sentence ifclaim with counsel of reputable standing, and for so long as, the indemnifying indemnified Party has recognized may participate in a written notice to the Indemnitee provided within [*] days such defense by counsel of such written notice its obligation to indemnify the Indemnitee for any Losses to which such Indemnitee may become subject, including reasonable fees and disbursements of counsel and expenses of reasonable investigation relating to such Claim; provided, however, that if the indemnifying Party assumes control of the defense, settlement or disposition of a Claim, the indemnifying Party shall obtain the written consent of each applicable Indemnitee prior to ceasing to defend, settling or otherwise disposing of the Claimown choosing at its own expense. If the indemnifying Indemnitor is required to pay any amount to the Indemnified Party fails hereunder, such amount shall be paid promptly by the Indemnitor to state in a written notice during the Indemnified Party. If the Indemnitor does not timely undertake or continuously defend any such [*] day period its willingness to assume the defense of such a Claimclaim, the BioMarin Indemnitee(s) or Merck Serono Indemnitee(s), as the case may be, Indemnified Party shall have the right to defend, settle defend or otherwise dispose of the claim in such Claimmanner as it deems advisable, subject to and, for the applicable provides. If there is a disagreement concerning purposes hereof, as if such defense or disposition had been undertaken or made by the obligations of a Party hereunder, either the Indemnitee or the indemnifying Party may initiate litigation in a court of competent jurisdiction pursuant to the applicable provisions of Article XI for purposes of having the matter settled in accordance with the terms of this AgreementIndemnitor.

Claim Procedure. (i) Each Party, on behalf of itself and its respective BioMarin Indemnitees or Merck Serono Indemnitees (each such Person, an “Indemnitee”), agrees to provide the indemnifying Party prompt written notice of any Proceeding for which such Indemnitee intends to assert a right to indemnification under this Agreement (a “Claim”); provided, however, that failure to give such notification shall not affect each applicable Indemnitee’s entitlement to indemnification (or the corresponding indemnifying Party’s indemnification obligations) hereunder except to the extent that the indemnifying Party shall have been prejudiced as a result of such failure. The indemnifying Party shall have the initial right (but not obligation) to defend, settle or otherwise dispose of any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated in the preceding sentence if, and for so long as, the indemnifying Party has recognized in a written [*] = 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 under the Securities Exchange Act of 1934, as amended. notice to the Indemnitee provided within [*] days of such written notice its obligation to indemnify the Indemnitee for any Losses to which such Indemnitee may become subject, including reasonable fees and disbursements of counsel and expenses of reasonable investigation relating to such Claim; provided, however, that if the indemnifying Party assumes control of the defense, settlement or disposition of a Claim, the indemnifying Party shall obtain the written consent of each applicable Indemnitee prior to ceasing to defend, settling or otherwise disposing of the Claim. If the indemnifying Party fails to state in a written notice during such [*] day period its willingness to assume the defense of such a Claim, the BioMarin Indemnitee(s) or Merck Serono Indemnitee(s), as the case may be, shall have the right to defend, settle or otherwise dispose of such Claim, subject to the applicable provides. If there is a disagreement concerning the obligations of a Party hereunder, either the Indemnitee or the indemnifying Party may initiate litigation in a court of competent jurisdiction pursuant to the applicable provisions of Article XI for purposes of having the matter settled in accordance with the terms of this Agreement.

Claim Procedure. (ia) Each If any Person entitled to indemnification pursuant to Section 9.2 (an “Indemnified Party”) receives notice of the assertion or commencement of any Action, on behalf of itself and its respective BioMarin Indemnitees suit, claim, Environmental Claim or Merck Serono Indemnitees (each such Personother legal proceeding made or brought by any Person who is not a party to this Agreement, an Affiliate of a party to this Agreement or a representative of the foregoing (a “IndemniteeThird-Party Claim”), agrees and if such Indemnified Party intends to seek indemnity with respect thereto under this ARTICLE IX, then such Indemnified Party shall promptly provide the indemnifying Party prompt written notice to the party obligated to indemnify such Indemnified Party (such notified party, the “Responsible Party”) of any Proceeding for which such Indemnitee intends to assert a right to indemnification under this Agreement (a “Claim”)claims; provided, however, that the failure to give such notification so notify shall not affect each applicable Indemnitee’s entitlement to indemnification (or relieve the corresponding indemnifying Party’s indemnification obligations) hereunder Responsible Party of its obligations hereunder, except to the extent that the indemnifying Responsible Party is actually and materially prejudiced thereby. Such notice shall identify specifically the basis (with reference to the specific provision of this Agreement) under which indemnification is sought pursuant to Section 9.2 and enclose true and correct copies of any written document furnished to the Indemnified Party by the Person that instituted the Third Party Claim. The Responsible Party shall have thirty (30) days after receipt of such notice to assume the conduct and control, through counsel reasonably acceptable to the Indemnified Party at the expense of the Responsible Party, of the settlement or defense of the Third Party Claim, and the Indemnified Party shall cooperate with it in connection therewith; provided, that the Responsible Party shall permit the Indemnified Party to participate in such settlement or defense through counsel chosen by such Indemnified Party, provided that the fees and expenses of such counsel shall be borne by such Indemnified Party unless (i) the employment of such counsel has been specifically authorized in writing by the Responsible Party, (ii) the Indemnified Party