“Far East Co-Promotion Country” has the meaning set forth in Section 1.2 ofthe Master Agreement.“Far East Single Presence Country” has the meaning set forth in Section 1.2of the Master Agreement.“Latin America” has the meaning set forth in Section 1.2 of the MasterAgreement.“Master Agreement” means the Master Agreement, dated asof the date hereof, by and among the Technology LLC, Singapore Partnership, M,Schering Corporation and S-P.“M Indemnified Parties” means M, its Affiliates and each of theirrespective officers, directors, partners, shareholders, members, agents,representatives, successors and assigns.“MSP Technology Agreement” means the Limited Liability Company Agreement ofMSP Technology (US) Company LLC.“S-P Indemnified Parties” means S-P, its Affiliates and each of theirrespective officers, directors, partners, shareholders, members, agents,representatives, successors and assigns.“Special Damages” has the meaning set forth in Section 8.5.4 of thisAgreement.“U.S. Termination Assets” has the meaning set forth in Section 7.3(a) ofthis Agreement. 1.2. The definition of “Interests” in Section 1.2 is amended by including the followingsentence at the end of such definition:“For the purposes of this Agreement, “Interests” shall not include (x) theInterests (as defined in the Master Agreement) of the Terminated Party and (y) inthe event the Master Agreement has been terminated prior to, and not simultaneouslywith, this Agreement, the ECLAFE Termination Assets, if any (as defined in theMaster Agreement).” 1.3. The definition of “Standstill Period” in Section 1.2 is deleted in its entirety andreplaced with the following:“Standstill Period” means the period beginning on the date hereof andending upon the later to occur of (x) three years after termination of thisAgreement, (y) three years after termination of the Respiratory GovernanceAgreement, and (z) three years after termination of the Master Agreement.
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 1.4. The second sentence of Section 5.1 of the Governance Agreement is hereby amended byadding “in the Territory” after the words “The marketing of each Cholesterol Product”.  1.5. Section 5.2 of the Governance Agreement is hereby deleted in its entirety andreplaced with the following:“Section 5.2. Product Recalls. Subject to Section 7.1(b), if an ExecutiveSponsor in the Territory or an Executive Sponsor in an applicable ECLAFE regionbelieves that a recall of a Cholesterol Product is necessary in the Territory or acountry in ECLAFE, such executive sponsor shall notify his or her counterpartexecutive sponsor, within forty-eight (48) hours of its determination. S-P, M, therelevant Members and the relevant local M and S-P subsidiaries shall cooperate toallow such recall to occur to the extent determined by the Singapore Board (otherthan for safety which shall be solely governed by and resolved pursuant to Section7.1(b)). The General Manager, EMEA General Manager and the Canadian GeneralManager shall be responsible for the execution of such recall of the CholesterolProducts in the region in which he or she serves as the general manager. In FarEast Co-Promotion Countries, the Far East Operating Board shall be responsible forthe execution of such recall of the Cholesterol Products. In Latin America, FarEast Co-Marketing Countries and Far East Single Presence Countries, the local Mand/or S-P Affiliates, as applicable, shall be responsible for the execution ofsuch recall of the Cholesterol Products.” 1.6. Section 7.1 of the Governance Agreement is hereby amended as follows: 1.6.1. The fourth and fifth sentence of subparagraph (b)A(x) is deleted in itsentirety and replaced with the following: [*]  1.6.2. The third sentence of subparagraph (b)A(y) is deleted in its entirety andreplaced with the following: [*]  1.6.3. The second and third sentence of subparagraph (b)B shall be deleted in itsentirety and replaced with the following: [*] 1.7. The first sentence of Section 7.2(c) of the Governance Agreement is hereby amended byinserting “(to the extent such Related Agreement and such Material Breach directly relateto the Cholesterol Business)” after each of the first two uses of “Related Agreement” inthat sentence.  1.8. The second sentence of Section 7.2(c) of the Governance Agreement is hereby amendedby inserting “(to the extent such Related Agreement and such breach directly relate to theCholesterol Business)” after the first use of “Related Agreement” in that sentence.
