Common use of Arbitration of ACN Maximum Amount Clause in Contracts

Arbitration of ACN Maximum Amount. (a) Cognizant, D&B and ACNielsen expressly agree that any dispute or disagreement concerning the ACN Maximum Amount shall be submitted to binding arbitration and agree that disputes concerning the ACN Maximum Amount shall be resolved by an internationally recognized investment banking firm, as arbitrator, pursuant to the procedures and instructions set forth below. Such arbitrator shall be chosen by ACNielsen, Cognizant and D&B, unless the parties cannot agree within two business days of the determination of the Cognizant/D&B Payment, in which case the arbitrator shall be selected through a random drawing, conducted jointly by the parties, in which each party selects and enters the name of one of the firms listed on Schedule B hereto and the firm whose name is picked in such drawing shall be the arbitrator, provided, however, that if the firm picked is a "Disqualified Firm", the process shall be repeated until the firm picked is not a Disqualified Firm. A "Disqualified Firm" shall be any firm which could reasonably be expected to be partial to one or more parties hereto within the meaning of Section 10(b) of the Federal Arbitration Act. Any firm picked by such drawing shall, within two business days, disclose to each of the parties hereto any and all potential conflicts of interest with respect to any of the parties. The parties shall have two business days from receiving such disclosure to dispute such firm's impartiality. The parties agree that failure to dispute any such firm's impartiality within such period shall constitute a waiver of any right to challenge such firm's impartiality based on facts known or disclosed at such time. Any dispute concerning whether or not a firm is a Disqualified Firm shall be resolved by a single arbitrator, who shall be a lawyer, selected by the parties or, if the parties are unable to agree on an arbitrator within two business days, then one shall be selected by the American Arbitration Association in accordance with its most expeditious procedures. The arbitrator selected to resolve any dispute concerning the impartiality of a proposed investment banking firm shall be instructed to resolve such dispute within ten business days pursuant to the dispute resolution procedures set forth in Section 6.2 of the Distribution Agreement. The place of any such arbitration shall be in New York City, New York. (b) Cognizant, D&B and ACNielsen agree that any arbitrator or arbitrators appointed to resolve any dispute pursuant to Article VI of the Distribution Agreement shall have no right, authority or jurisdiction to determine the ACN Maximum Amount, to resolve any dispute concerning the determination of the ACN Maximum Amount, to resolve any other dispute arising under this Article II, or to prevent, delay or otherwise interfere with any such dispute arbitration or determination, and that any dispute concerning the determination of the ACN Maximum Amount shall only be resolved by an investment banking firm appointed as arbitrator pursuant hereto. The determination of the ACN Maximum Amount and the resolution of any other dispute arising under this Article II by such investment banking firm shall be made without any party hereto asserting any other claims, offsets, defenses or counterclaims. Each of Cognizant, D&B and ACNielsen agrees that notwithstanding any other disputes between or among any of them or any of their respective Subsidiaries under the Distribution Agreement, any Ancillary Agreement or otherwise, such party will not take any action to prevent or delay the arbitration contemplated hereby or claim any right to offset any claim or amount payable hereunder. The parties hereto intend the provisions to arbitrate set forth in this Article II to be valid, enforceable and irrevocable. Any award rendered by the arbitrator shall be final and binding on the parties and their respective Subsidiaries, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof in accordance with Section 5.15 hereof. (c) The investment banking firm chosen as arbitrator to resolve any disputes concerning the ACN Maximum Amount may perform such financial analyses and studies and consider such historical and projected financial information and other data as it deems relevant, and shall afford each party with an opportunity to be heard and to present financial information and other data relevant to the determination of the ACN Maximum Amount. Such investment banking firm shall be directed to make an award determining the ACN Maximum Amount as the maximum amount which, at the time any such IRI Liabilities become payable, ACNielsen is able to pay (assuming the amount of the ACN Payment is zero) after giving effect to (i) any recapitalization or similar corporate transaction, including, without limitation, asset dispositions and/or increased borrowings or other capital raising transactions, that may be submitted pursuant to paragraph (e) below in order to maximize the claims paying ability of ACNielsen (a "Recapitalization Plan"), and (ii) the payment of interest on the ACN Notes and investment banking, legal and other fees and expenses reasonably expected to be incurred in connection with such Recapitalization Plan, without impairing the financial viability of ACNielsen or X.