shall have been prejudiced as a result advised by counsel that the assumption of such failure. The indemnifying defense by the Responsible Party would be inappropriate due to an actual or potential conflict of interest or (iii) the Indemnified Party shall have the initial right (but not obligation) to defend, settle been advised by counsel that one or otherwise dispose of any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated in the preceding sentence if, and for so long as, the indemnifying Party has recognized in a written notice more defenses are available to the Indemnitee provided within [*] days of such written notice its obligation Indemnified Party that are not available to indemnify the Indemnitee Responsible Party (provided, that the Responsible Party shall not be liable for any Losses to which such Indemnitee may become subject, including reasonable the fees and disbursements of counsel and expenses of reasonable investigation more than one firm or counsel for all Indemnified Parties, other than local counsel). So long as the Responsible Party is diligently defending any such Third-Party Claim in good faith, the Indemnified Party shall not pay or settle any such claim. If the Responsible Party elects not to defend such Third-Party Claim or fails to promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, then the Indemnified Party may pay, settle and defend such Third-Party Claim and seek indemnification for any and all Losses (subject to the limitations contained in this Agreement) (including attorneys’ fees) based upon, arising from or relating to such Third-Party Claim; provided, however, that if . The party conducting the indemnifying Party assumes control defense of the defenseThird-Party Claim in accordance with this Section 9.3 shall not, settlement or disposition of a Claim, except with the indemnifying Party shall obtain the prior written consent of each applicable Indemnitee prior such other party (which consent shall not be unreasonably conditioned, withheld or delayed), consent to ceasing the entry of any judgment on or enter into any settlement with respect to defend, settling the Third-Party Claim unless the judgment or otherwise disposing proposed settlement involves only the payment of monetary damages for which the ClaimResponsible Party is fully responsible and does not impose an injunction or other equitable relief or include an admission of wrongdoing. If All settlements shall include as an unconditional term thereof the indemnifying Party fails giving by the Person or Persons asserting such claim to state in all Indemnified Parties of an unconditional release from all Liability with respect to such claim and a written notice during such [*] day period its willingness to assume statement that the defense settlement is not an admission of such a Claimwrongdoing. Notwithstanding the foregoing, the BioMarin Indemnitee(s) or Merck Serono Indemnitee(s), as the case may be, Indemnified Party shall have the right to defend, pay or settle or otherwise dispose of any such Claim, subject claim with respect to the applicable provides. If there is a disagreement concerning Indemnified Party, provided that in such event it shall waive any right to indemnity therefor by the obligations of a Responsible Party hereunder, either unless the Indemnitee Responsible Party shall have consented to such payment or the indemnifying Party may initiate litigation settlement in a court of competent jurisdiction pursuant to the applicable provisions of Article XI for purposes of having the matter settled in accordance with the terms of this Agreementwriting.

Claim Procedure. If a claim with respect to Indemnifiable Amounts shall be made by any Governmental Authority, which, if successful, might result in an indemnity payment to Sponsor or any other SPAC Insider pursuant to Section 5.2 (i) Each Party, on behalf of itself and its respective BioMarin Indemnitees or Merck Serono Indemnitees (each such Person, an a “IndemniteeTax Claim”), agrees to provide the indemnifying Party prompt written Sponsor or such SPAC Insider shall promptly and in any event no more than five (5) Business Days following Sponsor’s or such SPAC Insider’s receipt of notice of any Proceeding for which such Indemnitee intends to assert a right to indemnification under this Agreement (a “Tax Claim”); provided, however, that failure to give such notification shall not affect each applicable Indemnitee’s entitlement to indemnification (or the corresponding indemnifying Party’s indemnification obligations) hereunder except to the extent that the indemnifying Party shall have been prejudiced as a result of such failure. The indemnifying Party shall have the initial right (but not obligation) to defend, settle or otherwise dispose of any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated in the preceding sentence if, and for so long as, the indemnifying Party has recognized in a written notice to the Indemnitee provided within [*] days Company of such written notice its obligation to indemnify the Indemnitee for any Losses to which such Indemnitee may become subject, including reasonable fees and disbursements of counsel and expenses of reasonable investigation relating to such Tax Claim; provided, however, that if the indemnifying Party assumes control failure of Sponsor or any other SPAC Insider to give such notice shall only relieve the defense, settlement or disposition of a Company from its indemnification obligations hereunder to the extent it is actually prejudiced by such failure. With respect to any such Tax Claim, at the indemnifying Party Company’s election, the Company and Sponsor (on behalf of Sponsor and each other SPAC Insider) will jointly control all proceedings and will jointly make all decisions taken in connection with such Tax Claim (including selection of counsel mutually agreeable to both the Company and Sponsor) at their own expense. If the Company elects not to jointly control any such Tax Claim, then (a) Sponsor shall obtain use reasonable efforts to diligently conduct such Tax Claim in good faith and shall not adopt any position that is inconsistent with the Intended Tax Treatment, and (b) the Company, at its sole cost and expense, may elect to participate in any such Tax Claim. No Tax Claim controlled by Sponsor can be settled, either administratively or after the commencement of litigation, without the written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. Sponsor, each applicable Indemnitee prior to ceasing to