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 1.9. Section 7.3(a) of the Governance Agreement is hereby deleted in its entirety andreplaced with the following:“(a) General. With respect to any event of termination, each party shallundertake, during the pendency of the procedure to determine whether such event oftermination has occurred and the implementation of the consequences of suchtermination, to maintain the Cholesterol Business in the Territory as a goingconcern, so that all of the rights, title and interests in the Companies (otherthan the Singapore Partnership and the Technology LLC, to the extent the MasterAgreement is not being terminated prior to or simultaneously with this Agreementpursuant to Section 7.2(b) [Bankruptcy], 7.2(c) [Material Breach due to a breach ofSection 9.9 [Standstill] of the Governance Agreement], Section 7.2(d) [Change ofControl] or [*] and the Cholesterol Businesses in theTerritory may be conveyed. The parties acknowledge that in the event of atermination of this Agreement that results in one party acquiring the Interests ofanother party hereto and the U.S. Termination Assets (as described below), if any,(i) the acquiring party may determine to continue operating the CholesterolBusiness through one or more of the Companies, (ii) appropriate adjustments to theSingapore Partnership Agreement shall be made to provide (A) that profit and lossarising from the Cholesterol Business in the Territory shall be specially allocatedto the Party (or its Affiliates) that acquires the Interests of the other Party andits Affiliates and (B) that, to the extent the Master Agreement has not been, or isnot being, terminated simultaneously with this Agreement pursuant to Section 5.2.2of the Master Agreement, that the assets and liabilities of the SingaporePartnership, to the extent they relate to the Cholesterol Business in the Territory(the “Singapore Termination Assets”) can be sold as set forth in the last sentenceof this Section 7.3(a), or the rights thereto otherwise transferred, to theTerminating Party or its Affiliates pursuant to this Section 7.3 and (iii)appropriate adjustment to the MSP Technology Agreement will be made to providethat, to the extent the Master Agreement has not been terminated or is not beingterminated simultaneously with this Agreement pursuant to Section 5.2.2 of theMaster Agreement, the assets and liabilities of MSP Technology Partnership, to theextent they relate to the Cholesterol Business in the Territory (the “TechnologyTermination Assets,” and together with the Singapore Termination Assets, the “U.S.Termination Assets”), can be sold as set forth in the last sentence of thisSection 7.3(a), or the rights thereto transferred, to the Terminating Party or itsAffiliates pursuant to this Section 7.3. In the event of any such termination, theParties will enter into such agreements as are necessary or appropriate to providefor the transfer of the U.S. Termination Assets and will endeavor in good faith toarrange for such transfer to be effected in a manner that is tax efficient, to themaximum extent reasonably practicable, to both the Terminated Party and theTerminating Party, and any other
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agreements as may be necessary or appropriate to effectuate the foregoing.” 1.10. The first sentence of Section 7.3(d) of the Governance Agreement is hereby amendedby inserting “(other than the Singapore Partnership and Technology LLC, to the extent thisAgreement is not terminated prior to or simultaneously with the Master Agreement) and USTermination Assets, if any,” after “Companies,” and “of the Companies (other than theSingapore Partnership and Technology LLC, to the extent this Agreement is not terminatedprior to or simultaneously with the Master Agreement) and US Termination Assets, if any,”after “Interests” in the third and fourth sentences thereof.  1.11. Section 7.3(h) is amended by inserting the following sentence after the firstsentence: [*]  1.12. Section 8.5 of the Governance Agreement is hereby deleted in its entirety andreplaced with the following:“Section 8.5.Indemnification.Section 8.5.1. Indemnification by the Singapore Partnership. The SingaporePartnership shall indemnify, defend and hold harmless the M Indemnified Partiesand the S-P Indemnified Parties from and against all Losses incurred orsuffered by any of them as a result of, arising from, or in connection with anyclaim, action, proceeding or investigation of any Third Party relating to:(a) the development, testing, use, marketing, distribution, promotion, supply orsale of the Cholesterol Products in the Field in the Territory.Notwithstanding the foregoing, no M Indemnified Party and no S-P Indemnified Party shall beentitled to any indemnification pursuant to this Section 8.5.1 to the extent the Loss forwhich indemnification is being sought is caused by the gross negligence or willfulmisconduct of the party seeking indemnification.Section 8.5.2. Indemnification by M. M shall indemnify, defend and hold harmlessthe S-P Indemnified Parties and the Singapore Partnership from and against all Lossesincurred or suffered by any of them as a result of, arising from, or in connection with:(a) the breach by M of any of its representations, warranties or covenants in thisAgreement, the Development Agreement, any License Agreements, or any governingdocument of any of the Companies, provided that no claim may be made forindemnification under this Section 8.5.2 for breaches of representations orwarranties until the aggregate dollar amount of all such claims exceeds $2 million;(b) the gross negligence or willful misconduct by M or any of its Affiliates in theperformance of any of their obligations under this
