Common use of Technical Disputes Clause in Contracts

Technical Disputes. In the event a dispute over (i) whether a Milestone has been achieved, (ii) whether TGTX has used Commercially Reasonable Efforts to Develop the Licensed Product, (iii) the proper allocation of Net Sales to a Licensed Product where the Licensed Product is sold as part of a Combination Product, or (iv) the Combination Percentage (each, a “Technical Dispute”) is not resolved in accordance with the negotiation and mediation dispute resolution processes described in Section 11.1 above, then either Party may submit the matter to expert intervention in accordance with this Section 11.2. Any such intervention may be initiated by a Party by written notice to the other Party specifying the subject of the requested intervention. The Technical Dispute hearings shall be convened in New York, New York and shall be resolved by one expert, to be mutually selected by the Parties; or if the Parties fail to agree on the expert within ten (10) business days following the date of such written notice, then the Parties shall cause their respective nominees to select a third individual within ten (10) business days to serve as the expert (the “Expert”). The Expert shall be required to have pharmaceutical industry experience specifically related to conducting formulation development activities and clinical trials, and shall not be any employee, agent or consultant of any Party or an Affiliate of any Party at such time, or otherwise involved (whether by contract or otherwise) in the affairs of any Party at such time. Each Party simultaneously shall submit to the Expert its proposal with respect to its position on the resolution of the Technical Dispute without having seen the other Party’s proposal, along with a discussion document explaining the rationale therefor. The Expert shall have the right to meet with the Parties, either alone or together, and shall have the right to request additional information and documents from each Party. The Expert shall select only one of the Parties’ proposals based on the Expert’s determination of which proposal is more consistent with the Expert’s opinion on the resolution of the Technical Dispute (and consistent with the terms of this Agreement), and shall provide a brief written rationale for such selection. The Expert’s decision shall be final and shall be binding upon the Parties under this Agreement. The Parties shall submit their documentation to the Expert within fifteen (15) days of selection of the Expert and provide any requested additional information and documents within ten (10) days of such request. The Expert shall make his or her decision within fifteen (15) days of such submission (extended by the Expert in his discretion to provide adequate time to review requested documents but in no event shall the decision be made more than thirty (30) days after submission).

Technical Disputes. In If such Dispute arises primarily from technical issues in respect of the event operation and/or maintenance of Purchaser’s Facility or if the Parties agree to submit a Dispute to an Independent Engineer pursuant to this Section 13.3.2, the Parties shall, within ten (10) Business Days following the expiration of Party Representative Negotiations, appoint an independent and unaffiliated third party, reasonably acceptable to both Parties, who has nationally recognized expertise in the area of dispute over and that has not: (ia) whether a Milestone has been achievedprovided technical, (ii) whether TGTX has used Commercially Reasonable Efforts to Develop the Licensed Product, (iii) the proper allocation of Net Sales financial or engineering assistance to a Licensed Product where the Licensed Product is sold as part Party or any of its Affiliates, of a Combination Product, material nature within the thirty-six (36) months immediately preceding the date of the Notice of Dispute; or (ivb) earned revenue from a Party or any of its Affiliates that exceed five percent (5%) of the Combination Percentage Independent Engineer’s annual review in any of the five (each, a 5) calendar years preceding the date of the Notice of Dispute (the “Technical DisputeIndependent Engineer”). If the Parties are unable to agree on an Independent Engineer within such ten (10) is not resolved in accordance with the negotiation and mediation dispute resolution processes described in Section 11.1 aboveBusiness Day period, then either Party may submit each of the matter to expert intervention in accordance with this Section 11.2. Any such intervention may be initiated by Seller and Purchaser respectively shall within a Party by written further ten (10) Business Days give notice to the other Party specifying of its Independent Engineer and the subject of the requested intervention. The Technical Dispute hearings shall be convened in New York, New York and shall be resolved by one expert, to be mutually Independent Engineers selected by the Parties; or if Parties shall as soon as possible thereafter, appoint a third Independent Engineer who shall act as the Independent Engineer. Alternatively, the Parties fail may agree at any time during the Term as to agree on the expert within ten (10identity of the Independent Engineer(s) business days following the date of such written notice, then the Parties to which disputes submitted for resolution pursuant to this Section 13.3.2 shall cause their respective nominees to select a third