defendother SPAC Insider, settling or otherwise disposing the Company and its Subsidiaries and each of their respective Affiliates shall reasonably cooperate with each other in contesting any Tax Claim. Such cooperation shall include the retention and, upon the request of the Claim. If the indemnifying Party fails party controlling proceedings relating to state in a written notice during such [*] day period its willingness to assume the defense of such a Tax Claim, the BioMarin Indemnitee(sprovision to such party of records and information which are reasonably relevant to such Tax Claim, and making employees available on a mutually convenient basis to provide additional information or explanation of any material provided hereunder or to testify at proceedings relating to such Tax Claim. Sponsor (and its beneficial owners) and each other SPAC Insider shall execute any powers of attorney or Merck Serono Indemnitee(sother documents to allow for the Company to control any Tax Claim. Without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed), as none of Sponsor (or any beneficial owner) nor any of the case may beother SPAC Insiders shall extend or waive any applicable statute of limitations relating to the Intended Tax Treatment, re-file, modify, or amend any Tax Return, which refiling, modification or amendment relates to the Intended Tax Treatment, file any ruling request related to the Intended Tax Treatment, or voluntarily approach any Governmental Authority regarding the Intended Tax Treatment. Sponsor (and its beneficial owners) and each other SPAC Insider shall have the right use reasonable efforts, and take all reasonable steps, to defend, settle or otherwise dispose of such Claim, mitigate any and all Taxes and other amounts subject to the applicable provides. If there is a disagreement concerning the obligations of a Party hereunder, either the Indemnitee or the indemnifying Party may initiate litigation in a court of competent jurisdiction pursuant to the applicable provisions of Article XI for purposes of having the matter settled in accordance with the terms of this Agreementindemnity under Section 5.2.

Claim Procedure. (i) Each Party, on behalf of itself and its respective BioMarin Indemnitees or Merck Serono Indemnitees (each such Person, an “Indemnitee”), agrees In order for any Indemnified Party to provide the indemnifying Party prompt written notice of any Proceeding be entitled to make a claim for which such Indemnitee intends to assert a right to indemnification under this Article IX, such Indemnified Party shall deliver a written notice (an “Indemnification Claim Notice”) to the Indemnifying Party, as promptly as reasonably practicable after it acquires knowledge of the fact, event or circumstance giving rise to a claim for Losses pursuant to this ‎Article IX. Each Indemnification Claim Notice shall specify in reasonable detail the nature of, the facts, circumstances and the amount or a good faith estimate (only to the extent ascertainable) of the potential Losses (the “Losses Estimate”) against which such Indemnified Party seeks indemnification for, such claim asserted, and the provisions of this Agreement (a “Claim”)upon which such claim for indemnification is made; provided, however, that any failure by such Indemnified Party to give such notification prompt Indemnification Claim Notice shall not affect each applicable Indemnitee’s entitlement relieve the Indemnifying Party of its indemnification obligations, except and only to indemnification the extent that the Indemnifying Party is actually and materially prejudiced thereby. After delivery of an Indemnification Claim Notice to the Indemnifying Party, (or i) the corresponding indemnifying Indemnified Party which has provided such Indemnification Claim Notice shall, upon written request from the Indemnifying Party, supply and make available to the Indemnifying Party and its Representatives (at the Indemnifying Party’s indemnification obligationscost and expense) hereunder all relevant information in its or its Affiliates’ possession relating to the claim reasonably requested by the Indemnifying Party (except to the extent that the indemnifying such action would result in a loss of attorney-client privilege; provided, that such Indemnified Party shall have been prejudiced as a use its commercially reasonable efforts to provide such information in such format to the Indemnifying Party, or on an outside counsel only basis or in such other manner which would not result in the loss of such failure. The indemnifying attorney-client privilege) and (ii) the Indemnified Party shall, and shall cause its Representatives, to (A) be reasonably available to the Indemnifying Party and its Representatives (at the Indemnifying Party’s cost and expense) during normal business hours to discuss such claim, (B) render to the Indemnifying Party and its Representatives such assistance as may reasonably be requested, (C) provide reasonable access to such properties, facilities, books, records, accountant work papers and other documents or information in their possession or that may be reasonably obtained as the Indemnifying Party and/or its 70 Representatives may reasonably require (at the Indemnifying Party’s cost and expense) (provided, that the accountants of the Indemnified Party shall have the initial right (but not obligation) be obligated to defend, settle or otherwise dispose of make any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated in the preceding sentence if, and for so long as, the indemnifying Party has recognized in a written notice working papers available to the Indemnitee provided within [*] days of Indemnifying Party or its Representatives unless and until such written notice its obligation to indemnify the Indemnitee for any Losses to which Party or such Indemnitee may become subjectRepresentative, including reasonable fees as applicable, has signed a customary confidentiality and disbursements of counsel and expenses of reasonable investigation hold harmless agreement relating to such Claim; provided, however, that if the indemnifying Party assumes control of the defense, settlement or disposition of a Claim, the indemnifying Party shall obtain the written consent of each applicable Indemnitee prior access to ceasing working papers in form and substance reasonably acceptable to defend, settling or otherwise disposing of the Claim. If the indemnifying Party fails to state in a written notice during such [*] day period its willingness to assume the defense of such a Claim, the BioMarin Indemnitee(s) or Merck Serono Indemnitee(saccountants), as and (D) otherwise cooperate with the case may beIndemnifying Party and its Representatives in good faith (at the Indemnifying Party’s cost and expense). Without limiting the foregoing, such cooperation shall have include the right to defend, settle or otherwise dispose of such Claim, subject retention and (upon the Indemnifying Party’s request) the provision to the applicable provides. If there is a disagreement concerning the obligations Indemnifying Party or its Representatives of a Party hereunderbooks, either the Indemnitee or the indemnifying Party may initiate litigation in a court of competent jurisdiction pursuant records and other documents and information which are actually and reasonably relevant to the applicable provisions of Article XI for purposes of having the matter settled in accordance with the terms of this Agreementsuch claim.