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Agreement or the Related Agreements (other than manufacturing agreements orpackaging agreements);(c) the development, testing, use, marketing, distribution, promotion, supply orsale by M or its Affiliates of the Cholesterol Products outside the Field; or(d) the development, testing, use, marketing, distribution, promotion, supply orsale by M or its Affiliates (or Banyu Pharmaceutical Company, Ltd.) of theCholesterol Products in Japan to the extent such Cholesterol Products aredeveloped, tested, used, marketed, distributed, promoted, supplied or sold either(i) under a Product Marketing Authorization that includes, directly or byreference, data comprising “Merck Clinical IP”, “Schering Clinical IP” or “MerckFormulation IP” (each as defined in the Development Agreement), or (ii) under atrademark, tradename or other form of brand protection owned or used by theSingapore Partnership.Notwithstanding the foregoing, neither any S-P Indemnified Party nor the SingaporePartnership shall be entitled to any indemnification pursuant to this Section 8.5.2 to theextent the Loss for which indemnification is being sought is caused by the grossnegligence, willful misconduct or willful violation of law of the party seekingindemnification.Section 8.5.3. Indemnification by S-P. S-P shall indemnify, defend and holdharmless the M Indemnified Parties and the Singapore Partnership from and against allLosses incurred or suffered by any of them as a result of, arising from, or in connectionwith:(a) the breach by S-P of any of its representations, warranties or covenants inthis Agreement, the Development Agreement, any License Agreements, or any governingdocuments of any of the Companies, provided that no claim may be made forindemnification under this Section 8.5.3 for breaches of representations orwarranties until the aggregate dollar amount of all such claims exceeds $2 million;(b) the gross negligence or willful misconduct by S-P or any of its Affiliates inthe performance of any of their obligations under this Agreement or the RelatedAgreements (other than manufacturing agreements or packaging agreements);(c) the development, testing, use, marketing, distribution, promotion, supply orsale by S-P or its Affiliates of the Cholesterol Products outside the Field; or(d) the development, testing, use, marketing, distribution, promotion, supply orsale by S-P or its Affiliates of the Cholesterol Products in Japan to the extentsuch Cholesterol Products are developed, tested, used, marketed, distributed,promoted, supplied or sold either (i) under a
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Product Marketing Authorization that includes, directly or by reference, datacomprising “Merck Clinical IP”, “Schering Clinical IP” or “Merck Formulation IP”(each as defined in the Development Agreement), or (ii) under a trademark,tradename or other form of brand protection owned or used by the SingaporePartnership.Notwithstanding the foregoing, neither any M Indemnified Party nor the SingaporePartnership shall be entitled to any indemnification pursuant to this Section 8.5.3 to theextent the Loss for which indemnification is being sought is caused by the grossnegligence, willful misconduct or willful violation of law of the party seekingindemnification.Section 8.5.4. Indemnification Principles. For purposes of this Section 8.5,“Losses” shall mean each and all of the following items: claims, losses,liabilities, obligations, payments, damages, charges, judgments, fines, penalties, amountspaid in settlement, costs and expenses (including, without limitation, interest which maybe imposed in connection therewith, costs and expenses of investigation, actions, suits,proceedings, demands, assessments and reasonable fees, expenses and disbursements ofcounsel, consultants and other experts). Losses shall not include, and indemnificationshall not be available under this Section 8.5 for, (i) lost profits, punitive, special,indirect, consequential, incidental, exemplary or other similar damages (collectively,“Special Damages”), other than Special Damages payable to Third Parties.Notwithstanding any provision in this Agreement or any Related Agreement, no Party heretoor thereto shall seek or be entitled to receive any Special Damages from any other Party,or its Affiliates, in connection with such Agreements.Section 8.5.5. Claim Notice. A Party seeking indemnification under this Section8.5 shall, promptly upon becoming aware of the facts indicating that a claim forindemnification may be warranted, give to the Party from whom indemnification is beingsought a claim notice relating to such Loss (a “Claim Notice”). Each Claim Notice shallspecify the nature of the claim, the applicable provisions of this Agreement under whichthe claim for indemnity arises, and, if possible, the amount or the estimated amountthereof. No failure or delay in giving a Claim Notice and no failure to include anyspecific information relating to the claim (such as the amount or estimated amount thereof)or any reference to any provision of this Agreement or other instrument under which theclaim arises shall affect the obligation of the Party from whom indemnity is sought exceptto the extent such Party is materially prejudiced by such failure or delay.” 1.13. Section 9.17 of the Governance Agreement is hereby amended by adding the following sentenceto the end thereof:“In addition, Section 7.1(b) (and any other provisions necessary to make theprovisions of Section 7.1(b) operative) shall survive any termination of thisAgreement for as long as the Master Agreement remains in effect.”
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2. Effect. The Governance Agreement shall remain unchanged and in full force and effectexcept as specifically amended by this First Amendment. 3. Governing Law. This First Amendment and the rights of the Parties hereunder shall beinterpreted in accordance with the laws of the State of Delaware, and all rights and remediesshall be governed by such laws without regard to principles of conflict of laws. 4. Counterparts. This First Amendment may be executed in any number of counterpartswith the same effect as if all parties hereto had signed the same document. All counterpartsshall be construed together and shall constitute one instrument. 5. Termination. Without limiting the provisions of Section 7.3(g) of the GovernanceAgreement, upon termination of the Governance Agreement, the provisions added, amended ormodified by this First Amendment shall survive with respect to ECLAFE until termination of theMaster Agreement in accordance with its terms.
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     IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to the CholesterolGovernance Agreement as of the date first above stated.     [Signatures Omitted]
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