All controversies, claims, and disputes arising out of or relating to this Agreement, including without limitation any alleged violation of its terms, shall be resolved exclusively by final and binding arbitration in New York City. Such arbitration shall be conducted in English by three arbitrators appointed as follows: within 30 days after the alleged breaching party has responded to the non-breaching party’s notice of breach, each of the Company and the MHR Funds shall notify the other in writing of the name of one (1) arbitrator it selects, and the two appointed arbitrators will endeavor within the following 30 days to agree upon a third arbitrator, who shall be the chairman of the arbitral tribunal. The arbitration shall be governed by the laws of the state of New York (without regard to conflict of law principles) and the rules of the American Arbitration Association (“ AAA ”); provided however that the following rules shall apply, even if they conflict with New York law or the AAA rules: (1) the party seeking to establish a breach shall have the burden of proof; (2) the arbitrators shall have (i) the power to order discovery, including depositions; and (ii) broad powers to fashion appropriate relief, whether monetary damages (including, without limitation, future lost profits) or equitable remedies (including, without limitation, injunctive relief) or both; (3) the arbitrators shall award monetary damages, determined in accordance with this Section 5(c), in the event that the arbitrators determine that the likelihood of commercialization of any product for which royalties may become payable to the Company under any of the Novo Nordisk License Agreements or any Future License Agreement is greater than zero; (4) in fashioning appropriate relief, including future lost profits, the arbitrators shall consider, among other things, (i) the likelihood of commercialization of any product for which royalties may become payable to the Company under any of the Novo Nordisk License Agreements or any Future License Agreement, (ii) the dollar amount of any potential royalties due to the Company and, as a result, the MHR Funds pursuant to Amendment No. 4 or this Agreement, and (iii) the estimated time at which any such payments would be paid; (5) the losing party in any arbitration shall pay all costs of the arbitration, including the arbitrators’ fees and the entirety of the prevailing party’s (or parties’) attorneys’ and expert fees and (6) the arbitrators shall have the power to determine which party is the prevailing party, and which is the losing party, for purposes of payment of costs and fees, and any party who proves a breach of this Agreement may be the prevailing party even without proof of actual damages.