Claim Procedure. A party that seeks indemnity under this Article 9 (an "Indemnified Party") will give written notice (a "Claim Notice") to the party from whom indemnification is sought (an "Indemnifying Party") containing reasonably and in good faith (i) Each a description and the estimated amount to the extent determinable of any Losses incurred or reasonably expected to be incurred by the Indemnified Party, on behalf (ii) a reasonable explanation of itself the basis for the Claim Notice to the extent of the facts then known by the Indemnified Party and its respective BioMarin Indemnitees (iii) a demand for payment of those Losses. Within 30 days after delivery of a Claim Notice, the Indemnifying Party will deliver to the Indemnified Party a written response in which the Indemnifying Party will either: agree that the Indemnified Party is entitled to receive all of the Losses at issue in the Claim Notice; or Merck Serono Indemnitees dispute the Indemnified Party's entitlement to indemnification by delivering to the Indemnified Party a written notice (an "Objection Notice") setting forth each disputed item and the good faith, reasonable basis for disputing each such Persondisputed item. If the Indemnifying Party fails to take either of the foregoing actions within 30 days after delivery of the Claim Notice, then the Indemnifying Party will be deemed to have irrevocably accepted the Claim Notice. If the Indemnifying Party delivers an “Indemnitee”Objection Notice to the Indemnified Party within 30 days after delivery of the Claim Notice, then the dispute may be resolved by any legally available means consistent with the provisions of Section 11.11. If any Purchaser Indemnified Party is the Indemnified Party with respect to any claim for indemnification pursuant to this Article 9, the parties will contemporaneously deliver to the Escrow and Exchange Agent copies of each Claim Notice and Objection Notice in connection with such claim. Any indemnification of the Securityholders pursuant to this Article 9 will be effected by wire transfer of immediately available funds to an account designated by the Stockholder Representative. All indemnification payments to be received by the Securityholders in accordance with this Article 9 will be allocated among the Stockholders in proportion to each Securityholder's pro rata share of the Holdback Fund as set forth on the Final Merger Consideration Allocation Schedule. The foregoing indemnification payments will be made within 10 Business Days after the date on which (i) the amount of such payments are determined by mutual agreement of the parties, (ii) the amount of such payments are determined pursuant to Section 9.3(c) if an Objection Notice has not been timely delivered in accordance with Section 9.3(b) or (iii) both such amount and the Indemnifying Party's obligation to pay such amount have been determined by a final Judgment of a court having jurisdiction over such proceeding as permitted by Section 11.11 if an Objection Notice has been timely delivered in accordance with Section 9.3(b) (the "Settlement Date"). For purposes of Section 9.3 and Section 9.4, agrees (i) if the Securityholders comprise the Indemnifying Party, any references to provide the indemnifying Indemnifying Party prompt written notice of any Proceeding for which such Indemnitee intends (except provisions relating to assert an obligation to make or a right to indemnification under this Agreement (a “Claim”); provided, however, that failure receive any payments) will be deemed to give such notification shall not affect each applicable Indemnitee’s entitlement to indemnification (or the corresponding indemnifying Party’s indemnification obligations) hereunder except refer to the extent that Stockholder Representative and (ii) if the indemnifying Securityholders comprise the Indemnified Party, any references to the Indemnified Party shall have been prejudiced as a result of such failure. The indemnifying Party shall have the initial right (but not obligation) except provisions relating to defend, settle an obligation to make or otherwise dispose of any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated in the preceding sentence if, and for so long as, the indemnifying Party has recognized in a written notice receive any payments) will be deemed to refer to the Indemnitee provided within [*] days of such written notice its obligation to indemnify the Indemnitee for any Losses to which such Indemnitee may become subject, including reasonable fees and disbursements of counsel and expenses of reasonable investigation relating to such Claim; provided, however, that if the indemnifying Party assumes control of the defense, settlement or disposition of a Claim, the indemnifying Party shall obtain the written consent of each applicable Indemnitee prior to ceasing to defend, settling or otherwise disposing of the Claim. If the indemnifying Party fails to state in a written notice during such [*] day period its willingness to assume the defense of such a Claim, the BioMarin Indemnitee(s) or Merck Serono Indemnitee(s), as the case may be, shall have the right to defend, settle or otherwise dispose of such Claim, subject to the applicable provides. If there is a disagreement concerning the obligations of a Party hereunder, either the Indemnitee or the indemnifying Party may initiate litigation in a court of competent jurisdiction pursuant to the applicable provisions of Article XI for purposes of having the matter settled in accordance with the terms of this AgreementStockholder Representative.