Arbitration of ACN Maximum Amount. (a) Cognizant, D&B and ACNielsen expressly agree that any dispute or disagreement concerning the ACN Maximum Amount shall be submitted to binding arbitration and agree that disputes concerning the ACN Maximum Amount shall be resolved by an internationally recognized investment banking firm, as arbitrator, pursuant to the procedures and instructions set forth below. Such arbitrator shall be chosen by ACNielsen, Cognizant and D&B, unless the parties cannot agree within two business days of the determination of the Cognizant/D&B Payment, in which case the arbitrator shall be selected through a random drawing, conducted jointly by the parties, in which each party selects and enters the name of one of the firms listed on Schedule B hereto and the firm whose name is picked in such drawing shall be the arbitrator, provided, however, that if the firm picked is a "Disqualified Firm", the process shall be repeated until the firm picked is not a Disqualified Firm. A "Disqualified Firm" shall be any firm which could reasonably be expected to be partial to one or more parties hereto within the meaning of Section 10(b) of the Federal Arbitration Act. Any firm picked by such drawing shall, within two business days, disclose to each of the parties hereto any and all potential conflicts of interest with respect to any of the parties. The parties shall have two business days from receiving such disclosure to dispute such firm's impartiality. The parties agree that failure to dispute any such firm's impartiality within such period shall constitute a waiver of any right to challenge such firm's impartiality based on facts known or disclosed at such time. Any dispute concerning whether or not a firm is a Disqualified Firm shall be resolved by a single arbitrator, who shall be a lawyer, selected by the parties or, if the parties are unable to agree on an arbitrator within two business days, then one shall be selected by the American Arbitration Association in accordance with its most expeditious procedures. The arbitrator selected to resolve any dispute concerning the impartiality of a proposed investment banking firm shall be instructed to resolve such dispute within ten business days pursuant to the dispute resolution procedures set forth in Section 6.2 of the Distribution Agreement. The place of any such arbitration shall be in New York City, New York. (b) Cognizant, D&B and ACNielsen agree that any arbitrator or arbitrators appointed to resolve any dispute pursuant to Article VI of the Distribution Agreement shall have no right, authority or jurisdiction to determine the ACN Maximum Amount, to resolve any dispute concerning the determination of the ACN Maximum Amount, to resolve any other dispute arising under this Article IIII (except in the limited circumstance explicitly set forth in the penultimate sentence of the preceding paragraph), or to prevent, delay or otherwise interfere with any such dispute arbitration or determination, and that any dispute concerning the determination of the ACN Maximum Amount shall only be resolved by an investment banking firm appointed as arbitrator pursuant hereto. The determination of the ACN Maximum Amount and the resolution of any other dispute arising under this Article II by such investment banking firm shall be made without any party hereto asserting any other claims, offsets, defenses or counterclaims. Each of Cognizant, D&B and ACNielsen agrees that notwithstanding any other disputes between or among any of them or any of their respective Subsidiaries under the Distribution Agreement, any Ancillary Agreement or otherwise, such party will not take any action to prevent or delay the arbitration contemplated hereby or claim any right to offset any claim or amount payable hereunder. The parties hereto intend the provisions to arbitrate set forth in this Article II to be valid, enforceable and irrevocable. Any award rendered by the arbitrator shall be final and binding on the parties and their respective Subsidiaries, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof in accordance with Section 5.15 hereof. (c) The investment banking firm chosen as arbitrator to resolve any disputes concerning the ACN Maximum Amount may perform such financial analyses and studies and consider such historical and projected financial information and other data as it deems relevant, and shall afford each party with an opportunity to be heard and to present financial information and other data relevant to the determination of the ACN Maximum Amount. Such investment banking firm shall be directed to make an award determining the ACN Maximum Amount as the maximum amount which, at the time any such IRI Liabilities become payable, ACNielsen is able to pay (assuming the amount of the ACN Payment is zero) after giving effect to (i) any recapitalization or similar corporate transaction, including, without limitation, asset dispositions and/or increased borrowings or other capital raising transactions, that may be submitted pursuant to paragraph (e) below in order to maximize the claims paying ability of ACNielsen (a "Recapitalization Plan"), and (ii) the payment of interest on the ACN Notes and investment banking, legal and other fees and expenses reasonably expected to be incurred in connection with such Recapitalization Plan, without impairing the financial viability of ACNielsen or X.A.

