A MEMBER OF THE BOARD OF DIRECTORS
OF A MEMBER OR IS OR WAS A MEMBER, A MEMBER OF THE BOARD OF DIRECTORS OR AN
OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF ANOTHER PERSON AT THE REQUEST OF THE
OPERATING COMPANY, FOR ANY LOSSES SUFFERED OR INCURRED IN CONNECTION WITH SUCH
LITIGATION, UNLESS SUCH PERSON ACTED FRAUDULENTLY OR WITH WILLFUL MISCONDUCT.
NO AMENDMENT OF THIS SECTION 16.13 SHALL AFFECT THE RIGHTS OF THE PARTIES
INDEMNIFIED HEREUNDER WHICH EXIST AS OF THE DATE OF SUCH AMENDMENT.
ARTICLE 17
DISPUTE RESOLUTION
17.1.
DISPUTE RESOLUTION.
ANY DISPUTE ARISING OUT OF OR RELATING TO THIS
AGREEMENT SHALL BE RESOLVED IN ACCORDANCE WITH THE PROCEDURES SPECIFIED IN THIS
SECTION 17.1, WHICH SHALL BE THE SOLE AND EXCLUSIVE PROCEDURE FOR THE RESOLUTION
OF ANY SUCH DISPUTE.
17.1.1
NEGOTIATION BETWEEN EXECUTIVES.
THE MEMBERS SHALL ATTEMPT IN GOOD
FAITH TO RESOLVE ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT
PROMPTLY BY DIRECT NEGOTIATION BETWEEN EXECUTIVES WHO HAVE AUTHORITY TO SETTLE
THE CONTROVERSY AND WHO ARE AT A HIGHER LEVEL OF MANAGEMENT THAN THE PERSONS
WITH DIRECT RESPONSIBILITY FOR ADMINISTRATION OF THIS AGREEMENT, UNLESS THERE IS
NO EXECUTIVE OF A HIGHER LEVEL.
ANY PARTY MAY GIVE THE OTHER PARTY WRITTEN
NOTICE OF ANY DISPUTE NOT RESOLVED IN THE NORMAL COURSE OF BUSINESS.
WITHIN
FIFTEEN (15) DAYS AFTER DELIVERY OF THE NOTICE, THE RECEIVING PARTY SHALL SUBMIT
TO THE OTHER A WRITTEN RESPONSE.
THE NOTICE AND THE RESPONSE SHALL INCLUDE:
(A) A STATEMENT OF EACH PARTY'S POSITION AND A SUMMARY OF ARGUMENTS SUPPORTING
THAT POSITION; AND, (B) THE NAME AND TITLE OF THE EXECUTIVE WHO WILL REPRESENT
THAT PARTY AND OF ANY OTHER PERSON WHO WILL ACCOMPANY THE EXECUTIVE.
WITHIN
THIRTY (30) DAYS AFTER DELIVERY OF THE DISPUTING PARTY'S NOTICE, THE EXECUTIVES
OF EACH MEMBER SHALL MEET AT A MUTUALLY ACCEPTABLE TIME AND PLACE, AND
THEREAFTER AS OFTEN AS THEY REASONABLY DEEM NECESSARY, TO ATTEMPT TO RESOLVE THE
DISPUTE.
ALL REASONABLE REQUESTS FOR INFORMATION MADE BY ONE PARTY TO THE OTHER
WILL BE HONORED.
ALL NEGOTIATIONS PURSUANT TO THIS CLAUSE ARE CONFIDENTIAL AND
SHALL BE TREATED AS COMPROMISE AND SETTLEMENT NEGOTIATIONS FOR PURPOSES OF
APPLICABLE RULES OF EVIDENCE.
17.1.2
MEDIATION WITH MUTUALLY AGREED-UPON NEUTRAL.
IF THE DISPUTE HAS NOT
BEEN RESOLVED BY NEGOTIATION WITHIN FORTY-FIVE (45) DAYS OF THE DISPUTING
PARTY'S NOTICE, OR IF THE MEMBERS FAIL TO MEET WITHIN TWENTY (20) DAYS, THE
MEMBERS SHALL SUBMIT THE DISPUTE TO NON-BINDING MEDIATION UNDER THE THEN-CURRENT
CPR INSTITUTE FOR DISPUTE RESOLUTION'S ("CPR") MODEL MEDIATION PROCEDURE FOR
BUSINESS DISPUTES, AND ENDEAVOR (BUT NOT BE OBLIGATED) TO SETTLE THE DISPUTE IN
SUCH MEDIATION.
CPR'S ADDRESS AT THE TIME OF THIS AGREEMENT IS 366 MADISON
AVENUE, 14TH FLOOR, NEW YORK, NEW YORK 10017 (212-949-6490) AND ITS WEBSITE IS
"."
THE MEMBERS AGREE TO USE THEIR REASONABLE BEST EFFORTS AND
GOOD FAITH TO
39
AGREE MUTUALLY ON A MEDIATOR, TO BE SELECTED FROM THE CPR TECHNOLOGY PANEL OF
NEUTRALS.
IF THE MEMBERS FAIL TO SELECT A MUTUALLY ACCEPTABLE MEDIATOR WITHIN
THIRTY (30) DAYS