Claim Procedure. (i) Each Party, on behalf of itself and its respective BioMarin Indemnitees or Merck Serono Indemnitees (each such Person, an “Indemnitee”), agrees to provide the indemnifying Party BreitBurn shall give AEO prompt written notice of any Proceeding for third party claim or other Damages claims which may give rise to any indemnity obligation under this Section 10.3, together with the estimated amount of such Indemnitee intends to assert a action or Damages, and AEO shall have the right to indemnification under this Agreement (a “Claim”)assume the defense of any such action through counsel of its own choosing, by so notifying BreitBurn within sixty days of receipt of BreitBurn’s written notice; provided, however, that failure AEO’s counsel shall be reasonably satisfactory to BreitBurn. Failure to give such notification prompt notice shall not affect each applicable Indemnitee’s entitlement the indemnification obligations hereunder in the absence of actual prejudice. If BreitBurn desires to indemnification (or the corresponding indemnifying Party’s indemnification obligations) hereunder except to the extent that the indemnifying Party shall have been prejudiced as a result of such failure. The indemnifying Party shall have the initial right (participate in, but not obligation) control, any such defense assumed by AEO, it may do so at its sole cost and expense. If AEO declines to defendassume any such defense, settle or otherwise dispose it shall be liable for all reasonable costs and expenses of any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated in the preceding sentence if, and for so long as, the indemnifying Party has recognized in a written notice to the Indemnitee provided within [*] days of defending such written notice its obligation to indemnify the Indemnitee for any Losses to which such Indemnitee may become subjectaction incurred by BreitBurn, including reasonable fees and disbursements of counsel and expenses of reasonable investigation relating to in the event it is ultimately determined that AEO is liable for such Claim; provided, however, that if the indemnifying Party assumes control of the defense, settlement or disposition of a Claim, the indemnifying Party shall obtain the written consent of each applicable Indemnitee prior to ceasing to defend, settling or otherwise disposing of the Claim. If the indemnifying Party fails to state in a written notice during such [*] day period its willingness to assume the defense of such a Claim, the BioMarin Indemnitee(s) or Merck Serono Indemnitee(s), as the case may be, shall have the right to defend, settle or otherwise dispose of such Claim, subject to the applicable provides. If there is a disagreement concerning the obligations of a Party hereunder, either the Indemnitee or the indemnifying Party may initiate litigation in a court of competent jurisdiction action pursuant to the applicable provisions of Article XI for purposes of having the matter settled in accordance with the terms of this Agreement. If AEO has assumed any such defense, but thereafter AEO has failed to diligently maintain such defense, then BreitBurn shall give AEO written notice thereof and, if AEO does not take reasonable action to remedy such failure within thirty days after receipt, then BreitBurn may assume such defense and AEO shall continue to be liable for all reasonable costs and expenses incurred in defending such actions, provided that BreitBurn thereafter diligently maintains such defense and is commercially reasonable (given the size and nature of the claim involved) in the manner of defense and the costs and expenses incurred.