Arbitration of ACN Maximum Amount. (a) Cognizant, D&B and ACNielsen expressly agree that any dispute or disagreement concerning the ACN Maximum Amount shall be submitted to binding arbitration and agree that disputes concerning the ACN Maximum Amount shall be resolved by an internationally recognized investment banking firm, as arbitrator, pursuant to the procedures and instructions set forth below. Such arbitrator shall be chosen by ACNielsen, Cognizant and D&B, unless the parties cannot agree within two business days of the determination of the Cognizant/D&B Payment, in which case the arbitrator shall be selected through a random drawing, conducted jointly by the parties, in which each party selects and enters the name of one of the firms listed on Schedule B hereto and the firm whose name is 11 11 picked in such drawing shall be the arbitrator, provided, however, that if the firm picked is a "Disqualified Firm", the process shall be repeated until the firm picked is not a Disqualified Firm. A "Disqualified Firm" shall be any firm which could reasonably be expected to be partial to one or more parties hereto within the meaning of Section 10(b) of the Federal Arbitration Act. Any firm picked by such drawing shall, within two business days, disclose to each of the parties hereto any and all potential conflicts of interest with respect to any of the parties. The parties shall have two business days from receiving such disclosure to dispute such firm's impartiality. The parties agree that failure to dispute any such firm's impartiality within such period shall constitute a waiver of any right to challenge such firm's impartiality based on facts known or disclosed at such time. Any dispute concerning whether or not a firm is a Disqualified Firm shall be resolved by a single arbitrator, who shall be a lawyer, selected by the parties or, if the parties are unable to agree on an arbitrator within two business days, then one shall be selected by the American Arbitration Association in accordance with its most expeditious procedures. The arbitrator selected to resolve any dispute concerning the impartiality of a proposed investment banking firm shall be instructed to resolve such dispute within ten business days pursuant to the dispute resolution procedures set forth in Section 6.2 of the Distribution Agreement. The place of any such arbitration shall be in New York City, New York. (ba) Cognizant, D&B and ACNielsen agree that any arbitrator or arbitrators appointed to resolve any dispute pursuant to Article VI of the Distribution Agreement shall have no right, authority or jurisdiction to determine the ACN Maximum Amount, to resolve any dispute concerning the determination of the ACN Maximum Amount, to resolve any other dispute arising under this Article II, or to prevent, delay or otherwise interfere with any such dispute arbitration or determination, and that any dispute concerning the determination of the ACN Maximum Amount shall only be resolved by an investment banking firm appointed as arbitrator pursuant hereto. The determination of the ACN Maximum Amount and the resolution of any other dispute arising under this Article II by such investment banking firm shall be made without any party hereto asserting any other claims, offsets, defenses or counterclaims. Each of Cognizant, D&B and ACNielsen agrees that notwithstanding any other disputes between or among any of them or any of their respective Subsidiaries under the Distribution Agreement, any Ancillary Agreement or otherwise, such party will not take any action to prevent or delay the arbitration contemplated hereby or claim any right to offset any claim or amount payable hereunder. The parties hereto intend the provisions to arbitrate set forth in this Article II to be valid, enforceable and irrevocable. Any award rendered by the arbitrator shall be final and binding on the parties and their respective Subsidiaries, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof in accordance with Section 5.15 hereof. (cb) The investment banking firm chosen as arbitrator to resolve any disputes concerning the ACN Maximum Amount may perform such financial analyses and studies and consider such historical and projected financial information and other data as it deems relevant, and shall afford each party with an opportunity to be heard and to present financial information and other data relevant to the determination of the ACN Maximum Amount. Such investment banking firm shall be directed to make an award determining the ACN Maximum Amount as the maximum amount which, at the time any such IRI Liabilities become payable, ACNielsen is able to pay (assuming the amount of the ACN Payment is zero) after giving effect to (i) any recapitalization or similar corporate transaction, including, without limitation, asset dispositions and/or increased borrowings or other capital raising transactions, that may be submitted pursuant to paragraph (e) below in order to maximize the claims paying ability of ACNielsen (a "Recapitalization Plan"), and (ii) the payment of interest on the ACN Notes and investment banking, legal and other fees and expenses reasonably expected to be incurred in connection with such Recapitalization Plan, without impairing the financial viability of ACNielsen or X.12 12