individual within ten (10) business days to serve as the expert (the “Expert”)be submitted for determination. The Expert dispute described in the applicable notice shall be required submitted to have pharmaceutical industry experience specifically related to conducting formulation development activities and clinical trialsthe Independent Engineer selected in the manner herein provided for determination, and shall not be any employee, agent or consultant of any Party or an Affiliate of any Party at such time, or otherwise involved (whether by contract or otherwise) in the affairs of any Party at such time. Each Party simultaneously shall submit to the Expert its proposal with respect to its position on the resolution decision of the Technical Dispute without having seen the other Party’s proposal, along with a discussion document explaining the rationale therefor. The Expert shall have the right to meet with the Parties, either alone or together, and shall have the right to request additional information and documents from each Party. The Expert shall select only one of the Parties’ proposals based on the Expert’s determination of which proposal is more consistent with the Expert’s opinion on the resolution of the Technical Dispute (and consistent with the terms of this Agreement), and shall provide a brief written rationale for such selection. The Expert’s decision Independent Engineer shall be final and shall be binding upon on the Parties under this Agreement. The Parties shall submit their documentation to the Expert within fifteen (15) days of selection of the Expert and provide any requested additional information and documents within ten (10) days of such request. The Expert shall make his or her decision within fifteen (15) days of such submission (extended by the Expert in his discretion to provide adequate time to review requested documents but in no event shall the decision be made more than thirty (30) days after submission)Parties.

Technical Disputes. In the event If a dispute over (i) whether a Milestone has been achieved, (ii) whether TGTX has used Commercially Reasonable Efforts to Develop the Licensed Product, (iii) the proper allocation Notice of Net Sales Dispute relates to a Licensed Product where the Licensed Product Dispute that is sold as part of a Combination Product, or technical in nature (iv) the Combination Percentage (each, a “Technical Dispute”) is not resolved in accordance with the negotiation and mediation ), such Dispute shall be submitted to an Independent Expert for expedited dispute resolution processes described in Section 11.1 above, then either Party may submit pursuant to the matter to expert intervention in accordance with following provisions of this Section 11.223.2(a). Any such intervention may be initiated by a The Parties shall negotiate in good faith to select an Independent Expert. If the Parties cannot agree within five (5) Business Days then the Party by written initiating the dispute (the “Dispute Initiator”) shall send notice to the other Party specifying proposing two potential independent engineers set forth in the subject definition of “Independent Expert”. The other Party shall then have two (2) Business Days after receipt of such notice to select an Independent Expert from such two (2) potential independent engineers identified in such notice. If the other Party does not make a selection within such two (2)-Business Day period, the Dispute Initiator shall select an Independent Expert from such two (2) potential independent engineers identified in such notice. The Parties shall formalize their positions regarding the dispute in writing within four (4) Days of the requested interventionsubmission of the Technical Dispute and submit such positions to the Independent Expert. The Parties and the Independent Expert shall meet at the Site within five (5) Business Days of the Independent Expert’s receipt of the materials referenced in the immediately preceding sentence and the Independent Expert shall issue a binding ruling that both Parties will obey within five (5) Business Days thereof. The Party that will pay for the Independent Expert and all costs related thereto shall be the losing Party, as determined by the Independent Expert. Any Dispute other than a Technical Dispute hearings that is not settled to the mutual satisfaction of the Parties within the applicable notice or cure periods provided in this Agreement or pursuant to Section 23.1, may proceed to court pursuant to Section 23.3 unless the Parties mutually agree in writing to resolve such Dispute by arbitration as provided herein. If the Parties elect to pursue arbitration, upon the expiration of the thirty (30) Day negotiation period set forth in Section 23.1, either Party may submit such Dispute to arbitration by providing a written demand for arbitration to the other Party, and such arbitration shall be convened conducted in New York, New York and accordance with the Rules of the AAA for the Resolution of Construction Industry Disputes (the “Arbitration Rules”) in effect on the date that the submitting Party gives notice of its demand for arbitration under this Section 23.2. The arbitration shall be resolved by one expert, to be mutually selected conducted at a location as agreed by the Parties; , or if the Parties fail to agree on cannot so agree, the expert within ten (10) business days following arbitration shall be conducted in Salt Lake County, Utah. Unless