Claim Procedure. (i) Each Party, on behalf of itself and its respective BioMarin Indemnitees or Merck Serono Indemnitees (each such Person, an “Indemnitee”), agrees In order for any Indemnified Party to provide the indemnifying Party prompt written notice of any Proceeding be entitled to make a claim for which such Indemnitee intends to assert a right to indemnification under this Article IX, such Indemnified Party shall deliver a written notice (an “Indemnification Claim Notice”) to the Indemnifying Party, as promptly as reasonably practicable after it acquires knowledge of the fact, event or circumstance giving rise to a claim for Losses pursuant to this Article IX. Each Indemnification Claim Notice shall specify in reasonable detail the nature of, the facts, circumstances and the amount or a good faith estimate (only to the extent ascertainable) of the potential Losses against which such Indemnified Party seeks indemnification for, such claim asserted, and the provisions of this Agreement (a “Claim”)upon which such claim for indemnification is made; provided, however, that any failure by such Indemnified Party to give such notification prompt Indemnification Claim Notice shall not affect each applicable Indemnitee’s entitlement relieve the Indemnifying Party of its indemnification obligations, except and only to indemnification the extent that the Indemnifying Party is actually and materially prejudiced thereby. After delivery of an Indemnification Claim Notice to the Indemnifying Party, (or i) the corresponding indemnifying Indemnified Party which has provided such Indemnification Claim Notice shall, upon written request from the Indemnifying Party, supply and make available to the Indemnifying Party and its Representatives (at the Indemnifying Party’s indemnification obligationscost and expense) hereunder all relevant information in its or its Affiliates’ possession relating to the claim reasonably requested by the Indemnifying Party (except to the extent that the indemnifying such action would result in a loss of attorney-client privilege; provided, that such Indemnified Party shall have been prejudiced as a use its commercially reasonable efforts to provide such information in such format to the Indemnifying Party, or on an outside counsel only basis or in such other manner which would not result in the loss of such failure. The indemnifying attorney-client privilege) and (ii) the Indemnified Party shall, and shall cause its Representatives, to (A) be reasonably available to the Indemnifying Party and its Representatives (at the Indemnifying Party’s cost and expense) during normal business 249717839 v15 hours to discuss such claim, (B) render to the Indemnifying Party and its Representatives such assistance as may reasonably be requested, (C) provide reasonable access to such properties, facilities, books, records, accountant work papers and other documents or information in their possession or that may be reasonably obtained as the Indemnifying Party and/or its Representatives may reasonably require (at the Indemnifying Party’s cost and expense) (provided, that the accountants of the Indemnified Party shall have the initial right (but not obligation) be obligated to defend, settle or otherwise dispose of make any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated in the preceding sentence if, and for so long as, the indemnifying Party has recognized in a written notice working papers available to the Indemnitee provided within [*] days of Indemnifying Party or its Representatives unless and until such written notice its obligation to indemnify the Indemnitee for any Losses to which Party or such Indemnitee may become subjectRepresentative, including reasonable fees as applicable, has signed a customary confidentiality and disbursements of counsel and expenses of reasonable investigation hold harmless agreement relating to such Claim; provided, however, that if the indemnifying Party assumes control of the defense, settlement or disposition of a Claim, the indemnifying Party shall obtain the written consent of each applicable Indemnitee prior access to ceasing working papers in form and substance reasonably acceptable to defend, settling or otherwise disposing of the Claim. If the indemnifying Party fails to state in a written notice during such [*] day period its willingness to assume the defense of such a Claim, the BioMarin Indemnitee(s) or Merck Serono Indemnitee(saccountants), as and (D) otherwise cooperate with the case may beIndemnifying Party and its Representatives in good faith (at the Indemnifying Party’s cost and expense). Without limiting the foregoing, such cooperation shall have include the right to defend, settle or otherwise dispose of such Claim, subject retention and (upon the Indemnifying Party’s request) the provision to the applicable provides. If there is a disagreement concerning the obligations Indemnifying Party or its Representatives of a Party hereunderbooks, either the Indemnitee or the indemnifying Party may initiate litigation in a court of competent jurisdiction pursuant records and other documents and information which are actually and reasonably relevant to the applicable provisions of Article XI for purposes of having the matter settled in accordance with the terms of this Agreementsuch claim.

Claim Procedure. Any Person entitled to indemnification hereunder shall (i) Each Party, on behalf of itself and its respective BioMarin Indemnitees or Merck Serono Indemnitees (each such Person, an “Indemnitee”), agrees to provide the indemnifying Party give prompt written notice to the indemnifying party of any Proceeding for claim with respect to which such Indemnitee intends it seeks indemnification (provided that the failure to assert a give prompt notice shall impair any Person’s right to indemnification under this Agreement hereunder only to the extent such failure has prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a “Claim”)conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party; provided, however, that failure to give such notification shall not affect each applicable Indemnitee’s entitlement to indemnification (or the corresponding indemnifying Party’s indemnification obligations) hereunder except to the extent that the indemnifying Party shall have been prejudiced as a result of such failure. The indemnifying Party shall have the initial right (but not obligation) to defend, settle or otherwise dispose of any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated in the preceding sentence if, and for so long as, the indemnifying Party has recognized in a written notice to the Indemnitee provided within [*] days of such written notice its obligation to indemnify the Indemnitee for any Losses to which such Indemnitee may become subject, including reasonable fees and disbursements of counsel and expenses of reasonable investigation relating to such Claim; provided, however, that if the indemnifying Party assumes control of the defense, settlement or disposition of a Claim, the indemnifying Party shall obtain the written consent of each applicable Indemnitee prior to ceasing to defend, settling or otherwise disposing of the Claim. If the indemnifying Party fails to state in a written notice during such [*] day period its willingness to assume the defense of such a Claim, the BioMarin Indemnitee(s) or Merck Serono Indemnitee(s), as the case may be, indemnified party shall have the right to defendselect and employ its own counsel (and one local counsel). If such defense is assumed, settle the indemnifying party shall not be subject to any liability for any settlement, compromise or otherwise dispose consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder, unless such settlement, compromise or consent is consented to by such indemnifying party (which consent shall not be unreasonably withheld, conditioned or delayed). Notwithstanding anything to the contrary in this Section 7, an indemnifying party shall not be liable for any amounts paid in settlement, compromise or consent to the entry of any judgment with respect to with respect to any pending or threatened claim, action, suit or proceeding such settlement, compromise or consent is effected without the consent of the indemnifying party (which consent shall not be unreasonably withheld, conditioned or delayed). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel (and one local counsel) for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such Claimindemnified parties with respect to such claim. In such instance, subject the conflicted indemnified parties shall have a right to retain one separate counsel (and one local counsel), chosen by mutual agreement of the applicable provides. If there is a disagreement concerning Holders included in the obligations registration by such Holders that are conflicted indemnified parties, at the expense of a Party hereunder, either the Indemnitee or the indemnifying Party may initiate litigation in a court of competent jurisdiction pursuant to the applicable provisions of Article XI for purposes of having the matter settled in accordance with the terms of this Agreementparty.

