Common use of Distribution Agreements and Supply Agreements Clause in Contracts

Distribution Agreements and Supply Agreements. Between the Agreement Date and the Closing, Buyer and Parent shall negotiate in good faith the forms of Distribution Agreements and Supply Agreements, which forms of agreements shall include those terms set forth on Section 5.26 of the Seller Disclosure Schedules under the headings “Distribution Agreements” and “Supply Agreements,” respectively. Each of Buyer and Parent shall appoint one individual who shall serve as the contact person for the purpose of negotiating the Distribution Agreements and Supply Agreements. To the extent that the forms of Distribution Agreements and Supply Agreements cannot be determined by a working group of the appropriate persons and such contact persons within sixty (60) days after the Agreement Date, either Parent or Buyer may initiate a process under which the Contract Representatives would meet in person or by telephone to discuss resolution of the discrete points referred to them for a period of ten (10) days in an attempt to reach a joint resolution. To the extent that the Contract Representatives are unable to resolve any of the points referred to them within such ten (10) day period, the determination of such dispute shall be resolved by binding arbitration conducted by a single arbitrator with relevant experience in transactions comparable to the transactions contemplated by this Agreement and similar distribution or supply services, as applicable, which arbitration shall be conducted in New York City under the Expedited Procedures of the Commercial Arbitration Rules of the American Arbitration Association; provided that if Buyer and Parent cannot agree on an arbitrator within fifteen (15) days after the end of such ten (10) day period, each of Buyer and Parent shall nominate a single representative with such qualifications within five (5) days of the end of such fifteen (15) day period and those two nominated representatives shall be required, within a further ten (10) day period, to select an arbitrator with such qualifications to preside over the arbitration and make the determination. Such arbitration may occur before or after the Closing, and, notwithstanding Section 8.02(b) and Section 8.03(b), the Closing would not be delayed in the event of any dispute over final forms of Distribution Agreements and Supply Agreements, regardless of whether a dispute resolution has commenced; provided, that any such arbitrator would be required to resolve such dispute within a forty-five (45) day period following his or her appointment. Notwithstanding the foregoing, if the dispute between Buyer and Parent pertains to duration, pricing or other issues not impacting the scope of the Distribution Agreements and Supply Agreements, then each of Buyer and Parent shall provide the requested services or products thereunder on and after the Closing Date while such dispute is being resolved pursuant to arbitration at the price previously determined, unless the pricing is in dispute, in which case each of Buyer and Parent shall promptly pay the amount required to be paid by it for such services or products for such period once finally determined. Similarly, if the dispute pertains to the scope of the distribution services or products to be provided, then while such dispute is being resolved pursuant to arbitration, (i) Parent shall provide all distribution services, and provide all products contemplated to be provided by it pursuant to the Supply Agreements, in a manner consistent with those provided to the Business as of the Agreement Date, and (ii) Buyer shall provide all products contemplated to be provided by it pursuant to the Supply Agreements in a manner consistent with those provided to the other businesses of Parent and its Affiliates as of the Agreement Date.

Distribution Agreements and Supply Agreements. Between the Agreement Date and the Closing, Buyer and Parent shall negotiate in good faith the forms of Distribution Agreements and Supply Agreements, which forms of agreements shall include those terms set forth on Section 5.26 of the Seller Disclosure Schedules under the headings “Distribution Agreements” and “Supply Agreements,” respectively. Each of Buyer and Parent shall appoint one individual who shall serve as the contact person for the purpose of negotiating the Distribution Agreements and Supply Agreements. To the extent that the forms of Distribution Agreements and Supply Agreements cannot be determined by a working group of the appropriate persons and such contact persons within sixty (60) days after the Agreement Date, either Parent or Buyer may initiate a process under which the Contract Representatives would meet in person or by telephone to discuss resolution of the discrete points referred to them for a period of ten (10) days in an attempt to reach a joint resolution. To the extent that the Contract Representatives are unable to resolve any of the points referred to them within such ten (10) day period, the determination of such dispute shall be resolved by binding arbitration conducted by a single arbitrator with relevant experience in 84 transactions comparable to the transactions contemplated by this Agreement and similar distribution or supply services, as applicable, which arbitration shall be conducted in New York City under the Expedited Procedures of the Commercial Arbitration Rules of the American Arbitration Association; provided that if Buyer and Parent cannot agree on an arbitrator within fifteen (15) days after the end of such ten (10) day period, each of Buyer and Parent shall nominate a single representative with such qualifications within five (5) days of the end of such fifteen (15) day period and those two nominated representatives shall be required, within a further ten (10) day period, to select an arbitrator with such qualifications to preside over the arbitration and make the determination. Such arbitration may occur before or after the Closing, and, notwithstanding Section 8.02(b) and Section 8.03(b), the Closing would not be delayed in the event of any dispute over final forms of Distribution Agreements and Supply Agreements, regardless of whether a dispute resolution has commenced; provided, that any such arbitrator would be required to resolve such dispute within a forty-five (45) day period following his or her appointment. Notwithstanding the foregoing, if the dispute between Buyer and Parent pertains to duration, pricing or other issues not impacting the scope of the Distribution Agreements and Supply Agreements, then each of Buyer and Parent shall provide the requested services or products thereunder on and after the Closing Date while such dispute is being resolved pursuant to arbitration at the price previously determined, unless the pricing is in dispute, in which case each of Buyer and Parent shall promptly pay the amount required to be paid by it for such services or products for such period once finally determined. Similarly, if the dispute pertains to the scope of the distribution services or products to be provided, then while such dispute is being resolved pursuant to arbitration, (i) Parent shall provide all distribution services, and provide all products contemplated to be provided by it pursuant to the Supply Agreements, in a manner consistent with those provided to the Business as of the Agreement Date, and (ii) Buyer shall provide all products contemplated to be provided by it pursuant to the Supply Agreements in a manner consistent with those provided to the other businesses of Parent and its Affiliates as of the Agreement Date.