otherwise agreed by the date Parties, discovery shall be conducted in accordance with the Federal Rules of such written notice, then Civil Procedure and the Parties shall cause their respective nominees be entitled to select a third individual within ten (10) business days to serve as submit expert testimony or written documentation in the expert (the “Expert”)arbitration proceeding. The Expert shall be required to have pharmaceutical industry experience specifically related to conducting formulation development activities and clinical trials, and shall not be any employee, agent or consultant of any Party or an Affiliate of any Party at such time, or otherwise involved (whether by contract or otherwise) in the affairs of any Party at such time. Each Party simultaneously shall submit to the Expert its proposal with respect to its position on the resolution decision of the Technical Dispute without having seen the other Party’s proposal, along with a discussion document explaining the rationale therefor. The Expert shall have the right to meet with the Parties, either alone or together, and shall have the right to request additional information and documents from each Party. The Expert shall select only one of the Parties’ proposals based on the Expert’s determination of which proposal is more consistent with the Expert’s opinion on the resolution of the Technical Dispute (and consistent with the terms of this Agreement), and shall provide a brief written rationale for such selection. The Expert’s decision arbitrator(s) shall be final and binding upon Owner and Contractor and shall be binding upon set forth in a reasoned opinion, and any award may be enforced by Owner or Contractor, as applicable, in any court of competent jurisdiction. Any award of the Parties under arbitrator(s) shall include interest from the date of any damages incurred for breach of this Agreement, and from the date of the award until paid in full, at a rate equal to the lesser of (i) the rate published by the Wall Street Journal as the “prime rate” on the Business Day preceding the date on which such interest begins to accrue plus two percent (2%) and (ii) the maximum rate allowed under Applicable Law. Each of Owner and Contractor shall bear its own cost of preparing and presenting its case; however, the prevailing party in such arbitration shall be awarded its reasonable attorney’s fees, expert fees, expenses and costs incurred in connection with the Dispute. The Parties fees and expenses of the arbitrator(s), and other similar expenses, shall submit their documentation initially be shared equally by Owner and Contractor, subject to reimbursement of such arbitration costs and attorney’s fees and costs to the Expert prevailing party. The arbitrator(s) shall be instructed to establish procedures such that a decision can be rendered within fifteen ninety (1590) days of selection Days after the appointment of the Expert and provide any requested additional information and documents within ten (10) days of such requestarbitrator(s). The Expert shall make his arbitration may include, by consolidation or her decision within fifteen joinder or in any other manner, any additional persons or entities if (151) days such persons or entities are materially involved in a common issue of law or fact in dispute and (2) such submission (extended by the Expert in his discretion persons or entities are either contractually bound to provide adequate time arbitrate or otherwise consent to review requested documents but in no event shall the decision be made more than thirty (30) days after submission)arbitration.

Technical Disputes. In 13.2.1 If a Dispute occurs between the event a dispute over (i) whether a Milestone has been achieved, (ii) whether TGTX has used Commercially Reasonable Efforts to Develop the Licensed Product, (iii) the proper allocation of Net Sales parties in relation to a Licensed Product where the Licensed Product is sold as part matter of a Combination Product, or technical nature (iv) the Combination Percentage (each, a “Technical Dispute”) is not resolved in accordance with the negotiation and mediation dispute resolution processes described in Section 11.1 above, then either Party may submit the matter to expert intervention in accordance with this Section 11.2. Any such intervention may be initiated by a Party by written notice to the other Party specifying the subject of the requested intervention. The Technical Dispute hearings shall be convened in New York, New York and shall be resolved by one expert, to be mutually selected by the Parties; or if the Parties fail to agree on the expert within ten (10) business days following the date of such written notice, then the Parties shall cause their respective nominees to select a third individual within ten (10) business days to serve as the parties will appoint an independent technical expert (the “Technical Expert”)) to resolve the Technical Dispute. The Expert If the parties cannot agree in good faith that a Dispute is a Technical Dispute, such Dispute shall be required submitted to have pharmaceutical industry experience specifically related to conducting formulation development activities and clinical trials, and shall not be any employee, agent or consultant of any Party or an Affiliate of any Party at such time, or otherwise involved (whether by contract or otherwise) in the affairs of any Party at such time. Each Party simultaneously shall submit Arbitration pursuant to the Expert its proposal with respect procedures described in Section 13.3 provided that the Arbitrator shall also determine whether the Dispute is a Technical Dispute and, if so determined, the expenses of the Arbitration and any related out-of-pocket expenses shall be borne by the party which had maintained that the Dispute was not a Technical Dispute. 