Claim Procedure. If a Parent Indemnified Party or a Shareholder Indemnified Party entitled to indemnification pursuant to this Article XIII (the “Indemnified Party”) intends to make an indemnity claim under this Agreement, then the Indemnified Party shall deliver to the party or parties obligated to provide indemnification pursuant to this Article XIII (the “Indemnifying Party”) a written indemnity claim (i) Each stating that the Indemnified Party has paid or suffered, or expects to pay or suffer, Losses in an aggregate amount (which may be estimated or described) and, to the extent such information is available to the Indemnified Party, the individual items of Losses (which may be estimated or described) that are included in the aggregate amount and (ii) stating that the Indemnified Party is entitled to indemnity from the Indemnifying Party pursuant to this Agreement with respect to such Losses and specifying the indemnification provisions contained in this Agreement upon which the indemnity claim is being made. Notwithstanding the foregoing, an indemnity claim that is based on a Third Party Claim need only include a description (and a copy of all pleadings and correspondence to or from any third party related thereto, if available) of the Third Party Claim together with a statement that the Indemnified Party is entitled to indemnification with respect to such Third Party Claim and any other information that the Indemnified Party deems appropriate. Unless the Indemnified Party and Indemnifying Party agree in writing to another process at that time, the Indemnifying Party shall have thirty (30) days after receiving the Indemnified Party’s written indemnification claim notice to object in writing to such claim (other than a Third Party Claim), and failing to timely object and submit, shall promptly pay to the Indemnified Party an amount sufficient to fully indemnify the Indemnified Party from and against such Losses in accordance with this Article XIII. If the Shareholders are the Indemnifying Party, then the written indemnity claim shall be delivered to the Securityholders’ Representative which shall constitute effective delivery to the Shareholders, and, in all cases under this Section 13.3 (such that references to the Securityholders or to the Shareholders as an Indemnifying Party shall mean the Securityholders’ Representative in its capacity as the Representative of the Securityholders), the Securityholders’ Representative shall act for and on behalf of itself and its respective BioMarin Indemnitees or Merck Serono Indemnitees (each such Person, an “Indemnitee”), agrees to provide the indemnifying Party prompt written notice Securityholders. In the case of any Proceeding indemnification claims against the Securityholders for which such Indemnitee intends Parent Indemnified Parties intend to assert pursue recovery against the Escrow Shares, Parent shall also deliver a right to indemnification under this Agreement (a “Claim”); provided, however, that failure to give such notification shall not affect each applicable Indemnitee’s entitlement to indemnification (or copy of the corresponding indemnifying Party’s indemnification obligations) hereunder except written indemnity claim to the extent that the indemnifying Party shall have been prejudiced as a result of such failure. The indemnifying Party shall have the initial right (but not obligation) to defend, settle or otherwise dispose of any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated in the preceding sentence if, and for so long as, the indemnifying Party has recognized in a written notice to the Indemnitee provided within [*] days of such written notice its obligation to indemnify the Indemnitee for any Losses to which such Indemnitee may become subject, including reasonable fees and disbursements of counsel and expenses of reasonable investigation relating to such Claim; provided, however, that if the indemnifying Party assumes control of the defense, settlement or disposition of a Claim, the indemnifying Party shall obtain the written consent of each applicable Indemnitee prior to ceasing to defend, settling or otherwise disposing of the Claim. If the indemnifying Party fails to state in a written notice during such [*] day period its willingness to assume the defense of such a Claim, the BioMarin Indemnitee(s) or Merck Serono Indemnitee(s), as the case may be, shall have the right to defend, settle or otherwise dispose of such Claim, subject to the applicable provides. If there is a disagreement concerning the obligations of a Party hereunder, either the Indemnitee or the indemnifying Party may initiate litigation in a court of competent jurisdiction pursuant to the applicable provisions of Article XI for purposes of having the matter settled in accordance with the terms of this AgreementEscrow Agent.

Claim Procedure. In order for any Indemnified Party to be entitled to make a claim for indemnification under this Article VIII, such Indemnified Party shall deliver a written notice (ian “Indemnification Claim Notice”) Each to the Indemnifying Party, on behalf as promptly as reasonably practicable after it acquires knowledge of itself the fact, event or circumstance giving rise to a claim for Losses pursuant to this Article VIII, and its respective BioMarin Indemnitees in the event that there has been a Third-Party Claim, such Indemnified Party shall provide to the Indemnifying Party an Indemnification Claim Notice with respect thereto within forty-five (45) days following such Indemnified Party’s receipt of such claim or Merck Serono Indemnitees demand (each and no fewer than ten (10) days prior to a scheduled appearance date in a litigated matter). Each Indemnification Claim Notice shall specify in reasonable detail the nature of, the facts, circumstances and legal basis for, the amount or a good faith estimate (only to the extent ascertainable) of the potential Losses against which such PersonIndemnified Party seeks indemnification for, an “Indemnitee”)such claim asserted, agrees to provide and the indemnifying Party prompt written notice of any Proceeding specific Assumed Liability or Excluded Liability, as applicable, for which such Indemnitee intends to assert claim for indemnification is made, and include a right statement that such Indemnified Party believes in good faith that it is entitled to indemnification under pursuant to this Agreement (a “Claim”)Article VIII with respect to such potential Losses; provided, however, that any failure by such Indemnified Party to give such notification Indemnification Claim Notice shall not affect each applicable Indemnitee’s entitlement to indemnification (or relieve the corresponding indemnifying Party’s Indemnifying Party of its indemnification obligations) hereunder , except to the extent that the indemnifying Indemnifying Party is actually prejudiced thereby. After delivery of an Indemnification Claim Notice to the Indemnifying Party, (i) the Indemnified Party which has provided such Indemnification Claim Notice shall, upon written request from the Indemnifying Party, supply and make available to the Indemnifying Party and its representatives all relevant information in its or its Affiliates’ possession relating to the claim reasonably requested by the Indemnifying Party (except to the extent that such action would result in a loss of attorney-client privilege; provided, that such Indemnified Party shall have been prejudiced as a use its commercially reasonable efforts to provide such information in such format to the Indemnifying Party, or on an outside counsel only basis or in such other manner which would not result in the loss of such failure. The indemnifying attorney-client privilege) and (ii) the Indemnified Party shall, and shall cause its and its employees and representatives, to (A) be reasonably available to the Indemnifying Party and its representatives (at the Indemnifying Party’s cost and expense) during normal business hours to discuss such claim, (B) render to the Indemnifying Party and its representatives such assistance as may reasonably be requested, (C) provide reasonable access to such properties, facilities, books, records, accountant work papers and other documents or information in their possession or that may be reasonably obtained as the Indemnifying Party and/or its representatives may reasonably require (provided that the accountants of the Indemnified Party shall have the initial right (but not obligation) be obligated to defend, settle or otherwise dispose of make any Claim for which an Indemnitee intends to assert a right to indemnification under this Agreement as contemplated in the preceding sentence if, and for so long as, the indemnifying Party has recognized in a written notice working papers available to the Indemnitee provided within [*] days of Indemnifying Party or its representatives unless and until such written notice its obligation to indemnify the Indemnitee for any Losses to which party or such Indemnitee may become subjectrepresentative, including reasonable fees as applicable, has signed a customary confidentiality and disbursements of counsel and expenses of reasonable investigation hold harmless agreement relating to such Claim; provided, however, that if the indemnifying Party assumes control of the defense, settlement or disposition of a Claim, the indemnifying Party shall obtain the written consent of each applicable Indemnitee prior access to ceasing working papers in form and substance reasonably acceptable to defend, settling or otherwise disposing of the Claim. If the indemnifying Party fails to state in a written notice during such [*] day period its willingness to assume the defense of such a Claim, the BioMarin Indemnitee(s) or Merck Serono Indemnitee(saccountants), as and (D) otherwise cooperate with the case may beIndemnifying Party and its representatives in good faith. Without limiting the foregoing, such cooperation shall have include the right to defend, settle or otherwise dispose of such Claim, subject retention and (upon the Indemnifying Party’s request) the provision to the applicable provides. If there is a disagreement concerning the obligations Indemnifying Party or its representatives of a Party hereunderbooks, either the Indemnitee or the indemnifying Party may initiate litigation in a court of competent jurisdiction pursuant records and other documents and information which are actually and reasonably relevant to the applicable provisions of Article XI for purposes of having the matter settled in accordance with the terms of this Agreementsuch claim.