13.2.2 If the parties are unable to its position on agree to the appointment of the Technical Expert, within thirty (30) days from the notice of a party to the other party requesting the resolution of the Technical Dispute without having seen Dispute, the other Party’s proposalTechnical Expert may be appointed by a judge of the Superior Court of Justice of the Province of Ontario, along with a discussion document explaining the rationale therefor. upon motion of either party. 13.2.3 The Technical Expert shall be appointed on the condition that it (i) renders a decision with full reasons within sixty (60) days after the date of its appointment, (ii) promptly fixes a reasonable time and place for receiving representations, submissions, or information from the parties, and (iii) the Technical Expert issues directions to the parties for the proper conduct of any hearing. 13.2.4 The parties undertake to provide the Technical Expert with all evidence and information within their respective possession or control as the Technical Expert may consider reasonably necessary for determining the Technical Dispute or that is relevant to and bears upon the matter to be determined. 13.2.5 Each party may appoint such lawyers, consultants, and advisers as it feels appropriate to assist the Technical Expert in making a determination and to present its case, provided that the parties shall cooperate and seek to narrow and limit the issues to be determined. 13.2.6 If within sixty (60) days of being appointed, the Technical Expert shall not have the right to meet rendered a decision in accordance with the Partiesappointment, a new Technical Expert may (at the request of either alone or togetherparty) be appointed and the appointment of the existing Technical Expert shall cease for the purpose of determining the Technical Dispute, and provided that if the existing Technical Expert renders a decision with full reasons prior to the appointment of a new Technical Expert, then the decision shall have effect and the right to request additional information and documents from each Party. The proposed appointment of the new Technical Expert shall select only one of the Parties’ proposals based on the Expert’s be without effect. 13.2.7 The determination of which proposal is more consistent with the Expert’s opinion on the resolution of the Technical Dispute (Expert shall, except in the event of fraud or material mistake in fact, be final, without appeal and consistent with the terms of this Agreement), and shall provide a brief written rationale for such selection. The Expert’s decision shall be final and shall be binding upon the Parties under this Agreement. The Parties parties. 13.2.8 Except as provided in Section 13.2.1, each party shall submit their documentation bear the costs and expenses of all lawyers, consultants, advisers, witnesses, and employees retained by it in any Technical Dispute referred to a Technical Expert, and the Expert within fifteen (15) days of selection costs and expenses of the Expert and provide any requested additional information and documents within ten (10) days of such request. The Technical Expert shall make his or her decision within fifteen (15) days of such submission (extended be borne equally by the Expert in his discretion to provide adequate time to review requested documents but in no event shall the decision be made more than thirty (30) days after submission)parties.

Technical Disputes. In the event If a dispute over (i) whether a Milestone has been achieved, (ii) whether TGTX has used Commercially Reasonable Efforts to Develop the Licensed Product, (iii) the proper allocation Notice of Net Sales Dispute relates to a Licensed Product where the Licensed Product Dispute that is sold as part of a Combination Product, or technical in nature (iv) the Combination Percentage (each, a “Technical Dispute”) is not resolved in accordance with the negotiation and mediation ), such Dispute shall be submitted to an Independent Expert for expedited dispute resolution processes described in Section 11.1 above, then either Party may submit pursuant to the matter to expert intervention in accordance with following provisions of this Section 11.228.2(a). Any such intervention may be initiated by a The Parties shall negotiate in good faith to select an Independent Expert. If the Parties cannot agree within five (5) Business Days then the Party by written initiating the dispute (the “Dispute Initiator”) shall send notice to the other Party specifying proposing two potential independent engineers set forth in the subject definition of “Independent Expert”. The other Party shall then have two (2) Business Days after receipt of such notice to select an Independent Expert from such two (2) potential independent engineers identified in such notice. If the other Party does not make a selection within such two (2)-Business Day period, the Dispute Initiator shall select an Independent Expert from such two (2) potential independent engineers identified in such notice. The Parties shall formalize their positions regarding the dispute in writing within four (4) Days of the requested interventionsubmission of the Technical Dispute and submit such positions to the Independent Expert. The Parties and the Independent Expert shall meet at the Site within five (5) Business Days of the Independent Expert’s receipt of the materials referenced in the immediately preceding sentence and the Independent Expert shall issue a binding ruling that both Parties will obey within five (5) Business Days thereof. The Party that will pay for the Independent Expert and all costs related thereto shall be the losing Party, as determined by the Independent Expert. Any Dispute other than a Technical Dispute hearings that is not settled to the mutual satisfaction of the Parties within the applicable notice or cure periods provided in this Agreement or pursuant to Section 28.1, may proceed to court pursuant to Section 28.3 unless the Parties mutually agree in writing to resolve such Dispute by arbitration as provided herein. If the Parties elect to pursue arbitration, upon the expiration of the thirty (30) Day negotiation period set forth in Section 28.1, either Party may submit such Dispute to arbitration by providing a written demand for arbitration to the other Party, and such arbitration shall be convened conducted in New York, New York and accordance with the Rules of the AAA for the Resolution of Construction Industry Disputes (the “Arbitration Rules”) in effect on the date that the submitting Party gives notice of its demand for arbitration under this Section 28.2. The arbitration shall be resolved by one expert, to be mutually selected conducted at a location as agreed by the Parties; , or if the Parties fail to agree on cannot so agree, the expert within ten (10) business days following arbitration shall be conducted in Salt Lake County, Utah. Unless otherwise agreed by the date Parties, discovery shall be conducted in accordance with the Federal Rules of such written notice, then Civil Procedure and the Parties shall cause their respective nominees be entitled to select a third individual within ten (10) business days to serve as submit expert testimony or written documentation in the expert (the “Expert”)arbitration proceeding. The Expert shall be required to have pharmaceutical industry experience specifically related to conducting formulation development activities and clinical trials, and shall not be any employee, agent or consultant of any Party or an Affiliate of any Party at such time, or otherwise involved (whether by contract or otherwise) in the affairs of any Party at such time. Each Party simultaneously shall submit to the Expert its proposal with respect to its position on the resolution decision of the Technical Dispute without having seen the other Party’s proposal, along with a discussion document explaining the rationale therefor. The Expert shall have the right to meet with the Parties, either alone or together, and shall have the right to request additional information and documents from each Party. The Expert shall select only one of the Parties’ proposals based on the Expert’s determination of which proposal is more consistent with the Expert’s opinion on the resolution of the Technical Dispute (and consistent with the terms of this Agreement), and shall provide a brief written rationale for such selection. The Expert’s decision arbitrator(s) shall be final and binding upon Owner and Contractor and shall be binding upon set forth in a reasoned opinion, and any award may be enforced by Owner or Contractor, as applicable, in any court of competent jurisdiction. Any award of the Parties under arbitrator(s) shall include interest from the date of any damages incurred for breach of this Agreement, and from the date of the award until paid in full, at a rate equal to the lesser of (i) the rate published by the Wall Street Journal as the “prime rate” on the Business Day preceding the date on which such interest begins to accrue plus two percent (2%) and (ii) the maximum rate allowed under Applicable Law. Each of Owner and Contractor shall bear its own cost of preparing and presenting its case; however, the prevailing party in such arbitration shall be awarded its reasonable attorney’s fees, expert fees, expenses and costs incurred in connection with the Dispute. The Parties fees and expenses of the arbitrator(s), and other similar expenses, shall submit their documentation initially be shared equally by Owner and Contractor, subject to reimbursement of such arbitration costs and attorney’s fees and costs to the Expert prevailing party. The arbitrator(s) shall be instructed to establish procedures such that a decision can be rendered within fifteen ninety (1590) days of selection Days after the appointment of the Expert and provide any requested additional information and documents within ten (10) days of such requestarbitrator(s). The Expert shall make his arbitration may include, by consolidation or her decision within fifteen joinder or in any other manner, any additional persons or entities if (151) days such persons or entities are materially involved in a common issue of law or fact in dispute and (2) such submission (extended by the Expert in his discretion persons or entities are either contractually bound to provide adequate time arbitrate or otherwise consent to review requested documents but in no event shall the decision be made more than thirty (30) days after submission)arbitration.